The Problematic Revival of Section 229(c) of the Criminal Code

30 Pages Posted: 29 Jun 2010

See all articles by Kent Roach

Kent Roach

University of Toronto - Faculty of Law

Date Written: May 1, 2010


This article examines the increased use of the murder offense under s. 229(c) of the Criminal Code. It outlines how the objective foresight of death arm of s. 229(c) was struck down by the Supreme Court of Canada in R. v. Martineau, but still has not been repealed by Parliament. Three unfortunate cases are examined where trial judges erred by leaving the jury a copy of s. 229(c) with its unconstitutional objective arm present. The article examines the pre-Charter jurisprudence on s. 229(c) and suggests that the requirement that the accused have an unlawful object that is distinct from the actions that led to the death of the victim is still an important requirement. It then focuses on the second and most important mens requirement of s. 229(c), namely the requirement that the accused know that death was likely to occur. This fault requirement is examined and contrasted with recklessness and objective foresight of death, both of which are not constitutionally sufficient for a murder conviction. It is argued that some recent cases have treated accidental deaths during the pursuit of an unlawful object as murder under s. 229(c) and that such a result violates s. 7 of the Charter, including principles of fundamental justice that accidental deaths not be punished as murder and that unintentional harms not be punished as severely as intentional harms.

Keywords: murder, s. 229(c), Criminal Code, objective foresight of death, Martineau, unlawful object, fault requirement, principles of fundamental justice

Suggested Citation

Roach, Kent, The Problematic Revival of Section 229(c) of the Criminal Code (May 1, 2010). Alberta Law Review, Vol. 47, No. 3, 2010, Available at SSRN:

Kent Roach (Contact Author)

University of Toronto - Faculty of Law ( email )

Toronto, Ontario M5S 1A1
416-946-5645 (Phone)
416-978-2648 (Fax)

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