Inertia, Uncertainty, and Canadian Homicide Law: An Introduction to the Special Issue

Abstract

The government’s reluctance to reform the law of homicide can be observed in both the United Kingdom and Canada. This collection of essays contained within the special issue entitled “Rethinking Canadian Homicide Law” exposes some of the uncertainties in Canadian homicide law. Every article either urges legislative reform to address the ambiguities that exist in Canadian homicide law, or demonstrates the efficacy with which legislative reform can change problematic judicial attitudes. Professor Larry Wilson in his article on the law of manslaughter argues that although the Supreme Court has recently clarified certain issues surrounding this offence, there remains much that needs to be resolved by Parliament. Professor Kent Roach’s article on unlawful object murder demonstrates that legislative inertia surrounding the murder provisions has led to cases overturning murder convictions and ordering new trials because trial judges have left juries with s. 229(c) that still includes an unconstitutional negligence arm. Professor Sanjeev Anand’s article on infanticide outlines a number of unclear aspects concerning the offence/defence and he makes suggestions about the proper interpretation of the infanticide provisions by resorting to a number of means including the legislative history of the provisions. Professor Wayne Renke in his article tackles the subject of provocation head-on by noting that there have been calls for the repeal of the controversial partial defence for condoning and privileging homicidal and often male rage. The article by Professor Isabel Grant makes a connection between substantive law and sentencing law by examining sentencing trends for men who kill their intimate partners. In conclusion, it is hoped that the articles will provide some assistance to both Parliament and the courts as they struggle with the many ambiguities and anachronisms that unfortunately pervade Canadian homicide laws.

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