The Pistorius Case: What Is Murder In Canada May Not Be Murder In South Africa

The Pistorius case is both intriguing and disturbing on many levels. There is of course the intrigue occasioned by our celebrity fascination when a public figure is accused of a crime. This tabloid-level of interest tends to wan once the court dates become less frequent and the trial date is finally set. There is also the disturbing aspect arising out of the media’s push to reveal, unfiltered, the personal information of the parties involved, including intimate details of their relationship and their families’ shock and horror of the events. This tawdriness becomes even more magnified in the unbounded information world of the Internet.

But after the excitement of the situation diffuses, what lingers on is the legal speculation with not only the type of charges laid but also the manner in which the charges will be proven in court. In a case such as Pistorius, this legal fascination is compounded by the exotic quality of the case as it raises legal issues outside of the usual North American purview. Instead of the media calling and quoting local law professors, the press must dig deeper to present an understandable context to the foreign charges.

The initial reports immediately delineated the charge: “premeditated murder.” Even without legal training, the concept of “premeditation” seems straightforward and easily visualized. However, in reality, the South African concept of murder is anything but simple. Murder, an intentional killing, is distinguished from “culpable homicide,” a negligence based killing. Premeditation would suggest, not only an intentional killing, but also one, which is planned and deliberate, similar to the first-degree requirements in Canadian law found in s. 231(2) of the Criminal Code.

But the concept of “murder” has shifting meanings in South African law as well. Originally, South African criminal law followed the common law precepts of providing for a reduced form of homicide, known as “culpable homicide,” resulting from a provoked killing. Such provocation, based in the common law, occurs when the killing is committed in the heat of passion, before passion has time to cool, and in circumstances where an ordinary person would lose control. This concept of a partial defence based on provocation was a concession to the availability of the death penalty, since removed in 1997, as the Dutch legal tradition treated emotional excuses as mitigating sentence only.

In Canada, consistent with our common law tradition, we too have a partial defence to murder based on the common law provocation defence as codified in s.232 of the Criminal Code. When provocation is accepted as a defence in Canada, the murder charge under s.229 of the Criminal Code is reduced to the lesser but included offence of manslaughter. Manslaughter is defined in s.234 of the Criminal Code as culpable homicide that is not murder or infanticide and therefore can be assumed to be an unintentional killing of a human being. The Canadian concept of “culpable homicide,” as found in s.222 of the Criminal Code, is not an in-between state of unintentional murder as in South Africa but is the general category for all culpable or blameworthy killings of a human being be it murder, manslaughter, or infanticide. Any killings not found to be murder, manslaughter or infanticide is non-culpable or not blameworthy and therefore the accused, although still responsible for causing the death of a person, is not guilty of a crime.

South Africa, however, ultimately rejected the common law view of provocation, which considered the presence of intention, for a more nuanced approach in which provocation, defined as the even broader categorization of emotional stress, was connected to an individual’s capacity to form the requisite intent. Thus, the presence of emotional stress was treated like the presence of intoxication or insanity. South African criminal law then further compartmentalized capacity by labeling insanity as pathological incapacity while emotional stress and intoxication raised issues of non-pathological incapacity. With this shift from intention to capacity, provocation or emotional stress was no longer viewed as a partial defence resulting in a finding of culpable homicide but as a full defence requiring an acquittal. This is consistent with legal principles, as an accused, not even capable of forming an intention to act, cannot be viewed as responsible and therefore cannot be properly within the domain of the criminal justice system. Although, the South African courts have resiled to a certain extent from this position, particularly where the incapacity is emotion-driven, it appears provocation, depending on the circumstances, may be a full defence to murder.

This broadening of capacity and the removal of a partial defence re-aligned the South African concepts of culpable homicide and murder, separating these two offences through the concepts of dolus and culpa. Dolus is the malicious intention required for murder, while culpable homicide requires no dolus but culpa or negligence. This is not the same concept as the criminal negligence required for Canadian manslaughter. In Canada, manslaughter is based on a broader assessment of an accused’s objective forseeability of bodily harm where death ensues and does not require the foresight of death, as long as the underlying act is itself objectively dangerous or based on criminal negligence. Conversely, in South Africa, if an accused could reasonably foresee death ensuing as a result of his or her actions, he or she is guilty of culpable homicide.

What does this mean for Oscar Pistorius? Reviewing the news reports, this means the prosecution is pursuing murder or an intentional killing charge as opposed to a culpable homicide charge. This is based also on some of the evidence, which suggests a baseball bat was used in the crime. Pistorius’s plea of not guilty on the basis of an accidental killing also leaves no room for consideration of culpable homicide. As the facts shift and change, and as the trial publically unfolds, so too will the law reveal further possibilities in this tragic case of celebrity misconduct.

Reasonable And Probable Grounds and Philosophy’s Theory of Knowledge

In an effort to increase my knowledge, I decided to take a MOOC or Massive Open On-line Course offered by Coursera. I chose Introduction of Philosophy taught through the University of Edinburgh. Admittedly, I am finding the course a bit elementary but what did interest me was the lecture on Epistemology and the Theory of Knowledge, a philosophical area concerned with “knowledge-that” as opposed to “knowledge-how.” “Knowledge how” is how we know to do certain tasks – how to build a birdhouse, for instance. “Knowledge that” or propositional knowledge involves knowing that birds fly or knowing that s.265 is the assault section in the Criminal Code.

Plato was the first philosopher to detail the requirements of propositional knowledge, which is known as the “traditional” analysis of knowledge. Propositional knowledge or how someone knows a proposition is true, according to Plato, is based on three criteria. First, the knowledge must be believed by the person proposing it, meaning that one can only know something if they believe it. Second, the knowledge must be true. Thus, even if we believe in a state of facts, if that belief state is not true, there is no knowledge. This criterion requires objective truth. Third and lastly, there must be a justification for believing the knowledge is true. In other words, we must be able to articulate, based on “sound reasoning and solid evidence,” why we believe the knowledge to be true. If all three criteria are present, then the knowledge is accepted as true knowledge as opposed to “random” knowledge, which is based on a “lucky guess.”

All of this sounds very familiar and it should sound familiar as indeed in the legal arena, this Theory of Knowledge is used. For example, in criminal procedure, before a police officer can arrest an accused he must have reasonable and probable grounds or RPG for the arrest. There is no “fixed” definition of rpg, primarily due to the Charter, which prefers a contextual approach to determining whether or not an officer has RPG in the circumstances of each case. However, there are descriptions of rpg in differing areas of the law, which seem to be consistent. For instance, RPG is similar to the traditional English concept of “reasonable and probable cause” required for prosecuting a malicious prosecution case. The term is defined in the 1938 English House of Lords case Herniman v. Smith where Lord Atkin described it as

… an honest belief in the guilt of the accused based upon a full conviction, founded upon reasonable grounds, of the existence of a state of circumstances, which, assuming them to be true, would reasonably lead any ordinarily prudent and cautious man, placed in the position of the accuser, to the conclusion that the person charged was probably guilty of the crime imputed.

In the Supreme Court of Canada, the Court came to similar conclusions in Bernshaw when Madame Justice L’Heureux-Dube commented on previous decisions, which called rpg “credibility-based probability” and “reasonable probability.” Despite, no single definition for the concept, there seems to be a very good general understanding of what RPG means. This differs from the concept of “reasonable suspicion,” which, according to Kang-Brown “means something more than a mere suspicion and something less than a belief based upon reasonable and probable grounds.” As discussed in a previous blog, the SCC will clarify “reasonable suspicion,” hopefully, when they release the judgments on two sniffer dog cases, MacKenzie and Chehil.

Clearly, the concept of RPG is Plato’s propositional knowledge, which is fulfilled when the person has a sincere belief in a true set of facts based on justifiable reasons.

However, not all philosophers have agreed with Plato’s Theory of Knowledge. Edmund Gettier did not agree that justified true belief was knowledge. To support his dissent, he created what is known as Gettier Counterexamples or Gettier Cases, which present situations where Plato’s Theory fails.

Two Gettier Counterexamples were given in the lecture I watched. One counterexample was called The Stopped Clock Case. In this case, every day you pass by a clock and check the time. One morning you pass by the clock, which shows the time as 7:00 a.m. As you have taken time from this clock countless of times before, you sincerely believe the time is correct and your objective belief is justified, as the clock has been correct every other time you have used the clock. Indeed, it is 7:00 a.m. However, the clock is not working and had stopped at 7:00 a.m. the previous morning. It is just luck that you happened to glance at the clock when it apparently showed the correct time. Although on the surface, Plato’s Theory was fulfilled, in actuality the sincere belief was not premised on truth.

These fallacies show that knowledge is not necessarily justifiable true belief. Yet, it is this very premise – that knowledge can be justified if it is based on a true belief – which lies at the heart of reasonable and probable grounds. It is possible, therefore, that what is accepted as RPG is merely a Gettier Case and should not form the basis of a criminal charge. Perhaps, it is time to rethink even the basic propositions of criminal law to ensure we have a relevant and viable system.

Not only, did this MOOC make me think, but it also left me wondering; does the law need fewer lawyers and more philosophers?

Not To Make Excuses, But - The (Un)Responsiveness of the Supreme Court of Canada To Duress

The new Supreme Court of Canada decision on duress highlights the limitations of our English common law system. In that system, an articulated defence cannot be found for Nicole Ryan who, as a result of years of abuse and threats, acted contrary to the law because she could not act in any other way. Although ultimately the result was a veiled recognition of this, the manner in which the SCC came to the result was a clear and unequivocal endorsement of the rule of law.

There are many reasons for not broadening the restrictive application of excuses in our criminal law. One reason involves the dynamics of excuses: such a defence is predicated on the commission of a crime, where both the unlawful act, or actus reus, and the criminal intention, or the mens rea, has been proven beyond a reasonable doubt. In a world without excuses, a completed offence labels the alleged accused as a convicted offender with all of the responsibility and accountability that goes with such a designation. The next step involves the manner of the State's response to such abhorrent behaviour. The next step is punishment and the meting out of sentence, crafted in bespoke fashion to fit the particular circumstances of the case and the specific background of the offender. In the sentencing forum, discretion and compassion is allowed. But why do such considerations have no part in the determination of guilt?

This can only be answered by reading legal theorist George P. Fletcher’s essay on The Individualization of Excusing Conditions. According to Fletcher, his call for individualization envisions a criminal law, not shackled by the constraints of the English common law system, but set free by compassion, where the unique frailties of an individual are taken into account in determining criminal responsibility. The focus is therefore on the person, the very human being who was faced with very real extraordinary circumstances, and who had no choice but to act in an extraordinary manner. Fletcher argues to connect excuses to the individual's personal make-up creates more reasonable and rational outcomes than the English common law's desire to connect actions to an ephemeral and superficial "reasonable" person. To use a reasonable person standard in assessing criminal liability constructs a false rule of law bent on dehumanizing the law. When that happens, argues Fletcher, all we have left are stark, disembodied rules imposed in restrictive and unrealistic circumstances. 

In this restrictive world, Fletcher suggests, any prospects of individualization is pushed away onto the fringes of the criminal justice system to reside in the "semi-secret" sentencing arena. Sentencing, as a forum for individualization, permits discretion and compassion but, as Fletcher points out, such flexibility comes too late. Sentencing is for the guilty, not for those who should be viewed by society as innocent. 

In the Ryan case, the SCC followed the strictures of the English common law and thus the rule of law and failed to take the much needed bold step toward individualization. This is not surprising considering the slow dance the SCC has taken towards objective mens rea as the standard for crime as opposed to subjective mens rea - the last bastion of the individual. For further discussion see my previous posting Is This The End Of Subjective Intention?The Supreme Court of Canada and the Walle Case. 

Although the end result crafted by the SCC, in some way, vindicates Nicole Ryan, it is cold comfort to those facing dire situations, who must rely on excuses as a defence. In those cases, justice comes in the form of "semi-secret" pronouncements and extraordinary remedies and not where it counts - in assessing the true nature of criminal liability.