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.

Criminal Law and the Science of Prediction

It was a devastating earthquake on many levels: loss of life as over three hundred people died, loss of property as buildings crumbled, and loss of history as an ancient medieval fortress town came tumbling down. All it took was seconds as the earth shook on April 6,2009 in the tiny hilltop village of L’Aquila, Italy. Yet, behind the disaster were years of earthquake readiness and scientific predictions. Behind the devastation was months of tremors; warning signs that something was not quite right. Yet, disasters happen and this one certainly did.

But was there someone to blame? The government thought so when they charged six scientists and one government official with manslaughter. Finally, after a lengthy trial, on October 22, 2012, Judge Marco Billi found them guilty of manslaughter and sentenced them to six years imprisonment. Those convicted included the head of the Serious Risks Commission, the Director of the National Earthquake Centre, and a physicist. The prosecutor built a case of mismanagement, inaccuracy, and the withholding of crucial information, which could have saved lives. The defence emphasized the unpredictability of earthquake prediction and the “chill effect” such a verdict would bring. Indeed after the verdict, a number of Italian scientists quit government posts as scientists across the globe warned of the harmful effects the verdict would have on future research efforts.

There are clearly two sides to the issue but, when looked at more closely, the two sides are not in opposition. The prosecutor is correct in characterizing erroneous or even untimely information as an act or omission, which can and should ground a criminal charge. In Canada, manslaughter requires an underlying unlawful act, which can be viewed as objectively dangerous in nature, which then causes the death of a human being.  Here, the allegation the scientists knowingly mislead the people of L’Aquila, may be a basis for such a manslaughter charge.

However, a mere failure to accurately predict a major disaster is not, in itself, a basis for a manslaughter charge. If it were, the defence’s concern that such prosecution would curtail scientific innovation would be correct. Such a prosecution would be the antithesis of the scientific method. A scientific hypothesis must be first tested before accepted. If the experiment does not produce the results expected, then the hypothesis is modified: such trial and error is needed to produce a final result. Without the ability to make mistakes with impunity, many medical treatments would not be developed.

There is also the difficulty with predictions, whether under the rubric of science or not as seen by the successes and failures of polls and the pollsters who interpret them. As Nate Silver, predictor extraordinaire, explains in his new book "The Signal and the Noise," although some outcomes are predictable if we crunch enough numbers and gather enough data, some, like earthquake prediction, is not possible at this time. How then can we expect a standard of behaviour in an area that is impossibly non-standard?

There is also, a “half-way” opinion between the two: that certain failures or breaches of rules should stay in the regulatory arena and sanctioning should be through the controlling regulatory scheme as opposed to the criminal law.

All of the above is, of course based, on the facts and the level of liability would be commensurate with those facts. In the Italian case, if the findings of the trial Judge were as submitted by the prosecutor, then not unlike the Walkerton, Ontario tainted water incident, the criminal law is properly engaged. However this case is viewed the decision has caused much debate. To sample the various viewpoints, read this, this, this, and this. To read more about public disasters that attract the intervention of criminal law, please read my posting from January 15, 2012 on Public Disasters and the Criminal Law and my posting from February 25, 2012 entitled Safety First: Laboratory Safety and the Criminal Code.