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.

Is This The End of Subjective Intention? The Supreme Court of Canada and the Walle case

Presently, there are essentially two different kinds or categories of criminal intent: subjective and objective. Intent or mens rea is the fault requirement of a crime. Without intent or the intention to do the prohibited act, there is no crime and the accused should be acquitted. Traditionally, the criminal law recognized only one category of intent: subjective mens rea as the basis for a criminal offence. Subjective intent requires the prosecutor to prove beyond a reasonable doubt that this accused intended his actions. This requires the trier of fact to contemplate on the thought processes of the accused as presented through the evidence. Subjective intent differs greatly from objective intent, which sets up as a model of behaviour the standard of the “reasonable man.” Thus, the trier of fact when considering an objective mens rea offence must consider what a reasonable man would have done in the circumstances. If the accused fails to act in accordance with this standard or model of behaviour, the accused is deemed guilty of the offence, even if the accused did not intend the consequences of his actions.

Objective intent can be a harsh standard as it can be argued that those individuals who are not “average” or have some deficiencies of character cannot possibly reach the standard of a reasonable man. On the other hand, the criminal law’s main thrust is to protect the public. In harsh terms then, the criminal law punishes those who are unsafe to protect the majority of people who are fully aware of what is a reasonable course of action in the circumstances.

I stop to reflect on the term “reasonable man.” This traditionally was the term and equally traditionally this was the standard: a reasonable and sober man. Not a woman, but a man. Obviously when society accepted the equality of the sexes, this phrase was changes to “reasonable person.” Of course there is no description of a “reasonable person.” One cannot simply look up the phrase in a dictionary and find a full description or even a picture of such a venerated individual. No, triers of fact are left to their own devices in conjuring up such an individual, presumably because the trier of fact is assumed to be a reasonable person. In almost a tautological argument, the presumed reasonable person assumes a reasonable person for the purposes of determining the guilt or innocence of an accused person.

As a result, the objective standard of intent is not favoured by the defence and yet, unsurprisingly is favoured by the prosecutor. It is much easier to rely on a concept of reasonableness, than it is to determine a particular person’s intention. As the bar is lowered, convictions occur more readily in an objective mens rea crime. Typically, however such crimes were reserved to unsafe licensed behaviour such as careless use of a firearm or dangerous driving. A licensed activity requires a certain licensing standard and thus if you fall below that standard while involved in a dangerous activity, then objective mens rea should apply: common sense dictates it must. And that is where we come to the new Supreme Court of Canada case of R. v. Walle, 2012 SCC 41.

Adrian Walle was charged and convicted of second-degree murder, when he shot at point blank range with a sawed-off .22 calibre rifle, Jeffery Shuckburgh, a Calgary bar owner who at the time was escorting Walle off the premises. Walle’s trial counsel argued that the rifle went off due to an unintentional movement made by the accused. In other words, Walle’s actions were not voluntary as he acted without awareness of his actions, in other words the shooting was purely accidental. A prohibited act or the actus reus of a crime must be a voluntary act. Without a voluntary prohibited act, there is no crime. This argument had little basis in the evidence and the trial judge, sitting without a jury as occurs when a case is complicated or based on legal argument, made the following finding in convicting the accused:

I am satisfied, beyond a reasonable doubt, that when the accused Walle deliberately pulled the trigger, in the circumstances I have just described, he knew that the reasonable and probable consequence was that he would either cause Mr. Shuckburgh’s death or would cause him grievous bodily harm which would likely cause his death and was reckless, whether death ensued or not.

The trial judge also relied upon the “common sense inference,” which contemplates the reasonable person or that a “sane and sober person” intends the reasonable and probable consequences of his acts. On appeal, counsel for the defence argued that the trial judge was wrong to rely upon this “common sense inference” without recognizing that Adrian Walle was not only under the influence of alcohol at the time, but was also suffering from various psychiatric disorders including “Asperger’s disorder, paranoid personality disorder, intermittent explosive disorder, adult antisocial disorder, and alcohol abuse disorder.”

The Supreme Court of Canada unanimously disposed of this appeal. In a judgment written by new appointment Mr. Justice Moldaver, who I have written on in previous posting, the court easily rejected this argument on the dual basis that this argument was not raised at the time of trial and that a trier of fact need not refer in the reasons to every piece of evidence proffered. As long as the decision appears to be based upon the relevant evidence, which it was in this case, the reasons are sound. The fact the issue was not raised at trial merely goes to trial tactics. Trial counsel views a case in a certain way and crafts a trial position as a result. Often, counsel will at trial pursue this theory solely and thus not raise very possible argument on the case as it would detract from the chosen position.

The secondary argument on appeal, raised by the intervenor’s in the case, the Criminal Lawyers’ Association of Ontario, cause the court more concern. The crux of that argument involved the propriety of using the “common sense inference” in circumstances where the accused is clearly not an individual who practices common sense due to his psychiatric issues. Such an inference essentially imports an objective mens rea standard into a crime which is considered one requiring subjective intent. To convict of murder, the prosecutor was obliged to prove beyond a reasonable doubt that Walle intended to kill or that he was reckless as to whether death would be a consequence of his actions. Murder is not based on what a reasonable person should have done at the time. However, manslaughter is an objective mens rea crime, which requires an accused to have an objective awareness that his actions will cause bodily harm. In murder, the accused must be subjectively aware that his actions will cause death.

Of course, in Walle’s case, the argument is a strong one. Certainly, Mr. Walle would definitely not be the poster-boy for a reasonable person nor would he be described as “sane and sober.” Despite this, Justice Moldaver rejected this argument but with a caveat. In his view, the “common sense inference” “provides a jury with a marker against which to measure the rather amorphous concept of intent.” The instruction also cautions the jury that such an inference may be made but is not required to be made in their deliberations on intent.

Leaving aside that the Walle case did not employ a jury, Justice Moldaver’s comments highlight the difficulty with the concept. To view the inference as “a marker against which to measure” in my mind clearly suggests the objective standard of mens rea is at work. Indeed, it is difficult not to view this inference as anything but applying an objective standard based upon the trier of facts conception of what a reasonable person would have done in the circumstances. Thus, the objective standard is not only alive and well in Canadian criminal law, it has crept into the very heart of criminal law precepts, which require those core crimes such as murder and theft, require subjective intention. This inevitably should leave us wondering if the categorizing of the intention required for a particular crime is history, in favour of what the Supreme Court of Canada likes to call the “principled approach” to legal decision-making.

In closing, I refer back to the finding of the trial judge mentioned earlier that “when the accused Walle deliberately pulled the trigger … he knew that the reasonable and probable consequence...” By the trial judge using that phrase “reasonable and probable,” he has blurred the lines between objective and subjective intention, ensuring that the concept of “reasonable person,” whoever that may be, is an integral part of the crime of murder.

The Supreme Court of Canada in a much earlier 1990 Charter case said, in the majority judgment written by Chief Justice Lamer, this about the importance of subjective mens rea in R. v. Martineau:

In my view, in a free and democratic society that values the autonomy and free will of the individual, the stigma and punishment attaching to the most serious of crimes, murder, should be reserved for those who choose to intentionally cause death or who choose to inflict bodily harm that they know is likely to cause death. The essential role of requiring subjective foresight of death in the context of murder is to maintain a proportionality between the stigma and punishment attached to a murder conviction and the moral blameworthiness of the offender. Murder has long been recognized as the "worst" and most heinous of peace time crimes. It is, therefore, essential that to satisfy the principles of fundamental justice, the stigma and punishment attaching to a murder conviction must be reserved for those who either intend to cause death or who intend to cause bodily harm that they know will likely cause death.

In the end, it is clear that there was ample evidence to uphold Walle’s conviction, but as they say, bad facts lead to bad laws. The question is whether this approach is a foreshadowing of what is to come in terms of the Court’s position on intention or whether it is merely a specific response to a particularly heinous crime.