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Steven Penney
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With respect, the argument that s. 230 could somehow still be in effect in Vader's circumstances is wholly untenable. First, the SCC stated clearly and without qualification in Martineau that s. 230 violates ss. 7 and 11(d) of the Charter and is of no force or effect because it allows for conviction without proof that the accused was aware of the possibility of death. The fact that Martineau himself was liable as an accessory and not as a principal has no bearing on this holding. Here is the relevant passage (SCR at pp. 246-47): "In sum then, I am of the view that a special mental element with respect to death is necessary before a culpable homicide can be treated as murder. That special mental element gives rise to the moral blameworthiness that justifies the stigma and punishment attaching to a murder conviction. For all the foregoing reasons, and for the reasons stated in Vaillancourt, I conclude that it is a principle of fundamental justice that a conviction for murder cannot rest on anything less than proof beyond a reasonable doubt of subjective foresight of death. That was my position when Vaillancourt was decided, and that is my position today. Therefore, since s. 213 of the Code expressly eliminates the requirement for proof of subjective foresight, it infringes ss. 7 and 11 (d) of the Charter." [note that s. 213 has since been renumbered as s. 230 without modification].
A small correction: accused persons charged with one of the indictable offences listed in s. 553 of the Criminal Code (i.e. the least serious) do not have a right to a jury trial and are almost never tried by juries. Their trials are almost always in provincial court (where there are no juries).