section 231(5)

INTRODUCTION AND BRIEF DESCRIPTION

This section states that murder is first degree if the death is caused while committing or attempting certain offenses, regardless of whether it was planned and deliberate.

SECTION WORDING

231(5) Irrespective of whether a murder is planned and deliberate on the part of any person, murder is first degree murder in respect of a person when the death is caused by that person while committing or attempting to commit an offence under one of the following sections: (a) section 76 (hijacking an aircraft); (b) section 271 (sexual assault); (c) section 272 (sexual assault with a weapon, threats to a third party or causing bodily harm); (d) section 273 (aggravated sexual assault); (e) section 279 (kidnapping and forcible confinement); or (f) section 279.1 (hostage taking).

EXPLANATION

Section 231(5) of the Criminal Code of Canada defines first-degree murder in cases where a person causes the death of another person while committing or attempting to commit certain offenses. These offenses include hijacking an aircraft, sexual assault, sexual assault with a weapon, threats to a third party or causing bodily harm, aggravated sexual assault, kidnapping and forcible confinement, or hostage taking. This provision essentially means that even if the murder was not planned or deliberate on the part of the accused, they would still be charged with first-degree murder if the death was caused while committing one of these prescribed offenses. This is because these offenses are considered extremely serious and carry a high risk of harm to the victim. It's important to note that the prosecution still has the burden of proving beyond a reasonable doubt that the accused committed one of these prescribed offenses and that the death resulted from their actions. The severity of the punishment for first-degree murder reflects the gravity of the offense and serves as a deterrent for those who may be tempted to engage in such criminal activity. Overall, section 231(5) plays an important role in ensuring that justice is served in cases where the victim's death was a direct result of particularly heinous and violent offenses. It underscores the seriousness and severity of these offenses and serves as a reminder of the severe consequences of committing such crimes.

COMMENTARY

Section 231(5) of the Criminal Code of Canada is a provision that seeks to classify certain murders as first-degree based on the circumstances surrounding the commission of the crime. In essence, the section creates a legal presumption that murders committed during the commission or attempted commission of certain criminal offenses are planned and deliberate, even if there is no evidence to suggest premeditation. The offenses listed in Section 231(5) are all serious crimes that involve violence or the threat of violence against individuals. They include hijacking an aircraft, sexual assault, sexual assault with a weapon, threats to a third party or causing bodily harm, aggravated sexual assault, kidnapping and forcible confinement, and hostage taking. These crimes are considered heinous due to the nature of the acts and the level of harm they cause to the victims. The purpose of Section 231(5) is to provide additional protection for individuals who may be vulnerable to harm due to their proximity to the commission of these offenses. The section seeks to create a strong deterrent effect by ensuring that those who commit these offenses face the highest possible criminal penalties. By classifying these murders as first-degree, those convicted may face life imprisonment with no eligibility for parole for a minimum of 25 years. Additionally, Section 231(5) serves as a recognition of the fact that certain offenses create a heightened risk of violence and potential death. The section is based on the assumption that individuals who commit these crimes are aware of the risks and consequences of their actions. Therefore, they are considered to have taken the risk of committing murder when they engage in these offenses. It is worth noting, however, that the presumption of intent created by Section 231(5) is rebuttable. This means that a defendant may present evidence to show that they did not intend to cause the victim's death. Some legal scholars have criticized Section 231(5) for its potential to lead to arbitrary and disproportionate sentences. Critics argue that the section places too much weight on the nature of the underlying offense and not enough on the specific intent of the defendant to cause the victim's death. Additionally, critics contend that the section may be applied too broadly and lead to cases of overreach by law enforcement. In conclusion, Section 231(5) of the Criminal Code of Canada is a provision that seeks to protect vulnerable individuals by providing strong legal punishment to those who commit certain offenses that carry a heightened risk of violence. It is based on the presumption that individuals who engage in these offenses are aware of the risks and potential outcomes of their actions. While the provision has been subject to criticism, it remains an important element of Canada's criminal justice system.

STRATEGY

When dealing with section 231(5) of the Criminal Code of Canada, there are several strategic considerations that must be taken into account in order to successfully navigate the legal system. This section of the code specifies that first degree murder applies regardless of whether or not the murder was planned and deliberate, when it is committed while committing or attempting to commit a serious criminal offence. Therefore, it is crucial for legal professionals to understand the implications of this section and how it may impact their cases. One of the main strategic considerations when dealing with section 231(5) is determining whether or not the offence committed by the accused falls under one of the sections listed in the code. This requires a thorough understanding of the Criminal Code and familiarity with the specific sections and requirements. If the offence does fall under one of the listed sections, the prosecution can proceed with a charge of first degree murder and the accused may face a more severe penalty. Another strategic consideration is to carefully investigate the circumstances surrounding the offence in order to determine whether or not it was committed while attempting to commit the listed offence. This requires a thorough examination of all relevant evidence, such as witness statements and physical evidence, to determine if there is a clear link between the accused's actions and the commission of the listed offence. If there is not a clear link, the charge of first degree murder may not be appropriate. A strategy that could be employed in cases involving section 231(5) is to argue that the accused did not have the specific intent to commit murder. This may be the case if the accused only intended to commit the listed offence and did not anticipate that their actions would result in the death of another person. However, this argument may be difficult to make if the accused used extreme violence or committed other acts that indicate a disregard for human life. Another strategy that could be employed is to argue that the accused was not aware that their actions were likely to result in death. This may be the case if the accused was acting on impulse or without a clear understanding of the potential consequences of their actions. However, this argument may be difficult to make if the accused had a history of violent behaviour or knowledge of the potential harm that could result from their actions. In conclusion, section 231(5) of the Criminal Code of Canada is a complex area of the law that requires careful consideration and analysis. Legal professionals must be aware of the strategic considerations involved in dealing with this section, including determining whether the accused committed a listed offence and carefully examining the circumstances surrounding the offence. Strategies such as arguing lack of specific intent or lack of awareness may also be employed in appropriate cases. Overall, a thorough understanding of this section of the Criminal Code is critical for effectively navigating the legal system.