Vaillancourt was convicted of second-degree murder resulting from a robbery of a pool hall. He had a knife and thought that his friend also had a knife when in fact his friend had a gun. He explicitly told his friend before the event that he did not want to have guns involved. During the robbery, his partner fired a shot and someone was killed. The charge falls under s.213(d) which negates any necessity for mens rea of killing to be proven before a conviction can be entered. The defendant is challenging this section, stating that it is contrary to ss.7 & 11 of the Charter.
- Is s.213(d) of the Criminal Code contrary to s.7 of the Charter because it imposes absolute criminal liability?
Appeal allowed, new trial ordered.
Lamer, writing for the majority, clearly decides that this section is contrary to the Charter as it establishes an absolute criminal liability. He states that it is a principle of fundamental justice that there must be at least a minimal mental state requirement before criminal liability can be imposed. A failure to require this is contrary to s.7. He goes on to say in obiter that all crimes of murder require a subjective fault element to be proven because of the limits on freedom that their punishments impose.
All crimes with significant stigma attached, such as culpable homicide and constructive murder, require that the Crown prove objective foresight of death (subjective foreseeability is only mentioned in obiter and therefore not binding).