Vasil, Vaillancourt, and Martineau: The Constitutional Transformation of Murder in Canadian Criminal Law

Matthew Crocker, Senior Editor, University of Toronto Faculty of Law Review and JD Candidate (2027), University of Toronto

Photo by D. Gordon E. Robertson / CC BY-SA 3.0

Introduction and Background

This paper introduces and explains a trilogy of Supreme Court of Canada decisions—R v Vasil, R v Vaillancourt, and R v Martineau—that fundamentally reshaped the offence of murder in Canadian criminal law. Prior to this trilogy, the Criminal Code permitted murder convictions through two distinct pathways. First, under s. 230 (formerly s. 213), murder liability could attach where a death occurred as a result of certain serious predicate offences, even where the accused did not intend to cause death.[1] Second, under s. 229 (formerly s. 212), an accused could be convicted of murder where they either knew or ought to have known that their actions were likely to cause death.[2]

These two routes reflected different approaches to fault. Under subjective foreseeability, the question was whether the accused actually foresaw the risk of death, even if they misjudged or underestimated that risk. By contrast, under objective foreseeability, the inquiry asked whether a reasonable person in the accused’s circumstances ought to have foreseen death as a likely consequence of their conduct, regardless of the accused’s actual state of mind.

Before the trilogy, an accused could be convicted of murder either based on objective foresight of death (under s. 229(c))[3] or without any fault element relating to death at all (under s. 230(d)).[4] Following these decisions, however, the Supreme Court of Canada held that the Constitution requires more. To sustain a murder conviction, the Crown must prove beyond a reasonable doubt that the accused had subjective foresight of death. As a result, any Criminal Code provisions permitting murder liability on purely objective grounds, whether under s. 230 or s. 229, were rendered unconstitutional and ultimately repealed by Parliament in 2019.[5]

This paper traces the development of this constitutional requirement through the trilogy. It proceeds chronologically, beginning with Vasil, continuing to Vaillancourt, and concluding with Martineau. Each section outlines the facts, identifies the legal issues, and explains how the Supreme Court’s reasoning incrementally transformed the mental element required for murder.

PART I: R v Vasil

In R v Vasil, the accused attended a party with his wife and became angry when she danced with other partners.[6] In response, he drove to her house and set fire to furniture in the living room, intending only to cause property damage.[7] The fire spread, the house burned down, and two children inside the home died.[8] The accused testified that he was intoxicated and unaware that children were inside the house. He maintained that, had he been aware, he would not have set the fire.[9]

At the time, s. 212(c) of the Criminal Code (now s. 229(c)) provided that culpable homicide is murder “[w]here a person, for an unlawful object, does anything that he knows or ought to know is likely to cause death, and thereby causes death to a human being, notwithstanding that he desires to effect his object without causing death or bodily harm to any human being.”[10]

Because the accused did not know the children were in the house, he plainly lacked subjective foresight that his actions would cause their deaths. The key issue was therefore how to interpret the phrase “ought to know” in s. 212(c). Specifically, the Court had to decide whether the objective standard applied to all surrounding circumstances, including facts unknown to the accused, or whether it should be assessed in light of the circumstances as the accused understood them.[11]

Writing for the Court, Lamer J held that the objective standard must be applied to the accused’s actual knowledge of the surrounding circumstances, not to facts the accused did not know and could not reasonably be expected to know.[12] In other words, the question is whether a reasonable person, with the accused’s knowledge, would have foreseen the risk of death.

Lamer J reasoned that Parliament could not have intended to capture individuals who, through ignorance of critical facts, could not possibly appreciate that they were taking a risk to human life.[13] Because the accused did not know that anyone was inside the house, a reasonable person in his position could not have realized that setting the fire involved a risk of death. His murder conviction was therefore set aside.

Vasil marked the first step in the Supreme Court’s gradual movement away from objective fault in murder. Although the Court formally retained an objective foreseeability standard, it narrowed its reach by anchoring that standard in the accused’s actual awareness of relevant circumstances. This doctrinal shift set the stage for the more explicit constitutional analysis that followed in R v Vaillancourt.

Part II: R v Vaillancourt

In R v Vaillancourt, the accused and an accomplice committed an armed robbery of a pool hall.[14] The accused carried a knife.[15] The accomplice, against the accused’s wishes, brought a gun.[16] The accused insisted that the gun be unloaded, which the accomplice claimed to have done.[17] During the robbery, however, the accomplice shot and killed a patron.[18] The accused was charged with murder under s. 213(d) of the Criminal Code, which imposed murder liability where a death occurred during the commission of certain serious offences, including armed robbery.[19]

The central issue in Vaillancourt was whether s. 213(d), which imposed murder liability without any requirement of foresight of death, violated s. 7 of the Canadian Charter of Rights and Freedoms (the “Charter”).[20] Section 7 requires that deprivations of life, liberty, or security of the person accord with the principles of fundamental justice, one of which is that criminal offences must include a constitutionally sufficient level of fault.[21]

Lamer J held that s. 213(d) was unconstitutional,[22] emphasizing that the required mens rea for an offence must reflect its seriousness.[23] Murder carries the most severe stigma and punishment in Canadian criminal law.[24] As such, fundamental justice requires at least objective foreseeability of death before a murder conviction can be sustained.[25] Because a reasonable person would not necessarily foresee that death would result from an armed robbery of a pool hall, s. 213(d) failed to meet this minimum constitutional standard. The provision was subsequently repealed in 1991.

Part III: R v Martineau

In R v Martineau, the accused and an accomplice broke into a trailer.[26] During the break and enter, the accomplice shot and killed the occupants.[27] The accused did not have subjective foresight that death was a likely outcome of the break and enter.[28] Nevertheless, he was charged with murder under s. 213(a), which did not require proof of foresight of death.[29]

The issue in Martineau was whether s. 213(a), which permitted a murder conviction without proof of subjective foresight of death, violated s. 7 of the Charter.[30] In resolving this issue, Lamer J went further than he did in Vaillancourt. He held that the constitutional minimum fault requirement for murder is subjective foresight of death, not merely objective foreseeability.[31] This marked a significant elevation of the mental element required for murder.

Lamer J grounded this conclusion in the principle of proportionality between the moral blameworthiness of the offender and the stigma and punishment attached to a conviction.[32] Murder, he reasoned, carries with it significant stigma and lengthy punishment.[33] Lamer J interpreted having the accused foresee death as a likely consequence of his actions to be a sufficient level of moral blameworthiness proportionate with murder’s stigma and punishment.[34] Allowing murder convictions on purely objective grounds would sever the connection between punishment and moral blameworthiness, contrary to the principles of fundamental justice.[35]

The Court accordingly held that s. 213(a) violated s. 7 of the Charter. The entirety of the provision was ultimately repealed in 2019.[36] In obiter, Lamer J also suggested that the “ought to know” language in s. 212(c) would similarly infringe s. 7 of the Charter, as it permits murder convictions without proof of subjective foresight of death.[37] This view was later confirmed in R v Shand, though that case lies beyond the scope of this paper.[38]

Conclusion

The murder trilogy represents a decisive constitutional recalibration of criminal fault in Canadian law. Through Vasil, Vaillancourt, and Martineau, the Supreme Court of Canada progressively dismantled statutory schemes that allowed murder convictions without proof of an accused’s actual awareness of the risk of death.

The result is a clear constitutional rule: Murder requires subjective foresight of death. This requirement ensures proportionality between moral blameworthiness and punishment, and aligns murder liability with the principles of fundamental justice. The trilogy illustrates not only the evolution of the murder doctrine, but also the powerful role of constitutional principles in reshaping the Criminal Code itself.

[1] Criminal Code, RSC 1985, c C-46, s 230.

[2] Ibid, s 229.

[3] Ibid, s 229(c).

[4] Ibid, s 230(d).

[5] An Act to amend the Criminal Code, the Youth Criminal Justice Act and other Acts and to make consequential amendments to other Acts, SC 2019, c 25 [An Act to amend the Criminal Code].

[6] 1981 CanLII 46 at 473 (SCC) [Vasil].

[7] Ibid at 475.

[8] Ibid at 476.

[9] Ibid at 477.

[10] Criminal Code, RSC 1970, c C-34, s 212(c) [Criminal Code 1970].

[11] Vasil, supra note 6 at 494.

[12] Ibid at 500.

[13] Ibid at 496.

[14] [1987] 2 SCR 636 at 642, 1987 CanLII 2 (SCC) [Vaillancourt].

[15] Ibid.

[16] Ibid at 642–43.

[17] Ibid.

[18] Ibid at 642.

[19] Criminal Code 1970, supra note 10, s 213(d).

[20] Vaillancourt, supra note 14 at 643.

[21] Ibid at 651–52.

[22] Ibid at 661.

[23] Ibid at 653–54.

[24] Ibid.

[25] Ibid.

[26] [1990] 2 SCR 633 at 641, 1990 CanLII 80 (SCC) [Martineau].

[27] Ibid.

[28] Ibid.

[29] Ibid at 645.

[30] Ibid at 645–46.

[31] Ibid.

[32] Ibid.

[33] Ibid.

[34] Ibid.

[35] Ibid.

[36] An Act to amend the Criminal Code, supra note 5.

[37] Martineau, supra note 26 at 648.

[38] 2011 ONCA 5.