Court Rejects the Defence of Murder-Suicide Pact
A person may not be convicted of an offence at common law. [FN1]
While the Criminal Code removes criminal liability
for common law offences, it maintains
the availability of common law
defences, except where they are inconsistent with
subsequent legislation: see section 8(3), Criminal Code.
While some common law defences
(eg. defences necessity, duress, and
entrapment) are well-understood, other common law defences remain to be
discovered.
In 1993, the Quebec Court of
Appeal recognized the very narrow common law defence of suicide pact. This defence is available only when the parties
formed a common and irrevocable intention to commit suicide together,
simultaneously by the same event and the same instrumentality, and where the
risk of death was identical for both.
See R. v. Gagnon (1993), 84 C.C.C. (3d) 143,
24 C.R. (4th) 369 (Que. C.A.).
This is
different from a murder-suicide pact in which one person has agreed to first
kill the other and then kill himself. Gagnon did not extend the suicide
pact defence to the murder-suicide situation.
In R. v. Dobson,
2018 ONCA 589, the appellant sought to have Court of Appeal for Ontario go even
further than the Quebec court did in Gagnon
and recognize a common law defence in situations of a murder-suicide pact. The defence would not be a
complete defence; rather a partial defence, reducing murder to manslaughter to reflect the
culpability of the survivor of a suicide pact.
The
appellant faced two problems from the onset: first, the defence was not argued
at trial (rather, only on appeal); and second, the defence (or even the suicide
pact defence) has never been recognized as being the law in Ontario.
In
addition to these two obvious challenges, the Court in Dobson took the position
that the question of whether a person who kills pursuant to a suicide pact should have a partial defence to
murder is probably a matter that is much better addressed by Parliament.
R.
v. Dobson, 2018 ONCA 589, at para. 44.
While
the common law is dynamic and flexible, it
is the legislature and not the courts which has the major responsibility for
law reform; and for any changes to the law which may have complex ramifications.
Where policy questions are so deeply embedded in the legal doctrine the court
is being asked to review, the court may be in danger of reforming the law on an
inadequate appreciation of public needs and public opinion.
See
for instance, Lynch v. Director of Public
Prosecutions for Northern Ireland, [1975] 1 All E.R. 913 (H.L.), Lord
Kilbrandon, in dissent.
[FN1]: the offence of contempt is an exception to this.
Stuart O’Connell, O’Connell Law
Group (All rights reserved to author).
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