39 Chapter 1 Methods of Legal Inquiry-A Legal Handbook case brief examples on pages 14-16 as a "B and E." After robbing the trailer and its occur model, prepare the citation, the facts of the pants, Martineau's friend shot and killed the case, and the decision. Mcleans. The evidence showed Mr. Mclean 13. Read the following edited case carefully. The was shot after having received a protracted 9 case challenged the validity of s. 213(a) and (d) beating prior to death, Mrs. Mclean returned of the Criminal Code and cited the precedent home during the robbery, and Tremblay told established in R. v Vaillancourt. Martineau to put a blanket over Mrs. Mclean's a) Using the Comparison Chart on page 20 as head. There was evidence that Martineau said, your model, prepare a similar chart for the "Lady, say your prayers," before Mrs. Mclean Vaillancourt (see pp. 15-16) and Martineau was shot. Martineau and Tremblay were both (see below) cases. wearing stocking masks, and Martineau asked b) Using R. v. Vaillancourt as your model, Tremblay why he had shot them. Tremblay prepare a case brief for R. v. Martineau. answered, "They saw our faces." They drove Indude citation, facts, decision, issue, and James Mclean's car to Grand Prairie, where ratio. (You may wish to read the complete they abandoned it. transcripts of both these cases, which are The respondent was convicted of second- available at www.canli.org.) degree murder. The trial judge charged the jury R. v. Martineau (1991), 58 C.C.C. (3d) 353 on s. 213(a) and (d) of the Criminal Code: (S.C.C.) "Section 213(a) of the Code defines culpable (Lamer CJ.) This appeal arises as a result of the homicide as murder where a person causes the application to s. 213(a) by the Alberta Court of death of a human being while committing or Appeal of this court's decision in R. v. attempting to commit a range of listed offences, Vaillancourt (1987), 39 C.C.C. (3d) 118 in whether or not the person means to cause which s. 213(d) of the Criminal Code was death or whether or not he or she knows that dedared of no force or effect because it death is likely to ensue. The introductory para- infringed ss. 7 and 11(d) of the Canadian graph of the section, therefore, expressly Charter of Rights and Freedoms and could not removes from the Crown the burden of proving be saved by s. 1 of the Charter. beyond a reasonable doubt that the accused The facts of this case may be briefly summa- had subjective foresight of death. I am of the rized as follows: On February 7, 1985, the view that a special mental element with respect bodies of James Mclean and Ann Mclean were to death is necessary before a culpable homi- found in the bathroom of their home, a trailer, cide can be treated as murder. The special in Valleyview, Alberta. A police investigation led mental element gives rise to moral blamewor- to Martineau and one Patrick Tremblay. thiness that justifies the stigma and punishment Martineau, who was 15 at the time, was attaching to a murder conviction. For all the fore- charged with both murders and was transferred going reasons, and for the reasons stated in to adult court Martineau was tried by a judge Vaillancourt, I conclude that it is a principle of and jury starting on September 12, 1985. Thirty fundamental justice that a conviction for murder witnesses gave evidence, including the accused. cannot rest on anything less than proof beyond The evidence revealed that Martineau and his a reasonable doubt of subjective foresight of friend, Tremblay, had set out one evening death. Therefore, since s. 213 of the Criminal armed with a pellet pistol and a rifle. Martineau Code expressly eliminates the requirement for testified that he knew that they were going to proof of subjective foresight, it infringes ss. 7 commit a crime, but he thought it would be a and 11(d) of the Charter."