During one of a series of robberies by the respondents and others, a person had been shot and severely injured. Neither of the accused had done the shooting. Johnson, however, had admitted to being one of the robbers. He had stated that he had had no intention to shoot and that no discussion concerning the use of guns had taken place. Logan had boasted of being involved in planning the robberies. The trial judge had instructed the jury that Crown was required to establish beyond a reasonable doubt that the respondents knew or ought to have known that someone would probably shoot with intention of killing. The respondents were convicted of attempted murder at trial, but the Court of Appeal overturned the convictions and substituted convictions for armed robbery.
- Does s.21(2) of the Criminal Code infringe rights to life, liberty and security of the person and to fair trial under ss.7 and 11(d) of the Charter?
Lamer, writing for the majority, held there was no binding authority holding that as a general proposition Parliament could not enact provisions requiring different levels of guilt for principal offenders and parties. While that proposition seemed more equitable than not, it should not be characterized as a principle of fundamental justice.
The mens rea for attempted murder could not, without restricting s.7 of the Charter, require less than the subjective foresight of accused, which was the mental element required of a murderer under s.212(a)(i) (now s.229(a)(i)). When principles of fundamental justice require subjective foresight in order to convict the principal of attempted murder, that same minimum degree of mens rea was constitutionally required to convict a party to offence of attempted murder.
Because of the importance of the legislative purpose, the objective component of s.21(2) could be justified with respect to most offences. However, with respect to the few offences which require subjective intent, the stigma of conviction made the infringement of s.7 too serious and outweighed the legislative objective. As a result, the words "or ought to have known" were inoperative when considering under s.21(2) whether a person was a party to any offence where it was a constitutional requirement for conviction that foresight of the consequences be subjective, which was the case for attempted murder.
On charges where subjective foresight is a constitutional requirement (murder and attempted murder), the objective component of s.21(2) is not justified.