FROM FELONY MURDER TO ACCOMPLICE FELONY ATTEMPTED MURDER: THE RAKE'S PROGRESS COMPLEAT?

Abstract

The authors survey the historical development of both murder and the mens rea requirement, in order to discuss the concept of constructive murder and the felony murder rule contained in the Criminal Code 1892. They contrast the current Criminal Code provisions retaining these concepts, and reveal substantive differences expanding criminal liability for felony murder and eroding the mens rea requirement. An examination of the case law arising from interpretation of the provisions involving felony murder exposes judicially created anomalies that the authors label the “accomplice felony murder” rule and “attempted felony murder” rule. They conclude with an urgent call for legislative attention to the weakening mens rea requirement, and reinforcement of the differences between attempted murder and causing bodily harm with intent.