COMMON INTENTION AND MURDER UNDER THE CRIMINAL CODES

Abstract

This article seeks to determine the scope of section 21(2) of the Canadian Criminal Code, confirming the validity of the doctrine of common intention in murder cases. It considers whether or not the provision is an exact codification of the common law, which allows the use of English precedents, and whether an objective or subjective test should be used to determine whether the homicide was a probable consequence of the crime in question. The author examines the need for reconciliation of two underlying interests: deterrence and fairness to the accused. He compares Canada’s position with Australia and New Zealand, examines the English case law and determines that the trend in Canada to extend the doctrine based on causality is not consistent with other jurisdictions.