20080806/难道吃下整个身体才是一级谋杀?

——美国女主持嘲讽加拿大司法制度

捷克佳/安省“公民日”去美国纽约州旅游,夜寻旅店途中打开收音机,收听纽约州罗切斯特市(Rochester)的一间新闻电台AM 1040(WYSL),一位女主持人在脱口秀中自言自语,谈话的主题是加拿大的灰狗巴士凶杀案,该主持人对于凶案现场加拿大人的表现大加鞭笞,认为那些人的自我保护行为过于强烈,眼见受害者被割头颅却不去制止。此外,女主持抨击加拿大的司法制度,说吃下内脏才定罪二级谋杀,难道吃下整个身体才是一级谋杀?女主持言谈中不时发出冷笑,只是没有没有记住她的姓名。

从加拿大司法部网站查阅《加拿大刑法》(The Criminal Code of Canada),有关“谋杀”的定义如下:

MURDER, MANSLAUGHTER AND INFANTICIDE

Murder

229. Culpable homicide is murder
(a) where the person who causes the death of a human being
(i) means to cause his death, or
(ii) means to cause him bodily harm that he knows is likely to cause his death, and is reckless whether death ensues or not;
(b) where a person, meaning to cause death to a human being or meaning to cause him bodily harm that he knows is likely to cause his death, and being reckless whether death ensues or not, by accident or mistake causes death to another human being, notwithstanding that he does not mean to cause death or bodily harm to that human being; or
(c) where a person, for an unlawful object, does anything that he knows or ought to know is likely to cause death, and thereby causes death to a human being, notwithstanding that he desires to effect his object without causing death or bodily harm to any human being.
R.S., c. C-34, s. 212.

Murder in commission of offences

230. Culpable homicide is murder where a person causes the death of a human being while committing or attempting to commit high treason or treason or an offence mentioned in section 52 (sabotage), 75 (piratical acts), 76 (hijacking an aircraft), 144 or subsection 145(1) or sections 146 to 148 (escape or rescue from prison or lawful custody), section 270 (assaulting a peace officer), section 271 (sexual assault), 272 (sexual assault with a weapon, threats to a third party or causing bodily harm), 273 (aggravated sexual assault), 279 (kidnapping and forcible confinement), 279.1 (hostage taking), 343 (robbery), 348 (breaking and entering) or 433 or 434 (arson), whether or not the person means to cause death to any human being and whether or not he knows that death is likely to be caused to any human being, if
(a) he means to cause bodily harm for the purpose of
(i) facilitating the commission of the offence, or
(ii) facilitating his flight after committing or attempting to commit the offence,
and the death ensues from the bodily harm;
(b) he administers a stupefying or overpowering thing for a purpose mentioned in paragraph (a), and the death ensues therefrom; or
(c) he wilfully stops, by any means, the breath of a human being for a purpose mentioned in paragraph (a), and the death ensues therefrom.
(d) [Repealed, 1991, c. 4, s. 1]
R.S., 1985, c. C-46, s. 230; R.S., 1985, c. 27 (1st Supp.), s. 40; 1991, c. 4, s. 1.

Classification of murder

231. (1) Murder is first degree murder or second degree murder.
Planned and deliberate murder
(2) Murder is first degree murder when it is planned and deliberate.
Contracted murder
(3) Without limiting the generality of subsection (2), murder is planned and deliberate when it is committed pursuant to an arrangement under which money or anything of value passes or is intended to pass from one person to another, or is promised by one person to another, as consideration for that other’s causing or assisting in causing the death of anyone or counselling another person to do any act causing or assisting in causing that death.
Murder of peace officer, etc.
(4) Irrespective of whether a murder is planned and deliberate on the part of any person, murder is first degree murder when the victim is
(a) a police officer, police constable, constable, sheriff, deputy sheriff, sheriff’s officer or other person employed for the preservation and maintenance of the public peace, acting in the course of his duties;
(b) a warden, deputy warden, instructor, keeper, jailer, guard or other officer or a permanent employee of a prison, acting in the course of his duties; or
(c) a person working in a prison with the permission of the prison authorities and acting in the course of his work therein.
Hijacking, sexual assault or kidnapping
(5) Irrespective of whether a murder is planned and deliberate on the part of any person, murder is first degree murder in respect of a person when the death is caused by that person while committing or attempting to commit an offence under one of the following sections:
(a) section 76 (hijacking an aircraft);
(b) section 271 (sexual assault);
(c) section 272 (sexual assault with a weapon, threats to a third party or causing bodily harm);
(d) section 273 (aggravated sexual assault);
(e) section 279 (kidnapping and forcible confinement); or
(f) section 279.1 (hostage taking).
Criminal harassment
(6) Irrespective of whether a murder is planned and deliberate on the part of any person, murder is first degree murder when the death is caused by that person while committing or attempting to commit an offence under section 264 and the person committing that offence intended to cause the person murdered to fear for the safety of the person murdered or the safety of anyone known to the person murdered.
Murder during terrorist activity
(6.01) Irrespective of whether a murder is planned and deliberate on the part of a person, murder is first degree murder when the death is caused while committing or attempting to commit an indictable offence under this or any other Act of Parliament where the act or omission constituting the offence also constitutes a terrorist activity.
Using explosives in association with criminal organization
(6.1) Irrespective of whether a murder is planned and deliberate on the part of a person, murder is first degree murder when the death is caused while committing or attempting to commit an offence under section 81 for the benefit of, at the direction of or in association with a criminal organization.
Intimidation
(6.2) Irrespective of whether a murder is planned and deliberate on the part of a person, murder is first degree murder when the death is caused while committing or attempting to commit an offence under section 423.1.
Second degree murder
(7) All murder that is not first degree murder is second degree murder.
R.S., 1985, c. C-46, s. 231; R.S., 1985, c. 27 (1st Supp.), ss. 7, 35, 40, 185(F), c. 1 (4th Supp.), s. 18(F); 1997, c. 16, s. 3, c. 23, s. 8; 2001, c. 32, s. 9, c. 41, s. 9.

Murder reduced to manslaughter

232. (1) Culpable homicide that otherwise would be murder may be reduced to manslaughter if the person who committed it did so in the heat of passion caused by sudden provocation.
What is provocation
(2) A wrongful act or an insult that is of such a nature as to be sufficient to deprive an ordinary person of the power of self-control is provocation for the purposes of this section if the accused acted on it on the sudden and before there was time for his passion to cool.
Questions of fact
(3) For the purposes of this section, the questions
(a) whether a particular wrongful act or insult amounted to provocation, and
(b) whether the accused was deprived of the power of self-control by the provocation that he alleges he received,
are questions of fact, but no one shall be deemed to have given provocation to another by doing anything that he had a legal right to do, or by doing anything that the accused incited him to do in order to provide the accused with an excuse for causing death or bodily harm to any human being.
Death during illegal arrest
(4) Culpable homicide that otherwise would be murder is not necessarily manslaughter by reason only that it was committed by a person who was being arrested illegally, but the fact that the illegality of the arrest was known to the accused may be evidence of provocation for the purpose of this section.
R.S., c. C-34, s. 215.

Infanticide

233. A female person commits infanticide when by a wilful act or omission she causes the death of her newly-born child, if at the time of the act or omission she is not fully recovered from the effects of giving birth to the child and by reason thereof or of the effect of lactation consequent on the birth of the child her mind is then disturbed.
R.S., c. C-34, s. 216.

Manslaughter

234. Culpable homicide that is not murder or infanticide is manslaughter.
R.S., c. C-34, s. 217.

Punishment for murder

235. (1) Every one who commits first degree murder or second degree murder is guilty of an indictable offence and shall be sentenced to imprisonment for life.
Minimum punishment
(2) For the purposes of Part XXIII, the sentence of imprisonment for life prescribed by this section is a minimum punishment.
R.S., c. C-34, s. 218; 1973-74, c. 38, s. 3; 1974-75-76, c. 105, s. 5.

Manslaughter

236. Every person who commits manslaughter is guilty of an indictable offence and liable
(a) where a firearm is used in the commission of the offence, to imprisonment for life and to a minimum punishment of imprisonment for a term of four years; and
(b) in any other case, to imprisonment for life.
R.S., 1985, c. C-46, s. 236; 1995, c. 39, s. 142.

Punishment for infanticide

237. Every female person who commits infanticide is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years.
R.S., c. C-34, s. 220.

Killing unborn child in act of birth

238. (1) Every one who causes the death, in the act of birth, of any child that has not become a human being, in such a manner that, if the child were a human being, he would be guilty of murder, is guilty of an indictable offence and liable to imprisonment for life.
Saving
(2) This section does not apply to a person who, by means that, in good faith, he considers necessary to preserve the life of the mother of a child, causes the death of that child.
R.S., c. C-34, s. 221.

Attempt to commit murder

239. (1) Every person who attempts by any means to commit murder is guilty of an indictable offence and liable
(a) if a restricted firearm or prohibited firearm is used in the commission of the offence or if any firearm is used in the commission of the offence and the offence is committed for the benefit of, at the direction of, or in association with, a criminal organization, to imprisonment for life and to a minimum punishment of imprisonment for a term of
(i) in the case of a first offence, five years, and
(ii) in the case of a second or subsequent offence, seven years;
(a.1) in any other case where a firearm is used in the commission of the offence, to imprisonment for life and to a minimum punishment of imprisonment for a term of four years; and
(b) in any other case, to imprisonment for life.
Subsequent offences
(2) In determining, for the purpose of paragraph (1)(a), whether a convicted person has committed a second or subsequent offence, if the person was earlier convicted of any of the following offences, that offence is to be considered as an earlier offence:
(a) an offence under this section;
(b) an offence under subsection 85(1) or (2) or section 244; or
(c) an offence under section 220, 236, 272 or 273, subsection 279(1) or section 279.1, 344 or 346 if a firearm was used in the commission of the offence.
However, an earlier offence shall not be taken into account if 10 years have elapsed between the day on which the person was convicted of the earlier offence and the day on which the person was convicted of the offence for which sentence is being imposed, not taking into account any time in custody.
Sequence of convictions only
(3) For the purposes of subsection (2), the only question to be considered is the sequence of convictions and no consideration shall be given to the sequence of commission of offences or whether any offence occurred before or after any conviction.
R.S., 1985, c. C-46, s. 239; 1995, c. 39, s. 143; 2008, c. 6, s. 16.

Accessory after fact to murder

240. Every one who is an accessory after the fact to murder is guilty of an indictable offence and liable to imprisonment for life.
R.S., c. C-34, s. 223.

http://laws.justice.gc.ca/en/C-46/

http://laws.justice.gc.ca/en/showdoc/cs/C-46/bo-ga:l_VIII-gb:s_229//en#anchorbo-ga:l_VIII-gb:s_229

1 Comment

  1. 连鹏

    阿尔伯塔大学教授、加拿大着名法律专家阿纳德(Sanjeev Anand)表示,在此类突然如被“下巫般”发疯而进行血腥暴力屠杀的案件中,被告一般都会以自动症(automatism)申请辩护。而在自动症的辩护中,如果法庭认为被告在案发时并无伤人心理,则可免于刑罚。例如,如果被告表示案发时因自动症,他正在梦游而犯下杀人罪,则可免于刑罚。

    阿纳德认为,可能是警方缺少足够的证据,所以无法以一级谋杀起诉李伟光。他表示,似乎起初警方希望以一级谋杀起诉李,但是目前来看似乎他们缺少足够的证据。

    Reply

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