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Murder on the Mountain

Contributed By: Dan Dwyre



A Murderous Confession

In the 1940s, a murderer hid his confession in a place no one would ever see it: a piece of Canadian poetry. 


That is the conclusion some high school students make after reading Earle Birney’s poem, “David. The fictional work, which describes the “mercy killing” of an injured climber on a remote mountain, was assigned reading for generations of high school students. Because the poem is written in the first person, Birney himself supposedly received many letters over the years from outraged students accusing him of murder. 


This anecdote came to mind during a recent causation lecture given by Professor Sanaa Ahmed in Crime: Law and Procedure (Law 410). As an exploration of this idea, this article examines the circumstances presented in Birney’s poem, applies current legal considerations to the imagined facts, and then considers the application of a potential new common law defence based on motive: the compassionate motive defence.


Summary of “David”

“David” is a beautiful, gushing exploration of the thrill of mountain climbing. Set sometime around 1915, the narrator and his friend, the eponymous David, successfully climb a series of peaks, each presenting a new technical challenge. Many of the mountain names, including Assiniboine, Inglismaldie, and The Fortress, will be familiar to today’s Calgary-area residents. But one unclimbed peak enchants the protagonists: The Finger.


The two eventually manage to summit The Finger—seemingly a first-ever ascent. While on the summit, the narrator—through misadventure or negligence—causes David to fall 50 feet to a rocky ledge below. 


The narrator descends to find David badly injured. It seems clear that David either will not survive or will spend the rest of his life in a wheelchair. The narrator begins to contemplate the logistical challenges of a rescue, which given the remote location and challenging terrain, will take several days (this is before the days of helicopters and search and rescue teams). At this moment, David begs the narrator to push him off the ledge; David wants to fall to the certain death waiting for him on the glacier hundreds of feet below. The narrator eventually complies. Much later, a rescue team recovers David’s body. The narrator invents a cover story that David fell directly to the glacier from the summit.


Mercy Killings and Assisted Suicide: A Canadian Perspective

My research for this article showed, to my surprise, that many criminal prosecutions for mercy killings have involved elderly spouses. The horrifying details (such as R v Brush, [1995] OJ No 656; R v Kirk, 2006 ONCJ 509) can involve multiple failed attempts and murder-suicide pacts. These types of cases will hopefully become less common following the introduction of medical assistance in dying (MAID) legislation in the wake of Carter v Canada (AG), 2015 SCC 5.


R v Latimer, 2001 SCC 1 is an exception to the pattern of spousal-assisted suicide, involving the asphyxiation of Tracy Lynn Latimer by her father, Robert Latimer in 1993. Robert was eventually convicted of second-degree murder, in a case that ignited national discussion about assisted suicide and disability rights. A similar 1940s unreported case in Alberta, R v Ramberg, (1941) (ABKB), resulted in the acquittal of the parents, who used a similar method as Latimer to kill their terminally ill son. 


Prior to Latimer, Sue Rodriguez unsuccessfully sought relief from the Supreme Court for the right to end her life with medical assistance (Rodriguez v British Columbia (Attorney General), [1993] 3 SCR 519). Rodriguez, who was diagnosed with ALS, subsequently committed suicide, allegedly with the help of an anonymous doctor and while in the presence of Member of Parliament Svend Robinson. To my knowledge, no charges were ever laid in that matter.


As far as my research shows, there has never been a similar “mountainside mercy killing” in Canadian courts. One may wonder what fate may await an empathetic mountain climber encountering such a situation today.


Legal Considerations

To answer this question, one must consider the relevant sections of the Criminal Code.

S. 14 of the Code states that no one can consent to the infliction of death, and such consent does not affect criminal responsibility on the person inflicting such death. Therefore, David’s pleas to be pushed off the ledge do not absolve the narrator of responsibility.


S. 222(1) provides that a person “commits homicide when, directly or indirectly, by any means, he causes the death of a human being.” The narrator causes David’s death by pushing him off the ledge. This article focuses only on the “mercy killing” aspect, so potential issues of criminal negligence related to David’s initial 50-foot fall are not discussed here. The Code goes on to divide homicide into culpable and not culpable categories, and further divide culpable homicide into murder and manslaughter (and infanticide). S. 222(5)(a) states that a person commits culpable homicide when he causes the death of a human being by means of an “unlawful act.” That unlawful act may be satisfied under s. 269 (it is unlawful to cause bodily harm).


A person, having caused a bodily injury that results in the death of another human, “causes the death … notwithstanding that the effect of the bodily injury is only to accelerate his death … arising from some other cause” (s. 226 [emphasis added]). The narrator is not certain that David is mortally wounded—he admits that David may only be paralyzed. Even if the narrator were to be certain of impending death, s. 226 deems the acceleration of death to be causing the death itself.


S. 227 provides an exemption for medical assistance in dying (MAID), a relatively recent addition to the Code. Space constraints do not allow for a full analysis of the Code’s MAID provisions, but in summary, the facts do not satisfy several of the provision’s qualifying criteria. This situation would not be a medically assisted suicide.


S. 229 of the Code states that a person causing culpable homicide, and meaning to do so, has committed murder [emphasis added]. The narrator admits his intention is to push David to his quick death. A culpable homicide, intentionally carried out, is murder.

To be first-degree murder under s. 231, the murder must be planned and deliberate, involve the commission of some other serious offence, or target a public safety official acting in an official duty. Any other murder is second-degree murder. Lacking any of the characteristics necessary for first-degree murder, the narrator’s act is second-degree murder.


A statutory “limited defence” is provided in s. 232, which allows any culpable homicide that would otherwise be murder to be reduced to manslaughter if the act was suddenly provoked and committed in a passion. Given the lack of provocation, it is not possible to argue for a reduction to manslaughter under this provision. The narrator’s act was performed in compassion, not passion.


Applying the law of today to the facts in “David”, the narrator faces the prospect of a second-degree murder charge. The Code does not provide any sort of defence based on compassionate motives, or the high-pressure nature of the circumstances.


Policy Implications: The Compassionate Motive Defence

In a thoughtful 1985 Manitoba Law Journal article, B. Sneideman provides a summary of mercy killing cases in common law jurisdictions before proposing a new limited defence, the “compassionate motive defence.” The compassionate motive defence is similar to s. 232’s limited defence based on provocation, discussed above. Sneideman notes the inequity of requiring mercy killings to be considered as murder, while allowing passionate murders to be reduced to manslaughter, a lower stigma crime with a lower minimum sentence.


Sneideman also notes the frequency with which mercy killings are either not prosecuted, or do not otherwise result in successful convictions. Other cases may be plead out, or the Crown may choose to pursue charges under the lesser offence of manslaughter. A compassionate motive defence would allow for cases to be resolved “in accordance with—and not in spite of—the law.”


Sneideman’s suggestion that legislators add a new compassionate motive defence to the Code seems to me to be a hopelessly optimistic view of our legislators; the risk of political backlash from a successful application of such a defence defies political calculus. However, defences can be created at common law. It is possible that in the future, faced with an aggressive prosecutor inappropriately seeking a second-degree murder conviction, a court may yet find the need for such a defence.


Conclusion

It seems that generations of outraged high school students are correct: applying the law of today, the narrator of Earle Birney’s poem “David” likely committed second-degree murder. An accused facing this situation today would do well to consider seeking a reduced charge of manslaughter through a plea. Should the Crown seek a second-degree murder charge, a defence strategy could include proposing a new common law defence based in the accused’s compassionate motives.


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