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Abstract

Section 231(5)(e) of the Criminal Code elevates murder to first-degree murder when a death is caused while committing unlawful confinement per s. 279 of the Criminal Code. The corresponding mandatory sentence is life imprisonment with no eligibility for parole until 25 years have been served. The Supreme Court of Canada held that this provision was constitutional in R v Luxton, since it did not violate the principles of fundamental justice and was not considered cruel and unusual punishment, contrary to s. 7 and 12 of the Canadian Charter of Rights and Freedoms, respectively.

However, lower courts ought to reconsider the constitutionality of s. 231(5)(e) due to significant changes in the law since Luxton was decided. The purpose of this paper is to inspire defence counsel to challenge the constitutionality of this provision. This paper will demonstrate how the elimination of the Faint Hope Clause, changes in the Aboriginal sentencing process, and changes to the judicial interpretation of s. 12 of the Charter provide lower courts with the authority to reconsider the constitutionality of s. 231(5)(e).