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Criminal - Mens Rea - Transferred Intent. R. v. Bush
In R. v. Bush (Ont CA, 2024) the Ontario Court of Appeal found a trial error in jury charge that suggested an error of the law of 'transferred intent':[3] .... The trial judge also erred by instructing the jury that if they found the appellant committed a planned and deliberate murder of any one of the victims, they then had to find him guilty on all three counts.
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[31] I agree with the appellant that the trial judge erred in providing this instruction. First of all, this was not a case of transferred intent. As Watt J.A. explained in R. v. Gordon, 2009 ONCA 170, 241 C.C.C. (3d) 388, the doctrine of transferred intent “applies when an injury intended for one falls on another by accident” or where “the harm that follows is of the same legal kind as that intended”: Gordon, at para. 42. The Supreme Court considered this issue in the context of first-degree murder in R. v. Droste, 1984 CanLII 68 (SCC), [1984] 1 S.C.R. 208, holding that where a planned and deliberate act carried out to kill an intended target actually kills an unintended target, the act is still premeditated and would be first degree murder: at para. 28. This applies only where the act leading to the death of the third party was intended to be directed against the target.
[32] As the evidence here could not have supported such a conclusion, the doctrine of transferred intent did not apply.
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