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Ontario and Canada
Appeal Court Dicta

Criminal - Murder

. R. v. Cummins

In R. v. Cummins (Ont CA, 2023) the Court of Appeal considered 'constructive murder':
Constructive murder

[12] It was acknowledged at trial that the appellant caused the death of Mr. Noureddine. The theory of the Crown was that the appellant caused Mr. Noureddine’s death and was also a party to the unlawful confinement of Conery as part of the same transaction, which elevates the murder to first-degree pursuant to s. 231(5)I of the Criminal Code.

[13] In R. v. Pritchard, 2008 SCC 59, [2008] 3 S.C.R. 195, at para. 35, the Supreme Court held that the constructive murder provision should be interpreted as follows:
The jurisprudence therefore establishes that second degree murder will be elevated to first degree murder where the murder and the predicate offence (in this case unlawful confinement) are linked together both causally and temporally in circumstances that make the entire course of conduct a single transaction. The temporal-causal connection is established where the unlawful confinement creates a “continuing illegal domination of the victim” that provides the accused with a position of power which he or she chooses to exploit to murder the victim. If this is established the fact that along the way other offences are committed is no bar to the application of s. 231(5). [Citations omitted]
[14] The elements of s. 231(5)I were set out by this court in R. v. McGregor, 2019 ONCA 307, 145 O.R. (3d) 641, at para. 60:
The essential elements of constructive first degree murder under s. 231(5) are five:
(i) that the accused committed or attempted to commit a listed underlying crime;

(ii) that the accused murdered the victim;

(iii) that the accused participated in the murder in such a manner that he was a substantial cause of the victim’s death;

(iv) that no intervening act by somebody else resulted in the accused no longer being substantially connected to the victim’s death; and

(v) that the underlying crime and the murder were part of the same transaction.

[24] When instructing on the requirements for the “single transaction”, the trial judge followed the model charge set out by Watt J.A: see David Watt, Watt’s Manual of Criminal Jury Instructions, 2023 (Toronto: Thomson Reuters, 2023), at p. 760. However, when instructing the jury on whether the appellant committed or attempted to commit unlawful confinement, the trial judge said that the unlawful confinement need not be causally connected to the murder. At para. 226 of the jury charge, the trial judge said:
What the Crown must prove in this case is that Mr. Cummins committed the murder as part of the same transaction in which, either as a principal or secondary party, he committed an unlawful confinement. But the unlawful confinement, in this case of Mr. Conery, need not have any causal connection to the murder of Mr. Noureddine. [Emphasis added]
[25] It is this last sentence that may have misled the jury. While we acknowledge that the “causal connection” required for the two offences to be part of a “single transaction” is different from factual or legal causation, these intricacies would not be clear – without further explanation – to the jury: see R. v. Sundman 2022 SCC 31, 471 D.L.R. (4th) 191, at paras. 33-34, and R. v. Singh, 2022 ONCA 584, at paras. 154-156. The jurisprudence makes it clear that a finding that the killing and the unlawful confinement were part of the same transaction is synonymous with a finding that “there was a causal and temporal connection” between them. (Pritchard.)
. R. v. Collins

In R. v. Collins (Ont CA, 2023) the Court of Appeal considered an appeal from murder and an attempted murder convictions. In these quotes the court considers the "contemporaneity principle" (the temporal coincidence of means rea and actus reus), and the adequacy of the related jury charge:
(b) Murder and Contemporaneity

[34] In the vast majority of murder cases, the route to liability turns on the application of s. 229(a) of the Criminal Code.[2] In this case, the Crown relied on s. 229(b). These provisions, with the common elements underscored, read as follows:
229 Culpable homicide is murder

(a) where the person who causes the death of a human being

(i) means to cause 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. [Emphasis added.]
Section 229(b) applies when the victim is killed by “accident” (the allegation here), or by “mistake” (i.e., a case of mistaken identity).

[35] Section 229(b) is sometimes referred to as the “transferred intent” provision. A more apt expression might be the “unintended victim” provision. As noted in David Watt, Watt’s Manual of Criminal Jury Instructions, 2023 (Toronto: Thomson Reuters, 2023), at p. 720:
In all material respects, save one, the definitions of murder in ss. 229(a) and (b) are identical. Where s. 229(b) differs is that it involves two victims: one intended, the other actual. Under s. 229(a), the intended and actual victim are one and the same. Under s. 229(b), the intended and actual victims are different.
[36] These provisions must be applied in accordance with the common law principle that the fault requirements for criminal offences – the actus reus and the mens rea – be concurrent. In R. v. Cooper, 1993 CanLII 147 (SCC), [1993] 1 S.C.R. 146, also a murder case, Cory J. said, at p. 157: “There is, then, the classic rule that at some point the actus reus and the mens rea or intent must coincide.” See also R. v. Williams, 2003 SCC 41 (CanLII), [2003] 2 S.C.R. 134, at p. 146; R. v. Brown, 2022 SCC 18, 412 C.C.C. (3d) 427, at paras. 106-107; and R. v. Monckton, 2017 ONCA 450, 349 C.C.C. (3d) 91, at para. 75. This is sometimes referred to as the “simultaneous principle” or the “contemporaneity principle”: Kent Roach, Criminal Law, 8th ed. (Toronto: Irwin Law, 2022), at p. 123.

[37] This doctrine applies to murders committed under s. 229(a) of the Criminal Code, as in Cooper,[3] and to murders committed under s. 229(b): R. v. Droste (No. 2) (1982), 1981 CanLII 82 (ON CA), 34 O.R. (2d) 588 (Ont. C.A.), at pp. 592-593, aff’d 1984 CanLII 68 (SCC), [1984] 1 S.C.R. 208. Thus, to establish liability under s. 229(b), the Crown must prove that the accused person had a murderous intent when they mistakenly or accidentally killed the unintended victim.

[38] The appellant insists that the Crown was required to prove that the appellant possessed a murderous intent to kill Mr. Beals at the very moment that he shot the bullet that tragically killed Mr. Bajkor. The Crown submits that, as long as the appellant had the requisite intent at some point during the brief transaction that resulted in five shots being fired in rapid succession, this would suffice.

[39] I accept the Crown’s submission. As Professor Don Stuart said in Canadian Criminal Law – a Treatise, 8th ed. (Toronto: Thomson Reuters, 2020), at p. 411: “It would be pedantic and ludicrous to insist that criminal responsibility can only arise if conduct is commenced at exactly the same time as the formation of a state of mind.” That the law does not require such exactitude is borne out by the cases.

[40] In Cooper, relying on the famous case of Fagan v. Metropolitan Police Commissioner, [1968] 3 All E.R. 442 (Q.B.), Cory J. said the following: “Yet, it is not always necessary for the guilty act and the intent to be completely concurrent. …The determination of whether the guilty mind or mens rea coincides with the wrongful act will depend to a large extent upon the nature of the act”: at p. 157. Cory J. further held that, if a sequence of acts form part of the same transaction, and if the requisite intent coincides “at any time” with the sequence of acts, this would be sufficient for contemporaneity purposes: at p. 158. As Kasirer J. observed in Brown, at para. 107, the contemporaneity principle is “applied flexibly.”

[41] Cooper strangled his victim to death. The evidence was that it would have taken between 30 seconds and 2 minutes of sustained pressure to end her life. Cooper claimed to have blacked out at some before the victim died. Cory J. observed, at p. 159: “It was sufficient that the intent and the act of strangulation coincided at some point. It was not necessary that the requisite intent continue throughout the entire two minutes required to cause the death of the victim.”

[42] The appellant submits that the more expansive approach endorsed in Cooper – the co-existence of mens rea and actus reus at some point during a single transaction of wrongful acts – is inapplicable to s. 229(b) of the Criminal Code because there is more than one victim (i.e., the intended victim and the actual victim). Consequently, the Crown is required to prove that the appellant had the intent to kill Mr. Beals at the very moment he fired the bullet that killed Mr. Bajkor. As counsel put it – intent follows the bullet.

[43] I do not accept this submission. There is no basis in law to draw this artificial distinction. There is no difference in the wording of ss. 229(a) and 229(b) that would signal that a differential approach is required. The appellant’s position is supported by no authority. In any event, as demonstrated below, the trial judge’s instructions on this issue adhered to a narrower path, requiring that the jury be satisfied that the appellant had a murderous intent trained on Mr. Beals when he accidentally killed Mr. Bajkor.
. R. v. Nagy

In R. v. Nagy (Ont CA, 2023) the Court of Appeal briefly states the principle of 'provocation', which can reduce murder to manslaughter:

[30] Provocation reduces murder to manslaughter. It arises where an accused suddenly kills a victim in response to a wrongful act or insult that is sufficient to deprive a reasonable person of self-control and, in fact, deprived the accused of self-control. ...


[32] The question of whether there is an air of reality to provocation is a question of law, reviewable on the standard of correctness: R. v. Tran, 2010 SCC 58, [2010] 3 S.C.R. 350, at para. 40; R. v. Alas, 2021 ONCA 224, 404 C.C.C. (3d) 50, at para. 69.


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