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Criminal - Murder. R. v. Tubic
In R. v. Tubic (Ont CA, 2024) the Ontario Court of Appeal allowed an appeal from a second-degree murder conviction. Here the court considers the fault requirement for murder [CCC s.229(c)]:(4) The Trial Judge Misstated the Fault Requirement for Murder in s. 229(c) of the Criminal Code
[67] I would also allow the appeal on another basis. As noted above, the trial judge found the appellant guilty of murder on the basis of s. 229(a) or 229(c) of the Criminal Code, which currently read as follows: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;
...
(c) if a person, for an unlawful object, does anything that they know is likely to cause death, and by doing so causes the death of a human being, even if they desire to effect their object without causing death or bodily harm to any human being. [Emphasis added.] [68] Section 229(c) casts the net of criminal liability more broadly than s. 229(a). As originally enacted, the liability aperture of s. 229(c) was much wider. The fault requirement read as follows:229 Culpable homicide is murder
...
(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. [Emphasis added.] [69] In R. v. Martineau, 1990 CanLII 80 (SCC), [1990] 2 S.C.R. 633, at p. 648, the Supreme Court of Canada held that the words “ought to know” in this previous version violated ss. 7 and 11(d) of the Charter. For the offence of murder, nothing less than a subjective state of mind is sufficient: see R. v. Shand, 2011 ONCA 5, 104 O.R. (3d) 291, at para. 122, leave to appeal refused, [2011] S.C.C.A. No. 270 (“Shand”); R. v. S.K., 2019 ONCA 776, 148 O.R. (3d) 1, at para. 71; and R. v. Williams, 2019 ONCA 846, at para. 17.
[70] Despite this jurisprudence, the offending language was not removed from s. 229(c) for almost two decades: see Bill C-75, An Act to amend the Criminal Code, the Youth Criminal Justice Act and other Acts and to make consequential amendments to other Acts, S.C. 2019, c. 25, s. 77, which received Royal Assent on June 21, 2019.[9]
[71] In his reasons, the trial judge referred to the wording of the repealed version of s. 229(c) – “ought to have known.” It is unclear why the trial judge resorted to this section in the first place. The Crown did not rely upon this route to a murder conviction.
[72] The “unlawful object” in s. 229(c) of the Criminal Code must be different from the assault that gives rise to the murder: Shand, at para. 134, citing R. v. Meiler (1999), 1999 CanLII 3728 (ON CA), 136 C.C.C. (3d) 11 (Ont. C.A.), at para. 48. .... . R. v. Hodgson
In R. v. Hodgson (SCC, 2024) the Supreme Court of Canada allows an appeal restoring a criminal acquittal.
Here the court [while re-instating the trial court's treatment of the issues], contrasts the mens rea for murder versus manslaughter:(1) The Legal Test for Mens Rea
[47] The Court of Appeal’s reference to the proposition that a blocked airway is more than a “transient or trifling” injury relates only to the mens rea for manslaughter — which requires an objective foreseeability of the risk of bodily harm that is neither trivial nor transitory in the context of a dangerous act (R. v. DeSousa, 1992 CanLII 80 (SCC), [1992] 2 S.C.R. 944, at p. 961; R. v. Creighton, 1993 CanLII 61 (SCC), [1993] 3 S.C.R. 3, at pp. 44-45). Foreseeability of death is not required. The objective mens rea of manslaughter is not concerned with what the accused intended or knew; rather, “the mental fault lies in failure to direct the mind to a risk which the reasonable person would have appreciated” (Creighton, at p. 58). Thus, a conviction for manslaughter requires that the underlying unlawful act be one that is objectively dangerous (p. 43). The trial judge understood this framework; it is clear from her reasons that she considered the objective dangerousness of a chokehold and that in the absence of self-defence, Mr. Hodgson had the requisite objective mental fault to be found guilty of manslaughter.
[48] In contrast, “a conviction for murder cannot rest on anything less than proof beyond a reasonable doubt of subjective foresight” (R. v. Vaillancourt, 1987 CanLII 2 (SCC), [1987] 2 S.C.R. 636, at p. 654 (emphasis added); R. v. Martineau, 1990 CanLII 80 (SCC), [1990] 2 S.C.R. 633, at p. 646). Murder is distinguished from manslaughter “only by the mental element with respect to the death” (Vaillancourt, at p. 654, quoted in Creighton, at p. 17, per Lamer C.J., concurring). The requisite intent for murder is “an intent to kill or an intent to cause bodily harm that the offender knows is likely to cause death and is reckless as to whether or not death ensues” (R. v. Walle, 2012 SCC 41, [2012] 2 S.C.R. 438, at para. 3).
[49] A conviction for murder requires subjective intent because it is an offence that “carries with it the most severe stigma and punishment of any crime in our society” (Martineau, at p. 645). The law requires subjective foresight of death because the criminal liability for murder is of the highest kind and cannot be justified except where the actor possesses a culpable mental state in respect of that result (Martineau, at p. 645, citing R. v. Bernard, 1988 CanLII 22 (SCC), [1988] 2 S.C.R. 833). Thus, the harsh stigma and punishment associated with murder is reserved for “those who choose to intentionally cause death or who choose to inflict bodily harm that they know is likely to cause death” (Martineau, at p. 646).
[50] Given this rationale, any slippage from the high bar of subjective intent required for murder must be avoided. The accused’s actions are not to be measured against the objective standard of a reasonable person in the same circumstances. The mens rea for murder requires more than an intention to cause bodily harm that the accused knew was dangerous; an accused must have intended to cause bodily harm that they knew was likely to cause death. Thus, the proposition that a chokehold is always an inherently dangerous act runs the risk of inappropriately injecting an objective element into the mens rea analysis for murder. This is because the subjective foresight required for murder is focused solely on what the accused intended, and the analysis cannot consider what the accused ought to have known about the inherent dangerousness of a chokehold.
[51] Thus, when considering the mens rea for murder, a trial judge should not be (and indeed cannot be) required to assess an accused’s intention against the fact that someone else in their position should have or would have been aware of the danger the chokehold posed. Accordingly, for an accused to be convicted of murder, it is not sufficient for the Crown to prove that a particular accused knew that a chokehold in the circumstances was dangerous or that a reasonable person in the accused’s position would have known that the chokehold would cause bodily harm that was likely to cause death. Neither of these findings would meet the requisite level of subjective intent required for a murder conviction, namely that the accused intended to cause death or that the accused intended to cause bodily harm that they knew was likely to cause death but was reckless as to whether or not death ensued.
[52] Consequently, accepting the proposition that a chokehold is always an inherently dangerous act in every case would inappropriately import an objective element into the analysis of the mens rea of murder. Accepting this proposition would also usurp the role of the trier of fact, who must assess the dangerousness of a chokehold based on the facts of the particular case.
[53] In light of the fact that the trial judge in this case found that Mr. Hodgson would have been guilty of manslaughter if not for the act having been committed in self-defence, or in defence of others, it is clear that she properly considered that a chokehold can be dangerous. Indeed, the evidence demonstrates that, as a method of restraint, chokeholds can certainly carry with them a degree of danger. As Dr. Milroy explained, strangulation prevents breathing and deprives the brain of blood and, thereby, of oxygen. Thus, unlike a headlock — which merely immobilizes someone by limiting their movement — a neck compression chokehold can rapidly lead to unconsciousness. The tragic consequences that Mr. Winsor suffered, including serious injuries in addition to a loss of consciousness and death, speak to how dangerous chokeholds can be.
[54] However, in respect of the subjective mens rea for murder, the trial judge accepted the testimony of Mr. Hodgson as to his state of mind when he used the chokehold on Mr. Winsor. Mr. Hodgson testified that the chokehold was meant to “restrain [Mr. Winsor] and try and throw him to the ground” and that he maintained the chokehold until Mr. Winsor “stopped struggling” because he was afraid of Mr. Winsor (transcript, reproduced in A.R., part V, at pp. 423-24). The trial judge accepted that, at the time, Mr. Hodgson did not think the chokehold was inherently dangerous and that he also did not have time, in the midst of the altercation, to think about its dangerousness. His personal experience included viewing videos in the media of law enforcement using chokeholds to induce unconsciousness; he witnessed such a technique used effectively when he was a bouncer in 1998 and had used it himself in 2016. Although the person he had used it on in 2016 was rendered unconscious, that person did not die and instead “got up and started fighting immediately after” (p. 446). While Mr. Hodgson acknowledged seeing news stories of people dying as a result of being placed in chokeholds by police, he testified that he could not “say for sure” whether he knew that chokeholds were dangerous at the time of the party (p. 462).
[55] The trial judge also considered other available evidence that could realistically bear on Mr. Hodgson’s intent, including the circumstances in which Mr. Hodgson became involved in the altercation, the short duration of the chokehold, the evidence of the other guests who were surprised that Mr. Winsor did not recover quickly after being put in the chokehold, and the experts’ opinions on how long it might take for a chokehold to lead to unconsciousness and death. She found that this party “suddenly took an unpleasant turn”; Mr. Hodgson was asked to intervene and “he did what he could” to control Mr. Winsor (para. 94). The trial judge also accepted that Mr. Hodgson’s injured right hand meant “many [other] forms of potential control were likely unavailable” (para. 120). When Mr. Hodgson initially tried to pull Mr. Winsor away from the confrontation, he elbowed Mr. Hodgson in the head, and the trial judge accepted that it did not appear that non-physical means were reducing the threat Mr. Winsor posed at the time. Mr. Hodgson only put Mr. Winsor in a chokehold for a “fairly short period of time”, and everyone at the party was surprised that Mr. Winsor was not responsive afterwards (para. 94).
[56] The trial judge characterized the chokehold as a “known ‘calm down’ move” that would have seemed proportional in all of the circumstances (para. 120). In this case, it was open to the trial judge to make this factual finding. Mr. Burke testified that he had seen the chokehold manoeuvre used on others and believed the chokehold that Mr. Hodgson used was just a regular “calm down” method. One of the experts also testified that the same type of chokehold is regularly used in martial arts.
[57] The trial judge reviewed all this evidence in detail and ultimately concluded that she had a reasonable doubt as to whether Mr. Hodgson intended to kill Mr. Winsor or knew that the chokehold was likely to do so. She found there “was no evidence that satisfie[d] [her] beyond a reasonable doubt that Mr. Hodgson intended to cause death or knew that what he did would have that result” (para. 97 (emphasis added)). Her conclusion that there was no intent to murder was firmly grounded in the evidence pertaining to Mr. Hodgson’s subjective state of mind.
[58] With respect, the Court of Appeal seems to have simply disagreed with the trial judge’s assessment that the chokehold used in these circumstances was intended to be a regular “calm down” method. Such a disagreement as to the characterization of a chokehold in these particular circumstances is not an error of law that justifies overturning an acquittal. . R. v. Bush
In R. v. Bush (Ont CA, 2024) the Ontario Court of Appeal found an error in a murder jury charge, and recommends a correct charge:[33] The trial judge needed to instruct the jury in accordance with the principles set out in R. v. Ching, 2019 ONCA 619, 378 C.C.C. (3d) 284. In Ching, the accused, who planned and deliberated the murder of his ex-wife, killed the victim’s uncle who intervened to stop him. This court ultimately concluded that in circumstances like these an accused will be guilty of second-degree murder as the “actual killing may well have been impulsive” rather than planned and deliberate: Ching, at para. 31, and that one can only be found guilty of first degree murder if they planned and deliberated to kill both a specific victim and anyone who gets in their way.
[34] In this case, taking into account his prior communications and attempts to scout the apartment building, it is clear that the appellant’s focus was on killing Mr. Garon (and his wife should she happen to be home when he attended there to carry out his plan[2]). There is no evidence, however, that Ms. Beniskos’ murder was the result of the same planned and deliberate assault, or that she was the intended victim of the murder.
[35] The trial judge therefore erred by not explaining to the jury that, if the appellant planned and deliberated to kill both a specific victim (i.e., Mr. Garon) and anyone who got in his way (i.e., Mrs. Garon and/or Ms. Beniskos), he would be guilty of first degree murder, but that absent such a plan, a spontaneous killing committed while carrying out the planned and deliberate murder of another victim is second degree murder: Ching, at para. 32; R. v. Dipchand, [1991] O.J. No. 1775 (C.A.), leave to appeal abandoned, [1991] S.C.C.A. No. 47.
[36] The jury’s verdict implies that they found the appellant planned and deliberated the murder of Alban Garon, and possibly Mrs. Garon, but they were never instructed, as they should have been, on whether the murder of Ms. Beniskos was planned and deliberate or whether the appellant planned to kill anyone who was present and got in the way of what he intended to do to Mr. Garon. . 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:Provocation
[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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