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Criminal - Suicides. R. v. B.F. [attempt murder and aiding suicide contrasted]
In R. v. B.F. (SCC, 2025) the Supreme Court of Canada allowed a Crown criminal appeal, here brought against an Ontario Court of Appeal decision that allowed an appeal in part, setting aside the conviction for attempted murder on the theory that the facts better suited aiding suicide.
Here the court considers whether aiding suicide is an included offence within attempt murder:[42] At the outset, it is important to clarify that the offence of counselling or aiding suicide was not before the trial court. B.F. was not charged with counselling or aiding suicide. Further, both parties submit that counselling or aiding suicide was not an included offence to the attempted murder charges at issue (transcript, at pp. 38-39; A.F., at para. 107; R.F., at para. 42). I agree.
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[44] The Criminal Code does not explicitly provide that counselling or aiding suicide is an offence included in that of attempted murder (s. 662). Further, the elements of counselling or aiding suicide cannot be said to necessarily form part of the attempted murder offences as charged. B.F. is charged that, by administering a noxious substance, she attempted to murder I.F. A person can attempt to murder someone by administering a noxious substance in factual circumstances where they would not also be committing the offence of counselling or aiding suicide. For example, administering a lethal poison to a person who is not attempting to die by suicide would clearly not be counselling or aiding that person to die by suicide.
[45] The conclusion that counselling or aiding suicide is not a lesser included offence to the attempted murder charges is further reinforced by appellate court jurisprudence confirming this offence is not included in that of murder (see, e.g., R. v. Gagnon (1993), 1993 CanLII 3973 (QC CA), 84 C.C.C. (3d) 143 (Que. C.A.), at pp. 158-60; Mailhot v. R., 2012 QCCA 964, at paras. 84-85, rev’d on other grounds 2013 SCC 17, [2013] 2 S.C.R. 96). . R. v. B.F.
In R. v. B.F. (SCC, 2025) the Supreme Court of Canada allowed a Crown criminal appeal, here brought against an Ontario Court of Appeal decision that allowed an appeal in part, setting aside the conviction for attempted murder on the theory that the facts better suited aiding suicide.
The central issue in this case was whether the defendant was liable for the offence of aiding suicide or of attempted murder:[40] The parties to this appeal disagree on the legal relationship between attempted murder, under s. 239 of the Criminal Code, and counselling or aiding suicide, under s. 241 of the Criminal Code. Specifically, they differ as to whether an accused can be found guilty of attempted murder where they provide a person with lethal tools and that person uses those tools in a voluntary attempt to end their own life. ....
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[1] B.F., her 19-month-old daughter, E., and her mother, I.F., were found unconscious in their family apartment. All three had been injected with large doses of insulin. All three survived, with B.F. and I.F. making a full recovery. E., however, suffered life-altering injuries and requires intensive medical care for the rest of her life.
[2] A jury convicted B.F. of the attempted murder of E. and I.F., as well as the aggravated assault of E. The Court of Appeal found that the trial judge’s instructions wrongly permitted the jury to convict B.F. of the attempted murder of I.F. based on acts that could instead constitute the distinct offence of aiding suicide under s. 241(1)(b) of the Criminal Code, R.S.C. 1985, c. C-46. Specifically, B.F. could have provided the insulin to I.F., who could have injected herself in an attempt to die by suicide. As a result, the Court of Appeal set aside B.F.’s attempted murder conviction regarding I.F. and ordered a new trial on that count. The Court of Appeal did not disturb B.F.’s convictions related to E.
[3] The Crown and B.F. appeal to this Court. Both appeals concern the adequacy of the trial judge’s jury instructions.
[4] The Crown seeks to restore B.F.’s conviction for the attempted murder of I.F. It argues that B.F. could be found guilty of attempted murder even if I.F. had injected herself with insulin, provided that B.F. procured and provided the insulin to I.F. with the intent that I.F. would inject herself, and that B.F. meant to kill I.F. when taking these active steps. In the alternative, the Crown contends that there was no air of reality to the theory that I.F. intended to die by suicide, such that the trial judge’s failure to instruct on this theory was not an error (transcript, at pp. 5-8).
[5] B.F. asks this Court to set aside her remaining convictions for the attempted murder and aggravated assault of E. and to order a new trial. She argues that the trial judge made various errors when instructing the jury on those offences.
[6] For the reasons that follow, I would allow the Crown’s appeal, restore B.F.’s conviction for the attempted murder of I.F., and dismiss B.F.’s appeal.
[7] In my view, the Court of Appeal unnecessarily complicated this matter by holding that the jury needed to be instructed on the distinction between attempted murder under s. 239 of the Criminal Code and aiding suicide under s. 241(1)(b). The distinct offence of aiding suicide was neither charged nor is it a lesser included offence. Further, there was no air of reality to a scenario in which I.F. self-administered the insulin with an intention to end her own life. The trial judge was therefore correct not to address this scenario in his instructions, which properly equipped the jury to decide B.F.’s guilt on all relevant charges. The question of the legal relationship between attempted murder and aiding suicide has no bearing on the appeals. . R. v. B.F.
In R. v. B.F. (Ont CA, 2024) the Ontario Court of Appeal considered crimes in the 'attempted' form [under 24(1)], here attempted suicide:(3) Attempted Murder or Aiding Suicide
[36] For crimes of attempt, per s. 24(1) of the Criminal Code, there must be proof that the accused had the “intent to commit the completed crime”, and proof that the accused took “some step towards the commission of the completed crime beyond mere preparation”: R. v. Gordon, 2009 ONCA 170, 94 O.R. (3d) 1, at para. 56, leave to appeal refused, [2009] S.C.C.A. No. 177; United States of America v. Dynar, 1997 CanLII 359 (SCC), [1997] 2 S.C.R. 462, at para. 50. In the case of attempted murder, the requisite intent is nothing less than the “intent to kill”: R. v. Ancio, 1984 CanLII 69 (SCC), [1984] 1 S.C.R. 225, at p. 249; R. v. Boone, 2019 ONCA 652, 56 C.R. (7th) 432, at para. 49. The actus reus for attempted murder is “conduct by the accused done for the purpose of carrying out that intention”: Boone, at para. 49.
[37] Attempting suicide is not an offence in the Criminal Code. However, section 241(1) of the Criminal Code provides that:Everyone is guilty of an indictable offence and liable to imprisonment for a term of not more than 14 years who, whether suicide ensues or not,
(a) counsels a person to die by suicide or abets a person in dying by suicide; or
(b) aids a person to die by suicide. [Emphasis added.] [38] The meaning of “counsels” and “abets” in s. 241(1)(a) may be informed by the meaning of these terms in other contexts in the Criminal Code. Pursuant to s. 22(3), counselling includes to procure, solicit or incite. As observed by the Supreme Court in R. v. Hamilton, 2005 SCC 47, [2005] 2 S.C.R. 432, at para. 22, the Canadian Oxford Dictionary, 2nd ed. (2004), defines counselling as advising or recommending a course of action; procuring as bringing something about; soliciting as “ask[ing] repeatedly or earnestly for or seek[ing] or invit[ing]”; and inciting as to “urge” someone to do something. The court in Hamilton held that the actus reus of counselling is “the deliberate encouragement or active inducement of the commission of a criminal offence”, and the mens rea as an “accompanying intent or conscious disregard of the substantial and unjustified risk inherent in the counselling”: Hamilton, at para. 29.
[39] To abet an offence means to encourage, instigate, promote or procure the commission of that offence: R. v. Briscoe, 2010 SCC 13, [2010] 1 S.C.R. 411, at para. 14, citing R. v. Greyeyes, 1997 CanLII 313 (SCC), [1997] 2 S.C.R. 825, at para. 26. The actus reus of abetting suicide, more specifically, requires a person to do, or omit to do, something that encourages someone else to commit suicide: R. v. Cowan, 2021 SCC 45, 463 D.L.R. (4th) 37, at para. 32, citing Briscoe, at paras. 14-15. To have the requisite mens rea, it must be established that the abettor intended to encourage someone else to commit suicide, and knew that they intended to do so: Cowan, at para. 32.
[40] Particularly relevant to this appeal is what can constitute aiding suicide under s. 241(1)(b). Beginning with some examples, in R. v. Genereux (1999), 1999 CanLII 1874 (ON CA), 44 O.R. (3d) 339 (C.A.), the appellant, a doctor, pleaded guilty to two counts of aiding and abetting suicide. The offences were comprised of the appellant providing two patients, at their request, prescriptions for lethal doses of a drug, knowing that they contemplated using it for the purpose of suicide. Aiding could also include providing a tool or other means at the request of the person intending suicide, retrieving lethal medication from a pharmacy, or even opening a bottle of medication for the person who is about to commit suicide: R. c. Houle, 2006 QCCS 319, 38 C.R. (6th) C.R. 242, at para. 113; Government of Canada, “Legislative Background: Medical Assistance in Dying (Bill C-14)”, 2016, at p. 8.
[41] In R. v. Elton, 2016 BCCA 440, the British Columbia Court of Appeal describes, at paras. 25 and 27, both the actus reus and mens rea of aiding suicide:A person aids a suicide by assisting another person to inflict death upon him or herself where such assistance falls short of a positive causal act. Aiding suicide is a form of accessory liability imposed for assisting a principal actor to self-inflict death. It is not an included offence in a charge of murder.
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The mens rea of aiding suicide is intending to help another person to kill him or herself, knowing that is his or her intent. [Citations omitted. Emphasis added.] [42] What does it mean to assist “another person to inflict death upon him or herself where such assistance falls short of a positive causal act”? The facts in Elton assist in drawing the distinction between aiding on the one hand, and a “positive causal act” necessary for murder on the other. In Elton, while the accused found his wife asleep or unconscious with a bottle of pills in her hand, and even if he honestly believed that his wife was attempting suicide by taking those pills, he also strangled and stabbed her when she was still alive and killed her “by his own overt acts, intending to cause her death”, which is murder and not aiding a suicide. In other words, for Mr. Elton to have been convicted of aiding his wife’s suicide, as opposed to murder, the victim would have had to fully cause her own death, which the evidence did not support.
[43] The self-administration of a potentially lethal substance does not necessarily preclude factual and legal causation of death by someone else who provided the substance. There are examples of manslaughter convictions in which the deceased voluntarily consumed potentially dangerous illicit drugs which were provided by the accused, and which the accused facilitated or encouraged the deceased to use in dangerous amounts and ways: R. v. Fournier, 2023 ONCA 435, at paras. 9-12; R. v. Haas, 2016 MBCA 42, 28 C.R. (7th) 351, at paras. 38-64, leave to appeal refused, [2016] S.C.C.A. No. 306; R. v. C.W. (2006), 2006 CanLII 11225 (ON CA), 209 O.A.C. 1 (C.A.), at paras. 5-7, leave to appeal refused, [2006] S.C.C.A. No. 409. In these cases, the deceased’s voluntary self-ingestion of the substances did not break the chain of factual and legal causation for the accused’s actions to be a significant contributing cause of death on the standard in R. v. Nette, 2001 SCC 78, [2001] 3 S.C.R. 488. However, in these cases, the deceased themselves would not have been intending to die when they voluntarily consumed the substances provided by the accused. In the suicide context, where the will of the person committing (or attempting to commit) suicide is operating, the trier of fact would have to consider not only whether the accused provided the lethal substance but also whether they interfered with the independent will of the person to self-administer it or not.
[44] While the essential elements of s. 241 and murder (and attempted murder) differ, it is possible that evidence in a specific case could support either charge, which would depend on how the trier of fact interprets the evidence and what inferences they are prepared to draw in respect of the accused person’s intent and conduct: Gagnon, at paras. 33-34. For example, an accused could be guilty of either offence where they provide illicit drugs, as the means for a suicide attempt, to a person knowing they are going to attempt suicide. These facts could provide the basis for either charge. The trier of fact would then have to review the evidence and determine whether the accused, either through manipulation or intimidation (or by other means), overbore the victim’s freewill in choosing suicide. If the jury so concluded a conviction for attempted murder might be available; if not this same conduct would be the aiding of a suicide attempt.
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