WARNING
The President of the panel hearing this appeal directs that the following should be attached to the file:
An order restricting publication in this proceeding under ss. 486.5 or 486.6 of the Criminal Code shall continue. These sections of the Criminal Code provide:
486.5 (2.1) The offences for the purposes of subsection (2) are
(a) an offence under section 423.1, 467.11, 467.111, 467.12 or 467.13, or a serious offence committed for the benefit of, at the direction of, or in association with, a criminal organization;
(b) a terrorism offence;
(c) an offence under subsection 16(1) or (2), 17(1), 19(1), 20(1) or 22(1) of the Security of Information Act ; or
(d) an offence under subsection 21(1) or section 23 of the Security of Information Act that is committed in relation to an offence referred to in paragraph (c).
486.5 (3) An order made under this section does not apply in either of the following circumstances:
(a) the disclosure of information is made in the course of the administration of justice when the purpose of the disclosure is not one of making the information known in the community; or
(b) the disclosure of information is made by a person who is the subject of the order and is about that person and their particulars, in any forum and for any purpose, and they did not intentionally or recklessly reveal the identity of or reveal particulars likely to identify any other person whose identity is protected by an order prohibiting the publication in any document or the broadcasting or transmission in any way of information that could identify that other person.
486.5 (4) An applicant for an order shall
(a) apply in writing to the presiding judge or justice or, if the judge or justice has not been determined, to a judge of a superior court of criminal jurisdiction in the judicial district where the proceedings will take place; and
(b) provide notice of the application to the prosecutor, the accused and any other person affected by the order that the judge or justice specifies.
(a) if the victim, witness or justice system participant is present, inquire of them if they wish to be the subject of the order;
(b) if the victim, witness or justice system participant is not present, inquire of the prosecutor if, before the application was made, they determined whether the victim, witness or justice system participant wishes to be the subject of the order; and
(c) in any event, advise the prosecutor of their duty under subsection (8.2).
486.5 (7) In determining whether to make an order, the judge or justice shall consider
(a) the right to a fair and public hearing;
(b) whether there is a real and substantial risk that the victim, witness or justice system participant would suffer harm if their identity were disclosed;
(c) whether the victim, witness or justice system participant needs the order for their security or to protect them from intimidation or retaliation;
(d) society’s interest in encouraging the reporting of offences and the participation of victims, witnesses and justice system participants in the criminal justice process;
(e) whether effective alternatives are available to protect the identity of the victim, witness or justice system participant;
(f) the salutary and deleterious effects of the proposed order;
(g) the impact of the proposed order on the freedom of expression of those affected by it; and
(h) any other factor that the judge or justice considers relevant.
486.5 (8) An order may be subject to any conditions that the judge or justice thinks fit.
(a) informed the victims, witnesses and justice system participants who are the subject of the order of its existence;
(b) determined whether they wish to be the subject of the order; and
(c) informed them of their right to apply to revoke or vary the order.
(a) the contents of an application;
(b) any evidence taken, information given or submissions made at a hearing under subsection (6); or
(c) any other information that could identify the person to whom the application relates as a victim, witness or justice system participant in the proceedings.
(a) the person knowingly failed to comply with the order;
(b) the privacy interests of another person who is the subject of any order prohibiting the publication in any document or the broadcasting or transmission in any way of information that could identify that person have been compromised; and
(c) a warning to the individual is not appropriate.
Court of Appeal for Ontario
DATE: 20240627 DOCKET: COA-22-CR-0470 van Rensburg, George and Favreau JJ.A.
BETWEEN
His Majesty the King Respondent
and
B.F. Appellant
Counsel: Elina Marinosyan and Dragi Zekavica, for the appellant Deborah Krick, for the respondent
Heard: December 20, 2023
On appeal from the conviction entered on June 29, 2022 and the sentence imposed on September 7, 2022 by Justice Sean F. Dunphy of the Superior Court of Justice, sitting with a jury, with reasons for sentence reported at 2022 ONSC 5535.
George J.A. :
[1] On June 13, 2019, the appellant was arrested and charged with two counts of attempted murder by administering a noxious substance, two counts of aggravated assault, and two counts of administering a noxious substance with intent to endanger life or cause bodily harm.
[2] A jury found the appellant guilty of attempting to murder her mother, I.F., and her 19-month old daughter, E. The attempted murders were carried out through the administration of potentially lethal amounts of insulin by injection. The appellant was also found guilty of aggravated assault in relation to E., but that count was stayed. She was acquitted on the charge of aggravated assault in relation to I.F. The two counts of administering a noxious substance were withdrawn as duplicative during the trial, so the jury was not instructed to reach a verdict on them.
[3] The appellant was sentenced to life imprisonment without parole eligibility for ten years for the attempted murder of E., and ten years concurrent for the attempted murder of I.F. In addition to other ancillary orders, the sentencing judge imposed a non-communication order preventing the appellant from communicating with I.F. The appellant appeals against both conviction and sentence, and seeks a new trial if the conviction appeal is allowed.
[4] For the reasons that follow, I would dismiss the conviction appeal in respect of the attempted murder of E., and dismiss the sentence appeal. I would allow the appeal and order a new trial in respect of the conviction for attempting to murder I.F.
Background Facts
[5] At the time of these offences, the appellant was a practicing nurse employed at Trillium Hospital in Mississauga. In 2015, the appellant met and subsequently began dating A.N. In 2016, the appellant and A.N. married. The appellant gave birth to E. in October 2017. A.N. is E.’s father. When the appellant and A.N. separated in 2018, she moved in with her parents.
[6] After the appellant moved into her parents’ home, A.N. was arrested and charged with assaulting her. He was also charged with criminal harassment and uttering death threats. A.N. ultimately pleaded guilty to criminal harassment and uttering threats and was sentenced to 27 days in jail (to be served intermittently), followed by probation.
[7] In May 2018, A.N. commenced an application in the Ontario Court of Justice for an order granting access to E. He also sought permission to take E., then only six months old, on a trip abroad. The appellant did not answer A.N.’s application in the Ontario Court of Justice; she instead commenced a separate application in the Superior Court of Justice, which had the effect of staying the Ontario Court action.
[8] In early June 2019, the appellant was granted interim sole custody of E., with A.N. receiving limited supervised access initially at a supervised access facility, and later at his parents’ home. The order directed A.N. to provide his OHIP records and to surrender his passport. The appellant, insistent that A.N. have no access with the child, instructed her lawyer to seek a stay of the order and leave to appeal to the Divisional Court.
[9] On June 12, 2019, the appellant’s father, who was visiting family in Europe, could not reach I.F. or the appellant. Worried, he called a neighbour and asked that they check in on them. The neighbour, who had a key to the home, entered to find E. in her crib and the appellant and I.F. lying on the appellant’s bed. All three were unconscious. The neighbour called 911. When emergency services personnel arrived, they found five insulin pens, each containing many times the normal adult dose, all empty. The appellant and I.F. were transported to Trillium Hospital; E. was transported to Sick Kids Hospital.
[10] Although E. regained consciousness, due to the quantity of insulin injected into her system (which led to a catastrophically low blood sugar level), she suffered serious and permanent brain damage, as well as permanent damage to other organs. E. was diagnosed with cerebral palsy, spasticity and suffers from seizures. E. requires constant medical care because of these injuries. Both the appellant and I.F. have since fully recovered.
The Trial
[11] The Crown argued that the appellant had a motive, and the opportunity, to commit these offences – the result in the family law matter was her motive; the fact she was a nurse with access to insulin provided the opportunity. It was established at trial that the appellant obtained the insulin pens from her place of employment, Trillium Health Partners, and that she knew how to administer them.
[12] The appellant, I.F., and E. had all been injected with insulin. Nine injection sites were found on E. Emergency physicians did not observe any visible needle marks on either I.F. or the appellant, which suggested that the appellant administered the insulin given her professional training in the use of insulin pens. The injection sites on E. stood in contrast, with most of the sites showing bleeding and bruising, evidence that she had resisted. While the appellant had experience administering needles to adults, she did not have experience doing so with struggling infants.
[13] Police officers who attended the scene located and seized the following:
i) nine needle cartridges for the insulin pens;
ii) two depressed syringes; and
iii) identification cards for both the appellant and I.F. on the television stand in the living room.
[14] The police also located, in an open notebook on a TV stand, a three-page handwritten letter that the Crown submitted was, and the trial judge characterized as, a suicide note:
Dear Canada, we would like to thank you for all your help, and everything that you have done for our family to assist us to help protect my nineteen-month-old baby. This country belongs to Native Americans, a nation that you manage to completely destroy in every way possible. Once you have succeeded in ruining them, you decided to bring immigrants (whose countries you have completely damaged) to continue having victims of your corrupt system. You lead a nation of sheep.
Your legal system is set in a way to entirely destroy an intelligent person once they discover what lies beneath. Your legal system is set in a way that there is no battle to be won for a simple, honest man. We know why you have Children’s Aid Society and Family Courts. You have a very worked out system how to discredit good and caring parents so you can sell them and/or give them to abuser of whom you are part of.
You have a corrupt army of […] family law lawyers to assist you in achieving these goals of destroying innocent lives and dictating faiths. Your “honourable” yet illiterate [justice who made the interim family court order] made a decision to destroy my child, the same child I carried in my stomach for nine months, for whom I spent 15 hours and 45 minutes in labour, a child of whom I took care of as if she was an angel sent from God himself (because to me she is).
I gave my child everything in my power. I dedicated my life to that child and I love her with my whole heart and soul. It is heartbreaking that because I am more intelligent than most of your herd of sheep, your system has decided to punish my child. But know that in the end I will never allow for anyone to abduct or hurt my baby. Your system will not dictate our faiths. In the end of it all, that decision will never be yours, but mine and only mine.
I spent eight years of my life as a surgical nurse working 12 hours shifts, working nights as I wanted to help people. This is how Canada rewards me for wanting to save my child from abduction and harm.
[15] The appellant and her mother both testified. The appellant testified about her relationship with A.N. indicating that they began “clashing … right from the start”. She described A.N. as a heavy drug user and, apart from occasional cocaine use, denied that she was. The appellant testified that A.N. was both emotionally and physically abusive, including during her pregnancy. She described the behaviour that led to A.N.’s criminal charges, explained that she was opposed to A.N. travelling with E. because he had previously threatened to “take” E. from her, and confirmed that she was going to appeal the lower court ruling granting him access.
[16] Believing that he could assist her in the family law case, the appellant acknowledged emailing the Prime Minister to ask for help in “re-assess[ing]” the family law matter. She denied leaving her handwritten letter to Canada open on the TV stand. She said that, while she wrote the letter and while it was intended for the Prime Minister, she left it inside a closed notebook on top of other court documents in her bedroom. The appellant denied that it was a suicide note.
[17] The appellant denied taking syringes and insulin pens from the hospital, and said she did not know how those found at her residence got there. The appellant testified that she did not inject E. or I.F., and did not believe that I.F. had injected herself or E. The appellant denied being “disappointed” over the order granting A.N. access and indicated that while she feared A.N., she did not hate him.
[18] The appellant testified to what she remembered about June 11, 2019, the day her father left for Europe. She did not work that day and recalled being home with I.F. and E. She testified that: “We were in the bed and we were lying sideways in the bed, both my mother and I. My daughter was in between us and she was rolling back from me to my mom and that’s all I remember. The next thing I remember is waking up with the paramedics around me.”
[19] The appellant’s theory was that “somebody must have come into [the] apartment” and administered insulin, which they brought, to all three of them.
[20] I.F. testified that on the day in question she was unsure whether the apartment door was locked. She recalled lying on the appellant’s bed with E. and the appellant. She testified that she lost consciousness at some point and that her next memory was after waking up in the hospital. She acknowledged helping the appellant write the “Dear Canada” letter, but denied ever seeing needles or insulin pens in the apartment.
Issues
[21] The appellant raises four grounds of appeal. She argues that:
i) the trial judge erred by instructing the jury that if they found that the person who injected either E. or I.F. was I.F., rather than the appellant, they could still find the appellant guilty as a party pursuant to s. 21 of the Criminal Code;
ii) the acquittal on count 4 (aggravated assault on I.F.) is an inconsistent verdict;
iii) the trial judge erred by not instructing the jury on the “suicide pact” defence to murder discussed in R. c. Gagnon (1993), 84 C.C.C. (3d) 143 (Q.C.C.A.), and on s. 241(1)(b) of the Criminal Code (aiding suicide); and
iv) the sentencing judge disregarded presentence custody, imposed a harsh and excessive sentence, and improperly made a non-communication order.
[22] I will approach this in a way that allows me to address separately the sufficiency of the trial judge’s jury instructions in respect of E. and his instructions in respect of I.F. I will begin by explaining why there is no basis to set aside the attempted murder conviction relating to E., and will follow that with a discussion about why a new trial is required in respect of the conviction for attempting to murder I.F. I will conclude by explaining why I would not interfere with the life sentence (and period of parole ineligibility) imposed for the attempted murder of E.
Analysis
A. Attempted Murder of E.: There is no basis to set aside the conviction
[23] In his instructions to the jury about the attempted murder and aggravated assault of E., the trial judge said this:
It makes no difference to your decision if you find that the Crown has proved beyond a reasonable doubt that [the appellant] herself injected [E.] with the insulin or if you are satisfied that either [I.F.] or [the appellant] injected [E.] with the insulin providing you find that if [I.F.] did so, [the appellant] intended her to do it and intentionally took concrete steps to assist her doing so or abet her by encouraging her to inject [E.] with a potentially lethal dose of insulin and instructing her on the use of the insulin pens she had procured for this purpose. In either case, the Crown will have discharged its burden of proving this first essential element. You do not have to agree on how the Crown has proved this essential element. You do not all have to agree on how the Crown has proved this essential element beyond a reasonable doubt providing you all agree that the Crown has done so by one route or the other.
[24] Whether or not the appellant and I.F. had entered into a suicide pact before E. was injected, and regardless of which of the two actually administered the insulin, is of no moment. In respect of E., this was a proper and legally correct instruction.
[25] With respect to the suicide-pact defence, given her age it was simply not possible for E. to consent to the injections or to inject herself. In fact, the evidence demonstrated that E. resisted the insulin injections. Similarly, even on the alternative theory that I.F. injected E., the overwhelming evidence, including the provision of the means for E.’s attempted murder, still supports the appellant’s conviction as a joint principal, aider, or abettor to that offence. All of which is to say that neither of the alleged errors – the instruction on party liability or the failure to instruct on the suicide-pact defence – impacts the conviction for attempting to murder E.
B. Attempted Murder of I.F.: A new trial is required
(1) Overview
[26] The appellant argues that: (1) it was an error to instruct the jury that they could find the appellant guilty of attempted murder if I.F. injected herself with insulin; (2) the jury should have been instructed on the implications of s. 241(1)(b) of the Criminal Code (aiding suicide); (3) the jury should have been instructed on the Gagnon "suicide pact” defence to murder; and (4) the acquittal on the aggravated assault count is inconsistent with the conviction for attempted murder.
[27] In my view, the trial judge did err by giving to the jury an alternate route to finding the appellant guilty of attempted murder based on acts that could constitute aiding a suicide attempt by I.F., without distinguishing the mens rea required for attempted murder from that required for aiding a suicide attempt.
[28] With respect to the attempted murder of I.F., the indictment alleged that the appellant did so “by administering a noxious substance”. The trial judge told the jury that the actus reus could be established in one of two ways [1]:
The Crown may prove beyond a reasonable doubt that [the appellant] administered a noxious substance to [I.F.] by proving that she injected the substance into [I.F.] with her own hand or by proving that she provided the substance to another with the intent that the substance be thereafter injected into [I.F.].
In the present case, the noxious substance alleged by the Crown to have been administered to [the appellant’s mother] is insulin that was formerly contained in one or more of the five empty insulin pens from Trillium Hospital that were seized by police on June 12, 2019, from the Lake Promenade apartment shared by [the appellant and her mother]. The Crown may satisfy its onus with respect to this essential element with proof beyond a reasonable doubt that [the appellant] administered the substance by injecting the insulin into [I.F.] herself. The Crown may also discharge its onus with respect to this essential element with proof beyond a reasonable doubt that [the appellant] administered the substance to [I.F.] if she procured the insulin pen or pens and provided them to [I.F.] with the intent that [I.F.] would use them to inject herself. You do not all have to agree which of these two ways of administering the noxious substance has been proved as long as you all reach the same conclusion that [the appellant] administered a noxious substance to [I.F.] by one of the routes I have described to you. It does not matter if you find that [I.F.] was a willing participant in any or all of the actions undertaken by [the appellant]. [Emphasis Added]
[29] The question that this instruction leaves unanswered is: If the appellant provided I.F. with the insulin pens, and if I.F. used the insulin pens on herself in an attempted suicide, was it open to the jury to find the appellant guilty of attempting to murder I.F. by the method charged, or could this conduct only constitute the actus reus of aiding suicide under s. 241(1)(b) of the Criminal Code (which was not charged)? In other words, if a conviction for attempted murder was available (if I.F. injected herself), was the jury equipped to understand the distinction between attempted murder and the aiding of a suicide attempt?
[30] The appellant initially submitted to the trial judge (at the pre-charge conference) that the jury should be instructed on a defence to murder that was recognized by the Quebec Court of Appeal in Gagnon – killing another person pursuant to a “suicide pact”, defined narrowly as a common and irrevocable intention to commit suicide together, simultaneously, by the same event and the same instrumentality, and where the risk of death was identical for both: Gagnon, at para. 29, R. v. Dobson, 2018 ONCA 589, 48 C.R. (7th) 410, at paras. 40-44, leave to appeal refused, [2019] S.C.C.A. No. 70. The trial judge rejected this submission. The appellant then argued that if I.F. injected herself in a suicide attempt, the allegation that the appellant procured the insulin and provided it to I.F. would have come under s. 241 of the Code, so the jury would have to acquit the appellant of attempted murder.
[31] As I will explain in greater detail below, the trial judge was right to conclude that the suicide pact defence in Gagnon was not available on the facts of this case. However, I am of the view that to procure insulin, and to provide that insulin to I.F. (to administer to herself with the intention of taking her own life) are facts that, if proven, constitute the actus reus of aiding suicide, and that this same conduct could only support a conviction for attempted murder if the jury found that the totality of the evidence established that the appellant: (a) had a causal role in I.F. administering the insulin to herself; and (b) had the requisite mens rea for attempted murder (i.e., to kill I.F.).
[32] Before I address why the difference between attempted murder and aiding suicide should have been explained to the jury, it might be helpful to, first, gain a better understanding of the parties’ respective positions, how counsel presented their competing theories to the jury, and to consider whether the trial judge’s instructions were responsive to those submissions and to the facts.
(2) Counsel’s Closing Submissions
[33] While the appellant and I.F. each testified that they could not remember what happened on the night in question, surmising that someone must have entered their home (with insulin) and injected them both and E., the appellant’s trial counsel advanced this alternative theory to the jury:
I’ll put the question to you whether or not there’s any other person that comes into this play, into this question. And that specifically now is [I.F.] She certainly was in the room. [I.F.] denies doing the injections and I’d ask you to consider that, but then so does [A.N.]. And of course, [the appellant] does as well. So, considering [I.F.’s] such a person, you must examine the following pieces of evidence. [I.F.] was there. [I.F.] is not trained to give needles. There’s no evidence that she, with respect to this matter. [I.F.] is much heavier than [the appellant], you can certainly see that. She indicated that she weighted 90 kilograms at that time. That’s a lot of weight. Then, could [I.F.] inject [the appellant] and then [E.] and then herself, in that order? If that, in fact, is the case, this scenario is quite possible, I’d ask you to consider that. If so, then there is evidence that [the appellant] did not, in fact, inject the three parties as is being alleged in this matter. There is that alternative. That is very, very important. I’d ask you to consider that aspect of it.
[34] In the event they found that I.F. injected herself (and E.), the Crown said this to the jury in its closing address:
You should have no reason to consider that [I.F.] gave those injections, but if you do, given the evidence in this case, [the appellant] is still guilty of attempted murder. There is no evidence that [I.F.] would have had access to insulin pens that came from Trillium Hospital. None. There is no evidence that [I.F.] knew how to put on those separate little needle caps.
There’s no evidence that [I.F.] knows how to do that. Or that she would know that she would need more than [the] first injection or the second or the fourth or the sixth or the ninth.
[The appellant] injected her mother because she knew how. It doesn’t – there’s no common sense to the suggestion that maybe she would teach [I.F.] how to inject herself in those final moments. [The appellant] knew what she was doing and she did it. [I.F.] didn’t want to live with what her daughter had done.
[35] The trial judge, recounting for the jury each party’s position, said the following:
[Position of the Defence]
Look at [I.F.], she was in the apartment and denies having done it. She is not trained but she is much heavier than [the appellant]. She could have injected [the appellant], then [E.], then herself. That is a possibility.
[Position of the Crown]
The Crown suggested that no witness ever suggested that [I.F.] had overpowered [the appellant] and done this. [The appellant] did not say that. Even if [I.F.] actually injected herself or [E.], and the Crown did not suggest you reach that conclusion, she told you that [the appellant] is still guilty. There is no evidence that [I.F.] had access to insulin pens unless [the appellant] gave them to her. There is no evidence that [I.F.] knew how to use them unless [the appellant] taught her. She reminded you of all the steps necessary to use the pen. They must be unsealed, primed, the dose set, the needle cartridge attached – all of this requires knowledge and practice. The trained hand of [the appellant] is all over these crimes. [The appellant] certainly directed the entire process and as a party to the crime is guilty of it.
(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] 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] 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] 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] 1 S.C.R. 411, at para. 14, citing R. v. Greyeyes, [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), 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.
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), 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] 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.
(4) The Jury Instructions Did Not Sufficiently Distinguish the Attempted Murder Charge from Aiding a Suicide Attempt
[45] The actus reus of attempted murder requires some conduct done for the purpose of carrying out a specific intent to kill, which goes beyond mere preparation: Boone, at para. 49. In this case, “administering a noxious substance” was the conduct alleged in the indictment as the method of attempting to murder I.F. If the appellant had administered a noxious substance to I.F. by injecting I.F. with the insulin, a “positive causal act”, a finding of guilt for attempted murder would indeed be available to the jury. But if the jury had a reasonable doubt about that and believed the appellant had only provided the insulin to I.F. (believing it was I.F.’s intent to administer it to herself, with the intention of killing herself), the jury, if the distinction was made clear, could have found that the appellant aided I.F.’s attempted suicide and did not attempt to murder her.
[46] If I.F. injected herself with the insulin, the appellant would have had to cause it to be administered for her to have at least indirectly administered a noxious substance to I.F. Instructing the jury that providing the insulin pens to I.F. was a way of administering a noxious substance to I.F. did not sufficiently explain the need for the jury to find a causal link between the appellant’s conduct and I.F. giving herself the potentially fatal injection: United States v. Saad, [2003] O.J. No. 1655 (Ont. S.C.J.), at para. 18; reversed on other grounds (2004), , 183 C.C.C. (3d) 97 (Ont. C.A.); leave to appeal refused, [2004] S.C.C.A. No. 232. As already discussed, to simply procure and provide insulin pens is the type of act that could constitute the aiding of a suicide, if that was I.F.’s intent.
[47] While the inference was available that the appellant needed to instruct I.F. on the use of the insulin pens (which, according to the evidence at trial, is a multi-step procedure) the jury was not instructed to consider whether the appellant thereby aided and had a causal role in I.F. injecting herself with a lethal dose of that insulin. If the jury accepted that the appellant procured the insulin (from the hospital she worked at) – and the verdict makes it clear that they did – and then simply provided it to I.F., the jury might have found that I.F. was a responsible adult who had decided independently to use the insulin in an attempt to kill herself. If so, the jury could not have found that the appellant administered a noxious substance to I.F. with the intent to kill her. However, given the wording of the instructions, the jury may not have understood this – what they likely understood is that, in the circumstances just described, they had no choice but to find that the appellant administered a noxious substance to I.F., the conduct alleged in the attempted murder count.
[48] The problem comes into sharp focus when you consider the example cited by the trial judge in the pre-charge conference (i.e., a doctor “administering” a poisonous pill to a patient by providing it and directing the patient to swallow it). This is an entirely inapt comparison because a doctor who provides a pill to a patient, and instructs them to take it, is actively deceiving them (by not telling them it contains poison) knowing that to ingest it would be fatal. The doctor’s deception about the pill, instructions to take it, and knowledge of what it will do, creates the causal link. Here, while it may have been open to the jury to draw certain inferences that might support a conviction for attempted murder, we have no direct evidence about what, if anything, the appellant told I.F., which heightens the importance of the jury charge being not just legally correct, but responsive to the facts and the parties’ positions.
[49] In the unique circumstances of this case, the trial judge was required to provide the jury with a more detailed instruction on the mens rea for attempted murder, and to be clear that an intent to provide aid to I.F.’s own suicide attempt was not sufficient.
[50] The trial judge repeatedly instructed that the mens rea required for attempted murder was “meant to kill” or “intended to kill”. He made it clear that this applied whether they found the appellant injected I.F. or whether she provided I.F. with the insulin on the understanding that I.F. would inject herself. In most attempted murder cases, it will be sufficient to tell the jury that they have to find, based on the evidence, that the accused had the intention to kill to sustain a conviction. But here, more was required. While the distinction between intending to kill and intending to help another kill themself appears subtle, on the facts of this case, it was essential for the jury to know that “intending to kill” or “meaning to kill” is distinct from intending to provide non-causal aid to another person knowing it is their intent to self-inflict death.
[51] I would reject the Crown’s argument that s. 241(1)(b) does not come into play because it was not charged. This argument misses the point, which is, even though the appellant was not charged with aiding I.F.’s attempted suicide – which did mean that the jury could not find her guilty of it (because it is not an included offence of murder: Elton, at para. 25, Gagnon, at para. 31) – a legally correct instruction would ensure the jury understands that what the appellant did, depending on what they found to be her intent, could be something other than attempted murder: R. v. Ali, 2021 ONCA 362, 156 O.R. (3d) 81.
[52] The jury’s decision to acquit the appellant of aggravated assault of I.F., but to find that she attempted to murder her, likely means that they had a reasonable doubt that the appellant injected I.F. with insulin with her own hands, and accepted that she had done so indirectly (by simply providing the insulin to her). And while these two verdicts are not inconsistent they do highlight how the trial judge’s explanation of the second way of administering insulin to I.F. may have impacted the jury’s reasoning in this case.
[53] With respect to either of the two ways the appellant could have “administered” the insulin to I.F., the trial judge further instructed the jury that “the consent of the person whose death was intended to result from the administration of the noxious substance is not relevant to your consideration of this issue”. Then, after telling the jury that they need not all agree on which of the ways the appellant administered the insulin, he repeated what at that point had become a familiar message, which was “[i]t does not matter if you find that [I.F.] was a willing participant in any or all of the actions undertaken by [the appellant]”. On the mens rea required for attempted murder the trial judge instructed the jury that “[t]he Crown must prove beyond a reasonable doubt that [the appellant] meant to kill [I.F.] when she administered [the insulin] to [I.F.] in one of the manners I described”, stressing later in his instructions that they had to find the appellant “meant to kill” I.F. or “intended to kill” I.F.
[54] Discussions at the pre-charge conference largely considered the second way that the appellant could have administered the insulin – by providing it to I.F. so that she could administer it to herself. As mentioned earlier, the trial judge cited the hypothetical of a doctor “administering” a poisonous pill by providing it to a patient and directing them to ingest it knowing that it would result in death. He explained to counsel that if, in that example, death ensued, that would constitute murder. This is when the appellant’s trial counsel raised the possibility that this was a suicide pact, similar to the situation in Gagnon where the court wrestled with whether or not a suicide pact is a defence to first degree murder. The trial judge, correctly in my view, dismissed that submission on the basis that Gagnon was a “very, very narrow case” which did not apply on the facts of this case. However, while the trial judge was right to say that Gagnon did not apply, the discussion that followed about suicide generally, and aiding suicide specifically, does raise concerns, which I will turn to now.
[55] After the pre-charge discussion about the possibility of a suicide pact, trial counsel objected to the contents of the draft jury instruction on the second way of administering a noxious substance. Trial counsel submitted that because the evidence could support a finding that I.F. attempted to commit suicide by injecting herself, the jury needed to be instructed that to provide the insulin pens, without more, would fall under s. 241. The trial judge did not agree and declined to do so on the basis that s. 241 only prohibits counselling suicide, which was not charged. Of course, s. 241 does not only prohibit counselling someone to commit suicide, it also expressly prohibits aiding suicide. The trial judge then reasoned that to provide the tools necessary to commit suicide was an active, concrete step to procure the death of another which, if proven, constituted attempted murder.
[56] Section 14 of the Criminal Code provides that “[n]o person is entitled to consent to have death inflicted on them, and such consent does not affect the criminal responsibility of any person who inflicts death on the person who gave consent”. As such, if the appellant had directly injected I.F., I.F.’s willingness to be injected, and to die, would have been irrelevant to the jury’s assessment of the appellant’s conduct. The trial judge’s instructions were correct on that point.
[57] However, if the jury accepted that the appellant had only procured and provided the insulin pens to I.F., I.F.’s willing participation, and desire to die, would have been relevant to both the actus reus and to the question of whether the appellant intended to kill I.F. Accordingly, the trial judge’s instruction that, in this scenario, I.F.’s consent and willingness to participate is irrelevant, was an error.
[58] Given the evidence, and how counsel presented their respective cases, it was incumbent on the trial judge to distinguish for the jury attempted murder as charged from the elements of s. 241(1) of the Criminal Code, in particular subsection (b), so that they properly understood that what the appellant did, depending on what they found her intention to be, could have been something other than attempted murder. The failure to do so is an error that requires appellate intervention.
C. Sentence Appeal: The sentence for attempting to murder E. is fit
[59] With respect to the life sentence imposed for attempting to murder E., the appellant has two complaints. The first is that the sentencing judge erred by not granting what is commonly referred to as Duncan credit (for harsh jail conditions). The second is that a life-sentence is harsh, excessive, and therefore manifestly unfit.
[60] I will begin by explaining why I would not set aside the life sentence (and 10-year period of parole ineligibility) imposed for attempting to murder E. As it relates to the appellant’s level of moral culpability, and as the sentencing judge observed, the appellant avoided a murder conviction and automatic life sentence only through good fortune. The medical evidence presented at trial established that, because of what the appellant did to her, E. will have a poor quality of life and a high risk of morbidity. E. suffered a permanent brain injury; will experience daily pain and suffering; is legally blind; suffers daily seizures; is and will always have to be nourished by a feeding tube; and, because she lacks all motor control, is wheelchair bound.
[61] The pre-planning and deliberation involved was considerable – the appellant was found to have stolen insulin pens and supplies from her place of employment for the specific purpose of injecting E. This was a breach of trust in respect of the appellant’s employer and, more egregiously, her daughter. The fact this was child abuse was a statutorily mandated aggravating factor. The impact on E.’s family, in particular her father who now cares for her, is enormous.
[62] There is no merit to the appellant’s argument that the sentencing judge ignored the several cases she provided which she contends supports her position that a lesser sentence should have been imposed. The sentencing judge considered all of them and explained why they were of limited assistance.
[63] Lastly, the sentencing judge did not err by declining to grant Duncan credit. He determined that there was no evidence of identifiable harm related to the lockdowns, and, more importantly, that enhanced credit would result in an unfit sentence. This was an exercise of discretion that attracts a high degree of deference: R. v. Ledinek, 2018 ONCA 1017, at para. 13; R. v. Brown, 2020 ONCA 196, at para. 13.
[64] There is no basis on which to interfere with the life sentence imposed for attempting to murder E.
Conclusion
[65] For these reasons, I would dismiss the appeal against the conviction for attempting to murder E. While I would grant leave to appeal the life sentence, I would dismiss the sentence appeal.
[66] I would allow the appeal against the conviction for attempting to murder I.F. and order a new trial.
Released: June 27, 2024 “K.M.v.R.” “J. George J.A.” “I agree. K. van Rensburg J.A.” “I agree. L. Favreau J.A.”
[1] No argument was raised at trial, or on appeal, as to whether the instruction on the second way of “administering” (by providing the insulin to I.F. for I.F. to self-inject) amounted to an amendment to this count.
