CITATION: R. v. J.A., 2016 ONSC 7046
COURT FILE NO.: CR-15-30000339-0000
DATE: 20161116
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
J.A.
Defendant
J. Battersby and L. Zamojc, for the Crown
M. Bojanowska and J. Lastuk, for the Defendant
HEARD: June 20 and 21, 2016
RULING ON INCLUDED OFFENCE
B. P. O’Marra, J.
[1] J.A. was alleged to have committed the following two offences:
Count 1 – First degree murder of his five-year-old daughter
Count 2 – Attempt murder of his seven-year-old son
J.A. testified and denied that he intended to harm, let alone kill, either of his two children.
[2] At the pre-charge conference, counsel agreed that based on the wording of Count 2 there were no included offences to that charge.
[3] On Count 1 counsel agreed that the following included offences should be left with the jury:
(1) Second degree murder – if they were satisfied that the killing was intentional but were not satisfied that it was both planned and deliberate.
(2) Manslaughter – if they were not satisfied that the killing was intentional but were satisfied that death was caused by an unlawful act.
[4] The jury was instructed to consider the following offences under the Criminal Code in regard to proof of an unlawful act:
Duty of persons to provide necessaries
215 (1) Every one is under a legal duty
(a) as a parent, foster parent, guardian or head of a family, to provide necessaries of life for a child under the age of sixteen years;
Offence
(2) Every one commits an offence who, being under a legal duty within the meaning of subsection (1), fails without lawful excuse, the proof of which lies on him, to perform that duty, if
(a) with respect to a duty imposed by paragraph (1)(a)
(ii) the failure to perform the duty endangers the life of the person to whom the duty is owed, or causes or is likely to cause the health of that person to be endangered permanently
Causing death by criminal negligence
220 Every person who by criminal negligence causes death to another person is guilty of an indictable offence
Causing bodily harm by criminal negligence
221 Every one who by criminal negligence causes bodily harm to another person is guilty of an indictable offence
[5] Counsel for J.A. submitted that criminal negligence causing death should be left as a discrete included offence. I declined to do so. The trial is now complete. These are my reasons.
OVERVIEW OF THE FACTS
[6] For the purposes of this ruling, a succinct review of the facts will suffice.
[7] In early February of 2014, the marriage between J.A. and his wife had reached a crisis point. They had four children, including twins who were younger than the two victims. On February 3, 2014, J.A. took the two victims out of school on the false pretext that they needed to attend medical appointments. His wife had no idea that he intended to take the children out of school. J.A. testified that he intended to commit suicide and wanted to say goodbye to his two oldest children. He felt they were old enough to remember him when he was gone. He took the two children to a hotel room. En route he picked up sleep medication, an alcoholic beverage and mouth wash. He had decided that an overdose of sleep medication was the best way to commit suicide.
[8] J.A. checked into the hotel with his two children. He ordered pizza for them to eat and began to write a suicide note. The two children were not inclined to nap. He claimed that he wanted them to rest. He gave each of his children sleep medication along with sips of an alcoholic beverage. He consumed a considerable amount of sleep medication along with the alcoholic beverage. He lay on one bed and his children were on another bed. He claimed he fell into a deep sleep and awoke to loud banging on the door. It was the police demanding that he let them in.
[9] Police and ambulance personnel were finally able to enter the room. They found the five-year-old girl unconscious and the seven-year-old boy drowsy but awake. J.A. was extremely drowsy and drifted in and out of consciousness. All three were taken by emergency medical staff to the hospital. The five-year-old girl died shortly thereafter without regaining consciousness. The cause of death was the combined toxicity of the sleep medication and alcohol. The seven-year-old boy recovered without significant physical harm. J.A. remained in intensive care for several days.
[10] Cause of death was not a contentious issue based on a combination of the evidence of J.A. that he provided sleep medication and alcohol to both of his children and the evidence of the forensic pathologist. The jury was instructed that the unlawful act was proven if they were satisfied that the death was caused either by a failure to provide the necessaries of life or by criminal negligence. They were further instructed that if they were not satisfied that the death was caused by an unlawful act they should return a verdict of not guilty on Count 1.
ANALYSIS
[11] In the circumstances of this case, criminal negligence causing death is manslaughter by another name. Both have a maximum sentence of life in prison. Both are premised on a failure to prove an intentional killing. It would add unnecessary complication to the jury deliberation process to leave alternative included offences of both manslaughter and criminal negligence causing death.
[12] RESULT: Criminal negligence causing death was not left as a discrete included offence on Count 1.
B. P. O’Marra, J.
Released: November 16, 2016
CITATION: R. v. J.A., 2016 ONSC 7046
COURT FILE NO.: CR-15-30000339-0000
DATE: 20161116
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
J.A.
Defendant
RULING ON INCLUDED OFFENCE
B. P. O’Marra, J.
Released: November 16, 2016