COURT FILE NO.: CR 18-233
DATE: 2019/11/27
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN Crown
G. Akilie and B. Adsett on behalf of the Crown
- and -
DALE KING Accused
J. Shime and O. Goddard for the accused
HEARD: November 21 and 25, 2019
A.J. Goodman J.:
RULING ON PRE-CHARGE CONFERENCE- APPLICATION OF POST EVENT CONSEQUENCES - INTENT TO COMMIT SECOND DEGREE MURDER
[1] The applicant, Dale King is charged with second degree murder and his trial continues. At the pre-charge conference, Mr. Shime, for the defence, sought to have references made to the post-event consequences arising from the shooting of Yosif Al-Hasnawi, as part of the jury’s consideration of his client’s intent to commit second degree murder.
[2] Specifically, Mr. Shime seeks to include the acts or omissions of the paramedics at the scene and the subsequent treatment of the victim at the hospital, as a part of the jury’s consideration as to what common sense inferences they may draw in assessing Mr. King’s subjective belief as to the natural and probable consequences of his actions.
[3] After due consideration, I advised the parties that the post-event consequences would not form such a basis for the jury’s consideration. Following brief oral reasons, I decided to expand on those reasons in this written format.
Discussion:
[4] In order to make out the charge of second degree murder, the Crown must prove, beyond a reasonable doubt, that Mr. King either meant to cause Mr. Al-Hasnawi’s death, or meant to cause him bodily harm that he knew was likely to cause his death, and was reckless about whether or not death ensued. The common sense inference instruction is a tool for the jury to use in assessing Mr. King’s subjective belief at the time of the act in question. The instruction assumes that the act or acts in question have natural and probable consequences. If, as a matter of common human experience, an act commonly produces a certain result, it makes sense, absent some other explanation, to infer that the person who did the act intended the result which commonly flows from doing the act: R. v. Boone, 2019 ONCA 652 at para. 89.
[5] Defence has suggested that in instructing the jury on the mens rea requirement for murder and the common sense inference, this court should relate the post-event consequences, (e.g. the evidence of the emergency personnel and pathologist) to the required intent for murder. In support of this position, they rely on R. v. Pittman, 2011 ONCA 148 and Boone.
[6] Like Mr. King, in Pittman, the accused admitted to causing the deceased’s death but maintained that he did not intend to kill the victim or cause her serious injury that he knew was likely to result in her death. The expert evidence was that while asphyxiation caused the death, the medications she was on played a significant role and limited the degree of force needed to cause venal asphyxiation to "a minimum degree." The medical evidence established that the force used to asphyxiate the deceased was not significant and Mr. Pittman relied on this evidence in support of his position that he did not possess either of the requisite intents for murder: Pittman, see paras. 10, 13-14 and 16.
[7] In Pittman, the Court of Appeal held at para. 26, the "common sense inference" must necessarily start with the identification of the act that caused the death (in an effort to determine whether/to what degree the inference applies). Even though causation was admitted by Mr. Pittman, given the uncharacteristic features surrounding Ms. Wood’s death, the manner by which she died was potentially very important to the issue of intent and the jury's assessment of it. The minimal injuries to her neck and the minor degree of force needed to cause them pointed away from an intention on the appellant's part to kill Ms. Wood or cause her serious injury that he knew was likely to result in her death. In essence, the jury should have been told to consider the nature and severity of the attack when considering whether the intention to commit murder could be inferred on the facts.
[8] Similarly, in Mr. King’s case, the jury will have to determine the issue of intent. In doing so, they will consider Mr. King’s direct evidence, that he did not intend to kill Mr. Al-Hasnawi or cause him serious injury that he knew was likely to result in death. In addition, the jury will consider the evidence of Dr. Bulakhtina and Ms. Chin, the pathologist and the gun expert, relating to the force used, and the nature and extent of the injuries inflicted.
[9] Defence counsel suggests that like the medication in Pittman, in this case, the acts or omissions of the paramedics at the scene and the subsequent treatment of the victim at the hospital ought to be considered in assessing Mr. King’s intent. However, unlike in Pittman, no one has suggested that the force that was applied to Mr. Al-Hasnawi was of a minimal nature or that it was unlikely to have caused his death. The evidence was that Mr. Al-Hasnawi was shot with a hollow-point bullet from a small Derringer gun at close range. The bullet struck Mr. Al-Hasnawi’s iliac artery and he died from massive internal bleeding.
[10] Counsel for the defence, also directed this court to the Court of Appeal for Ontario’s decision in Boone. Mr. Boone was convicted of attempted murder after setting out to infect his sexual partners with HIV. The crime of attempted murder requires proof of "the specific intent to kill." A person “intends” an event not only (a) when his purpose is to cause that event but also (b) when he has no substantial doubt that the event will result from his conduct. “That is, the law treats as intended those side-effects that are foreseen to occur with virtual certainty”: at para. 52.
[11] Since the Crown's main theory on the attempted murder was predicated on the appellant's belief as to the consequences of his actions, the Crown had to prove that: the appellant intended to infect each of the complainants with HIV; and the appellant believed, absent medical intervention, that death at some point in the future was a virtual certainty as a consequence of contracting HIV: at para. 77.
[12] In Boone, Mr. Shime argued that the trial judge’s common sense inference instruction was inappropriate because “[U]nlike the scenario where the gun is placed to the head and death is almost certain, the same cannot be said for contracting HIV. Is death a possibility? Sure it is. Did Mr. Boone know that? He did. But is death probable or predictable such that you can infer he had specifically intended to kill these men? No.” at para. 68
[13] The Court of Appeal agreed and stated at para. 90:
The "common sense inference" instruction is helpful, however, only if, as a matter of common human experience, there is a close causal connection between the act and the consequence which is material to the criminal charge. Can it be said that a close causal connection exists either between the sexual activity engaged in by the appellant and the infection of his partners, or between the infection of his partners and their ultimate death from AIDS? The evidence says no to both questions. Indeed, the expert evidence indicates that neither infection as a result of the sexual activity, nor eventual death from infection can be accurately described as "natural and probable consequences".
[14] It is important to recall that unlike a charge of second degree murder, under a charge of attempted murder, the intention to inflict harm, even significant harm, combined with recklessness as to the consequence of inflicting that harm, does not suffice to establish the mens rea: see R. v. Ancio, 1984 CanLII 69 (SCC), [1984] 1 S.C.R. 225 at pp. 248-51. In order to prove an attempt murder charge, the Crown must establish beyond a reasonable doubt that an accused had a specific intent to kill. It is not sufficient for an attempted murder charge for the Crown to prove only that an accused intended to cause bodily harm that he knew was likely to cause death and was reckless as to whether death ensued or not: Ancio, at pp. 402-04, R. v. Baxter, NSSC 274, [2019] N.S.J. No. 400, 2019.
[15] Comparatively, in Mr. King’s case, the act of shooting the deceased with a loaded firearm was admitted. A loaded firearm that is discharged in the direction of another person is an act that is inherently dangerous. The evidence must be capable of supporting an inference that he intended to cause Mr. Al-Hasnawi bodily harm that he knew was likely to cause his death and was reckless about whether death ensued.
[16] If the jury accepts Mr. King’s testimony that he fired at the ground, they will properly conclude that Mr. King did not have the requisite intent for murder. However, if Mr. King’s evidence on this point is rejected, and the jury is not left with a reasonable doubt about the accused's intention, it is open to the jury to infer, that by shooting a gun in the direction of Mr. Al-Hasnawi’s core, he meant to cause him bodily harm, and was aware that the type of bodily harm caused (e.g. a gunshot wound) was likely to result in death: Seymour at para. 23.
[17] Thus, in the event that Mr. King’s evidence is rejected, the defence suggests the evidence of the post pathologist and emergency services personnel is relevant to whether Mr. King knew that the bodily harm he inflicted was likely to cause death. The acts or omission occurring after the event could not have been known to Mr. King at the time of the shooting. However, while I agree the common sense inference must be connected to the facts of the case, and may not be an overwhelming inference depending on the facts, I highlight the Court of Appeal’s comments at para. 83 of Boone:
It is important to bear in mind that in the context of the mens rea inquiry, it is the appellant's purpose or his subjective belief about the likelihood of death as a consequence of infection that matters. The expert evidence speaks to the state of scientific knowledge and statistical possibilities of infection and death. That evidence is not directly relevant to the appellant's belief or his purpose, although it may, if somehow connected to the appellant's state of mind, assist the jury in deciding what the appellant believed.
[18] The experts in Boone testified to the fact that those who engaged in unprotected sex with individuals infected HIV may not necessarily contract HIV and may not die from AIDS. This fact was relevant to assist the jury in assessing whether the accused held the requisite intent for attempted murder.
[19] Because the experts in Boone did not find infection or death to be the natural and probable consequences of the appellant’s actions, the common sense instruction would be ultimately misleading. It would be misleading because the instruction invited the jury to draw common sense inferences that “infection and death were indeed the natural probably consequences of the appellants actions”.
[20] Boone does not assist Mr. King for two reasons. First, the expert evidence adduced in Boone could reasonably bear on the appellant’s state of mind at the time of the alleged offences. The expert evidence spoke to a medical fact that was known at the time of the alleged offences such that it could be a factor for the jury to consider in determining the accused’s intent. The evidence Mr. King seeks to capture under the common sense inference instruction is third party post-offence conduct that does not aid the jury in determining Mr. King’s intent at the time of the offence. The third-party conduct has no bearing on Mr. King’s intent at the time he discharged the firearm.
[21] Second, the common sense inference instruction is helpful only if there is a close connection between the act and the consequence which is material to the criminal charge. I fail to see how the evidence of post-offence consequences is connected to Mr. King’s state of mind at the time of the act(s) in question.
[22] In my view, unlike in Boone where the jury had to grapple with evidence of viral loads, the related likelihood of HIV infection, and further likelihood of death where left untreated in assessing whether and to what degree the inference applied; in Mr. King’s case, the inference is not muddled. Surely it can be said as a matter of human experience that death commonly flows from the firing of a bullet at an individual’s mid-section at close range. On the facts of this case, the evidence of the post-event consequences has no bearing on the common sense inference to be drawn. In this regard, I agree with the Crown attorney and adopt Mr. Akilie’s submissions on point.
Conclusion:
[23] The post-offence consequences of the shooting goes to the factual and legal issue of causation, which has been admitted in this case. In my opinion, this evidence cannot provide a basis upon which the jury can determine the accused’s subjective intent at the time of the shooting. A jury is entitled as a matter of common sense to draw an inference that a person intends the natural and probable consequences of his voluntary actions or usually knows what the predictable consequences of his actions are, and means to bring them about. Specifically, the evidence cannot assist with the jury’s determination in deciding whether at the relevant time, the accused intended or meant to murder, that is to cause the death of the victim, or intended to cause him bodily harm that he knew was likely to cause death and was reckless as to whether death ensued or not.
A.J. GOODMAN, J.
Released: November 27, 2019
COURT FILE NO.: CR 18-233
DATE: 2019-11-27
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and -
DALE KING
RULING ON PRE-CHARGE CONFERENCE- APPLICATION OF POST EVENT CONSEQUENCES - INTENT TO COMMIT SECOND DEGREE MURDER
A. J. GOODMAN, J.
Released: November 27, 2019