Taking Another Kick at the Causation Can in R v BF

What is the causal line between attempted murder and aiding suicide? The Supreme Court of Canada (“SCC”) will grapple with this issue as it has granted leave [41420] to appeal the Court of Appeal for Ontario’s (“ONCA”) decision in R v BF, 2024 ONCA 511 [BF]. At issue before the court will be the interplay between the offences of attempted murder and aiding a suicide attempt, listed in sections 239(1) and 241(1) of the Criminal Code, RSC 1985, c C-46, respectively.

Facts

The appellant was a nurse practicing at Trillium Hospital in Mississauga. In 2015, she began dating a man named A.N. They eventually married and had a daughter named E., but they separated after three years. Their relationship turned sour following their separation (BF, para 5). Eventually, A.N. and the appellant commenced separate family law applications in the Ontario Court of Justice and the Superior Court of Justice. Both parties sought custody of E. The appellant was successful (BF, paras 6-8).

Shortly after the appellant was granted custody of E., the appellant’s father—who was in Europe at the time—was unable to contact the appellant or her mother, I.F. He called a neighbour and asked that they check in on them. The neighbour had a key to the home and entered to find all of the appellant, E., and I.F. unconscious. Emergency services found five empty insulin pens containing many times the normal adult dose in the home (BF, para 9). While the appellant and I.F. recovered in full, E., who was less than two years old, suffered serious and permanent brain damage, and continues to suffer from cerebral palsy, spasticity, and seizures (BF, para 10).

The central issue at trial was the identity of the person who administered the insulin. The Crown’s theory was that the appellant had injected both E. and I.F. with an intention to kill them. The court heard evidence of a note located in the appellants’ home at the time of the insulin injections, which the Crown and trial judge characterized as a suicide note. Among other things, the note discussed the appellant’s disdain with the family court system and the social misfortunes of Indigenous peoples and immigrants (BF, para 14). The appellant denied that the note was a suicide note and that she injected E. and I.F. (BF, paras 15-16). She instead contended that someone else had entered the home and administered their own supply of insulin to herself, E., and I.F. (BF, para 19). 

The appellant was convicted of the attempted murder of I.F. and E. The appellant was also convicted of aggravated assault on E., but that count was stayed. Additionally, the appellant was acquitted of a charge of aggravated assault on I.F. In the end, she was sentenced to life imprisonment without parole eligibility for ten years for the attempted murder of E., and ten years’ concurrent incarceration for the attempted murder of I.F. (BF, para 3).

Issues

Four issues were raised at the ONCA (BF, para 21):

1. Did the trial judge err by instructing the jury that they could still find the appellant guilty as a party pursuant to s. 21 of the Criminal Code if they found that the person who injected E. or I.F. was, in fact, I.F.?
2. Was the acquittal for aggravated assault on I.F. an inconsistent verdict?
3. Did the trial judge err by failing to instruct the jury on the “suicide pact” defense to murder, and on s. 241(1)(b) of the Criminal Code (the offence of aiding suicide)?
4. Did the sentencing judge err by disregarding presentence custody, imposing a harsh and excessive sentence, and making improper ancillary orders?

Decision

The ONCA allowed the appeal primarily on the third ground. The ONCA found that the trial judge erred by giving the jury an alternate route to find the appellant guilty of attempted murder based on acts that could actually constitute aiding a suicide attempt, without distinguishing the mens rea required for attempted murder from that for aiding a suicide attempt (BF, para 27). 

George J.A., writing for the court, found no reason to interfere with the first degree murder conviction for E. or the resultant sentence. The suicide pact defense to E.’s murder was inapplicable, as E. was too young to consent to administering insulin. Further, even if I.F. had injected E., the evidence at trial was overwhelming that the appellant was an aider or abettor to the attempted murder of E. (BF, para 25). With respect to the sentence, the ONCA found that the sentence was demonstrably fit. This offence was a breach of trust that caused irreparable harm to a young child. The appellant avoided a murder conviction “only by good fortune.” (BF, paras 60-61) The trial judge also found that there was no evidence of identifiable harm in presentence custody warranting sentencing credit. Thus, the sentence and conviction for murdering E. remained untouched.

Because of the ONCA’s disposition of most grounds of appeal, the decision hinged primarily on the trial judge’s jury instructions with respect to the attempted murder of I.F., and whether they made clear for the jury the difference between attempted murder and aiding suicide.

Attempted Murder vs Aiding Suicide

The required mens rea for attempted murder is “nothing less than the intent to kill.” (BF, para 36) There must also be proof that the accused intended to commit the completed crime of murder and took some steps towards completing the crime, beyond mere preparation (BF, para 36). For aiding suicide, by contrast, the actus reus is to do, or omit to do, something that encourages someone else to commit suicide. For mens rea, it must be shown that the “abettor intended to encourage someone else to commit suicide, and knew that they intended to do so.” (BF, para 39). In cases where aiding suicide involves the administration of a substance and the will of the person committing suicide is operating, it is incumbent on the trier of fact to consider not only whether the accused provided the substance, but also whether they interfered with the will of the person to self-administer the substance (BF, para 43). The ONCA stressed that while the essential elements of the two offences differ, it is possible, as was true in this case, that a set of facts could support either charge depending on the trier of fact’s interpretation of the evidence (BF, para 44). 

The Trial Judge’s Erroneous Jury Instructions

The trial judge in this case explicitly instructed the jury that the Crown would have satisfied its onus with respect to attempted murder by proving beyond a reasonable doubt that the appellant procured the insulin pens and provided them to I.F. with the intention that I.F. would use them to inject herself (BF, para 28). For the ONCA, this was problematic because it provided an alternate (and viable) path for the jury to find the appellant guilty of attempted murder, without equipping the jury to understand the difference between attempted murder and the lesser offence of aiding a suicide attempt (BF, para 29).  Because the appellant was not charged with aiding a suicide attempt nor is it a lesser included offence to murder, the jury should have acquitted the appellant if they found that she had aided a suicide attempt. The jury was required to know that if they found that the appellant provided the insulin to I.F. with the knowledge she would self-administer—while this would support the actus reus for both attempted murder and aiding suicide—they could only find the appellant guilty of attempted murder if it was established that she (a) had a causal role in I.F. self-administering the insulin, and (b) had the mens rea of intention to kill I.F. (BF, para 31).

According to the ONCA, the trial judge failed to establish to the jury the necessity of a causal link between the appellant’s conduct and I.F. ‘s decision to give herself the insulin injection. Only if this link was found could the jury have returned a guilty verdict for attempted murder (BF, para 46). The jury clearly accepted that the appellant procured the insulin from the hospital she worked at, but the wording of the trial judge’s instructions implied that if she had procured the insulin, they had no choice but to find that the appellant administered the insulin and thereby attempted murder (BF, para 47). The jury could have found that I.F. independently decided to use the insulin, which would have warranted an acquittal (BF, para 47). The fact that the jury acquitted the appellant of aggravated assault on I.F. means that they must have had a reasonable doubt that the appellant injected I.F. against her will and likely took the erroneous path of reasoning (BF, para 52). Ultimately, the jury needed to know that the mens rea of intending to kill is distinct from “intending to provide non-causal aid to another person knowing it is their intent to self-inflict death.” (BF, para 50) 

Analysis

While this is a difficult case resulting in the permanent injury of a young child, I believe the SCC will uphold the ONCA’s decision and allow the appellant to face a retrial for the attempted murder of I.F. The SCC recently updated the standard of review on a jury charge in R v Abdullahi, 2023 SCC 19 [Abdullahi]. The question on appellate review of a jury charge is whether the jury was accurately and sufficiently instructed on the relevant law in the context of the trial as a whole (Abdullahi, para 58). The evidence at trial will inform what the jury needs to understand in order to accurately decide the case (Abdullahi, para 60). This is a relatively inflexible standard which will likely work against the Crown in this case. Clearly, there was evidence that raised a reasonable doubt about whether the appellant was the one who injected I.F. in the first place, given that the jury acquitted the appellant for aggravated assault on I.F. As such, whether I.F. administered the insulin to herself was an open question. Despite this, the trial judge’s jury instructions did not account for the possibility that I.F. self-administered the insulin absent the appellant’s causal involvement, which would have left open a path to acquittal. This is particularly important considering the seriousness of the offence charged. 

This case did not come to the SCC as of right, and I believe the SCC sees an opportunity in this case to clarify a number of essential issues in Canada’s substantive criminal law. First, this case touches heavily on the issue of legal causation. In its memorandum on leave to appeal, the Crown argued that the Court of Appeal essentially created a new standard of causation which depends on whether a consequence was in part self-inflicted. In response, B.F. argued that the wish or intention of the victim must be incorporated into a causation standard—a person’s choice to die is an independent decision and should not impose criminal liability on someone who aids in that independent choice. Causation is a foundational element of substantive criminal law and the SCC has not substantially updated its causation jurisprudence since R v Maybin, 2012 SCC 24. This case provides an opportunity for the SCC to restate (or reformulate) the law on causation and provide updated guidance. Second, because this case involves the interplay of the elements of two separate criminal offences, the SCC likely sees it necessary to clarify the essential components of both crimes so as to ensure uniformity across the criminal law. Regardless of the SCC’s ultimate ruling, this case will have important ramifications for substantive criminal law, and is one to watch when it reaches the top court’s docket.