In order to obtain a murder conviction the Crown is obliged to prove the accused had a subjective foresight of death. In R. v. Martineau, 1990 CanLII 80 (S.C.C.), [1990] 2 S.C.R. 633, Lamer C.J.C., writing for the court, concluded (at 646) that it is a principle of fundamental justice that a conviction for murder cannot rest on anything less than proof beyond a reasonable doubt of subjective foresight of death.
Of course, proof of subjective foresight is always inferential. No trier of fact can ever truly know what the subject foresight of an accused was -- this is true even in the face of a free and voluntary confession and more so where no such statement is available.
That said, in general a presumption (or inference) may be made that people intend to reasonable results of their actions. Thus, shooting someone in the head at point blank range is suggestive of an intention to kill. In R. v. Seymour, 1996 CanLII 201 (S.C.C.), [1996] 2 S.C.R. 252 Mr. Justice Cory, writing for the court, explained the role of the inference in determining intention:
"[21] [.] The common sense inference as to intention, which may be drawn from actions of the accused, is simply a method used to determine the accused's actual intent. "
Yesterday's British Columbia Court of Appeal decision in R. v. F.M., 2008 BCCA 111 considered the use of the inference in the context of young offenders.
The decision is subtle but, in short, finds that the youth of an offender, and the offender's apparent maturity or immaturity, is a factor (but only a factor) to consider is deciding whether the inference may be taken to apply.
James Morton
1100 - 5255 Yonge Street
Toronto, Ontario
M2N 6P4
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