Wednesday, May 30, 2012

Subjective intention a necessary part of murder

R. v. McIntyre, 2012 ONCA 356 is a good example of the requirement that, for a murder conviction, the accused must be found to have a subjective intention to kill, or at least to cause bodily harm the accused knew was likely to cause death, or was reckless as to whether dead ensued:

[17]       For the jury to find that Ebanks had the requisite intention to murder the deceased, they had to conclude that, when Ebanks stabbed the deceased, he intended to kill him, or meant to cause the deceased bodily harm that Ebanks knew was likely to kill the deceased and was reckless whether the deceased died or not.  This subjective intention is a constitutional requirement for murder: see R. v. Martineau, [1990] 2 S.C.R. 633.

[18]       In my view, the charge fails to task the jury with this requirement.  In the critical section of his charge, the trial judge instructed the jury in detail about aiding or abetting a murder.  As part of this, the trial judge described that the Crown must prove that the appellant knew that Ebanks intended to murder the deceased.  He put Ebanks’ intention this way:

To prove second degree murder on either or both of the aiding or abetting modes of participation, the Crown must prove beyond a reasonable doubt that Ms. McIntyre actually knew that Jonathan Ebanks intended to kill Karl O’Reggio or cause Karl O’Reggio bodily harm that would likely kill Karl O’Reggio and not care whether or not Karl O’Reggio died.  [Emphasis added.]

[19]       This language was then immediately repeated twice more.  These were the only references to Ebanks’ intention necessary for the appellant’s conviction as an aider or abetter of murder.  It conveyed to the jury that Ebanks could be found to have the intention necessary for murder if he intended to cause bodily harm to the deceased that would likely kill him, whether or not Ebanks knew that this was likely.  In other words, this instruction permitted the jury to find that Ebanks murdered the deceased without having the subjective intention required by law. 



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