(s. 244)
(Last revised June 2013)
(Read applicable parts of indictment or count.)
1. that the instrument was a firearm;
2. that (NOA) intentionally discharged a firearm at another person (or specify (NOC) or (NO3P)); and
3. that, in discharging the firearm, (NOA) intended to (specify intent alleged in the indictment from s. 244(a),(b) or (c)).
Unless you are satisfied beyond a reasonable doubt that the Crown has proved all these essential elements, you must find (NOA) not guilty of discharging a firearm with intent[231] (or specify intent alleged).
If you are satisfied beyond a reasonable doubt of all these essential elements [and you have no reasonable doubt after considering the defence(s) (specify defences) about which I will instruct you] [232], you must find (NOA) guilty of discharging a firearm with intent (or specify intent alleged).
A “firearm” is a weapon with a barrel from which a shot, bullet or other object can be discharged, and, which is capable of killing or seriously injuring someone. (It includes any frame or receiver of a weapon with a barrel, as well as anything that can be made suitable for use as a firearm.)[233] Shotguns, rifles, pistols and revolvers are firearms.
(Review relevant evidence and relate to issue.)
Unless you are satisfied beyond a reasonable doubt that the instrument involved was a firearm, you must find (NOA) not guilty. Your deliberations would be over.
If you are satisfied beyond a reasonable doubt that the instrument involved was a firearm, then you must go on to the next question.
A person intentionally discharges a firearm at another person when he or she deliberately, as opposed to accidentally, points it in the direction of someone and fires [234]. The bullet (shot or other thing) fired from the gun does not have to hit or hurt anybody.[235]
To decide this question, consider all the circumstances. Use your common sense.
(Review relevant evidence and relate to issue.)
Unless you are satisfied beyond a reasonable doubt that (NOA) intentionally discharged a firearm at another person (or specify (NOC) or (NO3P)), you must find (NOA) not guilty of discharging a firearm with intent (or specify intent alleged). Your deliberations would be over.
If you are satisfied beyond a reasonable doubt that (NOA) intentionally discharged a firearm at another person (or specify (NOC) or (NO3P)), you must go on to the next question.
Where allegation is intent to wound:
A person intends to wound when he or she means to injure someone in a way that breaks, cuts, pierces or tears the skin or some part of the person’s body. It must be more than something trifling, fleeting or minor, such as a scratch.
Where allegation is intent to maim:
A person intends to maim when he or she means to cripple, mutilate or disable someone.
Where allegation is intent to disfigure:
A person intends to disfigure when he or she means to deform or deface someone.
Where allegation is intent to endanger life:
A person intends to endanger life when he or she means to put someone in a situation or condition that could cause him or her to die.
Where allegation is intent to prevent arrest or detention:
A person intends to prevent arrest or detention when he or she discharges a firearm for the purpose of preventing the police (or specify) from arresting or detaining any person. The Crown does not have to prove that an arrest or detention was actually prevented.
Where more than one intent is specified:
The Crown does not have to prove all (both) of these intents. Any one of them is enough. Nor do you have to agree on the same intent provided that each of you is satisfied beyond a reasonable doubt that (NOA) had one of them.
To determine (NOA)’s intent, you must consider all of the evidence, including anything said or done in the circumstances.
You may infer, as a matter of common sense, that a person usually knows the predictable consequences of his or her actions, and means to bring them about.[236] However, you are not required to draw that inference about (NOA). Indeed, you must not do so if, on the whole of the evidence, including (specify evidence of intoxication, mental disorder or other), you have a reasonable doubt whether (NOA) had one of the intents I have described to you. It is for you to decide.
In all cases:
The person at whom (NOA) discharges the firearm does not have to be, although s/he may be, the same person (whose life (arrest or detention) (NOA) intended to endanger (prevent)) that (NOA) intended to wound (maim, or disfigure).[237]
(Review and relate relevant evidence to issue.)
Unless you are satisfied beyond a reasonable doubt that (NOA) intended to wound (or specify relevant intent) (NOC), (NO3P)), when s/he intentionally discharged the firearm, you must find (NOA) not guilty of discharging a firearm with intent (or specify intent alleged).[238]
If you are satisfied beyond a reasonable doubt that (NOA) intended to wound (or specify relevant intent (NOC), (NO3P)) when s/he intentionally discharged the firearm, you must find (NOA) guilty of discharging a firearm with intent (or specify intent alleged).
[230] Where identity is an issue, remember to include any further instructions that may be relevant (e.g. eyewitness identification, alibi, similar fact, etc.). Where date is an issue, the jury must be told that the Crown must prove that the offence occurred within the time frame indicated in the indictment. Where place is an issue, the jury must be told that the Crown must prove that some part of the offence occurred in the place indicated in the indictment.
Generally, the Crown must prove the date and place specified in the indictment. However, where there is a variation between the evidence and the indictment, refer to s. 601(4.1) of the Criminal Code and the jurisprudence following R. v. B. (G.), [1990] 2 S.C.R. 3.
[231] Some judges may prefer to specify the intent alleged in the indictment each time this phrase appears in the instructions.
[232] Insert the bracketed words if appropriate. This instruction will have to be modified where the accused has a legal burden of proof, such as for mental disorder or non-insane automatism.
[233] Delete the bracketed words if they are not required or would be inappropriate.
[234] Where accidental or non-intentional discharge is advanced as a defence, the applicable instruction should be included here.
[235] In R. v. Foti, 2002 MBCA 122, the Court concluded that this offence requires proof of a wound (in a charge alleging an intent to wound). This decision is contrary to R. v. Jackson (2002), 58 O.R. (3d) 593 (C.A.). In Foti, the Court did not refer to Jackson. This provision was amended in 1995, and the Court in Foti refers to a body of law decided prior to the amendment.
[236] This instruction is a plain-language expression of what in case law is referred to as the “common sense inference” that a person intends the natural and probable consequences of his or her actions.
[237] This instruction tracks the language of the Criminal Code, but need only be given when there is a factual foundation for it.
[238] There may be cases in which the accused may be convicted of a lesser offence, such as assault with a weapon. In those cases, this instruction and the second paragraph of [2] above will require modification.