(Last revised March 2020)
(Read relevant parts of indictment or count).
1. that (NOA) committed an unlawful act;
2. that (NOA)’s unlawful act was dangerous in the circumstances; and
3. that (NOA)’s unlawful act caused (NOC)’s death.[2]
Unless you are satisfied beyond a reasonable doubt that the Crown has proved all three of these essential elements, you must find (NOA) not guilty of manslaughter.
If you are satisfied beyond a reasonable doubt of all three of these essential elements, [and you have no reasonable doubt[3] after considering the defence(s) (specify defences) about which I will instruct you] you must find (NOA) guilty of manslaughter.
It is not always a crime to cause another person’s death. It is a crime, however, to cause the death of another person by an unlawful act.[4]
The unlawful act alleged in this case is (describe briefly unlawful act alleged, including a reference to the relevant statute, e.g. the Criminal Code).
(Set out the underlying offence and its essential elements, including any defences.)[5]
(Review relevant evidence and relate to issue.)
Unless you are satisfied beyond a reasonable doubt that (NOA) committed the unlawful act of (specify offence), you must find (NOA) not guilty. Your deliberations would be over.
If you are satisfied beyond a reasonable doubt that (NOA)committed the unlawful act, you must go on to the next question.
The Crown must prove beyond a reasonable doubt that (NOA)’s unlawful act was dangerous in the circumstances. Ask yourselves whether a reasonable person in the same circumstances would have realized that he or she was exposing someone else to a risk of bodily harm.[6] “Bodily harm” is any hurt or injury that interferes with a person’s health or comfort and is more than just brief or minor.
In deciding what a reasonable person would have realized, you must not take into account (NOA)’s individual characteristics or experiences.[7]
(Review relevant evidence and relate to issue.)
Unless you are satisfied beyond a reasonable doubt that (NOA)’s unlawful act was dangerous in the circumstances, you must find (NOA) not guilty. Your deliberations would be over.
If you are satisfied beyond a reasonable doubt that (NOA)’s unlawful act was dangerous in the circumstances , you must go on to the next question.
To prove that (NOA)’s unlawful act caused (NOC)’s death, the Crown must prove beyond a reasonable doubt that (NOA)’s conduct contributed significantly to (NOC)’s death.[9] A person’s conduct may contribute significantly to another person’s death even though that conduct is not the sole or main cause of death. You must consider all the evidence concerning the cause of (NOC)’s death, including the expert evidence of (NOW),[10] in determining whether the Crown has proved that (NOA)'s conduct contributed significantly to (NOC)’s death.
(Review relevant evidence and relate to issue.)
Unless you are satisfied beyond a reasonable doubt that (NOA) caused (NOC)’s death, you must find (NOA) not guilty of manslaughter.[11]
If you are satisfied beyond a reasonable doubt that (NOA) caused (NOC)’s death, you must find (NOA) guilty of manslaughter.
[1] 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.
[2] If there is an issue about whether (NOC) is dead, further instructions will be required.
[3] This instruction will have to be modified where the accused has a legal burden of proof, such as for mental disorder and non-insane automatism.
[4] The unlawful act could be a violation of either a provincial or a federal statute, but not an offence of absolute liability. Where the unlawful act relied upon by the Crown is a strict liability offence, the jury must be instructed that the Crown must prove that the conduct of the accused was a marked departure from the standard expected of a reasonable person in the circumstances. See R. v. Javanmardi, 2019 SCC 54, at para 31.
[5] Where a defence negates the unlawful character of the accused’s act, such as accident or self-defence, the appropriate defence instruction should be inserted here. It is incumbent upon the trial judge to instruct the jury on the law in respect of the underlying offence, including any defences that arise on the evidence. See: R. v. Gunning, 2005 SCC 27, at para 35.
[6] The Crown does not have to prove objective foreseeability of the risk of death. See: R. v. Creighton, [1993] 3 S.C.R. 3, at 45-6; 83 C.C.C. (3d) 346, at 373.
[7] This instruction may have to be modified where there is evidence that the accused did not have either the capacity to appreciate the nature and quality of his or her “intentional” act or the capacity to appreciate the risk that the alleged act or omission entailed. See: R. v. Naglik, [1993] 3 S.C.R. 122; 83 C.C.C. (3d) 526, at 546.
[8] Where the defence advanced relates to the accused’s participation in the killing, such as alibi or lack of proof of identity, or one that relates to the voluntary character of the accused’s conduct, such as non-mental disorder automatism, the applicable instruction should be inserted here. The instructions here are directed to causation, not participation.
[9] Following R. v. Nette, [2001] 3 S.C.R. 488, it would appear that this formulation of the general test of causation is not reversible. It expresses the central element of the test in R. v. Smithers, [1978] 1 S.C.R. 506, which stipulated that a cause should be “not insignificant.” The two formulations are equivalent. Thus Nette is regarded as affirming the standard in Smithers, but providing a positive alternative for expressing it. This interpretation is reinforced by the Court’s decision in R. v. Maybin, 2012 SCC 24, in which it confirmed that the correct test is found in Smithers and Nette. Note also that the Court stated:
Further, this Court emphasized that causation issues are case-specific and fact-driven. The choice of terminology to put to a jury is discretionary in the context of the circumstances of the case (Nette, at para. 72). Implicit in Nette then, is the recognition that different approaches may be helpful in assessing legal causation, depending upon the specific factual context (at para. 17).
If the facts of the case require it, you may have to include one or more of the following statements:
“There must not be anything that somebody else does later (or some other subsequent event) that results in (NOA)’s conduct no longer being a contributing cause of (NOC)’s death. If you find that (NOA)’s conduct contributed significantly to (NOC)’s death, it does not matter that proper or timely (medical) treatment might have saved (NOC)’s life. Nor does it matter that what (NOA) did only accelerated (NOC)’s death from some existing disease or condition.” You may also wish to refer to Criminal Code, ss. 224-228. In Nova Scotia, the Court of Appeal has prescribed a more extensive instruction on intervening cause which has not been applied in other provinces: See: R. v. Reid, [2003] NSCA 104, [2003] N.S.J. No. 360 (C.A.).
[10] Delete the reference to expert evidence if none has been given.
[11] Where causation is a live issue, it may be necessary to give an instruction on an included offence arising from the unlawful act itself.