(Last revised July 2012)
(Read relevant parts of indictment or count.)
1. that (NOA) committed an unlawful act;
2. that (NOA)’s unlawful act caused (NOAV)’s[170] death; and
3. that (NOA) had the intent required for the murder of (NOIV)[171].
Unless you are satisfied beyond a reasonable doubt that the Crown has proved all of these essential elements, you must find (NOA) not guilty of second degree murder.
If you are satisfied beyond a reasonable doubt of all these essential elements, [and you have no reasonable doubt[172] after considering the defence(s) (specify defences) about which I will instruct you] you must find (NOA) guilty of second degree murder.
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.[173]
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.)[174]
(Review 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.
To prove that (NOA) caused (NOAV)’s death, the Crown must prove beyond a reasonable doubt that (NOA)’s conduct contributed significantly to (NOAV)’s death.[176] 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 (NOAV)’s death, including the expert evidence of(NOW),[177] in determining whether the Crown has proved that (NOA)’s conduct contributed significantly to (NOAV)’s death. It is for you to decide.
(Review relevant evidence and relate to issue.)
Unless you are satisfied beyond a reasonable doubt that (NOA) caused (NOAV)’s death, you must find (NOA) not guilty. Your deliberations would be over.
If you are satisfied beyond a reasonable doubt that (NOA) caused (NOAV)’s death, you must go on to the next question.
To prove that (NOA) had the intent required for murder, the Crown has to prove beyond a reasonable doubt either:
1. that (NOA) meant to cause (NOIV)’s death, or
2. that (NOA) meant to cause (NOIV) bodily harm that s/he knew was likely[178] to cause his/her death and was reckless whether death ensued or not.
In other words, you must decide whether the Crown has proved beyond a reasonable doubt that (NOA) meant to kill (NOIV), or that (NOA) meant to cause (NOIV) bodily harm that s/he knew was so dangerous and serious that s/he knew it was likely to kill (NOIV) and proceeded despite his/her knowledge of that risk.
The Crown does not have to prove both. Nor do you have to agree on the same intent, so long as each of you is satisfied that one or the other has been proven beyond a reasonable doubt.
To determine whether the Crown has proved that (NOA) had one of the intents required for murder, you must consider all the evidence, including the nature of the harm inflicted, and anything said or done in the circumstances. You may take into account, as a matter of common sense, that a person usually knows what the predictable consequences of his or her actions are, and means to bring them about.[179] 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 required for murder. In particular, consider whether this evidence causes you to have a reasonable doubt whether (NOA) knew that (NOIV) was likely to die. It is for you to decide.
If you are satisfied beyond a reasonable doubt that (NOA) had the intent required for murder in relation to (NOIV), it makes no difference in law that (NOA) actually killed (NOAV) instead.
(Review relevant evidence and relate to issue.)[180]
Unless you are satisfied beyond a reasonable doubt that when (NOA) killed (NOAV), (NOA) had the intent required for murder of (NOIV), you must find (NOA) not guilty of second degree murder.
If you are satisfied beyond a reasonable doubt that (NOA) had the intent required for murder of (NOIV) [and you have no reasonable doubt with respect to (specify defence)], you must find (NOA) guilty of second degree murder.[181]
[169] 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.
[170] (NOAV) refers to the actual victim, the person who died.
[171] (NOIV) refers to the intended victim, the person whom the accused intended to kill.
[172] 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.
[173] The unlawful act could be a violation of either a provincial or federal statute, but not an offence of absolute liability.
It is usually unnecessary in murder cases to include an instruction that the unlawful act must be objectively dangerous. Where this is an issue, include an instruction along the lines of Offence 222.5[5] (the second essential element of unlawful act manslaughter).
[174] 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. However, instructions relating to any defences specific to murder (e.g., intoxication and provocation) should be given after the direction on the element of intent to murder.
[175] Where the defence advanced relates to the accused’s participation in the killing, such as alibi or lack of proof of identity, or to the voluntary character of the accused’s conduct such as, for example, in the case of non-mental disorder automatism, the applicable instruction should be inserted here. The instructions here relate to causation, not participation.
[176] 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.)
[177] Delete the reference to expert evidence if none has been given.
[178] The word “likely” means “probably”. See: R. v. Nygaard and Schimmens, [1989] 2 S.C.R. 1074 at 1089, (1989), 51 C.C.C. (3d) 417 (S.C.C.).
[179] 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.
[180] Where a defence advanced relates to the accused’s mental state, for example, intoxication or diminished capacity, the appropriate instruction should be inserted here and adjustments made to the use of the common sense inference of intention.
According to R. v. Seymour, [1996] 2 S.C.R. 252, at pp. 263-4, where there is evidence suggesting that the accused may have been in an impaired or reduced mental state at the time of the killing, instructions about the “common sense inference” of intention should be immediately followed by a reference to any evidence that would tend to blunt or negate the inference. In some cases it will be appropriate to give a “rolled-up” charge in which the cumulative effect of evidence relating to certain defences such as mental disorder, intoxication, self-defence and provocation, short of full defences, may still be considered in deciding whether the accused formed the requisite intent.
[181] Where provocation is raised, the appropriate instruction must be given here.