(Last revised November 2023)
(Read relevant parts of indictment or count.)
1. that (NOA) caused (NOC)’s death;
2. that (NOA) caused (NOC)’s death by committing an unlawful act;
3. that (NOA) had the intent required for murder;
4. that (NOA) committed (specify listed offence or attempt); and
5. that the (specify listed offence or attempt) and the murder of (NOC) were part of the same series of events; and
6. that (NOA) actively participated in the killing.[2]
Unless you are satisfied beyond a reasonable doubt that the Crown has proved all six of these essential elements, you must find (NOA) not guilty of first degree murder.
If you are satisfied beyond a reasonable doubt of all six 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 first degree murder.
To prove that (NOA) caused (NOC)’s death, the Crown must prove beyond a reasonable doubt that (NOA)’s conduct contributed significantly to (NOC)’s death.[5] 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),[6] in determining whether the Crown has proved that (NOA)'s conduct contributed significantly to (NOC)’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 (NOC)’s death, you must find (NOA) not guilty. Your deliberations would be over.
If you are satisfied beyond a reasonable doubt that (NOA) caused (NOC)’s death, you must go on to the next question.
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.[7]
The unlawful act alleged in this case is (describe unlawful act).
(Set out the underlying offence and its essential elements, including any defences.)[8]
(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.
To prove that (NOA) had the intent required for murder, the Crown must prove beyond a reasonable doubt one of two things, either:
1. that (NOA) meant to cause (NOC)’s death; or
2. that (NOA) meant to cause (NOC) bodily harm that s/he knew was likely[9] 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 (NOC), or that (NOA) meant to cause (NOC) bodily harm that s/he knew was so dangerous and serious that s/he knew it was likely to kill (NOC) and proceeded despite his/her knowledge of that risk.
The Crown does not have to prove both. Nor do you all 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.[10] 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 the intent required for murder. In particular, consider whether this evidence causes you to have a reasonable doubt whether (NOA) knew that (NOC) was likely to die. It is for you to decide.
(Review and relate relevant evidence to the issue.)[11]
Unless you are satisfied beyond a reasonable doubt that (NOA) had the intent required for murder, you must find (NOA) not guilty of murder, but guilty of included offence of manslaughter.
If you are satisfied beyond a reasonable doubt that (NOA) had the intent required for murder, you must go on to the next question.
(Insert instruction on elements of listed offence.)[13]
(Review relevant evidence and relate to issue.)
Unless you are satisfied beyond a reasonable doubt that (NOA) committed (or, attempted to commit) (specify listed offence), you must find (NOA) not guilty of first degree murder, but guilty of second degree murder. Your deliberations would be over.
If you are satisfied beyond a reasonable doubt that (NOA) committed (or, attempted to commit) (specify listed offence), you must go on to the next question.
In order for (NOA) to be guilty of first degree murder, the Crown must also prove beyond a reasonable doubt that (NOA) murdered (NOC) while s/he was committing the offence of (specify listed offence or attempt).
This does not mean that the murder and the (specify listed offence or attempt) had to happen at exactly the same moment, but it does mean that the murder and the (specify listed offence or attempt) must have been closely connected with one another, in the sense that they must have been part of the same series of events.[15]
To answer this question, you have to consider the entire course of (NOA)’s conduct. Look at the whole series of events in deciding whether the killing and the (specify listed offence or attempt) were part of a continuous series of events that was a single ongoing transaction[16] .
(Review evidence and relate to issue.)
Unless you are satisfied beyond a reasonable doubt that the (specify listed offence or attempt) and murder of (NOC) were part of the same series of events, you must find (NOA) not guilty of first degree murder, but guilty of second degree murder.
Where there is only one perpetrator, give the following instruction:
If you are satisfied beyond a reasonable doubt that the (specify listed crime or attempt) and murder of (NOC) were part of the same series of events, you must find (NOA) guilty of first degree murder.
Where there is more than one perpetrator, give the following instruction:
If you are satisfied beyond a reasonable doubt that the (specify listed crime or attempt) and murder of (NOC) were part of the same series of events, you must go on to the next question.
The Crown must prove beyond a reasonable doubt that (NOA)’s participation in the murder was a substantial cause of (NOC)’s death.
To prove this essential element, the Crown must show that (NOA) played an active role in the events that brought about (NOC)’s death. It is not enough that (NOA) was present, or that s/he played some minor role in the events.
To decide this issue, you must consider all the evidence.
(Review relevant evidence and relate to issue.)
Unless you are satisfied beyond a reasonable doubt that (NOA) actively participated in the killing, you must find (NOA) not guilty of first degree murder, but guilty of second degree murder. Your deliberations would be over.
If you are satisfied beyond a reasonable doubt that (NOA) actively participated in the killing, you must find (NOA) guilty of first degree murder.
[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] This element should be included only where there is more than one perpetrator. See: R. v. Harbottle, [1993] 3 S.C.R. 306.
[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] 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, as for example, non-mental disorder automatism, the applicable Instruction should be inserted here. The instructions in this specimen are directed to causation, not participation.
[5] 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.).
[6] Delete the reference to expert evidence if none has been given.
[7] The unlawful act could be a violation of either a provincial or a 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).
[8] Where a defence negates the unlawful character of the accused’s act, such as accident or self-defence, the appropriate 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. Where the underlying offence is sexual assault, be aware that any evidence concerning the victim’s prior sexual activity is subject to an admissibility voir dire pursuant to s. 276 of the Criminal Code. See R. v. Barton, 2019 SCC 33, at para 76; see also our model instructions on Rules of Evidence, Evidence 11.31.
[9] The word “likely” means “probably”. See: R. v. Nygaard and Schimmens, [1989] 2 S.C.R. 1074, at 1089.
[10] 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.
[11] 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.
[12] The offences listed in s. 231(5) are s. 76 (hijacking an aircraft); s. 271 (sexual assault); s. 272 (sexual assault with a weapon, threats to a third party or causing bodily harm); s. 273 (aggravated sexual assault); s. 279 (kidnapping and forcible confinement); and s. 279.1 (hostage taking).
[13] The listed offence may be an attempt or the completed offence. The essential elements may be found in the relevant Offence Instruction.
[14] The underlying offence and the killing must be two distinct criminal acts in order for a murder to be first degree under Section 231(5): see R. v. Pritchard, 2008 SCC 59; R. v. Kimberley (2001), 56 O.R. (3d) 18 (C.A.); R. v. Menard, 2009 BCCA 462; and R. v. Sundman, 2022 SCC 31, at para 40. Where there is a live issue on the evidence whether the underlying offence and the killing were distinct criminal acts, this instruction must be modified, for example, by adding the following language:
In order for (NOA) to be guilty of first degree murder, the Crown must also prove beyond a reasonable doubt that the [specify offence] and the killing were two distinct criminal acts and that (NOA) murdered (NOC) while s/he was committing the offence of (specify listed offence or attempt).
They will be distinct if one act can be committed without committing the other, but they will not be distinct if the confinement and the killing are essentially one and the same act.
[15] As long as the connection exists it is immaterial that the victim of the killing and the victim of the enumerated offence are not the same. See R. v. Russell, [2001] 2 S.C.R. 804. The order of the offences is also immaterial where the connection exists. See: R. v. Westergard (2004), 24 C.R. (6th) 375 (Ont. C.A.).
[16] Where there is a live issue as to whether the offence and the murder are part of the same transaction, see: R. v. Russell, [2001] 2 S.C.R. 804, R. v. Paré, [1987] 2 S.C.R. 618, and R. v. Sundman, 2022 SCC 31. In Sundman, the Court stated that the “single transaction” test and the “temporal-causal connection” approach (mentioned in both Russell and Paré) “involve the same inquiry and will result in the same conclusion” (at paras 39, 50).
[17] This instruction will be necessary only where there is more than one participant. See: R. v. Harbottle, [1993] 3 S.C.R. 306. Where there is evidence of more than one participant, the earlier instructions will need to include the provisions of Criminal Code, s. 21 (parties to an offence).