Editor's Note: In her "Who's Going Down" series of posts, Robson Hall Law Student A. Sandhu looks at episodes of popular television shows and analyzes them through a criminal law lens for an insightful, comical and fun application of criminal law to popular culture. The analysis assumes events took place in Canada.
Who’s Going Down? – Orange is the New Black
Episode: Fool Me Once
In the Netflix Original Series, Orange is the New Black,1 Yoga Jones is one of the more tame inmates at Litchfield Penitentiary. However, when fellow inmate Janae tauntingly asks her if she was in prison because she killed a kid, Yoga Jones loses her cool and punches Janae in the face.
The reason Yoga Jones was so upset by the comment was because she did indeed kill a child. But was she criminally responsible for the killing? If she was not, what might have landed her in prison?
There are a number of important circumstantial factors surrounding the killing. Yoga Jones grew marijuana on her property. Each night, deer would eat her marijuana crop. She made several attempts to ward off the deer, but to no avail. One night in her frustration, she decided to sit outside with a hunting rifle so she could shoot any deer that came onto her property. Yoga Jones heard some rustling near the edge of her property, and thinking it was a deer, she fired in the direction of the noise. Unfortunately, the source of the noise was not a deer, but a child who had run away from the property next door after his father took away his Nintendo. Yoga Jones was intoxicated at the time of the incident.
Given these circumstances, it is clear that murder is out of the question.
Yoga Jones honestly believed that she was shooting a deer and had no intention of shooting a human. The doctrine of transferred intent cannot be applied to this situation. In the case of R v Vandergraaf,2 the court ruled that intent could only be transferred when an accused intends to commit an offense against one person, but mistakenly commits that same offense to another. Yoga Jones’ intent to kill a deer, which is not a crime, cannot be transferred to the killing of the child.
While murder is not a possibility in this case, unlawful act manslaughter should be considered. For Yoga Jones to be convicted, the Crown must prove that she fulfilled the actus reus and mens rea of a dangerous offense, which resulted in the death of another. Additionally, there must be an objectively foreseeable possibility of causing substantial harm (non trivial and non transitory) to another while the accused is engaged in the dangerous act.
The dangerous offence possibly committed by Yoga Jones is careless use of a firearm. This offense is described in section 86(1) of the Criminal Code:3
“Every person commits an offence who, without lawful excuse, uses, carries, handles, ships, transports or stores a firearm…in a careless manner or without reasonable precautions for the safety of other persons.”
In the case of R v Finlay4 the court decided that careless use of a firearm is constituted by a marked (and now, likely, substantial) departure from the standard of care expected by reasonable person who has had the necessary training and skills to deal with firearms. Yoga Jones was handling the firearm while impaired by alcohol. Is using a firearm while intoxicated considered a marked and substantial departure from the conduct of a reasonable person who has undergone firearms training?
To answer this question, the case of R v Pettigrew5 is useful. In this case, a woman was reloading a firearm while intoxicated. While doing so, she mistakenly shot and killed her boyfriend. The court found, at para. 6, that “the case was one of purposeless and reckless handling of a firearm, for which the only explanation was drunkenness” and that this was a marked and substantial departure from the conduct of a reasonable gun-trained individual. Pettigrew was convicted of manslaughter.
Given the Pettigrew case, it seems that handling a firearm while intoxicated is sufficient for a conviction of careless use of a firearm. Yoga Jones fulfilled the actus reus and mens rea requirements to be convicted of careless use of a firearm. This is not enough to convict her of manslaughter though.
In the case of R v Creighton,6 the Supreme Court, at page 45, determined that while foreseeability of death is not necessary for a conviction of manslaughter, there must be an “objective foreseeability of the risk of bodily harm which is neither trivial nor transitory, in the context of a dangerous act”.
Was it foreseeable that Yoga Jones’ careless handling of the gun could result in bodily harm to another person? Yoga Jones was supposed to be the only one on her property on the evening of the incident. She also lived on a farm - this is different than a suburban area where neighbours are close by. The nearest property was probably quite a distance away. Additionally, given the size of the figure Yoga Jones saw rustling in the bushes, it was reasonable for her to assume it was an animal of some sort. The figure was not large enough to be an adult, and no one would suspect a child could be out alone at that hour of the night. For these reasons, I do not think that it was objectively foreseeable that another person could be harmed by Yoga Jones’ careless use of her gun. It is unlikely that Yoga Jones would be convicted manslaughter.
Yoga Jones isn’t off the hook yet though. Had this incident occurred a few months from now, perhaps marijuana would be legalized and Yoga Jones might be free of drug-related charges. Unfortunately for Yoga Jones, for the time being, marijuana is still illegal in Canada and section 7.1(1) of the Controlled Drug and Substances Act7 prohibits the production of a controlled substance unless lawfully authorized.
In addition to the careless use of a firearm charge, Yoga Jones is likely to be convicted for production of a controlled substance as well. Given these convictions, she could face up to 12 years in prison. Poor Yoga Jones! I don’t feel bad for her because she’s stuck in prison…I feel bad for her because she’s stuck in prison with Piper Chapman, God that woman is annoying.
1 Orange is the New Black, 2013, Netflix (Santa Monica, Cal: Lionsgate Television, 2013).
2 R v Vandergraaf, 95 Man R (2d) 315, 1994 CarsewellMan 10.
3 Criminal Code, RSC 1985, C-46, s 86(1).
4 R v Finlay 3 SCR 103,  SCJ No. 89.
5 R v Pettigrew  BCJ No 996, 1990 CarswellBC 628.
6 R v Creighton  3 SCR 346, 17 CRR (2d) 1.
7 Controlled Drug and Substances Act, SC 1996, c 19, s 7.1(1).