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Considerations of A Homicide Case - Mitchell McInnis

A recent criminal case from the Manitoba Court of Queen’s Bench involved the conviction of an accused for second degree murder. The case focusses on the use of circumstantial evidence, mainly in the form of eyewitness testimonies, for which the accused was convicted. However, the case does not directly address reasons for charging the person with second degree murder instead of other homicide charges, nor does it address why certain defences were not put forward. The following blog will first expound the facts of the case, why the accused was charged with second degree murder instead of first degree murder or unlawful act manslaughter, and why the defences of NCRMI and intoxication were not put forward.

In the case of R. v. Blacksmith, the accused had assaulted her grandmother and set fire to the house that her grandmother remained in. The grandmother died due to smoke inhalation. Nobody witnessed the actual assault nor the setting on fire of the house. Afterwards, the accused came in contact with many persons in the community. They had seen her walking with a young boy and later riding a bike in the late night. Several had described her behaviour before and after the arson as consistent with drug use, having previously seen her use gabrepentin, weed, and cocaine on other occasions; her behaviours included talking nonsense and yelling. As well, her behaviour suggested she may have been in need of her schizophrenia pills at the time. During several interactions with persons that night, she clearly said she killed someone.

Regarding why second degree murder was the charge against the accused, the topics of first degree murder, second degree murder, and manslaughter will be addressed. First degree murder, as defined in s. 231(2) of the Criminal Code, is planned and deliberate. According to R. v. Widdifield, the plain meaning of “planned and deliberate” is used: a considered and not impulsive calculated scheme of which the consequences have been weighed.[1] In the case, there was no evidence that she had planned the event. She had previously mentioned in passing she would burn the house down if the grandmother ever passed so no one in the family would be able to receive the house. Other than this statement, she did not plan or create any scheme. Therefore, first degree murder would have been an inappropriate charge.

The only other possible charges that could potentially have been made against the accused for the homicide is second degree murder and unlawful act manslaughter. The unlawful acts that the accused committed were the assault of the grandmother and the arson of the grandmother’s house. What differentiates the two crimes is second degree murder has a mens rea requirement of an intention to kill or commit the assault and arson,[2] which the accused knows is likely to cause death, while unlawful act manslaughter results when the accused did not foresee the risk of likely death or otherwise had the mens rea for murder. In the case, it is likely the accused meant to cause the death of her grandmother, but if that is in doubt, it is also clear that she would have foreseen that an assault and arson were likely to result in death. Therefore, instead of first degree murder or unlawful act manslaughter, second degree murder was the appropriate charge against the accused.

Prior to stating the decision in the case, the judge explicitly stated that the defences of mental illness and intoxication were not put forward. Witnesses testified that prior to the event, she had seemed in need of her schizophrenia medications, and afterwards her behaviour was consistent with some form of drug use. In the following, what the defences of mental illness and intoxication are and reasons why they were not put forward will be considered.

The defence of mental disorder is contained in s. 16(1) of the Criminal Code and states a person is not criminally responsible if they are made incapable of appreciating the nature and quality of the act or knowing the act was wrong. The wording used in the defence, “appreciating the nature and quality,” requires more than just knowledge of the act physically occurring, but also the ability to perceive the consequences and impacts of the physical act.[3] Knowing the act was wrong requires not just knowing the act is contrary to law but knowing the act is morally wrong in the circumstances. [4]

An argument using the defence of mental illness would have mentioned that the accused was saying strange ramblings, and a witness suggested the behaviour indicated she needed her pills for her schizophrenia. Against such an argument, there was a motive of preventing the house from being inherited by a person in the family other than her. Such a motive would suggest she would be able to understand the consequences of her physical acts.

Furthermore, the accused knew her actions were morally wrong in addition to being contrary to the law; she told several people she had killed someone and knew that was something special or peculiar for others to hear. Also, she did try to get rid of her cell phone by offering to sell it given that there were incriminating messages that had been deleted, so she did try to get rid of evidence suggesting she knew the act was wrong. However, later, the deleted messages could not be recovered. The defence of mental illness would have been very difficult to argue.

The defence of mental illness may also have been intentionally avoided by the accused as well. The evidence was largely circumstantial and using mental illness as a defence would have required an admission that the murder occurred, which would get around the difficulties of making conclusions from the circumstantial evidence. Also, a defence of mental illness would not allow the accused to go free but would instead subject the accused to other restrictions to keep the public safe and receive further treatment for her schizophrenia.

Intoxication may have been a factor and could have been put forward in an effort to reduce the second degree murder charge to manslaughter by negating the required intent; second degree murder is a specific intent crime, of which the intent can be vitiated by intoxication as a partial defence. A full defence of automatism is inappropriate in this case, her interactions with various people after the incident clearly showed she was not akin to an automaton. However, a partial defence of self-induced intoxication would have likely failed. Legislation created in response to R. v. Daviault, s. 33.1 of the Criminal Code, bars an accused from raising the defence of self-induced intoxication in crimes involving threat to the bodily integrity of another. Originally, the legislation was passed to protect vulnerable groups, such as women and children, who are more susceptible to be subject to domestic violence by making it more difficult for an accused to escape punishment for such conduct. Despite the accused in this case not coming within the intention of Parliament in enacting s. 33.1, she would still be subject to it. Her assault against her grandmother would likely put her within s. 33.1 and prevent her from successfully raising the defence of intoxication.

The accused, unfortunately, committed a very objectionable act in assaulting her grandmother and burning her grandmother’s house down. A substantial part of the court decision lays out the evidence and the conclusions drawn from the evidence. The blog has considered the rationale behind the charge against the accused and the foregoing of defences. The accused was convicted and has been sentenced to serve time in a penitentiary.

[1] R v Newman, 2010 ONSC 6009 at para 30. [2] Criminal Code, RSC 1985, c C-46, ss 229(a), 222(5)(a). [3] Cooper v R, [1980] 1 SCR 1149; R v Kjeldsen, [1981] 2 SCR 617, [1981] ACS no 107. [4] R v Chaulk, 2007 NSCA 84.


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