Mens Rea for Murder
The requisite intent under s. 229(a)(ii) consists of the subjective intent to cause bodily harm and the subjective knowledge that bodily harm is of such a nature that it is likely to result in death. Subjective foresight of death is a requirement.
As for the element of “recklessness” in the last phrase of s. 229(a)(ii), “the aspect of recklessness can be considered an afterthought”, since “[o]ne who causes bodily harm that he knows is likely to cause death must, in those circumstances, have a deliberate disregard for the fatal consequences which are known to be likely to occur. That is to say he must, of necessity, be reckless whether death ensues or not”: R v Van Every, 2016 ONCA 087 at para 48; R v McCracken, 2016 ONCA 228 at para 98
The key issue is whether the jury would, in the context of the charge as a whole, have understood that the accused must foresee a likelihood of death flowing from the bodily harm that he or she is occasioning the victim: McCracken at para 102
Mental illness is capable of undermining the mental element for murder in s. 229(a) (thereby reducing liability from second-degree murder to manslaughter): R v Spence, 2017 ONCA 619 at para 49
Planning and Deliberation
Although it will doubtless be rare for a jury to find lengthy planning without deliberation, the two findings are not prima facie incompatible or contradictory. A trial judge is entitled to accept the accused's confession that he planned the murder, while accepting that the jury’s acquittal from first degree murder suggested that they found no deliberation: R v French, 2017 ONCA 460 at para 30
Mental illness may undermine the added mental elements of planning and deliberation in s. 231(2): R v Spence, 2017 ONCA 619 at para 49
The definition of planning and deliberation is something courts have long grappled with. Accepted phrases to leave with a jury include include: “considered,” “not impulsive,” “slow in deciding,” “cautious,” implying that the accused must take time to weigh the advantages and disadvantages of his intended action. The following definition is recommended in David Watt, Watt’s Manual of Criminal Jury Instructions, 2nd ed:
“Deliberate” is not a word that we often use when speaking to other people. It means “considered, not impulsive”, “carefully thought out, not hasty or rash”, “slow in deciding”, “cautious”.
A deliberate act is one that the actor has taken time to weigh the advantages and disadvantages of. The deliberation must take place before the act of murder…starts. A murder committed on sudden impulse and without prior consideration, even with an intention to kill is not a deliberate murder. [Emphasis in original.]: R v Spence, 2017 ONCA 619 at paras 68-74
Constructive First Degree Murder
Via forcible confinement
The act of killing and the act of confinement must be part of a single transaction, but must amount to distinct acts, such that the act of killing and the confinement are not the same; The acts of confinement must go beyond the acts causing death: R v Smith, 2015 ONCA 831 at para 11