R. v. B.F., 2024 ONCA 511, 2025 SCC 41 (41420)
“The accused, her 19‑month-old child and the accused’s mother were found unconscious in their family apartment. All three had been injected with large doses of insulin. The accused and her mother made a full recovery, but the child suffered life-altering injuries. The accused was charged with two counts of attempted murder by administering a noxious substance, contrary to s. 239(1)(b) of the Criminal Code, and two counts of aggravated assault, contrary to s. 268(2). At the accused’s trial before a jury, the Crown’s case rested on the theory that the accused, a nurse, had both the motive — ongoing family law proceedings for access to and custody of the child — and opportunity to inject her mother and child with insulin before attempting to end her own life. Emptied insulin pens were found in the apartment, as well as a handwritten letter that the Crown suggested was the accused’s suicide note. One of the defence theories was that responsibility lay with the accused’s mother, who could have injected the child, the accused and herself with insulin.
Regarding the count for the attempted murder of the accused’s mother, among other instructions, the trial judge instructed the jury that the Crown could discharge its onus with respect to the actus reus with proof beyond a reasonable doubt that the accused administered the substance by injecting the insulin into her mother herself, or that the accused procured the insulin pens and provided them to her mother with the intent that her mother would use them to inject herself. He added that it did not matter if the mother was a willing participant in any or all of the actions undertaken by the accused. For the counts concerning the child, the trial judge instructed the jury, after other instructions, on the alternative ways the accused’s guilt could be established should they accept that the accused’s mother was the one to inject the insulin.
The accused was convicted of attempted murder of her child and of her mother and of aggravated assault of her child. The Court of Appeal ordered a new trial on the count of attempted murder of the mother, holding that the jury needed to be instructed on the distinction between attempted murder under s. 239 of the Criminal Code and aiding suicide under s. 241(1)(b). Specifically, in its view, the accused could have provided the insulin to her mother, who could have injected herself in an attempt to die by suicide, and the mother’s willing participation and desire to die would have been relevant to whether the accused was guilty of her attempted murder. The Court of Appeal did not disturb the accused’s convictions related to the child.”
The SCC (6:3, in part) allowed the Crown’s appeal, dismissed the accused’s appeal.
Justice O’Bonsawin wrote as follows (at paras. 3-7, 54-55, 68, 91):
“…Both appeals concern the adequacy of the trial judge’s jury instructions.
The Crown seeks to restore B.F.’s conviction for the attempted murder of I.F. It argues that B.F. could be found guilty of attempted murder even if I.F. had injected herself with insulin, provided that B.F. procured and provided the insulin to I.F. with the intent that I.F. would inject herself, and that B.F. meant to kill I.F. when taking these active steps. In the alternative, the Crown contends that there was no air of reality to the theory that I.F. intended to die by suicide, such that the trial judge’s failure to instruct on this theory was not an error (transcript, at pp. 5-8).
B.F. asks this Court to set aside her remaining convictions for the attempted murder and aggravated assault of E. and to order a new trial. She argues that the trial judge made various errors when instructing the jury on those offences.
For the reasons that follow, I would allow the Crown’s appeal, restore B.F.’s conviction for the attempted murder of I.F., and dismiss B.F.’s appeal.
In my view, the Court of Appeal unnecessarily complicated this matter by holding that the jury needed to be instructed on the distinction between attempted murder under s. 239 of the Criminal Code and aiding suicide under s. 241(1)(b). The distinct offence of aiding suicide was neither charged nor is it a lesser included offence. Further, there was no air of reality to a scenario in which I.F. self-administered the insulin with an intention to end her own life. The trial judge was therefore correct not to address this scenario in his instructions, which properly equipped the jury to decide B.F.’s guilt on all relevant charges. The question of the legal relationship between attempted murder and aiding suicide has no bearing on the appeals.
…
In summary, even if I were to accept B.F.’s submission that I.F.’s voluntary suicide attempt would be relevant to B.F.’s liability for attempted murder, the trial judge would only need to instruct the jury on that theory if it had an air of reality on the record.
I agree with the Crown that there is no air of reality to the theory that I.F. voluntarily injected herself with insulin with the intent to end her life. The trial judge appropriately refrained from addressing this theory when instructing the jury.
…
To summarize, there was no air of reality to the theory that B.F. aided I.F. in self-administering the insulin with the intent to end her own life. The trial judge was therefore correct not to put this theory to the jury. Instructing the jury on this theory would have only added unnecessary complexity and caused possible confusion.
…
In summary, B.F. has not pointed to any error in the jury instructions that justifies appellate intervention. The instructions did not assert that B.F. had, in fact, procured the insulin pens from her work. Rather, they adequately summarized the pertinent evidence at trial and rightly invited the jury to draw its own conclusion on the evidence.”