The Ontario Court of Appeal recently affirmed a conviction of second-degree murder against an accused even though all evidence pointed to the accused not having physically assaulted the murder victim by any means. How is this possible? Although it is a very uncommon circumstance, the accused in this case was convicted of second-degree murder for failing in duty to protect her own child from the assaults of the person who was found responsible for the death of the child in question. We’ll take a look at the recent decision of R. v. Whalen, to understand the reasoning employed by the judge and jury.

Murder, Manslaughter and Infanticide

The crimes of murder, manslaughter and infanticide are covered by sections 229, 234 and 233 of the Criminal Code of Canada, respectively. The various classifications of types of murder are also covered in Sections 231 and 232 of the Code. Murder can be either “first-degree” or “second-degree” murder, with first-degree murder being a situation where the homicide is planned and deliberate. Second-degree murder is any murder that is not first-degree murder, thus any murder that wasn’t planned. Manslaughter is when a person commits a crime that unintentionally results in the death of another person.

Infanticide is a rare gender-specific section of the Criminal Code that applies when a mother kills a child under a year old, but only if the mother must have been suffering from some form of mental disturbance brought on by childbirth or as a side-effect of lactation. The killing of the child can occur by either a wilful act or by an omission (such as omitting to feed the child, for example). Although infanticide was not a charge for which the accused was convicted, the concept of killing by omitting or failing to act for a child does have some applicability to the case.

Accused Convicted of Second-Degree Murder After Failing Duty to Protect Young Daughter

The facts of the Whalen case are interesting, albeit tragic. The accused’s two-year-old daughter was repeatedly assaulted over a period of several days (possibly weeks) by the accused’s girlfriend, RH. The daughter tragically died from RH’s assault, and RH pled guilty to second-degree murder. As for the accused, although there was no evidence put forward that she physically assaulted her daughter, she was still charged with second-degree murder.

The Crown argued that she caused the death of her own daughter by failing her duty as a mother and parent to protect her daughter from the physical abuse repeatedly perpetrated against her daughter by her girlfriend. The Crown also argued that this neglect was committed with the state of mind required for murder under Section 229 (a) (ii) of the Criminal Code. Basically, this means that the accused knew that her failure in her duty to protect her daughter over this period of time from the abuse at the hands of her girlfriend would result in her child’s death and was reckless in not protecting her.

As the victim was older than 12 months, the charge could not fall under infanticide under Section 233 of the code. The difference is significant, especially with respect to sentencing. A first or second-degree murder charge carries a life sentence. A charge of infanticide carries a maximum penalty of five years’ imprisonment. At the trial, the jury convicted the accused, with the trial judge imposing a sentence of life imprisonment without eligibility for parole for 15 years. The accused appealed the conviction.

Recklessness Under s. 229 of the Criminal Code

The appeal centred around whether the trial judge had incorrectly instructed the jury on the mental elements required for a murder conviction under Section 229 (a) (ii) of the Criminal Code. In particular, the trial judge had instructed the jury that under that section, the accused could be considered guilty if:

  1. she either knew that bodily harm administered to her daughter by RH was likely to cause death, or
  2. she was reckless as to whether death ensued.

In actual fact, it’s not a case of alternative requirements – both elements are required for a conviction. An accused has to know that the bodily harm would like cause death and be reckless in letting it happen.

“Reckless”, in a criminal law context, refers to a situation where a person intentionally, and without justification, conducts him or herself in a way that consciously disregards any risks flowing from the action in question. In the example of the Whalen case, the “action” in question was a lack of action in a situation where there was a duty to protect and care for someone, as there is with respect to a parent with their two-year-old child. As the Supreme Court of Canada put it back in 1985 (in R. v. Sansregret), a person exhibiting recklessness is “one who, aware that there is danger that his conduct could bring about the result prohibited by the criminal law, nevertheless persists, despite the risk. It is, in other words, the conduct of one who sees the risk and who takes the chance.”

Error in Jury Instructions Was Minor, and Ultimately Corrected

Despite the error made by the trial judge in the instructions to the jury, the Court of Appeal upheld the conviction. Part of the reason is that although the trial judge made an initial error in the jury instruction, there were several more instructions issued by the trial judge where the correct test for a murder conviction under Section 229 (a) (ii) was provided. This included the trial judge’s written instructions which were handed to the jury and to which they were able to refer regularly during their deliberations. Effectively, the Court of Appeal ruled that the initial error was a non-factor because it had been corrected numerous times and the jury had the correct instructions in writing.

Apart from understanding and appreciating the different mental elements required for a murder conviction, this case demonstrates the importance of getting instructions to the jury correct in jury trials. An error in the jury instructions that had not been corrected would likely have resulted in the conviction being quashed and a new trial being ordered.

Contact Hicks Adams for Effective Criminal Defence at Trial or on Appeal

Our criminal defence lawyers can advise on how best to protect your rights and defend you in court, including for any situation where a trial judge has made errors in their instructions to the jury. We defend individuals charged with a variety of offences, including murder, attempted murder, and manslaughter, both in trial and on appeal. Contact Hicks Adams in downtown Toronto to discuss the options available to help you through this time. Call us at 416-975-1700 or contact us online to schedule a confidential consultation.