Supreme Court restores woman’s conviction for mother’s attempted murder with insulin

The Supreme Court of Canada has restored an attempted murder conviction in a case involving an apparent attempted murder-suicide with a Toronto nurse, her mother and daughter. 

The 6-3 decision sidestepped an attempt to put a bright line between murder and assisted suicide. It included a partial dissent centred on jury instructions and the air of reality of a theory that the trial judge did not raise in those instructions.

In June of 2019, B.F., her mother I.F., and daughter E were all found unconscious with five emptied insulin pens nearby. B.F. and I.F. made full recoveries, but E suffered permanent brain damage and irreparable damage to other organs, and will require medical care for the rest of her life. 

B.F. was charged with two counts of attempted murder and aggravated assault, and found to have motive and opportunity. A note was found at the scene that included a line about leaving no witnesses.

B.F. was convicted on both counts of attempted murder, as well as one count of aggravated assault with relation to her daughter. She was acquitted on the second aggravated assault charge related to her mother. 

During the trial, B.F. raised the theory that I.F. may have injected herself with the insulin in an attempted suicide. The trial judge found that it lacked an air of reality and did not instruct the jury on the distinction between attempted murder and aiding suicide.

The Ontario Court of Appeal allowed the appeal in part, keeping the convictions related to E, but set aside the attempted murder conviction related to I.F. The Court said that if I.F. had self-administered the insulin, the accused may be guilty of aiding a suicide attempt rather than attempted murder.

The majority of the Supreme Court overturned the appeal and restored B.F.’s conviction for the attempted murder of her mother.

“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 section 239 of the Criminal Code and aiding suicide under s. 241(1)(b),” wrote Justice Michelle O’Bonsawin for the majority. 

“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.”

She further noted: “The question of the legal relationship between attempted murder and aiding suicide has no bearing on the appeals.”

This legal relationship was raised by intervenors in the case, who were concerned about what the precedent set by the Ontario Court of Appeal would mean.

Sarah Rankin, a lawyer with the Rodin Law Firm in Calgary, acted as an intervenor for Inclusion Canada, a non-profit organization that supports the training and socialization of individuals with intellectual disabilities. 

“The main concern for Inclusion Canada is that people with disabilities are likely to be disproportionately impacted by the rule that the Ontario Court of Appeal proposed that would have limited liability for homicide in any case where the deceased performs that ‘final act’ that leads to their death, whatever else was in the chain of events.”

She says there is a pernicious underlying societal feeling around whether life with a disability is worth living, which can lead to a sense that people feel they may be better off dead.

The Supreme Court’s decision avoids the worst outcome from Inclusion Canada’s perspective, as it declines to uphold the distinction that the Court of Appeal created between homicide offences and assisting or aiding suicide offences.

“It doesn’t go as far as we had asked, which was to definitively say that the existing rules for causation are capable of determining liability appropriately based on the facts of a case,” Rankin says. 

“It’s not just in death by suicide where there may be multiple things that leads to a death. The defendant may be one part of a chain that may have started before them.”

The Canadian Civil Liberties Association also intervened in the case, which concerned upholding the distinction between the two crimes, as Parliament had intentionally created separate offences.

“We also emphasized that the Court shouldn’t adopt an interpretation of aiding suicide that would suggest it’s equivalent to murder,” says Shakir Rahim, director of the CCLA’s criminal justice program. 

“If the view was that you can actually have the same elements and facts, and it’s just a matter of characterization of whether it’s aiding suicide or murder, to us, that fundamentally collapses the distinction between the two offences.”

Maintaining the distinction is important because it’s not the role of the courts to create new criminal offences. The principle of restraint being operative in criminal law is also at play here.

Rahim says that collapsing the distinction between the two offences would not respect the principle of restraint. He notes the majority was able to resolve the appeal without addressing this specific question.

It’s the minority that set out what matters in this decision, he adds, which is that there’s an important distinction between the offences of culpable homicide and aiding or assisting suicide. 

“Our hope would be that when this issue is more squarely before the Court, that they go in this direction that the minority has outlined.”

Rahim says the question of whether the victim’s free will was overborne, or if it was an independent and autonomous choice, is important to uphold.

Rankin says there is a blameworthiness to responding to someone who is expressing potential despair or distress by facilitating a death as opposed to reacting to it in some other way. 

“It is important to recognize a moral obligation to respond to distress, existential despair or expressions of suicidality with concern and compassion and not with a belief that a person might be better off dead,” Rankin says. 

“And there is a moral blameworthiness in hearing that expression of pain and taking steps that result in the death of that person.”

That said, it’s not at all clear that the moral blameworthiness of factually causing a death in those circumstances is lesser if it can’t be called a homicide in law.

“How those two offences interact or overlap, or how to understand them specifically, is left for another day, but (the Court) certainly didn’t uphold the stark distinction that the Court of Appeal had proposed,” Rankin says. 

“The decision means that the law remains as it is.”

Tony Paisana, a partner at Peck and Company in Vancouver and former chair of the CBA’s criminal justice section, says that because the Court did not deal with the question of assisted suicide in this case, it leaves it up to the courts to do so in the upcoming trial of Kenneth Law.

An alleged poison seller, Law is charged with 14 counts of first-degree murder and 14 counts of counselling or aiding suicide in connection with deaths across Ontario. He’s also facing allegations regarding sending poisonous substances abroad.

“(This case) doesn’t answer the question that we thought it would answer, which is of interest,” Paisana says. “(The Kenneth Law) case will have to answer the question.”