(s. 239)
(Last revised May 2011)
(Read relevant parts of indictment or count.)
1. that (NOA) meant to kill (NOC);[223]
2. that (NOA) (describe alleged conduct).[224]
Unless you are satisfied beyond a reasonable doubt that the Crown has proved both of these essential elements, you must find (NOA) not guilty of attempted murder.
If you are satisfied beyond a reasonable doubt of both of these essential elements, [and you have no reasonable doubt[225] after considering the defence(s) (specify defences) about which I will instruct you], you must find (NOA) guilty of attempted murder.
The Crown must prove beyond a reasonable doubt that (NOA) meant to kill (NOC).[226]
To determine whether (NOA) meant to kill (NOC), you must consider all the evidence, including the nature of the harm inflicted, and anything said or done in the circumstances. You may take into account, as a matter of common sense, that a person usually knows what the predictable consequences of his or her actions are, and means to bring them about.[227] However, you are not required to draw that inference about (NOA). Indeed, you must not do so if, on the whole of the evidence, including (specify evidence of intoxication, mental disorder or other), you have a reasonable doubt whether (NOA) meant to kill (NOC). It is for you to decide.
(Review relevant evidence and relate to issue.)
Unless you are satisfied beyond a reasonable doubt that (NOA) meant to kill (NOC), you must find (NOA) not guilty. Your deliberations would be over.
If you are satisfied beyond a reasonable doubt that (NOA) meant to kill (NOC), you must go on to the next question.
In this case, (NOA) is alleged to have (describe briefly conduct alleged to amount to an attempt)[228] . If you are satisfied beyond a reasonable doubt that the accused (identify conduct), then this amounts to an attempt to kill (NOC).
(Review relevant evidence and relate to issue.)
Unless you are satisfied beyond a reasonable doubt that (NOA) (identify conduct), you must find (NOA) not guilty of attempted murder.[229]
If you are satisfied beyond a reasonable doubt that (NOA) (identify conduct you must find (NOA)), guilty of attempted murder.
[222] Where identity is an issue, remember to include any further instructions that may be relevant (e.g. eyewitness identification, alibi, similar fact, etc.). Where date is an issue, the jury must be told that the Crown must prove that the offence occurred within the time frame indicated in the indictment. Where place is an issue, the jury must be told that the Crown must prove that some part of the offence occurred in the place indicated in the indictment.
Generally, the Crown must prove the date and place specified in the indictment. However, where there is a variation between the evidence and the indictment, refer to s. 601(4.1) of the Criminal Code and the jurisprudence following R. v. B. (G.), [1990] 2 S.C.R. 3.
[223] In most cases, the actual victim and the intended victim are the same person. If not, see R. v. Gordon (2009), 241 C.C.C. (3d) 388 (Ont. CA). See also R. c. Gingras, [1996] A.Q. No. 1341 (Que. C.A.).
[224] Section 24(2) requires the judge to decide, as a matter of law, whether the accused’s conduct amounts to an attempt or mere preparation. It is up to the jury, however, to make the necessary findings of fact from which the legal conclusion follows.
[225] This instruction will have to be modified where the accused has a legal burden of proof, such as mental disorder and non-insane automatism.
[226] Where the indictment includes a count or counts of murder, in addition to one or more counts of attempted murder, it may be advisable to distinguish between the mental elements of each crime. The following instruction may make the point:
“Unlike murder, where proof of either of two intents is sufficient, there is only one intent that will do for attempted murder: an intent to kill”.
[227] This instruction is a plain-language expression of what in case law is referred to as the “common sense inference” that a person intends the natural and probable consequences of his or her actions.
[228] For example, “stabbed (NOC) in the chest” or “fired two shots at (NOC)”. The description should reflect what is required to constitute an attempt.
[229] A count that makes no reference to the means by which the offence was committed may not give rise to any included offences, or only attempting unlawfully to cause bodily harm. See: R. v. Simpson (No. 2) (1981), 58 C.C.C. (2d) 122, 143 (Ont. C.A.) per Martin, J.A.; and R. c. Colburne (1991), 66 C.C.C. (3d) 235 (Que. C.A.). Where the wording of the indictment and the evidence leave open the possibility of an included offence, the relevant instruction should be inserted here.