ANSWER ALL 3 QUESTIONS
Please read the questions carefully and answer each question individually, focusing on the facts that are particularly relevant to each accused. In other words, you do not need to cover all of the facts repeatedly for every question.
The best answers will apply the course material to the fact scenario as much as possible. Be sure to clearly refer to the relevant case law, Charter provision or Criminal Code provision where applicable. Note that the relevant Criminal Code provisions are set out at the end of the exam. You are not required to address any Criminal Code provisions other than those provided here.
Cases and provisions should be cited parenthetically – for example: “Defence of person requires that the accused believe on reasonable grounds that a threat of force is being made against them (Criminal Code s 34(1)(a)), but expert evidence can be called in relation to the reasonableness of the accused’s belief (R v Lavallee).” The name of the case is sufficient.
FACTS
Aaliyah and Michelle are sisters, ages 20 and 18, respectively. Both are in university and are doing very well in their undergraduate programs. Aaliyah plans to go to law school and Michelle wants to become an archeologist. They live with their mother and their younger brother Tyler, age 10. Their father died in a car accident 9 years ago; the kids had been fighting in the back seat and when he turned around to tell them to stop, he accidentally drove through a red light and was t-boned by another vehicle. He had a generous life insurance policy which named his wife as the sole beneficiary and provided more than enough for the family to live comfortably and for the children to be supported through their post-secondary studies.
After their dad died, Aaliyah and Michelle’s mother became depressed, and then began drinking more and more heavily. She is now a full-blown alcoholic. When she is drunk, which is almost every night, she is verbally and physically abusive to her children, whom she blames for their father’s death.
Aaliyah and Michelle want to move out, but they don’t want to leave Tyler alone with their mother. They’ve talked about reporting the abuse to the police, or to the Children’s Aid Society, but they’re scared of what will happen if they do. A neighbour once called the police after overhearing their mother yelling at and hitting them. When the police came their mother said that she had been breaking up a fight between her daughters, and the police believed her and left. After they left, their mother told Aaliyah and Michelle that if the police came by again and she discovered that they had anything to do with it, she would cut them off financially. Aaliyah and Michelle know that they wouldn’t be able to support themselves or Tyler, and worry that he would end up in foster care.
As the oldest, Aaliyah tries to protect her younger siblings and usually bears the brunt of their mother’s abuse. During the most recent incident, Aaliyah’s mother pushed her down the stairs. Aaliyah hit her head badly enough to cause a skull fracture and dislocated her shoulder. Michelle insisted that they take her to the hospital and wanted to tell the doctor what had happened, but their mother – who by that point had sobered up significantly – said that Aaliyah had been injured at rugby practice. Aaliyah tried to speak up, but when the doctor stepped out for a moment her mother hissed at her that if she said anything to anyone about what had really happened she would kill her.
After they got home that night, Michelle and Aaliyah had a whispered conversation in their bedroom. Michelle said to Aaliyah, “I wish she would just die.” Aaliyah replied, “Wouldn’t that be great! She could crash the car while driving drunk or pass out in the bathtub – we’d get dad’s money and we could raise Tyler together.” Michelle said, “I don’t think I want her out driving – who knows who else she might hurt? – but quietly passing out in the bathtub, that sounds perfect. Is that even possible? I mean, is it even worth hoping for?” Aaliyah said, “I don’t know – let me see if Amir knows.” Aaliyah texted her boyfriend Amir, who is a medical student, and asked him if it was possible for an adult to drown in a bathtub while drunk. He replied, “Yes, but more common when combined with sleeping pills or other sedatives. Why?” Aaliyah replied, “Just curious.”
Aaliyah and Michelle went to bed, but neither of them could forget their conversation. Over the next couple of days, they began to form a plan. They would wait for their mother to get very drunk one night, then slip her some sleeping pills and encourage her to go take a bath, as she often did. Then they would cross their fingers and hope for the best.
Their mom had been given a prescription for sleeping pills shortly after their dad died, but when they checked the bottle there were only a few pills left. Aaliyah called Amir and asked him if he could get her some sleeping pills. Amir knew about the situation at home and was worried for Aaliyah’s wellbeing. “You’re not planning to hurt yourself, are you? I mean, you’re not planning to, you know…?” he asked. “No, no, it’s nothing like that,” said Aaliyah. “They’re not for me, I promise.” “Okay,” said Amir, “that’s all I need to know.” The next week, Amir gave Aaliyah a bottle of sleeping pills he had bought from a friend. Aaliyah asked him if they would leave any taste or odour if she dissolved them in water. Amir said, “Why do you ask?” Aaliyah started to reply but he stopped her quickly saying, “No – forget I asked. I don’t need to know. If you dissolve them in water, they will be odourless and tasteless. They’ll dissolve faster if you crush them first. You can use two spoons.” Aaliyah thanked Amir and took the pills home. Aaliyah and Michelle wanted to make sure that Tyler was out of the house when they gave their mother the sleeping pills, so they planned to do it on Thursday night, when he would be at soccer practice. Their mother always drank vodka and cranberry juice, so their plan was to crush up the pills and dissolve them in the vodka. Aaliyah was a total klutz but knew that Michelle had steady hands, so she gave the pills to Michelle to crush and put in the vodka. As Michelle was crushing the pills she started to think. Even though her mother usually drank “doubles”, there was still always more cranberry juice than vodka in her glass. That meant that if she dissolved the pills in the cranberry juice, her mother would ingest the drug faster. Unbeknownst to Aaliyah, Michelle put the crushed sleeping pills in the cranberry juice instead of the vodka, and then put the cranberry juice in its usual spot in the fridge.
Initially, everything went according to plan. Their mother came home and asked Michelle to fix her a drink. Michelle used the drugged cranberry juice to fix her one drink, then another, then a third. The girls’ mother began to yawn, and then went upstairs where they heard her running a bath. They waited downstairs for 20 minutes or so, and then finally crept up and peeked into the bathroom. Their mother was sitting in the tub with her eyes closed and a couple of towels folded up behind her back. It looked like she was unconscious, but it also looked unlikely that she was going to slip under the water. Aaliyah and Michelle were horribly disappointed. Michelle began to cry and said, “Oh my god, we’re never getting out! It’s never going to end.” “No!” said Aaliyah suddenly and walked over to the tub. She shook her mother’s arm and then, when there was no response, she grabbed both her ankles and pulled her into the water. Her mother did not resist and did not regain consciousness.
The girls were totally freaked out. Michelle kept saying, “Oh my god! Oh my god!” Aaliyah tried to calm her down, and then finally said, “Let’s get out of here.” They walked to a nearby restaurant and ordered dinner but found they were too anxious to eat, so they paid the bill and walked around their neighbourhood for a couple of hours. It slowly got dark, and after a while Michelle said, “Tyler will be home soon. We can’t let him find her.” “You’re right,” said Aaliyah, “let’s go home.”
When they got home, they found Tyler unconscious on the couch, a half-drunk glass of cranberry juice and a half-eaten sandwich on the table beside him. They later learned that soccer practice had been cancelled that night, because the pitch was double-booked. Tyler had come home and made himself dinner, poured himself a glass of cranberry juice, and then sat down in front of the TV. “I don’t understand,” said Aaliyah. “What’s wrong with him?” Michelle, seeing the cranberry juice, understood exactly what had happened, called 911, and told the dispatcher that her 10-year-old brother had accidentally overdosed on sleeping pills. Tyler was rushed to hospital, where doctors pumped his stomach. They were able to get the pills out of his system before they could do permanent damage, but in the process, they accidentally perforated his stomach. Tyler developed peritonitis and required surgery to repair the tear. While in surgery he suffered an allergic reaction to the anesthesia, and despite the doctors’ best efforts, died.
Amir was interviewed by the police and he told them about the conversations that he had with Aaliyah and admitted that he gave her the sleeping pills. Amir told the police “I didn’t know what she was going to do with the pills, and I wasn’t even with Aaliyah and Michelle the night that their mother and Tyler died.”
Aaaliyah and Michelle have been charged with first-degree murder in the death of their mother, and first-degree murder in the death of Tyler.
RELEVANT CRIMINAL CODE PROVISIONS
Parties to Offences
21 (1) Every one is a party to an offence who
(a) actually commits it;
(b) does or omits to do anything for the purpose of aiding any person to commit it; or
(c) abets any person in committing it.
(2) Where two or more persons form an intention in common to carry out an unlawful purpose and to assist each other therein and any one of them, in carrying out the common purpose, commits an offence, each of them who knew or ought to have known that the commission of the offence would be a probable consequence of carrying out the common purpose is a party to that offence.
Defence of Person
34 (1) A person is not guilty of an offence if
(a) they believe on reasonable grounds that force is being used against them or another person or that a threat of force is being made against them or another person;
(b) the act that constitutes the offence is committed for the purpose of defending or protecting themselves or the other person from that use or threat of force; and
(c) the act committed is reasonable in the circumstances.
(2) In determining whether the act committed is reasonable in the circumstances, the court shall consider the relevant circumstances of the person, the other parties and the act, including, but not limited to, the following factors:
(a) the nature of the force or threat;
(b) the extent to which the use of force was imminent and whether there were other means available to respond to the potential use of force;
(c) the person’s role in the incident;
(d) whether any party to the incident used or threatened to use a weapon;
(e) the size, age, gender and physical capabilities of the parties to the incident;
(f) the nature, duration and history of any relationship between the parties to the incident, including any prior use or threat of force and the nature of that force or threat;
(g) any history of interaction or communication between the parties to the incident;
(h) the nature and proportionality of the person’s response to the use or threat of force; and
(i) whether the act committed was in response to a use or threat of force that the person knew was lawful. …
Administering Noxious Thing
245 (1) Every one who administers or causes to be administered to any person or causes any person to take poison or any other destructive or noxious thing is guilty of an indictable offence …
Homicide
222 (1) A person commits homicide when, directly or indirectly, by any means, he causes the death of a human being.
(2) Homicide is culpable or not culpable.
(3) Homicide that is not culpable is not an offence.
(4) Culpable homicide is murder or manslaughter or infanticide.
(5) A person commits culpable homicide when he causes the death of a human being,
(a) by means of an unlawful act;
(b) by criminal negligence;
(c) by causing that human being, by threats or fear of violence or by deception, to do anything that causes his death; or
(d) by wilfully frightening that human being, in the case of a child or sick person.
225 Where a person causes to a human being a bodily injury that is of itself of a dangerous nature and from which death results, he causes the death of that human being notwithstanding that the immediate cause of death is proper or improper treatment that is applied in good faith.
229 Culpable homicide is murder
(a) where the person who causes the death of a human being
(i) means to cause his death, or
(ii) means to cause him bodily harm that he knows is likely to cause his death, and is reckless whether death ensues or not;
(b) where a person, meaning to cause death to a human being or meaning to cause him bodily harm that he knows is likely to cause his death, and being reckless whether death ensues or not, by accident or mistake causes death to another human being, notwithstanding that he does not mean to cause death or bodily harm to that human being; or
(c) where a person, for an unlawful object, does anything that he knows or ought to know is likely to cause death, and thereby causes death to a human being, notwithstanding that he desires to effect his object without causing death or bodily harm to any human being.
231 (1) Murder is first degree murder or second degree murder.
(2) Murder is first degree murder when it is planned and deliberate. …
(7) All murder that is not first degree murder is second degree murder.
