Sample Fact Pattern Assignment
R v Ashley and Leslie
Ashley and Leslie have both been charged with the offences of robbery, administering a stupefying substance, failure to provide the necessaries of life, and manslaughter. For the reasons that follow I find them guilty of all charges.
A. Facts
The following facts are established on the evidence before me. Ashley and Leslie stole a diamond from the Royal Ontario Museum. Their child care arrangements having fallen through, they brought their one-year-old son, Damian, with them – after first giving him a triple dose of children’s cough syrup to ensure that he would remain asleep throughout. When they were unexpectedly confronted by a guard, Leslie pulled out an imitation handgun and threatened to shoot the guard if she did not let them leave. When the guard sought to radio her colleagues Ashley hit her over the head with a flashlight, knocking her unconscious.
The following morning, Ashley and Leslie found Damian to be listless and lethargic. He was unable to walk without falling down and then began vomiting. Although both were concerned and Ashley wanted to take him to hospital, they ultimately agreed to continue to pursue their escape plan. As they drove, Damian went into convulsions. Although they were just outside of Sick Kids’ Hospital at the time, and Ashley again suggested stopping the car, they again agreed to drive on to their boat. Police arrested them on arrival, and when Ashley indicated Damian was ill immediately called an ambulance. Unfortunately, however, Damian died before he reached the hospital.
An autopsy determined that the cause of death was an overdose of dextromethorphan from the cough syrup given to him by the two accused. Police recovered the cough syrup bottle, on which was written a clear warning of the dangers of giving more than the recommended dose, including depressed breathing, seizures and death. The warning indicated that if symptoms of overdose were observed, medical attention should be sought immediately.
B. Analysis
1. Robbery
Section 343 of the Criminal Code sets out the offence of robbery as follows:
Every one commits robbery who
- steals, and for the purpose of extorting whatever is stolen or to prevent or overcome resistance to the stealing, uses violence or threats of violence to a person or property;
- steals from any person and, at the time he steals or immediately before or immediately thereafter, wounds, beats, strikes or uses any personal violence to that person;
- assaults any person with intent to steal from him; or
- steals from any person while armed with an offensive weapon or imitation thereof.
One of the fundamental elements of the actus reus of the offence of robbery is thus stealing. The meaning of the term “steals” is not defined in section 343, but is defined in s 2 – the interpretation provision – of the Criminal Code, which states that “‘steal’ means to commit theft”.
The offence of theft is set out in s 222(a) of the Criminal Code as taking anything with the intent to deprive the owner of that thing. The offence of robbery is thus simply a particular form of theft – that is, theft with violence or the threat of violence.
There is no question that Ashley and Leslie took the diamond and did so with the intent of depriving its owners of its possession. Thus both the actus reus and mens rea of theft or “stealing” is clearly made out. The additional element of violence or threat of violence that converts a theft to a robbery is also clearly made out, albeit in different ways for Ashley and Leslie. By striking the guard, Ashley has committed the actus reus described in s 343(a) – namely using violence to a person to overcome resistance to the stealing. By threatening to shoot the guard, Leslie also committed the actus reus described in s 343(a) – in her case by using the threat of violence; the fact that Leslie was armed with an imitation weapon means that she also committed the actus reus described in s 343(d). Both Ashley and Leslie are therefore guilty of the offence of robbery. They both committed the actus reus and had the requisite mens rea for the underlying offence of theft, and committed the additional actus reus necessary to convert that theft into a robbery.
2. Administering a Stupefying Drug
It is an offence under s 246(1)(b) of the Criminal Code to administer or cause to be administered to any person a stupefying drug with the intent to enable or assist himself or another person to commit an indictable offence. The evidence before me is that Ashley and Leslie administered a triple dose of cough syrup to their child, Damian, in order to ensure that he remained asleep while they stole the diamond. While the Criminal Code does not define “stupefying”, a drug that renders someone unconscious or ensures that they remain in an unconscious state would clearly qualify as stupefying. The actus reus of the offence – administration of a stupefying substance – is therefore made out. The mens rea for this offence is the intent to enable the person administering the substance or another person to commit an indictable offence. On the evidence before me, Ashley and Leslie’s intent in giving the cough syrup to Damian was to enable them to steal the diamond without him waking and alerting guards. As set out in s 344 of the Criminal Code, robbery is an indictable offence – as is theft of property of this monetary value as set out in s 334 of the Criminal Code. The mens rea for this offence is thus clearly made out.
3. Failure to Provide the Necessaries of Life
Under section 215 of the Criminal Code, parents have a duty to provide necessaries of life for their child under the age of sixteen years. It is an offence to fail without lawful excuse to perform that duty if failure endangers the life or permanently endangers the health of that child. While “necessaries of life” is not defined in the Criminal Code, we know from R v Tutton that medical attention may be a necessary of life for a sick child, and thus one of the legal duties on parents is to obtain medical attention. Accordingly, a failure to perform that duty can constitute the actus reus of the offence where that failure endangers the life or permanently endangers the health of the child. Clearly, Ashley and Leslie’s failure to obtain prompt medical attention for Damian endangered his life, and they therefore committed the actus reus of this offence.
The mens rea of this offence is objective – as is typically the case in relation to legal duties and as confirmed by the court in Tutton. The question is therefore not what was in Ashley and Leslie’s minds at the time – what they subjectively intended or knew – but what they ought to have known. In order to determine what they ought to have known we look to the reasonable person. I find that the reasonable person would have been aware of the risk of adverse health effects associated with overdosing a child with cough syrup, and would have appreciated the need to obtain prompt medical attention if that child began to exhibit symptoms consistent with overdose. Ashley and Leslie’s conduct constituted a marked departure from the standard of the reasonable person. The mens rea for this offence has therefore also been proven.
4. Unlawful Act Manslaughter
With respect to the final offence, manslaughter by means of an unlawful act, I note that there are two routes by which to reach the conclusion that Ashley and Leslie are guilty as charged. First, as set out above, giving Damian a triple dose of cough syrup to enable them to steal the diamond was clearly an unlawful act – and the direct cause of his death. Second, their failure to obtain medical attention and care once it became apparent that he was unwell also constitutes an unlawful act. Further, while the evidence does not definitively establish that Damian would have been saved had medical attention been promptly obtained, it stands to reason that the failure to obtain that care was a significant contributing cause of his death, and thus meets the test for causation articulated by the Supreme Court in Smithers and refined in Nette. If I am wrong in this conclusion, the offence of unlawful act manslaughter is still made out on the basis of the administration of the cough syrup contrary to s 246(1)(b) of the Criminal Code.
