R. v. Elton

2016 BCCA 440 R. v. Elton

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: R. v. Elton, 2016 BCCA 440 Date: 20161109 Docket: CA41735 Between: Regina Respondent And Thomas Robert Elton Appellant Before: The Honourable Mr. Justice Lowry The Honourable Madam Justice Bennett The Honourable Madam Justice Dickson On appeal from: An order of the Supreme Court of British Columbia, dated January 20, 2012 (R. v. Elton, 2012 BCSC 315, New Westminster Docket X074270). Counsel for the Appellant: B.D. Vaze M.J. Jackson Counsel for the Respondent: D.M. Layton Place and Date of Hearing: Vancouver, British Columbia March 3, 2016 Place and Date of Judgment: Vancouver, British Columbia March 3, 2016 Place and Date of Reasons Vancouver, British Columbia November 9, 2016 Written Reasons by: The Honourable Madam Justice Dickson Concurred in by: The Honourable Mr. Justice Lowry The Honourable Madam Justice Bennett Summary: The appellant challenges his conviction for second degree murder. He argues the trial judge erred in holding that the defence of mistaken belief of fact was unavailable and failing to consider fully whether he aided the victim's suicide or committed her murder. Held: Appeal dismissed. The judge misstated the law regarding the defence of mistake of fact. Mistake of fact is available as a defence where the mistaken belief prevents an accused from having the mens rea required for the offence charged,

irrespective of whether the accused would still be guilty of another offence. However, the error did not impact the verdict. Despite his misstatement, the judge considered the defence and found that the accused intentionally caused the victim's death by his own acts, such that the Crown had proved both the actus reus and mens rea for murder. Reasons for Judgment of the Honourable Madam Justice Dickson: [1] Mr. Elton appeals his conviction for the second degree murder of his wife, Brenda Turcan. On June 22, 2009 he strangled and stabbed Ms. Turcan, who was at the time chronically, but not terminally, ill. At trial, he characterised this conduct as aiding Ms. Turcan to commit suicide because he honestly believed she had taken Valium to kill herself and he was trying to help her. On appeal, he contended the trial judge erred in holding the defence of honest but mistaken belief of fact was unavailable and failing to consider fully whether he aided Ms. Turcan's suicide or committed her murder. [2] At the conclusion of the hearing, we advised counsel that the appeal was dismissed. I agreed with the disposition for the reasons that follow. Background [3] Mr. Elton and Ms. Turcan met in 1995 and married ten years later. The year before they married, Ms. Turcan suffered a heart attack and her health deteriorated significantly from that point on. By the time she died, she was suffering

from several chronic, progressive illnesses which were unpleasant but manageable with medication. As a result, her quality of life was quite low. [4] Despite Ms. Turcan's poor health, she and Mr. Elton were a loving and devoted couple. At trial, Mr. Elton testified that they agreed if either wanted to commit suicide the other would do so as well, and, if necessary, they would help one another. He also gave an account of events preceding Ms. Turcan's death, beginning with her statement, "Well, it's time, it's over. I've already gone. I've had enough." He said these were code words that it was time for the agreed upon double suicide. [5] Mr. Elton went on to testify that he took the dog for a walk shortly after Ms. Turcan spoke the code words. When he returned, he found her sleeping or unconscious, with a bottle of Valium in her hand. In response to finding her in this state, he said, he fed the dog eight pills and took 23 pills himself, intending to fulfill the suicide pact. Wanting to ensure that Ms. Turcan's wishes were carried out, he also strangled her and stabbed her with a bayonet. [6] After Mr. Elton strangled Ms. Turcan and stabbed her with a bayonet, he called his father to report on what had happened. Next, he called a friend and asked that she collect the dog so it would have a second chance at life. Shortly thereafter, police and paramedics arrived at the apartment,

but Mr. Elton refused medical attention. In due course, he was arrested for the murder of Ms. Turcan. [7] The cause of Ms. Turcan's death was mechanical asphyxia, or strangulation. According to a forensic pathologist, the stab wound could have been inflicted before or after she was strangled and would itself have caused death. None of Ms. Turcan's chronic medical conditions was a directly contributing factor. Although her blood contained therapeutic levels of medication, she had not taken a drug overdose. [8] The judge found that Ms. Turcan was not attempting to commit suicide when Mr. Elton killed her. He also found that Mr. Elton intentionally caused her death, although in doing so, he did not act out of anger or hatred. Rather, the judge characterised his actions as a "mercy killing". They were, he found, intended to put Ms. Turcan out of her suffering. Trial Judge's Reasons [9] The judge began his reasons by noting that Mr. Elton was charged with second degree murder. He also noted Mr. Elton's position that he aided Ms. Turcan's suicide, which is a separate offence not included in a murder charge. He went on to acknowledge the implications of accepting this position in the circumstances of the case before him. In particular, he stated that if he found Mr. Elton aided or abetted Ms. Turcan's suicide he would acquit him because he was charged with murder alone. [10] The judge

turned next to a review of the evidence and a detailed outline of Mr. Elton's position. In summary, Mr. Elton submitted that he honestly, but mistakenly, believed Ms. Turcan was trying to commit suicide by a drug overdose and he was trying to help her accomplish this goal. In these circumstances, he said, he intended only to aid her suicide and, based on his mistaken belief, should be acquitted. In the alternative, he should be convicted of manslaughter because he did not intend to cause Ms. Turcan's death by his own hand. [11] In support of his position, Mr. Elton cited case authorities and statutory provisions related to the offence of aiding or abetting suicide and the defence of honest but mistaken belief of fact. The judge reviewed them and set out his key factual findings, including his finding that, when he strangled her, Mr. Elton intentionally caused Ms. Turcan's death. He held the defence of honest but mistaken belief was not available to Mr. Elton: [103] because even if he was correct in that belief and even if his actions amounted to only aiding her it would not have rendered him innocent but rather would have rendered him guilty of aiding or abetting a suicide. [12] The judge also went on to hold: [111] Even if Ms. Turcan had been attempting to commit suicide or Mr. Elton honestly believed that, by strangling and stabbing her Mr. Elton was not aiding or abetting

her suicide but was in fact acting to cause her death by his own overt actions. [13] In the result, the judge concluded that Mr. Elton's actions constituted second degree murder and found him guilty as charged. Issues on Appeal [14] Mr. Elton submits the judge made two distinct, but related, errors. First, he erred in finding the defence of honest but mistaken belief of fact was only available if his alleged belief that Ms. Turcan was committing suicide would have rendered him innocent. Second, he failed to consider and analyse fully whether Mr. Elton intended to aid Ms. Turcan's suicide or commit her murder. [15] According to Mr. Elton, a "murderous intent" differs significantly from an intent to aid suicide, as does the related state of moral blameworthiness. Where, as here, a person kills another in an effort to help her commit suicide, he submits the killer has the mens rea for aiding suicide, but not for murder. He also submits that the defence of honest but mistaken belief of fact is available wherever an accused alleges he does not have the mens rea for the crime charged, regardless of whether he is entirely innocent of any crime whatsoever. However, in this case the judge erroneously deprived him of a mistake defence on the murder charge by failing to analyse his belief that Ms. Turcan was committing suicide because he would not be entirely innocent based on his belief.

This was, he submits, a serious error. [16] Mr. Elton goes on to submit that the judge also failed to analyse the extent to which his alleged mistaken belief had an air of reality and his conduct was morally blameworthy. He further failed to consider how the actus reus of murder and aiding suicide might overlap, and the difference in the mens rea of each. Mr. Elton contends that these were critical issues at the heart of the case, essential to a proper determination of whether and for how long he should be jailed for killing Ms. Turcan. However, the judge did not conduct the necessary analysis. In consequence, he says, the murder conviction should be quashed and a new trial should be ordered. [17] The Crown responds that Mr. Elton's conduct amounted to murder regardless of whether he honestly believed Ms. Turcan was attempting suicide. In strangling and stabbing her, he did not aid Ms. Turcan's perceived suicide attempt; he intentionally caused her death by his own overt acts. Accordingly, the judge did not err in finding the defence of honest but mistaken belief of fact was unavailable to Mr. Elton. To the extent he misstated the law regarding the mistake defence more generally, the Crown asks this Court to apply the curative proviso in s. 686(1)(b)(iii) of the Criminal Code because the misstatement was immaterial. Discussion Did the judge err in finding that the defence of

honest but mistaken belief of fact was not available to Mr. Elton? [18] Proof of mens rea is always an essential element in establishing criminal responsibility. The defence of honest but mistaken belief of fact is simply a denial of the requisite mens rea of an offence: R. v. Ewanchuk, [1999] 1 S.C.R. 330 at paras. 42-44. It is available wherever a mistaken belief negates the mens rea required to establish the charged offence: R. v. Pappajohn, [1980] 2 S.C.R. 120 at 139 and 148. [19] For the mistaken belief of fact defence to have an air of reality, the accused must generally hold a mistaken belief as to an essential element of the actus reus of the offence in question. For example, a hunter who shoots and kills a man is not guilty of murder if he mistakenly believed that he was shooting a deer, not a person. This is because, pursuant to s. 229(a) of the Criminal Code, the actus reus of murder involves the killing of another human being. In this example, however, the hunter did not believe that was the nature of his act: R. v. Park, [1995] 2 S.C.R. 836 at para. 15. [20] It follows that the judge erred when he stated the defence of honest but mistaken belief was unavailable because, even if Mr. Elton genuinely believed Ms. Turcan was committing suicide, he would not be entirely innocent. The mistake of fact defence is available where the mistaken facts, if true, negate the mens

rea of the offence charged, regardless of whether the accused is guilty of a different offence. Accordingly, if Mr. Elton's mistaken belief that Ms. Turcan was committing suicide could have raised a reasonable doubt that he possessed the mens rea required to ground a murder conviction the mistaken belief defence was available and should have been considered. It made no difference in principle that holding this belief would have rendered him guilty of aiding Ms. Turcan's suicide. [21] In this case, however, this question does not arise because the trial judge found that Mr. Elton intended to cause Ms. Turcan's death. In these circumstances, he was correct to conclude that it did not matter if Mr. Elton believed Ms. Turcan was trying to commit suicide. In other words, Mr. Elton's intent was to cause the death of Ms. Turcan, not to aid or abet her suicide. Did the judge fail to consider and analyse fully whether Mr. Elton intended to assist Ms. Turcan's suicide or commit her murder? Murder & Aiding Suicide [22] A person commits homicide when, directly or indirectly, by any means, he or she causes the death of another person: Criminal Code, s. 222(1); R. v. Fontaine, 2002 MBCA 107 at paras. 27 and 45. There are three types of culpable homicide in Canada: murder, manslaughter or infanticide: Criminal Code, s. 222(4). [23] Section 229(a) sets out when a culpable homicide is

murder: 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; [24] Murder has long been recognised as the worst of peace-time offences. Its hallmark is a subjective foresight of death, which mens rea attracts severe opprobrium and a mandatory life sentence: R. v. Vaillancourt, [1987] 2 S.C.R. 636 at para. 28; R. v. Martineau, [1990] 2 S.C.R. 633 at 644-646. [25] A person aids a suicide by assisting another person to inflict death upon him or herself where such assistance falls short of a positive causal act: Criminal Code, s. 241; Law Reform Commission of Canada, Working Paper 28: Euthanasia, Aiding Suicide, and Cessation of Treatment (Law Reform Commission of Canada: Ottawa, 1982) at 52. Aiding suicide is a form of accessory liability imposed for assisting a principal actor to self-inflict death. It is not an included offence in a charge of murder: R. v. Gagnon (1993), 84 C.C.C. (3d) 143 (Que.C.A.). [26] Section 241 provides: Every one who (a) counsels a person to commit suicide, or (b) aids or abets a person to commit suicide, whether suicide ensues or not, is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years. [27] The mens rea of aiding

suicide is intending to help another person to kill him or herself, knowing that is his or her intent: Fontaine at paras. 40-45. [28] Like that of most criminal offences, the mens rea of aiding suicide and of murder involve an exercise of freewill to use particular means to produce a particular result. Understood in this sense, the criminal intent required to establish criminal responsibility is not the same as the motive which may prompt the commission of the offence. An accused person's motive for acting, merciful or otherwise, precedes and induces the exercise of freewill, and relates to the end consequence of the intentional act in question. In other words, it is the reason why the accused commits an act. While evidence of motive may help to prove criminal intention, it is irrelevant to criminal responsibility: R. v. Lewis, [1979] 2 S.C.R. 821 at 831-833. Application [29] Despite his misstatement regarding the mistaken belief of fact defence, the judge noted and rightly rejected it. In doing so, he fully considered whether Mr. Elton aided in Ms. Turcan's suicide or committed her murder. At para. 111 of the reasons for judgment he held that even if Mr. Elton honestly believed Ms. Turcan was attempting suicide, by strangling and stabbing her he did not assist her suicide; he killed her by his own overt acts, intending to cause her death. The judge concluded this amounts to murder. I see no error in his conclusion. "The Honourable Madam Justice Dickson" I AGREE: "The Honourable Mr. Justice Lowry" I AGREE: "The Honourable Madam Justice Bennett"