Intent (Milijevic)

1.0 Preface

This review will discuss the jury charge delivered in Milijevic; specifically this review considers the issue of mens rea for manslaughter and second degree murder as addressed in the charge.

This case and the charge were considered by the Supreme Court of Canada: R v Milijevic, 2011 SCC 8, 2011 CarswellAlta 137 (SCC).

2.0 The Facts

Milijevic was a party when a fight broke out between two guests. The party was being hosted in a garage. There were lots of people and both alcohol and drugs were being consumed. During the altercation Milijevic picked up a pickaxe and either threw it in the direction of one of the two men involved in the altercation or wielded it and directly at the victim’s head. The pickaxe penetrated 8cm into the victim’s skull and he died as a result: R v Milijevic, 2010 ABCA 115; 2010 CarswellAlta 637 (CA) @para 33]

Milijevic admitted to unlawfully causing the death of the victim. In other words, he admitted that he was at least guilty of manslaughter.

3.0 The Review


The jury returned a verdict of guilty of second degree murder and Milijevic appealed. Given Milijevic’s admission that he was at least guilty of manslaughter the only live issue at trial was whether he had the requisite mental state for murder- an issue which the jury was both alive to and had questions about.  Milijevic argued that the trial judge erred in the answer that was provided to the jury in response to their question about the difference between murder and manslaughter.


The jury asked: “[i]n 'layman terms' what is the difference between murder 2 and manslaughter? Examples? ... A specific definition of manslaughter?” [SCC decision @para 2] The question was answered as follows:

The evidence is clear and uncontradicted that Marko Miljevic caused Matthew McKay’s death and that this was an unlawful taking of life.
The accused, through his lawyer, admits these two matters. I tell you that, as a matter of law, they have been proven and that, accordingly, Marko Miljevic is guilty of the offence of manslaughter. Indeed, the accused through his lawyer admits the accused is guilty of manslaughter.
But for you to find Marko Miljevic guilty of second degree murder Crown counsel must go further and prove beyond a reasonable doubt that Marko Miljevic had the state of mind required for murder.
When I use the word in my charge “Crown counsel must go further,” I was saying, in other words, you start from the fact that proven the unlawful taking of life of Matthew McKay. For murder it has to be that, but the Crown has to add something more. They have to prove something more beyond a reasonable doubt. That’s what I was talking about. What is that other thing? The state of mind. And that’s what then I was meaning when I referred to that in the last portion of that sentence. And again I read it:
But for you to find Marko Miljevic guilty of second degree murder Crown counsel must go further and prove beyond a reasonable doubt that Marko Miljevic had the state of mind required for murder.
And down on that page under the heading, “Did Marko Miljevic Have a State of Mind Required for Murder,” I said this to you, and I continue to tell you this as part of my charge:
The crime of murder requires proof of a particular state of mind. For an unlawful killing to be murder, Crown counsel must prove that the accused either
(1)     Meant to kill a person
(2)    Meant to cause a person bodily harm that the accused knew was likely to kill that person and was reckless whether the person died or not
By “bodily harm,” I mean any hurt or injury that interfered with the health or comfort, and it has to be more than something that is just brief or fleeting or minor in nature.
The Crown does not have to prove both states of mind. One is enough. All of you do not have to agree on the same state of mind, as long as everyone is sure that one of the required states of mind has been proven beyond a reasonable doubt.
If it is not proven beyond a reasonable doubt that the accused meant to do one or the other then the accused has committed manslaughter.” [Charge @p310-312]
Although the jury asked for examples the judge declined to provide any.
Lastly in relation to the jury’s request for a specific definition of manslaughter the trial judge said this:
There is no specific definition of manslaughter in the Criminal Code. But I can help you by saying that to understand the difference between murder and manslaughter perhaps the following can assist: For our purposes, the killing of Matthew McKay is either murder or manslaughter. I have defined for you what is required for murder: specifically, the two possible states of mind of the accused. If the accused is not proven beyond a reasonable doubt to have either one of those two states of mind, then this killing is simply the crime of manslaughter. [Charge @p312-313]

Ruling & Comment

The Supreme Court of Canada heard the appeal as of right given the dissent at the Court of Appeal. In a 6-1 decision the Supreme Court of Canada rejected the appeal on the basis of the majority decision at the lower court.

The Court of Appeal’s reasons were as follows:

First, the affirmative defences mentioned for the first time on appeal all lacked an air of reality and were accordingly properly not mentioned by the trial judge. [ABCA decision @para 22]

Second, the trial judge did not err in failing to charge the jury on manslaughter by criminal negligence. [ABCA decision @para 22]

Third, on the appellant’s version of events (which involve a baseball bat not a pickaxe) he is guilty of unlawful act manslaughter. [ABCA decision @para 23]

In light of the forgoing the only issue was whether the trial judge’s answer to the jury question was so inadequate so as to constitute an error.

The majority of the Court of Appeal mused: “[w]ould it have been better had the trial judge responded to the jury's question along the lines as suggested by Crown counsel (…) ? Perhaps.” [ABCA decision @para 23]

The Crown had suggested answering the question as follows:

So another way you may wish to approach it is basically saying that manslaughter in this case, the mental element - comprises of the mental element of the underlying offence, which in this case would be assault with a weapon, and objective foreseeability of the risk of bodily harm that is neither trivial nor transitory in the context of a dangerous act. [ABCA decision @para 43]

However, the majority of the Court of Appeal held that the response given was adequate especially in light of the fact that the trial judge invited the jury to pose any other questions if needed. [ABCA decision @para 24]

In reviewing the points above the majority of the Supreme Court had only this to add:

I would add only that the judge responded helpfully and correctly to the jury's questions. Moreover, unlike the situation in R. v. Layton, 2009 SCC 36, [2009] 2 S.C.R. 540 (S.C.C.), the trial judge in this case encouraged the jury to pose a further question if his answer did not assist them. [SCC decision @para 2]

4.0 Conclusion

The answers to a question posed by a jury are of critical importance. Questions from the jury provide insight into the otherwise secret deliberations. In Layton, the trial judge simply reread what was an adequate charge. The Supreme Court held that:

it would have been preferable for the judge to provide clarifications to the jury, if she chose not to provide any, it was imperative to leave the door open for the jury to come back with further, more precise, questions should it remain unclear on the concept of reasonable doubt: R v Layton, 2009 SCC 36; 2009 CarswellMan 355 (SCC)

It is clear that the trial judge in Milijevic was alive to this imperative and acted accordingly.

An interesting additional point that was not the focus of either majority decision was that the trial judge incorrectly stated the definition of bodily harm required under s229(a)(ii) of the Code. The trial judge stated it as “any hurt or injury that interferes with health or comfort, and it has to be more than something that is just brief or fleeting or minor in nature” [SCC decision @para 22 per Fish J dissenting]. When in fact s229(a)(ii) requires bodily harm that is likely to cause death.

5.0 Other Resources

R v Layton, 2009 SCC 36; 2009 CarswellMan 355 (SCC)