Droste v. R., [1984] 1 SCR 208

Supreme Court of Canada

Droste v. R., [1984] 1 S.C.R. 208

Date: 1984-04-02

Rolf Arthur Droste (Plaintiff) Appellant;

and

Her Majesty The Queen (Defendant) Respondent.

File No.: 16808.

1983: November 2; 1984: April 2.

Present: Ritchie, Dickson, Estey, Mclntyre, Chouinard, Lamer and Wilson JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO.

Criminal law—Transferred intent—Murder—Accused failed to kill intended victim but mistakenly killed two others—Jury charged that accused liable to conviction for first degree murder—Whether or not jury properly charged—Whether or not “planned and deliberate” in s. 214 relates to intended or actual victims—Criminal Code, R.S.C. 1970, c. C-34, ss. 205, 212(b), 214(2).

Appellant had planned to kill his wife but in carrying out his plan killed his two young children instead. The trial judge charged the jury that appellant could be convicted of the first degree murder of his children if the jury were satisfied beyond a reasonable doubt that appellant had planned to kill his wife. The issue here is whether the Ontario Court of Appeal erred in law in holding that the trial judge had correctly charged the jury.

Held: The appeal should be dismissed.

Per Ritchie, Dickson, Estey, Mclntyre, Chouinard and Lamer JJ.: Planning and deliberation with the relation to the killing of a specific person makes the offence first degree murder when in the course of carrying out the plan the accused in fact kills someone else.

The question of liability for first degree murder is one of statutory interpretation and does not depend on the doctrine of “transferred intent”. Section 214(2) does not create a separate substantive offence of first degree murder; it classifies for sentencing purposes the substantive offence of murder as defined by ss. 212 and 213. Under s. 212(b) it is murder when a person, meaning to cause the death of a human being, by accident or mistake causes the death of another human being. Section 214(2) classifies as first degree, a murder committed in any of the relevant ways specified in the Code, if that murder was planned and deliberate. The element of

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planning and deliberation required by s. 214(2) relates to the specific mens rea of the applicable section—in the present case, under s. 212(b), to the intention to cause death to the wife. When s. 214(2) is combined with s. 212(b) the identity and character of any victim is entirely irrelevant. This conclusion also accords with the policy rationale underlying s. 214(2) which imposes a harsher penalty because of the added moral culpability to a murder that is planned and deliberate. This added culpability relates to planning and deliberation with regard to the taking of a human life and not with regard to the identity of the victim.

Per Wilson J.: Murder is in the first degree when “it” is planned and deliberate. Under s. 212(b) an intent to murder one person is sufficient mens rea if, by accident or mistake, the accused kills another. Planning and deliberating the murder of the intended victim and killing by accident or mistake another person is therefore sufficient to make the killing of the unintended victim planned and deliberate.

R. v. Farrant, [1983] 1 S.C.R. 24; R. v. Woods and Gruener (1980), 57 C.C.C. (2d) 220, applied; R. v. Gross (1913), 23 Cox C.C. 455, referred to; Ancio v. The Queen, [1984] 1 S.C.R. 25, distinguished.

APPEAL from a judgment of the Ontario Court of Appeal (1981), 34 O.R. (2d) 588, 63 C.C.C. (2d) 418, dismissing an appeal from convictions of two counts of first degree murder pronounced by Callaghan J. Appeal dismissed.

Gerald Kluwak, for the appellant.

David Watt, Q.C., for the respondent.

The judgment of Ritchie, Dickson, Estey, Mclntyre, Chouinard and Lamer JJ. was delivered by

DICKSON J.—Murder is first degree murder when it is planned and deliberate. The appellant Rolf Arthur Droste planned, and deliberated upon, the killing of his wife. In the course of carrying out that plan he caused the death of his two young children, Rolf Maurice Droste and Monique Jean Droste. His wife survived. The case is here by leave of this Court upon the following question:

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Did the Court of Appeal for the Province of Ontario err in law in holding that the learned trial Judge had correctly charged the jury that, if they were satisfied beyond a reasonable doubt that the Appellant herein had planned and deliberated to kill his wife, then he could be convicted of the first degree murder of his children, Rolf Maurice Droste and Monique Jean Droste.

I The Facts

Mr. Droste, his wife and two children were invited to a birthday party at the house of friends. The morning of the day upon which the party was to be held Mr. Droste went to a gas station. He filled the gas tank of the car. At the same time he filled five gallon container with gasoline. Later, he cleaned the back seat of the car using gas from the five gallon container. He testified that the seat was oily, some snowmobile parts having been placed on it at an earlier date. He reactivated the seat belts in the rear seat of the vehicle. Shortly after noon Mr. Droste, his wife and the children left for the party; the children were strapped in the back seat by the seat belts. Mrs. Droste noticed the smell of gasoline when she entered the vehicle. En route, as the vehicle was approaching a bridge, flames began to shoot up between the two front seats. Mr. Droste attempted to extinguish them with his right hand. Mrs. Droste testified that her husband then took a screwdriver from under his seat and began hitting her on the left side of the head, at the same time yelling at her to let go the steering wheel. The vehicle crashed into the bridge abutment. Mr. Droste fell forward on the steering wheel and was temporarily incapacitated. Mrs. Droste got out through the door on the driver’s side as the passenger door would not open; she helped her husband out of the vehicle. Mr. and Mrs. Droste tried to get the children out of the back seat of the car but were unable to do so. The children died from asphyxia due to smoke inhalation.

Crown evidence was to the effect that four gallons of gasoline had been used out of the five gallon container found in the trunk of the car. In the opinion of the Crown’s experts the fire did not

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start in the engine; it was caused by an accelerant used in the interior of the vehicle.

The Crown adduced other damning evidence. A co-worker of Mr. Droste testified that Droste had been telling him of various plans to kill Mrs. Droste. The final plan involved crashing a motor vehicle into a tree, starting a fire inside the vehicle and leaving Mrs. Droste to die. Other co-workers gave evidence that Droste told them he was going to kill his wife. There was evidence that Mr. Droste was sexually involved with a married woman at the time of the occurrence and that he desired to collect the proceeds of an insurance policy recently placed on the life of Mrs. Droste.

Mr. Droste was indicted on two charges, namely, first degree murder of each child. The trial judge instructed the jury that if they were satisfied beyond a reasonable doubt that Mr. Droste had planned and deliberated to kill his wife, then he could be convicted of the first degree murder of his children.

In the absence of the jury he explained to counsel the basis of his charge:

I am relying primarily on the wording of 214(2). There is no reference therein which would restrict the applicability to the intended victim, and I realize it is arguable, but it seems to me if a murder is established under 212(b) the planning and deliberation may relate to the murder of an intended victim whereas the actus rea [sic] relates to the unintended victim, otherwise you would never have first degree murder in circumstances where all the components are proven with reference to A and the unintended victim B, is killed.

I am also of the view that this approach is consistent with the doctrine of transferred malice as outlined in Glanville Williams; The Criminal Law, the General part 2nd Edition, pages 125 to 137. It is a difficult problem and I appreciate the submission, but in putting the charge together I concluded that the element of planning and deliberation could be in relation to an intended victim when the charge was laid under 212(b).

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The jury returned a verdict of guilty on each charge. Mr. Droste appealed and the Court of Appeal for Ontario held that the trial judge had correctly charged the jury. The sole question in this appeal is whether the Court of Appeal was correct in so holding.

II The Judgment of the Court of Appeal for Ontario

Martin J.A. delivered judgment for a unanimous Court. After reciting the facts, he referred to the submission of counsel for Mr. Droste, renewed in this Court, that a conviction for first degree murder cannot be supported on the basis that the accused planned and deliberated the killing of his wife and by accident or mistake caused the death of his children; that ss. 212(b) and 214(2) of the Criminal Code cannot be combined to found a conviction for first degree murder and that the trial judge had erred in failing so to instruct the jury. Counsel contended that the death of the victim must be planned and deliberate.

Section 212(b) reads:

212. Culpable homicide is murder

…

(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;…

Section 214(2) reads:

214. …

(2) Murder is first degree murder when it is planned and deliberate.

The conclusion of the Court of Appeal on the point under discussion will be found in the following passage:

We think that the trial judge correctly instructed the jury that if they were satisfied beyond a reasonable doubt that the appellant’s intention to kill his wife was planned and deliberate and that in the course of the

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carrying out that intention he caused the death of the children by accident or mistake, that the resulting murder constituted first degree murder.

Section 214(2) provides that “murder” is first degree murder when “it” is planned and deliberate. Where murder as defined by s. 212(b) is committed and that murder is planned and deliberate the murder is first degree murder even though the planned and deliberate intention to kill took effect on a person other than the intended victim.

The Court considered the law to be correctly stated by Professor Mewett in the following passage from an article entitled First Degree Murder (1978-79), 21 Crim. L.Q. 82, at p. 83:

Section 212(b) does not seem to cause problems, at least where it applies by virtue of meaning to cause someone else’s death. Since it is the murder that has to be planned and deliberate and since the effect of s. 212(b) is merely to enact that an intent to murder A is sufficient mens rea if by accident or mistake, the accused kills B, then it would seem that planning and deliberating the murder of A and by accident or mistake killing B would make the “murder” of B (for so it is defined in s. 212(b)) planned and deliberate.

The Court continued:

We are also of the view that the transferrence of a planned and deliberate intention to kill one person to the actual victim is in accord with the general principles of the criminal law. Clearly, the moral culpability of one who intends to kill one person, preceded by planning and deliberation, but who by accident or mistake kills another person, is the same as if he had succeeded in killing his intended victim. As Rothman, J., said in Charest v. Beaudoin J.S.P. (1980), 18 C.R. (3d) 58 at 62-3:

An accused may deliberate for months, weighing the advantages and consequences of killing his intended victim, “A”. He may do a great deal of planning: recruiting an accomplice, selecting a weapon, keeping “A” under surveillance and finally choosing his moment to do the killing. If by some mischance—poor marksmanship or the sudden emergence of another person—he kills “B” instead of “A”, surely his planning and deliberation is no less than it would have been if he had killed “A”. All of the same ingredients of planning and deliberation remain unchanged. The only change is in the identity of the person whose

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death is caused, and this, it seems to me, is entirely irrelevant to the question of whether the murder was planned and deliberate.

Any other conclusion would, in my opinion, be logically ludicrous and absurd in its consequences. Parliament could hardly have intended to punish premeditated murder less severely where an accused kills a perfect stranger than it would otherwise punish an accused for the same premeditation if he had managed to kill his intended victim.

In short I conclude that a murder that is planned and deliberate does not cease to be planned and deliberate because a mistake is made in the victim. In my opinion, s. 214(2) is applicable to murders committed under s. 212(b).

Finally, the Court cited R. v. Gross (1913), 23 Cox C.C. 455. In that case Darling J. referred to the legal principle “laid down over and over again” that if a person feloniously fires at another in such circumstances as could make the killing of that person murder, but by accident hits and kills a third person whom he never intended to hit at all, that is murder. Darling J. went on to say that if the firing at the person intended to be hit would be manslaughter (as, for example, provocation operating on the mind of the accused), then, if the bullet strikes a third person who is not intended to be hit, the killing of that person equally would be manslaughter and not murder. Martin J.A. in the present case concluded, by a parity of reasoning, that an intention which is aggravated by the fact that it is planned and deliberate is transferred from the contemplated victim to the actual victim.

III The Argument of Counsel for the Appellant

Counsel submits that, as it is the murder which must be planned and deliberate, the elements of “planning and deliberation” stated in s. 214(2) must be with respect to all the components charged in the indictment, and found to have been committed. He further submits that a murder cannot be planned and deliberate where the person who committed the offence did not intend to cause the death of, or to cause grievous bodily harm to, the victim.

Counsel argues that the Criminal Code creates a step-by-step procedure to be followed in deter-

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mining whether a homicide offence has been committed: the determination of whether a murder is “planned and deliberate” only occurs after it has been determined that what has been committed is a murder and it is only the murder that has actually been committed which can be planned and deliberate according to s. 214(2).

In a subsidiary submission counsel says that the interpretation placed upon s. 214(2) by the Ontario Court of Appeal results in transferring the planning and deliberation directed towards the wife of the appellant (the intended victim) to the children of the appellant (the actual victims) and this interpretation is not in accord with the doctrine of transferred intent as stated by the common law, nor by the rules of statutory interpretation in determining the application of this doctrine to s. 214(2).

The nub of the argument is this. Mr. Droste was not charged with murder in the abstract; he was charged and convicted of murdering his children. The killing of the children was neither planned nor deliberate. Section 214(2) requires, as a matter of law, that the planning and deliberation relate to or fasten on the victim whose death is actually caused. A killing that is by definition accidental (s. 212(b)) cannot be, at the same time, deliberate.

In my view this submission involves misplaced analogies to the doctrine of transferred intent and a misreading of the statutory scheme of the Criminal Code with regard to homicide, and is, as well, incompatible with the policy considerations obviously underlying s. 214(2).

IV Transferred Intent

Much of the appellant’s argument recalls the controversy surrounding the English common law concept of “transferred malice” or, more precisely, “transferred intent”. Professor Glanville Williams Criminal Law, The General Part (2nd ed.), at p. 126, describes the operation of this concept as follows:

Transferred intention (transferred malice) occurs when an injury intended for one falls on another by

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accident. In other words, if the defendant intends a particular consequence, he is guilty of a crime of intention even though his act takes effect upon an object (whether person or property) that was not intended. His “malice” (i.e. his intention) is by a legal fiction transferred from the one object to the other. The defendant is then treated for legal purposes as though he had intended to hit the object that he did hit, though in fact he did not have the intent, nor even was reckless as to it.

The authors of Smith and Hogan, Criminal Law (4th ed.), formulate the doctrine in these terms at p. 59:

If D, with the mens rea of a particular crime, does an act which causes the actus reus of the same crime, he is guilty, even though the result, in some respects, is an unintended one.

The essence of the dispute as to the rationality of the doctrine of “transferred intent” is latent in these constrasting formulations.

The literature on transferred intent distinguishes between two kinds of situations in which the “wrong victim” suffers harm at the hands of the accused. The first, sometimes called error in objecto involves a mistake by the perpetrator as to the identity of the victim. A gunman aims at and shoots a pedestrian on the street; the assailant thought the pedestrian was X, but in fact he is Y. There is little controversy that this sort of mistake as to the identity of the victim in no way affects the fact that the perpetrator has committed an intentional crime. It is the second “wrong victim” situation, sometimes called aberratio ictus, or more poetically, “a mistake of the bullet” that has led to the controversy surrounding the doctrine of transferred intent. In this second situation the perpetrator aims at X but by chance or lack of skill hits Y. The appropriateness of assessing criminal liability as though the bullet had found its intended mark depends heavily upon one’s evaluation of the importance of the identity of the victim as an element of the offence in question. The authors of Smith and Hogan Criminal Law, supra, at pp. 60-61 present Professor Williams’ critique of the doctrine as applied to murder, and their response, as follows:

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Williams regards the doctrine of transferred malice as a “rather arbitrary exception to normal principles”. He rejects the argument that “the result is not unintended, for the intention was to kill, and the result is a killing”. He writes:

“This argument. sounds plausible only because part of the real intention is omitted. Although the result in the sense of a killing was intended, the result in the sense of a killing of P was not intended. After all the accused is not indicted for killing in the abstract; he is indicted for killing P; and it should therefore, on a strict view, be necessary to establish mens rea in relation to the killing of P.”

The answer to this, it is submitted, is that D’s act is unintentional only in a respect which is immaterial. The test of materiality in a difference of result is whether it affects the existence of the actus reus which D intended. Thus it would be immaterial that D intended to shoot P in the heart but, because of a quite unexpected movement by P, shot him (unintentionally) in the head. The actus reus of murder is the killing of a human being—any human being—under the Queen’s Peace, and his identity is irrelevant.

In Canada, liability for the killing of an “unintended victim” is not the result of the operation of the doctrine of transferred intent. It is the result of the explicit terms of s. 212(b) which, it will be recalled, provides:

212. Culpable homicide is murder

…

(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;. [Emphasis added]

It will be noted that the wording of this section imposes liability for murder both in situations of error in objecto (mistake) and in situations of aberratio ictus (accident). The jury found that Mr. Droste, meaning to cause the death of a human being (Mrs. Droste) by accident caused the death of another human being (each of the children). He is therefore guilty of murder pursuant to s. 212(b) and the debate between Professor Wil-

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liams and Professors Smith and Hogan can have no relevance to this finding. The next question is whether, as counsel contends, it can have relevance to the issue of whether Mr. Droste is guilty of first degree murder.

The majority decision of this Court in Ancio v. The Queen, [1984] 1 S.C.R. 25, released concurrently herewith, illustrates the proposition that where the Criminal Code creates a separate substantive offence related to murder, it is the mens rea for that separate offence and not necessarily the mental states enumerated in ss. 212 and 213 that determines liability. For attempted murder, the requisite mens rea is an intention to kill. A lesser intention, even if sufficient to impose liability for murder if death does result, will not suffice to impose liability for attempted murder if death does not ensue. It might appear possible to argue by parity of reasoning that s. 214(2) creates the separate substantive offence of first degree murder and that part of the mens rea for this offence is planning and deliberation with regard to the identity of the victim. If this analogy to the reasoning in Ancio were correct, then in order to establish Mr. Droste’s liability for first degree murder the Crown would have to demonstrate planning and deliberation in relation to the deaths of the children. In the event, however, this analogy is not correct. Even if s. 214(2) did create a separate substantive offence of first degree murder—which it does not—I would incline to Professors Smith and Hogan’s analysis and to the conclusion of Martin J.A. in the Ontario Court of Appeal that the identity of the victim would not be an essential element of such an offence. Such speculation is, however, unnecessary since this Court’s decision in R. v. Farrant, [1983] 1 S.C.R. 24, does make it clear that s. 214 does not create a separate substantive offence of first degree murder, but rather constitutes a characterization, for purposes of sentencing, of the substantive offence of murder as outlined in the various parts of ss. 212 and 213. There is therefore no possibility of a distinct mens rea for first degree murder nor can there be a question of transferring any such intent from the planned to the actual victim. The issue of whether what Mr. Droste was found to have done consti-

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tutes first degree murder affords no parallel to the issue in Ancio, nor does it depend on the applicability or appropriateness of the doctrine of transferred intent. It is a relatively straightforward issue of statutory interpretation.

V Statutory Interpretation

The appellant’s argument depends in large measure on the purported contradiction in the notion “planning and deliberating” upon an “unintentional” killing. This conceptualization of what underlies finding Mr. Droste guilty of first degree murder does not accord with the scheme of the Criminal Code with regard to homicide.

According to s. 205 of the Code, a person commits homicide when, directly or indirectly, by any means, he causes the death of a human being. Mr. Droste committed homicide by causing the death of his children. Homicide is culpable or not culpable. Culpable homicide is murder or manslaughter or infanticide. As outlined earlier, s. 212(b), when stripped of non‑essentials, provides that culpable homicide is murder where a person (Mr. Droste), meaning to cause death of a human being (Mrs. Droste), by accident causes death to another human being (each of his children), notwithstanding that he does not mean to cause death or bodily harm to that human being. For purposes of the Criminal Code, then, what Mr. Droste did was not “unintentional”. The argument of the appellant, as I understand it, would truncate s. 212(b) by writing one of its vital components out of the section. Mr. Droste was not charged with the accidental killing of his children. He was charged with meaning to cause the death of Mrs. Droste and by accident or mistake causing the death of the children. Causing death by accident normally results in acquittal or, at most, a conviction for manslaughter. When such a killing is accompanied by an intention to cause death to another human being s. 212(b) dictates that the homicide is not manslaughter but murder, i.e. intentional killing.

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There is no question that on the jury’s findings Mr. Droste is guilty of murder under s. 212(b). Is he, pursuant to s. 214(2), guilty of first degree murder? Subsections (1), (2) and (7) of s. 214 provide sequentially that (a) murder is first degree or second degree murder; (b) murder is first degree murder when it is planned and deliberate; (c) all murder that is not first degree murder is second degree murder. The appellant’s submissions appear to require treating ss. 212(b) and 214(2) as describing different substantive offences embodying different mental elements. “Planning and deliberation” would thus become part of the mental element for the substantive offence under s. 214(2), an element which, on the appellant’s submission, would have to be proven with regard to the actual killing committed, i.e. the killing of the children.

The majority judgment of this Court in R. v. Farrant, supra, makes it impossible for the appellant to succeed on this argument. On pages 140-42 of that judgment the following passages appear:

Section 214, however, is not the section which sets out the elements of the offence of murder. This is done in ss. 212 and 213. Section 214 does not create a distinct and independent substantive offence of first degree constructive murder pursuant to forcible confinement. The section is subservient to ss. 212 and 213; it classifies for sentencing purposes, the offences in s. 212 and 213 as either first or second degree murder. The importance of the distinction between first and second degree murder is that first degree murder carries with it a mandatory life sentence without eligibility for parole for twenty‑five years (s. 218, s. 669(a)). A conviction for second degree murder also carries with it a mandatory life sentence, but parole may be granted after 10 years of imprisonment unless the jury recommends a greater number of years.

…

The distinction between first and second degree murder in s. 214 is not based upon intent; it is based upon 1) the presence of planning and deliberation (s. 212(2)); 2) the

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identity of the victim (s. 214(4)); or 3) the nature of the offence being committed at the time of the murder (s. 214(5)). The primary and essential determination for a jury to make is whether murder has been committed, either under s. 212 or, where the evidence warrants it, under s. 213. Considerations of the distinctions between first and second degree murder are irrelevant in making this preliminary determination. Once the offence has been found, it is then classified.

To argue that s. 214 is controlling in a situation such as the present one is to confuse the sections which set out the elements of the offence of murder with the classification process provided in s. 214. The classification in s. 214 functions within the context of sentencing and is not determinative of the substantive offence of murder.

The same point had been made in R. v. Woods and Gruener (1980), 57 C.C.C. (2d) 220, at p. 229, by Howland C.J.O. delivering the judgment of the Ontario Court of Appeal:

Section 214 is a classification section. It does not create new substantive offences of first degree murder and second degree murder. It starts from the premise that murder within ss. 212 or 213 has been committed and specifies that the additional elements which will determine whether the offence is first degree murder or second degree murder. There are four situations in which the murder will constitute first degree murder:

(1)   When it is planned and deliberate within s-ss. (2) and (3).

…

It is clear, then, that first degree murder and second degree murder are not different offences. The substantive offence is murder. The characterization of murder as being in the first degree or in the second degree is for sentencing purposes only. There is no question of transferring the intent to cause a s. 212(b) offence to the actus reus of first degree murder, nor is it a case of transferring the intent to commit first degree murder upon victim A to the actus reus of committing murder against victim B. I repeat, the substantive offence involved is murder under s. 212(b). The mens rea for that offence is intending the death or grievous bodily harm likely to cause death, to person A. The actus reus for this offence is causing the death of person

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B. Once these elements have been established, an accused is guilty of murder. Section 214(2) specifies one of several situations in which murder is murder in the first degree, namely, where “it” is planned and deliberate. The “it” refers to murder, committed in any of the relevant ways specified by the Code, including s. 212(b). This means that the element of planning and deliberation must be related to the specific mens rea of the applicable section, which in the present case is, as I have just mentioned, intending to cause death to person A. There may be some mental states specified in ss. 212 or 213 which are incompatible with planning and deliberation, but this mens rea is not one of them.

VI Policy Considerations

The rationale behind s. 214(2) is that there is an added moral culpability to a murder that is planned and deliberate which justifies a harsher sentence. This added culpability is present by virtue of the planning and deliberation with relation to the taking of a human life, not with relation to the identity of the intended victim. A mistake or accident as to the victim is not a mitigating factor. The legal evaluation of the magnitude of the crime should not be affected by the fact that the accused is a poor marksman, hitting and killing B rather than A. The point is quaintly, but cogently, made in Foster’s Crown Cases (3rd ed., 1809), Discourse II, “Of Homicide”, at p. 262.

…where the injury intended against A. proceeded from a wicked, murderous, or mischievous motive, the party is answerable for all of the consequences of the action, if death ensueth from it, though it had not it’s effect upon the person whom he intended to destroy. The malitia I have already explained, the heart regardless of social duty and deliberately bent upon mischief, and consequently the guilt of the party is just the same in the one case as in the other.

When s. 214(2) is combined with s. 212(b) the identity and character of any victim is entirely irrelevant. The requirement of planning and deliberation is a requirement that relates to the inten-

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tion to take a human life and not to the identity of the victim.

VII Conclusion

In the result, whether one approaches the question on an analysis of the relationship of s. 214(2) to the substantive offence in s. 212(b), or on the basis of the underlying policy rationale of s. 214(2), or, even if it were relevant, on the basis of transferred intent, one arrives at precisely the same conclusion: planning and deliberation with relation to the killing of a specific person makes the offence first degree murder when in the course of carrying out the plan the accused in fact kills someone else.

I would dismiss the appeal.

The following are the reasons delivered by

WILSON J.—I have had the advantage of reading the reasons for judgment of my colleague, Mr. Justice Dickson, and I agree with his conclusion that the appeal in this case must be dismissed. Because my colleague relies heavily on the judgment of the majority of this Court in R. v. Farrant, [1983] 1 S.C.R. 24, with which I disagreed, I wish to record my own reason for dismissing the appeal.

I would respectfully adopt the following passage from the reasons of Martin J.A. speaking for the Ontario Court of Appeal in this case (1981), 34 O.R. (2d) 588, at p. 592:

We think that the trial judge correctly instructed the jury that if they were satisfied beyond a reasonable doubt that the appellant’s intention to kill his wife was planned and deliberate and that in the course of carrying out that intention he caused the death of the children by accident or mistake, that the resulting murder constituted first degree murder.

Section 214(2) provides that “murder” is first degree murder when “it” is planned and deliberate. Where murder as defined by s. 212(b) is committed and that murder is planned and deliberate the murder is first degree murder even though the planned and deliberate intention to kill took effect on a person other than the intended victim.

As we have indicated, we are satisfied that a conviction for first degree murder may be supported on the

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basis of a combination of s. 212(b) and 214(2) and we are unable to accept the submission of Mr. Kluwak that in order to constitute first degree murder under s. 214(2) the planning and deliberation must be with respect to the person actually killed. We think the law is correctly stated by Professor Mewett in an article entitled First Degree Murder (1978-79), 21 Crim. L.Q. 82 at 83, where he states:

Section 212(b) does not seem to cause problems, at least where it applies by virtue of meaning to cause someone else’s death. Since it is the murder that has to be planned and deliberate and since the effect of s. 212(b) is merely to enact that an intent to murder A is sufficient mens rea if by accident or mistake, the accused kills B, then it would seem that planning and deliberating the murder of A and by accident or mistake killing B would make the “murder” of B (for so it is defined by s. 212 (b)) planned and deliberate.

It seems to me that this reasoning is dispositive of the present appeal and on that basis therefore I would dismiss it.

Appeal dismissed.

Solicitor for the appellant: Gerald Kluwak, Toronto.

Solicitor for the respondent: Ministry of the Attorney General, Toronto.