Cooper was convicted pursuant to s. 212(a)(ii) of the Criminal Code (now s. 229). During an argument Cooper grabbed the victim by the throat. She died of manual strangulation but the accused testified that he had no recollection of causing her death. The accused had consumed a considerable amount of alcohol prior to the murder and he argued that he did not have the required mens rea to commit the murder or that he did not foresee that grabbing the victim by the throat would cause her death. The Court of Appeal held that the trial judge had not adequately explained the intent required for murder to the jury.
- What is the nature of the intent required to find for a conviction for murder?
Appeal allowed, original conviction restored.
In order to convict under s. 212(a)(ii), there must be a subjective intent to cause bodily harm and subjective knowledge that the bodily harm is likely to result in death. The Court holds that the distinction between s. 212(a)(i) and (ii) is only a "slight relaxation"; the recklessness requirement requires that the individual not only forsee a danger of death, but a likelihood. At some point the illegal act or actus reus must coincide with the intent. The requisite mens rea need not continue throughout the commission of the wrongful act, but it is sufficient that the intent and the act coincide at some point. It was open to the jury to infer that the accused intended to cause the victim bodily harm when he seized her by the throat and that he knew that strangulation was likely to result in death. The trial judge's charge with respect to the requisite mens rea and the accused's intoxication contained no errors that would justify a new trial.