Background
On June 12, 2019, B.F.—a surgical nurse—her 19-month-old daughter E., and her mother I.F. were found unconscious in their Toronto apartment, each having been injected with a lethal dose of insulin. Five emptied insulin pens were discovered on scene, along with a handwritten letter the Crown characterized as B.F.’s suicide note. B.F. and I.F. recovered fully; E. sustained permanent brain damage and other organ injuries that shortened her life expectancy and left her requiring intensive care for life. B.F. was charged with two counts of attempted murder by administering a noxious substance (Criminal Code, s. 239(1)(b)) and two counts of aggravated assault (s. 268(2))—one pair of charges for each victim.
The Crown’s theory was that B.F., facing an unfavourable interim custody order for E. and ongoing family-law proceedings against her estranged husband A.N., had both the motive and the nursing expertise to inject her mother and daughter before attempting to take her own life. The defence alternatively posited that I.F. was responsible—that she shared B.F.’s motive and could have injected the child, her daughter, and herself. In his jury charge on the count of attempted murder of I.F., the trial judge instructed that the Crown could establish the actus reus by proving either that B.F. physically injected I.F. or that B.F. procured the insulin and provided it to I.F. with the intent that I.F. use it to inject herself—and that it “did not matter” whether I.F. was a willing participant.
The jury convicted B.F. of attempted murder of both E. and I.F., and of aggravated assault of E. (she was acquitted of aggravated assault of I.F.). The Ontario Court of Appeal set aside the conviction for the attempted murder of I.F. and ordered a new trial, holding that the trial judge erred by failing to instruct the jury on the distinction between attempted murder (s. 239) and aiding suicide (s. 241(1)(b))—because if I.F. had willingly self-administered the insulin intending to die, B.F.’s liability may have been only for aiding a suicide attempt, not attempted murder. The convictions relating to E. were undisturbed.
The Court’s Holding
A six-judge majority (O’Bonsawin J., writing for Côté, Rowe, Martin, Kasirer, and Jamal JJ.) allowed the Crown’s appeal and restored B.F.’s conviction for the attempted murder of I.F., while unanimously dismissing B.F.’s appeal on the convictions relating to E. The majority held that the Court of Appeal erred in requiring jury instructions on the distinction between attempted murder and aiding suicide. Aiding suicide was neither charged nor a lesser included offence on the facts, and—critically—there was no “air of reality” on the record to the theory that I.F. had self-administered the insulin with a voluntary intention to end her own life. Because that evidentiary threshold was not met, the trial judge was correct to omit any instruction on that scenario, and his charge as a whole properly equipped the jury to reach a verdict.
The majority reaffirmed the “functional approach” to appellate review of jury instructions: the central question is whether the instructions accurately and sufficiently equipped the jury to decide the case according to the law and the evidence—not whether the charge was perfect. An instruction is required only if it addresses a live issue; defences and included offences must be put to the jury only where they have an air of reality. Applying that framework to the circumstantial evidence relied on by B.F.—no signs of a physical struggle, the co-authored letter, and I.F.’s relative physical strength—the majority found it would be speculative to infer suicidal intent on I.F.’s part. No witness testified to such intent, and neither party at trial advanced the theory that both women had injected themselves intending to die. The majority expressly declined to rule on the broader question of whether a victim’s voluntary, autonomous act of self-administration with suicidal intent could ever negate an accused’s liability for attempted murder, since that issue was not reached on the facts.
Three judges dissented in part (Karakatsanis and Moreau JJ., Wagner C.J. concurring). They agreed the convictions relating to E. should stand but would have dismissed the Crown’s appeal and maintained the order for a new trial on the I.F. count. The dissent reasoned that the air of reality threshold is a low bar requiring only that a reasonable inference be available on the evidence as a whole—not that it be more probable than not—and that the same evidence underlying the defence theory that I.F. intended to kill the child, B.F., and herself was sufficient to give an air of reality to I.F.’s suicidal intent. In the dissent’s view, a victim’s autonomous and voluntary choice to self-administer a lethal substance can sever the chain of legal causation for culpable homicide, and the trial judge was obliged to instruct the jury accordingly.
Key Takeaways
- Jury instructions must accurately and sufficiently equip the jury to decide the case; appellate courts apply a functional approach and do not require perfection—only that the jury had what it needed to resolve the issues on the evidence.
- A trial judge is only required to instruct on a defence theory or a distinguishing legal concept (here, aiding suicide vs. attempted murder) where that theory has an “air of reality”—meaning a properly instructed jury could reasonably arrive at the relevant conclusion on the evidence as a whole; a bald assertion or speculative inference is insufficient.
- Where circumstantial evidence is involved, the air-of-reality inquiry requires a limited weighing to identify the range of reasonably available inferences, not merely whether some scrap of evidence could raise the issue—but it does not involve choosing among competing inferences, which is the jury’s role.
- The Court left open whether a victim’s fully autonomous and voluntary act of self-administration with suicidal intent could negate an accused’s criminal liability for attempted murder—that question was not decided because no air of reality existed on this record.
Why It Matters
This decision clarifies the interplay between the offences of attempted murder (Criminal Code, s. 239) and aiding suicide (s. 241(1)(b)) in cases involving insulin or other means of self-administration, while deliberately declining to resolve whether a victim’s autonomous suicidal act can break the causal chain for culpable homicide. Defence counsel will need to establish a genuine evidentiary foundation—not merely a theoretical possibility—before a trial judge is obliged to instruct a jury on that distinction. The majority’s emphasis on limited evidentiary weighing at the air-of-reality stage, and its caution against allowing accused persons to escape liability by “baldly asserting” victim suicidal intent, sets a meaningful screening threshold in future cases where intent to self-harm is raised.
The sharp disagreement between majority and dissent on what the same circumstantial record reasonably supported also underscores enduring uncertainty about how courts should calibrate the air-of-reality test when evidence is entirely circumstantial and both inferences are in tension. For practitioners, the case is a reminder that trial judges bear a positive duty to instruct on legally significant theories—but only when those theories are genuinely available on the evidence, not merely conceivable—and that silence by counsel at trial, while not determinative, is relevant context in that assessment.