R. v. Odette, 2026 ONSC 760
[125] Mr. Odette is charged with second-degree murder and attempted murder. The burden is on the Crown to prove Mr. Odette’s guilt beyond a reasonable doubt. The presumption is only discharged when, and if, the Crown proves his guilt beyond a reasonable doubt. The Crown at all times bears the onus of proving the case. The Crown is required to prove the essential elements of the offence beyond a reasonable doubt. I must assess the case on the whole and decide whether, on the basis of all of the evidence, or lack thereof, the Crown has proven the guilt of Mr. Odette beyond a reasonable doubt: R. v. Lifchus, 1997 CanLII 319 (SCC), [1997] 3 S.C.R. 320.
[126] The standard of proof beyond a reasonable doubt is an exacting one. It is more than probable or likely guilt. Indeed, proof beyond a reasonable doubt falls much closer to absolute certainty than it does to proof on a balance of probabilities. Mr. Odette cannot be convicted unless after considering all the evidence or lack of evidence, I am sure that he is guilty of tan offence.
[127] The defence concedes that Mr. Odette unlawfully caused the death of Katie Kainz and that he stabbed Ashley Bernard. The defence submits though that the Crown has not proven beyond a reasonable doubt that Mr. Odette had the requisite intent for murder and attempt murder and submits that Mr. Odette should only be guilty of manslaughter and aggravated assault.
[128] For an unlawful killing to be murder, the Crown must prove beyond a reasonable doubt that Mr. Odette either meant to kill the person (Criminal Code of Canada, R.S.C., 1985, c. C-46, s. 229 (a)(i)) or meant to cause the person bodily harm that he knew was likely to kill the person, and was reckless whether the person died or not (Criminal Code of Canada, R.S.C., 1985, c. C-46, s. 229)(a)(ii)). The Crown does not have to prove both routes.
[129] With respect to s. 229(a)(ii), the essential element is that of intending to cause bodily harm of such a grave and serious nature that the accused knew that it was likely to result in the death of the victim. The reckless criterion is considered an afterthought. As explained by Fairburn J.A. in R. v. Zoldi, 2018 ONCA 384, 360 C.C.C. (3d) 476, at para. 40:
Once the Crown establishes the principal’s intention to cause such grave and serious bodily harm that he knows it is likely to result in death, recklessness follows as almost a matter of course: R. v. Nygaard, 1989 CanLII 6 (SCC), [1989] 2 S.C.R. 1074, at p. 1088. See also: Cooper, at p. 154-155; Rodgerson, at para. 23, aff’d on other grounds, 2015 SCC 38, [2015] 2 S.C.R. 760; Moo, at para. 63. This is why being “reckless whether death ensues or not” is often referred to as an “afterthought.”
[130] In R. v. Hodgson, 2024 SCC 25, 494 D.L.R. (4th) 501, the Supreme Court of Canada summarized the mens rea requirement for a conviction for murder. The Court stated at paras. 48 and 49:
In contrast, “a conviction for murder cannot rest on anything less than proof beyond a reasonable doubt of subjective foresight” (R. v. Vaillancourt, 1987 CanLII 2 (SCC), [1987] 2 S.C.R. 636, at p. 654 (emphasis added); R. v. Martineau, 1990 CanLII 80 (SCC), [1990] 2 S.C.R. 633, at p. 646). Murder is distinguished from manslaughter “only by the mental element with respect to the death” (Vaillancourt, at p. 654, quoted in Creighton, at p. 17, per Lamer C.J., concurring). The requisite intent for murder is “an intent to kill or an intent to cause bodily harm that the offender knows is likely to cause death and is reckless as to whether or not death ensues” (R. v. Walle, 2012 SCC 41, [2012] 2 S.C.R. 438, at para. 3).
A conviction for murder requires subjective intent because it is an offence that “carries with it the most severe stigma and punishment of any crime in our society” (Martineau, at p. 645). The law requires subjective foresight of death because the criminal liability for murder is of the highest kind and cannot be justified except where the actor possesses a culpable mental state in respect of that result (Martineau, at p. 645, citing R. v. Bernard, 1988 CanLII 22 (SCC), [1988] 2 S.C.R. 833). Thus, the harsh stigma and punishment associated with murder is reserved for “those who choose to intentionally cause death or who choose to inflict bodily harm that they know is likely to cause death” (Martineau, at p. 646).
[131] To prove that Mr. Odette committed murder, the Crown must prove beyond a reasonable doubt that either Mr. Odette meant to kill Ms. Kainz or that he meant to cause Ms. Kainz bodily harm that he knew was so serious and dangerous that it would likely kill Ms. Kainz and proceeded despite his knowledge Ms. Kainz would likely die as a result of that bodily harm.
[132] To find Adam Odette guilty of the attempted murder of Ashley Bernard, the Crown must prove: (1) that the accused took some steps towards the commission of the offence beyond mere acts of preparation, and (2) that he had a specific intention to kill. Recklessness does not suffice to establish the mens rea for attempted murder: R. v. B.F., 2025 SCC 41, at para. 69, R. v. Boone, 2019 ONCA 652, at para. 49; and R. v. Ancio, 1984 CanLII 69 (SCC), [1984] 1 S.C.R. 225.
[133] As summarized by the Court of Appeal in R. v. Collins, 2023 ONCA 394, at para. 54: “It has long been settled law in Canada that the mens rea for attempted murder is a specific intention to kill: see The Queen v. Ancio, 1984 CanLII 69 (SCC), [1984] 1 S.C.R. 225, at pp. 250-251; and R. v. Cunningham, 2023 ONCA 36, at para. 36.” The reckless route in s. 229(a)(ii)is not an available pathway to a conviction for attempted murder. As stated by the Court of Appeal in Boone at para. 57, in the context of attempted murder:
Recklessness is not, however, to be equated with intention based on a belief in the virtual certainty that the consequences will flow: Buzzanga, at p. 384. The mens rea required for attempted murder is not satisfied by recklessness as to the consequence. A person who appreciates that his acts may, or probably will, lead to the victim's death is not guilty of attempted murder unless killing his victim was his purpose: Ancio, at pp. 248-51.
[134] There is evidence that Mr. Odette consumed drugs and alcohol prior to the killing. An accused who was under the influence of alcohol and/or drugs and thus in a state of advanced intoxication may not have had the requisite intent to commit murder. As explained by the Supreme Court of Canada in R. v. Daley, 2007 SCC 53, [2007] 3 S.C.R. 523, at para 49:
Second, there is what we might call “advanced” intoxication. This occurs where there is intoxication to the point where the accused lacks specific intent, to the extent of an impairment of the accused’s foresight of the consequences of his or her act sufficient to raise a reasonable doubt about the requisite mens rea. The Court in Robinson noted that this will most often be the degree of intoxication the jury will grapple with in murder trials:
▪ In most murder cases, the focus for the trier of fact will be on the foreseeability prong of s. 229(a)(ii) of the Criminal Code, R.S.C., 1985, c. C-46, that is, on determining whether the accused foresaw that his or her actions were likely to cause the death of the victim. For example, consider the case where an accused and another individual engage in a fight outside a bar. During the fight, the accused pins the other individual to the ground and delivers a kick to the head, which kills that person. In that type of a case, the jury will likely struggle, assuming they reject any self-defence or provocation claim, with the question of whether that accused foresaw that his or her actions would likely cause the death of the other individual. [emphasis added]
[135] The British Columbia Court of Appeal in R. v. Crossley, 2025 BCCA 224, at para. 33 explained the inquiry that must be conducted:
Instead, the focus of the “advanced” intoxication inquiry is the overall impact of intoxication on the accused's state of mind at the time of the offence, as borne out by the entirety of the evidence. In the murder context, evidence of “advanced” intoxication is evidence that reasonably supports a finding that intoxication impaired the accused’s “...foresight of the consequences of [their] act sufficient to raise a reasonable doubt about the requisite mens rea”: Daley at para. 41. In other words, it is evidence that reasonably raises a doubt as to whether the accused intended to kill the victim or meant to cause the victim bodily harm that the accused knew was likely to cause their death and was reckless as to whether death ensued.
