2014 QCCQ 1609, 2014 QCCQ 1609

Unofficial English Translation JG2445 R. c. Morin 2014 QCCQ 1609 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF MONTMAGNY "Criminal and Penal Division" No.: 300-01-012937-126 DATE: February 24, 2014 ______________________________________________________________________ PRESIDED BY: THE HONOURABLE CHRISTINE GOSSELIN ______________________________________________________________________ THE QUEEN Prosecutrix v.

JONATHAN MORIN Accused ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] The Crown accuses Jonathan Morin of counselling X to commit suicide and thereby committing an indictable offence under paragraph 241(

a) Cr. C . [ 2 ] On September 27, 2012, the victim and Y were chatting on Facebook and trading insults. Y sent some excerpts from their conversation to her boyfriend, Jonathan Morin. Angry about the comments the victim had made to his girlfriend, the accused sent her a number of insults and told her that she should kill herself. Y hurled similar comments and insults, and she too suggested that the victim go hang herself. [ 3 ] Sadly, after these conversations, the victim attempted suicide. I. ISSUES [ 4 ] The issues in dispute are the following: A. Did the comments that the accused made to the victim constitute counselling suicide? B. Is the offence under paragraph (

a) of

section 241 Cr. C. an offence of general or specific intent? C. If it is a specific intent offence, did the accused display recklessness to such a degree that it constituted sufficient intent to commit the offence of counselling suicide? II. FACTS [ 5 ] At the time of the events, the victim and Y were friends and saw each other primarily at school. Y had been dating the accused for a few weeks. The victim did not know the accused beyond having crossed paths with him a few times at school. [ 6 ] On September 27, 2012, Y and the victim had an acrimonious conversation on the Facebook social network.

Y hurled multiple insults and degrading remarks at the victim, who replied with similar invective and remarks. [ 7 ] During their conversation, Y sent excerpts to the accused. Taking up his girlfriend's defence, Y initiated a conversation with the victim on Facebook and told her she should commit suicide. A few minutes later, Y insulted the victim even more than before and told her to go hang herself.

[ 8 ] In the next hour, the victim, hurt by the comments of the accused and his girlfriend, attempted to commit suicide by swallowing medication. [ 9 ] The accused acknowledges that his remarks were inappropriate and mean. He was frustrated with what the victim was saying to his girlfriend, so he decided to write her. He maintains that when he told the victim she should commit suicide, the goal of his remarks was merely to respond sarcastically to what she had just written to him. III. CROWN EVIDENCE A. Testimony of X [ 10 ] At the time of her conversation with the accused, X was 14 years old.

She and Y were friends and went to the same school. Although the girls would sometimes quarrel, most of the time their disagreements were nothing more than commonplace teenage spats. [ 11 ] At 7:53 p.m. on September 27, 2012, the victim initiated a conversation with Y, reproaching her for having told lies about her. The conversation degenerated and the two girls insulted each other. There is no need to reproduce the entire conversation here. We note that Y called the victim a [ translation ] "moron", a "bitch", a "nutcase", and a "retard", and told her to [ translation ] "go get a brain implant".

The conversation deteriorated, and she added several humiliating comments about the victim's physical appearance and family members. [ 12 ] The accused joined their conversation at 8:27 p.m.

He also called her a [ translation ] "moron", said she was [ translation ] "retarded", accused her of "not having any class", and made degrading remarks about her physical appearance. [ 13 ] At 8:30 p.m., after the victim said that [ translation ] "she doesn't live her life for fools who don't even know her and insult her", he answered: [ translation ] If you don't live your life for fools you should kill yourself with your face no guy will want anything to do with you except maybe some kid from elementary school. [ sic ] [ 14 ] At 8:25 p.m., the accused concluded his conversation with the victim with the following words, in English: "Go cut urself". [sic] [ 15 ] Then, at 8:39 p.m., Y wrote the following to the victim: [ translation ] … fucking retard, go hang yourself. [ 16 ] The conversation between Y and the victim then resumed with an exchange of insults and ended at 9:15 p.m., when Y called X [ translation ] "a piece of garbage" and told her [ translation ] "that she scares children". [ 17 ] Following these simultaneous conversations, the victim did not feel well, was depressed, and convinced herself that there was no place for her on this earth.

The remarks of the accused and his girlfriend had hurt her deeply, especially when they said that no one would want anything to do with her. Between 9:15 p.m. and 10:00 p.m., she swallowed twenty pills of a medication that had been prescribed to her for stomachaches. She wanted to die. [ 18 ] A few minutes later, she went to find her mother and told her that she had swallowed some pills to end her life. Her mother drove her to the hospital, where she had her stomach pumped.

She confided in the hospital staff, telling them that it was the conversation with Y and the accused that had pushed her to attempt suicide. [ 19 ] The victim had thought about suicide in the past but had never taken action before September 27, 2012. The conversation she had on Facebook with Y and Jonathan Morin is what triggered her suicide attempt. Before this conversation, she had felt fine and had not been thinking about suicide. B. Testimony of M.J. [ 20 ] M.J. is the victim's mother. She describes her daughter as a reserved and quiet girl.

In the days preceding the incident, she noticed that her daughter lacked an appetite and was more pensive. She asked her about it but could not find out what was bothering her. [ 21 ] Around 9:45 p.m. on September 27, her daughter came to her and said, [ translation ] "Mom, I don't want to live anymore". She observed that the girl was limp and lacked muscle tone. The victim admitted that she had swallowed some pills. She believed that they were anti-allergy pills.

She called Info-Santé and drove her daughter to the emergency room. [ 22 ] She does not know whether her daughter had tried to commit suicide before that. C. Y's statement [ 23 ] Y was 15 years old at the time of the events and has known the victim since her first year of high school. They met at school. She first noticed the victim because X was isolated and Y wanted to help her fit in with others. She invited her to join her group of friends. A friendship grew and they became quite close. After a breakup that occurred in the fall of 2011, Y felt betrayed by comments the victim made about her and her boyfriend.

Their friendship deteriorated. [ 24 ] On September 27, 2012, the victim wrote to her on Facebook to complain about things she had said to a third party about her. A fight erupted and the two girls traded insults. Y sent excerpts of her conversation to her boyfriend, who decided to get involved and insult

the victim as well. [ 25 ] During her conversation with the victim, Y told her to go hang herself. She states that she did not want X to commit suicide, especially since she knew about her past depression and suicidal tendencies. Y adds that when she told the victim to go hang herself, she did not believe that the victim was depressed.

She says that she made these comments in the heat of the moment. [ 26 ] Afterwards, their conversation continued for another forty minutes or so, and the girls did not return to the subject of suicide. [ 27 ] The next day, she ran into the victim at school and sensed that the victim was making fun of her. She did not learn that the victim had attempted suicide until two weeks later, when the police officers told her. IV. DEFENCE CASE A. The accused's version [ 28 ] The accused is 19 years old. He has not been in school since April of 2011.

He has been dating Y since since September 22, 2012. [ 29 ] He knows the victim only from having crossed paths with her while they were attending the same school. Although they are Facebook friends, before the events of September 27, 2012, they had only ever spoken once. [ 30 ] He knows that his girlfriend and the victim are good friends and that they sometimes quarrel. On September 27, he was on his computer, talking to Y, who told him that the victim was taunting her about the size of her breasts. [ 31 ] The accused decided to write the victim on Facebook.

At 8:27 p.m., he wrote: [ translation ] Hey you stupid bitch your tits are no bigger goddam bitch you're flat as a pancake And before you talk about others look at urself in your fucking mirror!

The asshole of a cow that just took a dump looks better than your fucking face! [ 32 ] He continued to insult the victim, who, at 8:29 p.m., answered, [ translation ] "I don't live my life for fools who don't even know me and insult me". [ 33 ] The accused answered, [ translation ] “If you don't live your life for fools you should kill yourself with your face no guy will want anything to do with you except maybe some kid from elementary school”. (Emphasis added.) [ 34 ] The victim answered that she would not kill herself just to make him happy, to which he answered, in English, "Go cut urself" [ sic ]. [ 35 ] The accused explains that his girlfriend was simultaneously sending him excerpts from the conversation that she was having with the victim.

He was frustrated and became involved in the discussion, answering the victim sarcastically. He did not know that the victim had previously had suicidal thoughts. He bitterly regrets the remarks he made during their conversation. He never believed that the victim would attempt suicide. His intent was never for her to commit suicide but only for her to [ translation ] "leave his girlfriend alone". [ 36 ] He explains that, even though he used the expression "go cut urself", he does not really know what it means. He acknowledges that he knows in a general sense that the word "cut" refers to knives.

He used this expression, which he learned playing video games, to end the conversation, believing that it meant something like, [ translation ] "that's enough, get lost". [ 37 ] He admits that during his conversation with the victim, he was angry and frustrated and wanted to avenge his girlfriend. In response to the victim’s statement that she did not live her life for fools like him, he sarcastically suggested that she kill herself. He did not intend to suggest that she actually kill herself.

He never wanted the victim to attempt suicide and never thought that she would. [ 38 ] The accused knows about bullying from having followed the media coverage of the teenager in Ste-Anne-des-Monts who committed suicide allegedly because she was bullied. V. THE LAW [ 39 ]

Section 241 of the Criminal Code states that everyone who counsels, aids or abets a person to commit suicide commits an indictable offence and is liable to imprisonment for a term not exceeding fourteen years. [ 40 ] The notion of counselling has been interpreted on numerous occasions by the courts, primarily in relation to charges brought under sections 464 and 22 of the Criminal Code .

Section 464 Cr. C . contemplates counselling an offence that is not committed, while

section 22 Cr. C . deals with counselling another person to be a party to an offence and that other person is afterwards a party to that offence. [ 41 ] Subsection (3) of

section 22 Cr. C. defines the term "counsel". The provision states: 22(3). For the purposes of this Act, “counsel” includes procure, solicit or incite. [ 42 ] The offence of counselling suicide differs from the offences under

section 22 and 464 of the Criminal Code in that the counselling does not involve the commission of an offence. Suicide is not a crime.

VI. POSITION OF THE PROSECUTION [ 43 ] The prosecution recognizes that the offence of aiding or abetting a person to commit suicide under subsection 241(

b) Cr. C. is a specific intent offence. It maintains, however, that counselling someone to commit suicide in the first paragraph of this provision is a general intent offence. [ 44 ] In the alternative, the prosecution relies on R. v.

Hamilton , [1] a judgment rendered by the Supreme Court in 2005, to argue that the accused's recklessness and conscious disregard of the substantial and unjustified risk inherent in his comments constitute specific intent sufficient for the commission of the offence. [ 45 ] The prosecution concludes that, since the accused is aware of the possible consequences of bullying, he was aware that his remarks entailed a risk of leading the victim to attempt to take her own life. Because he displayed recklessness as to the foreseeable consequences of his words, he should be convicted of the offence charged. VII.

POSITION OF THE DEFENCE [ 46 ] The accused maintains that no distinction should be made regarding the degree of intent required by paragraphs (

a) and (

b) of

section 241 Cr. C. The required intent to commit the offences in this provision is specific. [ 47 ] He acknowledges that his comments were inappropriate, but states that he never intended them to incite the young victim to take her own life. He emphasizes that he does not know the victim, that his words were sarcastic, and that they were uttered in reaction to the victim's comments. He did not intend for them to be taken seriously.

His words were uttered in a moment of frustration in a conversation during which the two participants were trading insults. [ 48 ] The accused further submits that, if he was reckless, his recklessness cannot be considered tantamount to the specific intent required to commit the offence charged. His awareness of the circumstances surrounding the highly publicized suicide of a teenager who had apparently been the victim of bullying does not automatically mean that the accused displayed deliberate contempt for the consequences of his words. VIII.

ANALYSIS [ 49 ] The offence of counselling with which the accused is charged does not concern the commission of an offence. If the Court concludes that it is a specific intent offence and finds that there is no evidence of such intent on the part of the accused, it must acquit. [ 50 ] The remarks made by the accused to the young victim were odious, inappropriate, hateful and irresponsible. The accused meddled in a conversation that was none of his business.

Frustrated with the remarks the victim had made to Y, he decided to defend his girlfriend, joining her in spewing insults at the victim. [ 51 ] Let us not forget that the accused and the victim did not know each other and had never spoken before their conversation on Facebook on September 27, 2012, during which he showered her with invective. A. Is the offence of counselling suicide under paragraph 241 (

a) Cr. C. one of general or specific intent? [ 52 ] In R. v. Dufour , [2] the Quebec Court of Appeal considered the degree of intent required for offences under

section 241 Cr. C. Relying on the Supreme Court judgment in Rodriguez v. British Columbia (Attorney General) , [3] the Court affirmed that the offence of assisting suicide requires a specific intent on the part of its perpetrator to cause death. [ 53 ] Although in that case, the offence with which the accused was charged was aiding suicide, the Court of Appeal, per François Pelletier J.A., stated the following: [ translation ] [t]he concepts of aiding, advising or abetting, which are key elements of the offence under

section 241 Cr. C ., seem to refer to an element of intent without which the offence could not exist. [4] (Emphasis added.) [ 54 ] And, in paragraph 39, he added: [ translation] [39] I find, therefore, that the prosecution must establish mens rea to seek a conviction on a charge laid under

section 241 Cr. C. [5] [ 55 ] The Court of Appeal drew no distinction between the two paragraphs of

section 241 Cr. C. instead confirming that both ways of committing the crime under that provision require mens rea. [ 56 ] Discussing the criminal intent required for the offence of counselling, Mtre Pierre Lapointe and Mtre Annie-Claude Bergeron state that [ translation ] "counselling must be provided with the intent to see the offence carried out or 'conscious disregard of the unjustified (and substantial) risk' it entails". [6] [ 57 ] Here, the accused uttered unacceptable words to a young, vulnerable girl during a conversation in which they were insulting each other.

The Court believes the accused when he claims that he did not want his comments to be taken seriously or the victim to commit suicide.

[ 58 ] It was a degrading conversation, made easier by the fact that it took place via the chat feature of a social network between two persons who barely knew each other. The Court is convinced that the accused gave free rein to his frustration and wanted to defend his girlfriend. [ 59 ] Nevertheless, the Court believes that the accused's remarks should be interpreted in context. When he told the victim that she should commit suicide, he was responding to her comment that she [ translation ] "did not live her life for fools like him".

The Court believes that, despite the use of highly inappropriate language, the accused's comments were a sarcastic reply to those of the victim. B. Do the accused's remarks to the victim constitute counselling the victim to commit suicide within the meaning of

section 241 (

a) Cr. C .? [ 60 ] The notion of "counselling" has been interpreted by the Courts on numerous occasions. While most decisions have been rendered in cases involving counselling a person to be a party to an offence and concern sections 22 and 464 Cr. C ., they are relevant to the

interpretation of the notion of "counsel" in

section 241 Cr. C . [ 61 ] In Mugesera , [7] the Supreme Court defined the material elements of counselling as follows: The offence of counselling requires that the statements, viewed objectively, actively promote, advocate, or encourage the commission of the offence described in them ... The criminal act will be made out where the statements (1) are likely to incite, and (2) are made with a view to inciting, the commission of the offence... . [ 62 ] In R . v . Déry , [8] the Supreme Court reiterated a remark it had made in R . v.

Hamilton , [9] noting that "the actus reus for counselling is the deliberate encouragement or active inducement of the commission of a criminal offence". [ 63 ] In R. v. Sharpe , [10] the accused was charged with possession and possession for the purpose of selling or distributing child pornography. Asked to interpret the word "counsel" in subsection 163(1) Cr.

C. , the Supreme Court stated: “Counsel” is dealt with only in ... s. 22 of the Criminal Code , where it is stated to include “procure, solicit or incite”. “Counsel” can mean simply to advise; however in criminal law it has been given the stronger meaning of actively inducing. [ 64 ] In R. v. Hamilton , [11] where the accused was charged with counselling the online publication of ways to use credit cards fraudulently and manufacture bombs, the Supreme Court defined the word "counsel" as "procure, solicit or incite".

Referring to the definition in the Canadian Oxford Dictionary , Fish J. stated that the relevant sense of this expression is "bring about", "ask repeatedly or earnestly for or seek or invite" or "make or request a petition (to a person)", and "urge". [ 65 ] The person who counsels must want to induce a person through his or her comments to do something. The person must want to use his or her influence to induce another person to commit

an act or encourage that person to commit

an act. The person’s speech must seek to convince or persuade the other person to do something with a specific objective. [ 66 ] Author Alan D. Gold defined the actus reus of the offence of counselling as follows: “ actus reus ”: The offence of counselling requires that the statements, viewed objectively, actively promote, advocate, or encourage the commission of the offence described in them.

The actus reus for counselling is the deliberate encouragement or active inducement of the commission of a criminal offence. [12] [ 67 ] The person who counsels must have the intent to persuade the victim to commit the unlawful act. Although inducement to commit suicide is an autonomous offence that does not fall directly within the purview of

section 22 Cr. C. , the notion of "counselling" that it contains concerns speech that, assessed objectively, aims to induce, persuade or convince a person to commit suicide. [ 68 ] In the case before us, the accused told the victim that she should kill herself if, as she herself stated, [ translation ] "she doesn't live her life for fools like him". Aside from this sentence and the expression "go cut yourself" that he used to bring their conversation to an end, the accused did not refer to or directly address the subject of suicide.

He made no remarks seeking to induce, encourage or lead the victim to try to end her own life. [ 69 ] In the circumstances, given the specific context of their utterance, the Court, while not wishing to trivialize the comments, finds that they did not contain the degree of insistence, persuasion and inducement required to commit the crime of counselling suicide under paragraph 241 (

a) Cr. C. C. Does the recklessness displayed by the accused constitute the specific intent required to commit the offence under

section 241 Cr. C. ? [ 70 ] Although it is not necessary for the Court to decide this third issue given its conclusions on the first two, it nevertheless considers it important to emphasize that, in its view, the accused’s behaviour does not demonstrate a degree of recklessness amounting to the specific intent required to commit the offence of counselling suicide. [ 71 ] In R. v.

Sansregret , [13] where the accused was charged with rape, the Supreme Court discussed the notion of recklessness in the following terms: The concept of recklessness as a basis for criminal liability has been the subject of much discussion. ... In accordance with well- established principles for the determination of criminal liability, recklessness, to form a part of the criminal mens rea , must have an element of the subjective. It is found in the attitude of one who, aware that there is danger that his conduct could bring about the result prohibited by the criminal law, nevertheless persists, despite the risk.

It is, in other words, the conduct of one who sees the risk and who

takes the chance. It is in this sense that the term `recklessness' is used in the criminal law and it is clearly distinct from the concept of civil negligence. [ 72 ] At page 584 of that decision, the Court added: ... The culpability in recklessness is justified by consciousness of the risk and by proceeding in the face of it ... [ 73 ] Again in R. v.

Hamilton , Fish J., discussing the meaning to be given to the term "counsel", affirmed: ”... it seems to me that the plain meaning of the terms used by Parliament to achieve this purpose point to a fault element that combines advertent conduct with a ‘conscious disregard of unjustified (and substantial) risk’ that it entails”. [14] He summarized the essential elements of the offence of counselling as follows: In short, the actus reus for counselling is the deliberate encouragement or active inducement of the commission of a criminal offence .

And the mens rea consists in nothing less than an accompanying intent or c onscious disregard of the substantial and unjustified risk inherent in the counselling : that is, it must be shown that the accused either intended that the offence counselled be committed, or knowingly counselled the commission of the offence while aware of the unjustified risk that the offence counselled was in fact likely to be committed as a result of the accused’s conduct. [15] IV.

CONCLUSION [ 74 ] The prosecution's claim is that the accused induced the victim to commit suicide while being fully aware of the risks that she would follow his counsel. According to the prosecution, the accused's criminal liability is incurred by the recklessness that he displayed with regard to the foreseeable consequences of the words he uttered. [ 75 ] It is true that the accused, like many others, read about the highly publicized suicide of a girl who was allegedly bullied by her classmates. This made him realize that bullying can lead a person to commit irreparable deeds.

But the fact that the accused was aware of the possible consequences of bullying does not mean that his comments should now be analyzed in light of the facts of a case that does not concern him. [ 76 ] Awareness of the possible consequences of bullying is not tantamount to the degree of recklessness required to incur the accused's criminal liability. The accused does not know the victim, and his comments were not made in a situation of bullying or harassment.

The accused uttered stinging, hurtful words in reaction to those uttered by the victim. [ 77 ] The comments the accused made, while inappropriate, do not constitute inducement of the victim to commit suicide. They were stated only once, in a conversation during which he and the victim exchanged insults. The accused's intent was never for the victim to try to kill herself.

The accused did not know how fragile the victim was and did not suspect the impact that his remarks could have. [ 78 ] It is impossible for the Court to conclude on the evidence before it that the accused had a sufficient degree of knowledge to be found to have knowingly ignored the possible consequences of his words and taken the risk that the victim would attempt suicide. For it to do so, the accused would have had to have been fully aware of the risks his comments entailed and made a conscious choice to ignore them.

FOR THESE REASONS, THE COURT: [ 79 ] Acquits the accused on the charge as laid. __________________________________ CHRISTINE GOSSELIN, J.C.Q. Mtre Jérôme Simard For the prosecutrix Mtre Michelle-Chantal Bouffard For the accused

Date of hearing: September 5, 2013 [6] Pierre Lapointe & Annie-Claude Bergeron, "Les infractions criminelles" in dans Collection de droit 2013-2014, École du Barreau du Québec, Vol. 12, Droit pénal: infractions, moyens de défense et peine (Cowansville, Que.: Yvon Blais, 2013) 57 at 67.