R. v. Jacobson, (1985) 61 A.R. 254 (ProvCt)

Judge:Oliver, P.C.J.
Court:Provincial Court (Alberta)
Case Date:May 16, 1985
Jurisdiction:Alberta
Citations:(1985), 61 A.R. 254 (ProvCt)
 
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R. v. Jacobson (1985), 61 A.R. 254 (ProvCt)

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R. v. Jacobson

Indexed As: R. v. Jacobson

Alberta Provincial Court

Calgary, Alberta

Oliver, P.C.J.

May 16, 1985.

Summary:

The accused father, depressed over his marriage breakdown, deliberately drove his car into a concrete pillar, injuring himself and his nine month old daughter. The accused was charged with attempted murder and criminal negligence causing bodily harm, contrary to ss. 222 and 204 of the Criminal Code of Canada respectively.

The Alberta Provincial Court convicted the accused of attempted murder and sentenced him to 12 years' imprisonment. The court rejected the defences of insanity and automatism, holding that the Crown had proved the specific intent to kill necessary to support the charge.

Criminal Law - Topic 98

Insanity - "Disease of the mind" - What constitutes - The Alberta Provincial Court stated that transient mental states produced by external causes such as drugs or unconsciousness were not "diseases of the mind" within the meaning of s. 16 of the Criminal Code of Canada - See paragraph 74.

Criminal Law - Topic 98

Insanity - "Disease of the mind" - What constitutes - The Alberta Provincial Court stated that whether an accused suffered from a "disease of the mind" within the meaning of s. 16 of the Criminal Code of Canada was a question of law to be determined by the trial judge, not a question of fact to be determined by psychiatrists - See paragraphs 51 to 53.

Criminal Law - Topic 98

Insanity - "Disease of the mind" - What constitutes - A 25 year old husband and father had a history of reactive depression and emotional instability - He was suicidal - Following the break-up of his marriage, he attempted to kill himself and his nine month old daughter by driving into a concrete pillar - On a charge of attempted murder, the Alberta Provincial Court rejected the defence of insanity - The court held that the accused's psychological problems fell short of constituting a "disease of the mind" within the meaning of s. 16 of the Criminal Code of Canada - See paragraphs 48 to 80.

Criminal Law - Topic 103

Automatism and non-insane automatism - The Alberta Provincial Court stated that automatism was a defence only where an accused, throughout the commission of an offence, was unconscious other than by his own negligence or fault - The court stated that the defence failed where unconsciousness was self-induced by intoxication from alcohol or drugs - See paragraphs 94 to 95.

Criminal Law - Topic 107

Insanity - Onus of proof - The Alberta Provincial Court stated that an accused had the burden of proving insanity on a balance of probabilities - See paragraph 49.

Criminal Law - Topic 1226

Criminal negligence - Intention - Criminal Code of Canada, R.S.C. 1970, c. C-34, s. 204 - The Alberta Provincial Court stated that criminal negligence causing bodily harm was not an offence that required proof of a specific intent - See paragraph 87.

Criminal Law - Topic 2625

Attempts - Intention - Attempted murder - The Alberta Provincial Court held that the mens rea for attempted murder was the same as that for the completed offence of murder; i.e. a specific intention to kill - See paragraph 5.

Criminal Law - Topic 2625

Attempts - Intention - Attempted murder - The Alberta Provincial Court stated that where an accused's defence of insanity failed, it was still open to the accused as a defence that, although he was not insane, he had a mental disorder such that he was incapable of forming the specific intent to kill - See paragraphs 81 to 93.

Criminal Law - Topic 5881

Sentence - Attempted murder - Criminal Code of Canada, R.S.C. 1970, c. C-34, s. 222 - A 25 year old father attempted to kill himself and his nine month old daughter by driving into a concrete pillar - Father suffering from reactive depression because of marriage break-up - Wanted to kill daughter so wife would not have her after he died - Father was an abused child whose own father committed suicide - No previous record - The Alberta Provincial Court considered this one of the most serious types of attempted murder because the target was a helpless child - The court sentenced the father to 12 years' imprisonment - See paragraphs 107 to 154.

Cases Noticed:

R. v. Ancio (1984), 52 N.R. 161; 10 C.C.C.(3d) 385 (S.C.C.), folld. [para. 4].

Lajoie v. The Queen (1973), 10 C.C.C.(2d) 313, refd to. [para. 4].

R. v. Park (1981), 37 N.R. 501; 59 C.C.C.(2d) 385 (S.C.C.), refd to. [para. 9].

R. v. Simpson, 35 C.C.C.(2d) 337 (Ont. C.A.), refd to. [para. 49].

R. v. Cooper (1980), 31 N.R. 234; 51 C.C.C.(2d) 129 (S.C.C.), appld. [para. 52].

R. v. Rabey (1980), 32 N.R. 451; 54 C.C.C.(2d) 17 (S.C.C.), appld. [para. 53].

R. v. Hartridge, [1967] 1 C.C.C. 346, refd to. [para. 75].

R. v. Baltzer (1974), 10 N.S.R.(2d) 561; 2 A.P.R. 561; 27 C.C.C.(2d) 118 (N.S.C.A.), refd to. [para. 81].

R. v. Meloche (1975), 34 C.C.C.(2d) 184 (Q.C.A.), refd to. [para. 81].

R. v. Browning (1976), 34 C.C.C.(2d) 200 (Ont. C.A.), refd to. [para. 81].

R. v. Hilton (1977), 34 C.C.C.(2d) 206 (Ont. C.A.), refd to. [para. 81].

R. v. Lechasseur (1977), 38 C.C.C. (2d) 319 (Q.C.A.), refd to. [para. 81].

R. v. Revelle (1980), 48 C.C.C.(2d) 267, refd to. [para. 89].

R. v. Wright (1980), 16 A.R. 474; 48 C.C.C.(2d) 334 (Alta. C.A.), refd to. [para. 90].

R. v. Gionet, [1977] W.C.B. 569, refd to. [para. 145].

R. v. Letendre, 25 C.C.C.(2d) 180, refd to. [para. 146].

R. v. Lizotte, 13 W.C.B. 335, refd to. [para. 146].

R. v. Chown (1977), 18 N.B.R.(2d) 514; 26 A.P.R. 514, refd to. [para. 147].

R. v. Champagne, 5 W.C.B. 22, refd to. [para. 147].

R. v. Stedingh (1983), 57 N.S.R.(2d) 272; 120 A.P.R. 272, refd to. [para. 147].

R. v. Gardiner, [1981] B.C.D. Crim. Sent. 7280 - 04 (B.C.C.A.), refd to. [para. 147].

R. v. Price, [1979] B.C.D. Crim. Sent. 7280 - 01 (B.C.C.A.), refd to. [para. 147].

R. v. Hinton, 5 W.C.B. 22, refd to. [para. 147].

R. v. Smith (1982), 25 C.R.(3d) 190 (Alta. C.A.), refd to. [para. 147].

R. v. Campbell (1978), 38 C.C.C.(2d) 6 (Ont. C.A.), refd to. [para. 147].

R. v. Roud and Roud (1981), 58 C.C.C.(2d) 226 (Ont. C.A.), dist. [para. 149].

Statutes Noticed:

Criminal Code of Canada, R.S.C. 1970, c. C-34, sect. 16 [para. 48].

Counsel:

M. Brown, for the Crown;

A.W. MacDonald, Sr., for the accused.

These charges were heard before Oliver, P.C.J., of the Alberta Provincial Court, who delivered the following decision on May 16, 1985. Subsequently, on May 28, 1985, Oliver, P.C.J., delivered his decision respecting sentence.

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