Actus reus for murder not proved as accused’s plan still in preparatory stage

Accused was charged with three counts of attempted murder and one count of attempting to possess prohibited firearm. Accused and complainant were romantically involved but complainant ended relationship because of accused’s assaultive behaviour. After several unsuccessful attempts to reconcile, accused began to threaten complainant prompting her to call police and report his threatening behaviour along with prior assault after which accused engaged in more harassing behaviour, resulting in more charges, and series of firearms prohibitions. After being released from custody, police received information that accused was trying to locate complainant and that he intended to kill both her and her three young children so complainant and her family were placed into Witness Protection Program. After accused tried contacting complainant through Facebook, police commenced undercover investigation with officer posing as offender attending probation meeting and befriending accused. Accused attempted to get firearm through undercover officer and in one conversation, stated that he was going to kill complainant’s children and take his own life. Accused acquitted of attempted murder and convicted of attempting to possess prohibited firearm. Facts disclosed series of actions committed by accused in his avowed plan to kill complainant’s children ranging from seeking undercover officer’s assistance in obtaining firearm to searching for his intended targets on internet. Accused had no knowledge of where complainant or her children were and admitted that he did not have firearm although he claimed that he could get one when needed. Accused’s plan to pay for firearm, by selling his passport, appeared to have stalled because he needed to send passport to his brother so that it could be altered to allow his brother to unlawfully enter country. Although accused had requisite mens rea for attempted murder, Crown failed to prove actus reus as accused’s plan was still in preparatory stages.

R. v. Francis (2017), 2017 CarswellOnt 3726, 2017 ONSC 1505, S.A.Q. Akhtar J. (Ont. S.C.J.).