R v Ching, 2019 ONCA 619

The Issue

When does the transferred intent provision in s 229(b) apply to a planned and deliberate first-degree murder pursuant to s 231(2). Put differently, where an accused kills someone other than the intended target of their planning and deliberation, will they be guilty of first-degree murder.

The Answer

In order for the murder of a person, who was not the intended target of a planned and deliberate murder, to constitute first-degree murder as a planned and deliberate killing pursuant to s 231(2), the killing occur by accident or mistake during the course of carrying out the plan [Ching at para 26].

The Details

Willy Ching and his wife were separated. Ching believed she had an affair. On the date of the offence Ching tracked down Ms Ching at the home of Ernesto Agsaulio. Ching had brought with him a knife and hachet.

When Ching arrived at the home Agsaulio opened the door but refused Ching entry. He told Ching that he was not allowed in and could not see Ms Ching. Ching attacked Agsaulio. Pulling out his knife and hachet. Mr Agsaulio and his son managed to restrain Ching and Ching never got any further – he never saw Ms Ching.

Agsaulio later died from the injuries inflicted by Ching. He was charged with first-degree murder. He was convicted. He appealed. The Ontario Court of Appeal overturned the conviction for first-degree murder. The court held that the trial judge erred in the charge to the jury in relation to how the murder might constitute first-degree murder. The court held:

Section 231(2) (planned and deliberate murder) is clear in relation to what will constitute first-degree murder, it is the murder which was planned and deliberated that will be captured by this section. Accordingly, for the murder of Agsaulio to be first-degree murder it must have been planned and deliberated. It was not [Ching at para 21].
The transferred intent provision in s 229(b) can only apply where the murder occurs during the course of carrying out the planned and deliberate murder, by mistake or accident [Ching at paras 22-26]. Put differently, “where person B is killed while the accused was carrying out the planned and deliberate killing of person A such that the transferred intent provision in s. 229(b) applies to make the killing a murder, the plan was, in effect, executed and it is only by accident or mistake that someone else died. As the planned and deliberate murder was executed, it attracts the higher level of moral culpability required for first degree murder” [Ching at para 27].
This distinction means that where an accused who intentionally kills person B when in the course of carrying out the planned and deliberate murder of person A they will be guilty of second-degree murder, whereas an accused who accidentally or mistakenly kills person B when person A was the target of that act, they will be guilty of first-degree murder [Ching at para 30].