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The suspect takes out a large insurance policy on his or her partner, who ends up deceased. Most of us have probably seen this example of “motive” play out in a television crime drama. 

For the purpose of our criminal law, motive is defined as “ulterior intention”.  Motive is not an essential averment of a crime, but it may be relevant circumstantial evidence capable of being weighed alongside the totality of evidence in a criminal case. Also, motive may not only apply to the accused, but could be relevant to the credibility of witnesses (for the Crown or the Defence).

The insurance policy example serves to illustrate motive. The person who stands to benefit from the death of another may have an ulterior intention". In this example, the suspect has an “ulterior intention” because of the possible financial benefit flowing from the death. Of course, this is only one piece of circumstantial evidence that is by itself conclusive of nothing.   Put another way, just because a person takes out an insurance policy on his or her parter, who is later deceased, does not mean that the person standing to benefit from the insurance proceeds had anything to do with the death. If this was the case, there would be a lot of beneficiaries behind bars.

principles of motive

The Supreme Court of Canada has addressed motive in a number of cases, including R. v. Lewis, [1979] 2 S.C.R. 821 and more recently in R. v. Barton, [2019] S.C.J. No. 3. Lewis established six key propositions:

(1) As evidencemotive is always relevant and hence evidence of motive is admissible. 

(2) Motive is no part of the crime and is legally irrelevant to criminal responsibility. It is not an essential element of the prosecution's case as a matter of law. 

(3) Proved absence of motive is always an important fact in favour of the accused and ordinarily worthy of note in a charge to the jury. 

(4) Conversely, proved presence of motive may be an important factual ingredient in the Crown's case, notably on the issues of identity and intention, when the evidence is purely circumstantial. 

(5) Motive is therefore always a question of fact and evidence and the necessity of referring to motive in the charge to the jury falls within the general duty of the trial judge "to not only outline the theories of the prosecution and defence but to give the jury matters of evidence essential in arriving at a just conclusion." 

(6) Each case will turn on its own unique set of circumstances. The issue of motive is always a matter of degree. 

In Barton supra, the Supreme Court affirmed: “Where motive does not form an essential element of the offence, the necessity of charging a jury on the subject depends upon the course of the trial and the nature and probative value of the evidence adduced”.

motive must be established

What is important to remember about “motive” evidence is that for it to be admissible, it must actually be evidence of motive. For example, as the Court stated in R. v. Ziegler, [2016] A.J. No. 264 “[a]nimostity or hostility is not the same as motive.  A person can habour negative feelings towards another without intending to embark on a particular injurious course of conduct” (para. 312).  Barton confirms, that the probative value of motive evidence must always outweigh its prejudicial effect. 

Ultimately, the trial judge must act as a gatekeeper at all times so as to ensure the integrity of the trial process. From the Defence perspective, proved absence of motive may be an important fact capable, alongside other evidence, of raising reasonable doubt.

If you have been charged with any criminal offence call  David Chow.  He is one of a number of Calgary criminal lawyers who offers a a free consultation. 


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