Former federal prosecutor explains charges in toddler's stabbing death

In the aftermath of a stabbing that killed a three-year-old boy, Manitoba's former deputy attorney general says understanding the law might help people make sense of a tragic situation.

Hunter Smith-Straight was stabbed multiple times while sleeping in his North Endhome last week.He was taken off life-support and died on Nov. 2.

"In the public debate on this case and it has been quite an animated debate because of the horrific facts that are alleged there is a temptation to assume what the evidence is going to be and I think we have to be careful about that," said Bruce MacFarlane, who is now a lecturer in law at the University of Manitoba.

"The better approach is to wait to see what emerges actuallyat trial."

Daniel Jensen, 33, was arrested last week and initially charged with attempted murder for the attack.

Police said on the night Hunter was stabbed, Jensen, who is not the child's biological father, was with his mother his on-again, off-again girlfriend at a location on Main Street when they got into an argument that escalated into a violent assault.

From there, police said they believe the accused went to the home on Pritchard Avenue to see the boy.

Since Hunter's death, the charges against Jensen have been upgraded to second-degree murder.

Why not first degree?

MacFarlane, a former federal prosecutor, said it's important for people to understand that first-degree murder is very narrowly defined in Canadian law.

"Most commonly, it's a situation where a murder has taken place that was both planned and deliberate," he said.

MacFarlane said the charge can also apply to the killing of a police officer, or a killing in the midst of a sexual assault, a kidnapping or a hostage taking.

In many first-degree murder trials, getting a conviction comes down to whether the Crown can prove whether a person intended to kill someone, and whether they planned it.

"The facts will emerge at the trial, and that's the place where witnesses will be called," said MacFarlane. "They'll be cross-examined, and that's the stage at which a jury will be asked to determine whether there is a murder that would justify first-degree or second-degree [charges]."

How can you prove what someone intended?

MacFarlane said determining whether a murder was planned is a two-pronged approach.

"The courts have, for decades, said that planning has to involve careful thinking of it over a period of time not impulsive, not spur of the moment, but something that's thought out in advance," he said.

"The question of intent and planning and what was going on in somebody's mind is an element in many, many cases in court, so this is not anything that's new. Usually, the evidence comes from their conduct, or what they said, or inferences from the things that took place so the jury is asked to infer, based on conduct, whether it was planned or not."

MacFarlane said how much time elapsed is often an important element in proving premeditation.

"So hypothetically, in this particular case, if the person went over to a house with a certain plan in mind, that could be sufficient planning to justify a charge of first-degree murder," he said.

"But if that person went over with something else in mind and then changed his mind on arriving, that might not meet the test of planning in the sense of carefully thinking that out in advance."

MacFarlane said the information available in Jensen's case suggests there likely isn't evidence of careful premeditation but with such an unimaginable tragedy, people often want to see the harshest possible charges laid.

"This is an appalling situation. It's a revolting scenario by any standards, but that is not the issue," he said. "I think that everyone has to understand that the Crown attorneys do not charge based on emotion, but rather what evidence is available and whether that evidence can be proven."

What's the difference between first and second degree?

MacFarlane said he thinks it's important to keep in mind the penalty for both first- and second-degree murder is life in prison but the difference comes into play in determining when an offender will be eligible for parole.

"In the case of first-degree murder, if that charge is proven then the automatic penalty is life in prison and no eligibility for parole for 25 years," he said. "If the charge is second-degree murder, the penalty again is mandatory life imprisonment, but the eligibility for parole is set at 10 years."

MacFarlane said the trial judge in a second-degree murder case still has the ability to increase how long it will be before a person is eligible for parole, if the facts warrant it.

Can charges change after they're laid?

Because Crown attorneys have a responsibility to evaluate evidence on an ongoing basis, charges can be raised or lowered but it depends what evidence is available and what can be proven, MacFarlane said.

"It's not a static situation," he said. "If the evidence changes, if further evidence is available or further witnesses emerge that can deal with the question of planning, the charges can change."