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Introduction
On December 5, 2025, the Supreme Court of Canada (“SCC”) released its decision in R v BF, 2025 SCC 41 [BF], restoring a conviction for attempted murder and rejecting the Court of Appeal for Ontario’s (“ONCA”) holding that the trial judge failed to instruct the jury sufficiently on a potential defence. In doing so, the SCC engaged with a fundamental question arising in the case: whether there was any air of reality to the theory that, rather than attempted murder, the accused was aiding a suicide attempt.
An earlier Appeal Watch on this case suggested that the SCC might refine the relationship between attempted murder and aiding suicide, particularly in cases involving self-administration and questions of autonomy. It also raised the possibility that the Court would endorse ONCA’s concerns about jury misdirection when contemplating causation.
Facts
The appellant, B.F., was a nurse and resided with her mother, I.F., and her infant daughter, E. (BF, para 8). One morning, the three were discovered unconscious in the home by their neighbour. Emergency responders discovered five empty insulin pens with doses that would have proved fatal if not for the intervention of the emergency responders (BF, para 15). While B.F. and I.F. survived, E. suffered irreversible brain damage and will require intensive medical care for the rest of her life.
The Trial Decision
At trial, the Crown alleged B.F. had injected insulin into I.F. and E. with the intention of killing them—which B.F. denied. The defence advanced the theory that an alternative perpetrator was responsible—namely E.’s father, who had a strained relationship with B.F. Ultimately, the jury convicted B.F. on two counts of attempted murder against I.F. and E. She was also convicted of aggravated assault in relation to E., but acquitted of the same in relation to I.F. (BF, para 21)
The Court of Appeal Decision
On appeal, B.F. raised four issues, whether (R v BF, 2024 ONCA 511, para 21):
- the trial judge erred by instructing the jury that if they found the person who injected either E. or I.F. was I.F., rather than the appellant, they could still find the appellant guilty as a party pursuant to s. 21 of the Criminal Code;
- the acquittal on count 4 (aggravated assault on I.F.) was an inconsistent verdict;
- the trial judge erred by not instructing the jury on the “suicide pact” defence to murder discussed in R. c. Gagnon (1993), 84 C.C.C. (3d) 143 (Q.C.C.A.), and on s. 241(1)(b) of the Criminal Code (aiding suicide); and
- the sentencing judge disregarded pre-sentence custody, imposed a harsh and excessive sentence, and improperly made a non-communication order. (R v BF, 2024 ONCA 511, para 21).
ONCA set aside B.F.’s conviction for the attempted murder of I.F. The court reasoned that the jury “could have found that I.F. injected herself, and that the trial judge erred in not directing the jury with respect to the defence of aiding suicide under s. 241(1)(b) of the Criminal Code” (BF, para 24). The conviction for attempted murder was subsequently set aside, and a new trial was ordered in relation to that conviction.
The SCC Decision
In a 6-3 split decision, the SCC granted the Crown’s appeal, restoring B.F.’s conviction for attempted murder. Writing for the majority, O’Bonsawin J. held the theory presented by the defence characterizing the offence as aiding suicide under s. 241(1)(b) of the Criminal Code had no air of reality. As such, the trial judge did not err by declining to instruct the jury on that offence. The dissenting judges, Karakatsanis and Moreau JJ., with Wagner C.J. concurring, would have dismissed the appeal, affirming the ONCA decision, on the ground that the mere possibility of autonomous self-administration was sufficient to require aiding suicide to be distinguished from attempted murder in the jury instructions—meaning there was an air of reality to this defence.
This case, therefore, turned on a threshold question of evidentiary sufficiency: whether there was evidence, that could support the essential elements of aiding suicide such that the offence should have been made available to the jury.
Issues
The primary issue on the Crown’s appeal was whether the trial judge made a reviewable error in instructing the jury on the attempted murder and aggravated assault of E.. In approaching this inquiry, the SCC considered three sub-issues:
- Did the trial judge err by failing to instruct the jury on the reasonable verdicts available should they accept the defence theory that I.F. independently administered the insulin to E.?
- Did the trial judge err by failing to properly instruct the jury on the mens rea and actus reus of the offences?
- Did the trial judge mislead the jury in summarizing the evidence surrounding the procurement of the insulin pens? (BF, para 33).
In effect, all three sub-issues ultimately converged on the broader doctrinal inquiry at bar: whether the defence theory of aiding suicide met the air-of-reality threshold, requiring the trial judge to place that offence before the jury.
The Majority
The appeal turned on the air-of-reality threshold, which the majority described as “an important screening mechanism” to ensure proper jury instruction (BF, para 50). The majority emphasized that this threshold only encompassed defences or included offences that are realistically available on the totality of the evidence (BF, para 49). As the Court emphasized, trial judges must not instruct juries where the suggestion is “tenuous and speculative" (BF, para 65).
Applying this doctrine, the majority concluded “there was no air of reality to the theory that B.F. aided I.F. in self-administering the insulin with the intent to end her own life” (BF, para 68). The defence’s theory of the case also included the possibility that I.F. injected herself with insulin, however, the majority found that suggestion was not sufficiently grounded in reality. There was simply "no testimony from I.F. or anyone else that suggest[ed] she intended to end her own life" (BF, para 62). Nor was there any evidence that she intended to self-administer insulin. As the majority put it, “there is simply no “viable” theory available on the evidence that B.F. was aiding I.F. in a suicide attempt" (BF, para 65).
The majority rejected the proposition that mere uncertainty about who gave the injection met the air-of-reality threshold for a charge of aiding in a suicide attempt. Rather, the majority held that the air-of-reality assessment requires "a contextual assessment as to whether the necessary factual inferences are available on a reasonable view of the evidence" (BF, para 49). The majority emphasized that self-administration of insulin cannot, on its own, establish suicidal intent, and the appellant’s defence therefore did not establish an air of reality (BF, para 60).
On the facts, aiding suicide had no air of reality, and thus, the trial judge was correct not to address this scenario in his instructions.
The Dissent
The dissent contended that the record did establish a reasonable inference that I.F. may have autonomously injected herself with insulin; thereby giving an air of reality to the aiding suicide charge.
As the dissent explained, "since the jury received no instructions on the legal significance of finding that I.F. autonomously chose to inject herself with insulin, it is reasonably possible that the jury applied the incorrect legal standard in assessing whether B.F. performed the actus reus for attempted murder" (BF, para 96).
The dissent highlighted that both parties at trial agreed there was a possibility that I.F. injected herself with the insulin, thus raising a realistic possibility that I.F. was attempting suicide (BF, para 103). While the trial judge raised this issue at the pre-charge conference, he did not meet his positive duty to instruct the jury on “all relevant questions of law that arise on the evidence”, whether or not a party has raised the issue (R v Pickton, 2010 SCC 32, para 27).
The dissent pointed to R v Pan, 2025 SCC 12 [Pan], which emphasized that the evidentiary bar for establishing an air-of-reality standard is low, to ensure all viable theories are presented to the jury (Pan, para 44). Intent, the dissent argued, can indeed be proven through circumstantial evidence, and it is for the jury, not an appellate court, to conclude whether I.F.’s actions could have been considered autonomous in the absence of compelling reasons against doing so. Without proper instruction, the jury "could have found that B.F.’s actions constituted attempted murder, even if those actions instead constituted aiding suicide" (BF, para 132).
Accordingly, the dissent would have dismissed the Crown’s appeal and ordered a new trial for I.F. on the attempted murder charge.
Analysis
While at face-value BF is a case about the substantive boundaries between charges for attempted murder and aiding suicide, its true crux explores the institutional role of the trial judge as a gatekeeper. The sharp divide between the majority and dissent—though in agreement that the accused’s appeal from her convictions regarding the child should be dismissed—reveals the fundamental tension within the air-of-reality threshold. Further clarity may be necessary on how demanding this threshold ought to be when alternative defences which are viable, though unlikely, are raised through the evidentiary record.
The majority decision indicates a higher threshold for evidentiary sufficiency when considering jury instructions. By effectively requiring confirmatory evidence of suicidal intent and autonomous decision-making, the SCC has signalled that the defence theory of aiding suicide must be grounded in more than ambiguity surrounding physical administration. This caution signals a reluctance to allow inferential reasoning where critical elements of the crime—mens rea or actus reus—lack direct evidentiary support.
The majority’s approach reflects a tightened conception of evidentiary sufficiency. This is particularly so where an alternative offence carries distinct moral and legal implications. By insisting on affirmative evidence of suicidal intent and autonomous decision-making, the SCC effectively required the defence theory of aiding suicide to be grounded in more than ambiguity or uncertainty surrounding physical administration. This insistence aligns with prior jurisprudence cautioning against leaving speculative defences with juries. It also signals a reluctance to permit inferential stacking where a critical mental element—here, suicidal intent—lacks direct evidentiary support. Conversely, the dissent opines a significant structural tension in the air-of-reality principle. It has been characterized as having a low threshold intentionally to preserve the jury’s function as finder of fact and avoid pre-emptively discarding theories that are viable.
In reflection, while the SCC did not explicitly purport to raise the threshold for the air-of-reality standard, its application in BF implies heightened evidentiary precision in cases where the alternative offence relates to internal states like autonomy and intent. This focusing may, however, have downstream effects. Particularly in cases involving shared agency, medical assistance, and diminished capacity, where evidentiary proof may be absent, and intent is often circumstantially drawn.
As revealed by this 6-3 split, reasonable people may debate where the line should be drawn for the air of reality. This decision, however, reaffirms that trial judges are not required to instruct juries on the existence of offences that have no obvious evidential foundation, even in cases where imaginative, but viable alternatives may be present. Whether this recalibration enhances jury clarity or risks excluding legitimate jury instruction will likely shape future litigation at the intersection of causation, autonomy, and criminal liability.