Frequently Asked Questions
What is Murder?
What must the Crown Prove to Gain a Homicide Conviction?
What are the Penalties for a Homicide Conviction
How to Defend a Homicide Charge?
Arguably the most serious criminal offence one can be charged with in Canada is the offence of murder. According to s. 229 of the Criminal Code, murder is culpable homicide where the accused causes the death of another human being with intent to cause death, intent to cause serious bodily harm that he knows is likely to cause death and is reckless as to whether or not death ensues. A culpable homicide is also murder where a person, for an unlawful object, does anything that he knows or ought to know is likely to cause death, and thereby causes death to a human being, notwithstanding that he desires to effect his object without causing death or bodily harm.
Finally, culpable homicide is murder where the accused causes the death of a human being while committing or attempting to commit; high treason, treason, sabotage, piratical acts, hijacking an aircraft, escape or rescue from prison or lawful custody, assaulting a peace officer, sexual assault, sexual assault with a weapon, aggravated sexual assault, threats to a third party, causing bodily harm, arson, hostage taking, robbery, and kidnapping and forcible confinement, whether or not the person means to cause death and whether or not he knows death is likely to result if he means to cause the bodily harm in facilitating the commission of the offence or flight from the offence and death ensues as a result of the bodily harm.
Culpable murders are further categorized into either first- or second-degree murder. First degree murder encompasses numerous different situations. An individual is guilty of first-degree murder where the murder they committed was planned and deliberate. A murder is considered to be planned and deliberate when it is thought out ahead of time and some degree of planning is carried out.
In addition to planned and deliberate murders, contracted murders are also classified as first-degree murders. A murder is classified as a contracted murder where it is committed pursuant to an arrangement under which money or anything else of value passes from one individual to another as consideration for that other’s causing or assisting in causing the death or any other person, or counselling another person to do any act causing or assisting in causing the death of another person.
An individual will also be guilty of first-degree murder if they cause the death of a peace officer, regardless of whether or not any planning or deliberation went into the killing. The definition of peace officer includes; a police officer, constable, police constable, sheriff, deputy sheriff sheriff’s officer or other person employed for the preservation and maintenance of public space, acting in the course of his duties, a warden, deputy warden, instructor, keeper, jailer, guard or other officer or a permanent employee of a prison, acting in the course of his duties and a person working in a prison with the permission of the prison authorities and acting in the course of his work therein.
Further, a person will be guilty of first-degree murder where they cause the death of another person, whether or not the death was planning and deliberate, while committing or attempting to commit any of the following offences; hijacking an aircraft, sexual assault, sexual assault with a weapon, threats to a third party causing bodily harm, aggravated sexual assault, kidnapping and forcible confinement or hostage taking.
An individual is guilty of first-degree murder where they cause the death of another person, whether or not the death was planning and deliberate, while committing or attempting to commit an offence under s. 264 of the Criminal Code, and the person committing that offence intended to cause the person murdered to fear for the safety of the person murdered or the safety of anyone known to the person murdered.
A person is guilty of first-degree murder where they cause the death of another person, regardless of whether or not the death was planned and deliberate, where the death is caused by that person while committing or attempting to commit an indictable offence under this or any other Act of Parliament, if the act of omission constituting the offence also constituted terrorist activity.
Finally, an individual is guilty of first-degree murder where they cause the death of another person, regardless of whether the death was planning and deliberate, when the death is caused by that person for the benefit of, at the direction of, or in association with a criminal organization, or where the death is caused by that person while committing or attempting to commit an indictable offence under this or any other Act of Parliament for the benefit of, at the direction of or in association with a criminal organization.
All murders that are not classified as first-degree murders are classified as second-degree murders. This would include murders committed in the heat of the moment, without any planning or deliberation.
Manslaughter can be defined as any culpable homicide that is not murder or infanticide. The offence of manslaughter is committed when a person causes the death of another person but did not possess the specific intent to kill. Manslaughter occurs when an individual causes the death of another while committing an unlawful act, through criminal negligence, by causing that human being, by threats or fear of violence or by deception to do anything that causes death, or by willfully frightening a child or sick person.
The offence of Infanticide occurs when a female individual causes the death of her newborn child shortly after birth, if at the time she caused the death she had not fully recovered from the birth and as a result her mind was disturbed.
What Must the Crown Prove to Gain a Homicide Conviction?
To secure any homicide conviction the Crown must first and foremost prove the identity of the accused, the date and time of the offence and the jurisdiction in which the offence occurred.
To secure a first-degree murder conviction the Crown must prove, beyond a reasonable doubt, that the accused caused the death of the victim and that the accused intended to cause the death of the victim. Additionally, the Crown must prove that the killing was in some way planned and deliberate or that one of the other elements that cause a murder to be considered first-degree were present. These elements are discussed in detail in the section titled “First-Degree Murder” above.
To secure a second-degree murder conviction, the Crown must prove, beyond a reasonable doubt, that the accused caused the death of the victim and that the accused intended to cause the death of the victim. Any murder that is not first-degree is considered second-degree murder.
Finally, to secure a manslaughter conviction, the Crown must prove that the accused caused the death of the victim and that the accused committed an act that they ought to have known would result bodily harm which could result in death. The Crown need not prove that the accused had a specific intention to kill to secure a manslaughter conviction.
What are the Penalties for a Homicide Conviction?
The penalties for a homicide conviction will differ depending on whether the accused was convicted of first- or second-degree murder, manslaughter or infanticide.
An individual who is found guilty of first-degree murder is guilty of an indictable offence and must be sentenced to life imprisonment. An individual who is found guilty of second-degree murder is guilty of an indictable offence and must be sentenced to life imprisonment.
An individual who is found guilty of manslaughter is guilty of an indictable offence and liable to a maximum of life imprisonment and a minimum and four years’ imprisonment when a firearm is used in the commission of the offence. In any case where a firearm is not used an individual found guilty of manslaughter will be liable to a maximum of life imprisonment.
An individual who is found guilty of committing infanticide is guilty of an indictable offence and liable to a maximum of five years’ imprisonment.
An individual who attempts to commit murder by any means where a restricted or prohibited firearm is used in the commission of the offence or if any other firearm is used in the commission of the offence and the offence is committed at the direction of, in furtherance of, for the benefit of or in association with a criminal organization, is guilty of an indictable offence and is liable to a maximum of life imprisonment and a minimum of five years’ imprisonment for a first offence and seven years’ imprisonment for second and subsequent offences. In any other case where a firearm is used in the commission of the attempted murder, the accused will be liable to a maximum of life imprisonment and a minimum of four years’ imprisonment. In any other case where a firearm is not used, the accused will be liable to a maximum of life imprisonment.
How to Defend a Homicide Charge?
As with any criminal offence, the best defence will depend largely on the facts of the particular case. Due to the often complex nature of murder cases, there are numerous ways to defend a murder charge.
One strategy for defending a murder charge is to argue that the accused was provoked by the victim to such an extent that an ordinary person would have lost control and attacked the victim just as the accused did. This is known as the defence of provocation. Though this is not a full defence to a murder charge, it may allow the accused to be convicted of the lesser charge of manslaughter and receive a lighter sentence.
A full defence to a murder charge is self defence. Self defence can only occur in the presence of two circumstances. Firstly, the accused must have had a subjective and reasonable fear of death or serious bodily harm at the time they caused the death of another individual, and second that the accused must have believed that they had no other choice but to cause the death of the other individual to save themselves. In some circumstances the accused may be able to argue self defence in the defence of another person. In these cases, the force used to stop the attack on the third person must be no more than was necessary to stop the assault.
Another possible defence to a homicide charge is for the accused to argue insanity. Our legal system breaks the defence of insanity down into three categories; natural imbecility, disease of the mind and inability to appreciate the nature and quality of the act being committed.
Natural imbecility refers to individuals who have development impairments or whose mental development is not complete as a result of a birth defect or some other natural cause. Disease of the mind is broader and is determined by the judge presiding over the case based on the evidence presented. Disease of the mind generally refers to diagnosable mental impairments such as dementia, schizophrenia, paranoia, and some types of epilepsy. For this defence to be successful, the accused must show that they suffered from the disease of the mind at the time they committed the act.
An individual who successfully uses the defence of insanity will be found not criminal responsible by reason of insanity (NCR) rather than not guilty. A finding than an accused is not criminally responsible will result in the individual being held in custody at a secure medical facility indefinitely. Such an individual will only be released from custody when a mental health professional determines that they no longer pose a threat to society.
The defence of automatism is the rarest of murder defences and is almost never used. Automatism refers to involuntary conduct of the accused, meaning the individual had no control over their actions and were not aware of what they were doing. Automatism can be likened to an intense form of sleep walking. Automatism is categorized as either mental disorder automatism or non-mental disorder automatism. Mental disorder automatism refers to a temporary state of insanity that caused the individual to commit the killing. Non-medical disorder automatism refers to situations where the accused has entered a state of temporary insanity as a result of physical trauma to the head such as a sudden blow to the head.
What is First-Degree Murder?
Generally, first-degree murder can be defined by the level of planning and intention to commit the unlawful act. The police and Crown will look for evidence of premeditation and a motive. Certain other offences such as contracted murders can also be classified as first-degree murder where there is an agreement to exchange money or other consideration.
What is Second-Degree Murder?
In its simplest form, all murders that are unable to be classified as first-degree, can be defined as second-degree murder. Many times second-degree murders occur in rage killings without the same level of planning associated with first-degree murder.
What is Manslaughter?
Manslaughter happens when a person causes the death of another without the specific intent to kill that person. Many times people are charged with manslaughter where there is an unlawful act, but where the offender did have the requisite intent.
How to Defend Murder?
Murder is a very difficult offence to defend. Beyond the typical defences related to identification and proper evidence, there are other potential defences. Some of these may be related to circumstances of provocation, insanity and although very rare, automatism.