Murder is defined within the Criminal Code of Canada (section 231(1) as either first degree or second degree murder. Any intentional killing of another that is planned and deliberate will constitute first degree murder.
First degree murder can also be extended to encapsulate circumstances: where a murder takes place as a result of an arrangement for an exchange of money or anything of value, where the victim is an agent of the government relating to the criminal justice system (police officer, jailer or prison worker), if the murder stems from any sexual assault offence, relates to a criminal organization or terrorism, forcible confinement or criminal harassment, among others (Criminal Code, s. 231, ss. 4-6).
Any murder which does not meet the requirement of being planned and deliberate, as well as the categories mentioned above and in section 231 of the Criminal Code of Canada, will be tried as second degree murder. Murder can be reduced to manslaughter where the accused committed the offence “in the heat of passion caused by sudden provocation” where they acted suddenly without sufficient time for their “passion to cool off” (Criminal Code, s. 232, ss. 1-2).
Causation of death
For a crime to be considered culpable homicide, there must be a causal relationship between the harm done and the death of the victim. There are circumstances where the death of a victim should have been prevented despite original injuries sustained as a result of physical violence or negligence by the accused, which may result in a successful defence against murder charges (or for the accused to be acquitted / the charge downgraded). Problems that may arise and question the cause of death include: the length of time that it took for the victim to die, whether or not the victim died from complications of medical treatment, if there were any intervening events that took place such as poor treatment or no medical treatment, and whether the accused’s violence simply worsened a previously existing medical condition of the victim.
In Canadian common law there exists a test for blameworthiness which often refers to R. v. Nette (SCC, 2001), which affirmed different degrees of causation of culpable homicide. The accused was charged with first degree murder when he broke into a 95 year old woman’s home, tied her hands and feet with wire, wrapped clothing around her head and stole her money. The victim then fell off her bed, her dentures came loose and the clothing around her head became tightly wound around her neck, she later died as of asphyxiation (24-48 hours after the accused left) (R. v. Nette, SCC, 2001). The court considered the extent the accused caused the death, differing between first degree murder which requires “substantial and integral cause of death,” relating to the enhanced blameworthiness regarding the offence. The court acknowledged that second degree murder and manslaughter charges required a lesser degree of blameworthiness (referred to as a “significant contributing cause,” which is more than a trivial or insignificant cause (R. v. Nette, SCC, 2001)). In this particular case, the first degree murder charge was downgraded to second degree murder due to the reduction in blameworthiness.
Manslaughter is any culpable homicide which is not considered murder or infanticide. An example of manslaughter is where someone commits an unlawful act that causes the death of another person. In R. v. Creighton (S.C.C., 1993), the accused was found guilty of manslaughter because the victim’s death was a direct consequence of an unlawful act, which in this case was injecting a large quantity of cocaine (albeit with the deceased’s consent) into the forearm of the victim. The actus reus for manslaughter or penal negligence uses the marked departure standard, which requires that the negligence constituted a marked departure from the standards of a reasonable person, which may “consist in carrying out the activity in a dangerous fashion, or in embarking on the activity when in all the circumstances it is dangerous to do so” (R. v. Creighton, S.C.C., 1993). The court held that manslaughter “falls into the class of offences where a mental element in relation to the consequence must be established,” (R. v. Creighton, S.C.C., 1993) and held unanimously that at the very least objective foresight is required to establish mens rea (a guilty mind). In this particular example, a reasonable person would have foreseen the risk of bodily harm.
Culpable homicide can be reduced to manslaughter if “the person who committed it did so in the heat of passion caused by sudden provocation” (Criminal Code, s. 232(1). This partial defence relies on a question of fact which considers whether a “particular wrongful act or insult amounted to provocation,” and “whether the accused was deprived of the power of self-control by the provocation that he alleges he received” (Criminal Code, s. 232, ss. 3). Successfully arguing provocation does not remove all liability from the accused, as it will result in a conviction of manslaughter, not an acquittal. An example of a successful provocation defence for murder is the landmark R. v. Parent (S.C.C., 2001) case. The accused’s estranged wife had commenced divorce proceedings against him, and they were involved in litigation over division of assets, including his shares in a corporation. Parent’s shares had been seized, and put up for sale, and at the auction his wife allegedly stated “I told you I would wipe you out completely,” which caused the accused to feel a hot flush rising, and he subsequently shot and killed her (R. v. Parent, S.C.C., 2001). Although the case was controversial in its result, the Supreme Court of Canada affirmed the trial judge’s findings that intense anger could help establish a defence of provocation.
It should be noted that Canadian common law does not typically consider defences of proportionality or necessity when it comes to human lives and murder. In order to successfully argue necessity for a murder charge, “the accused must, at the time of the act, honestly believe, on reasonable grounds, that he faces a situation of imminent peril that leaves no reasonable legal alternative open” (R. v. Latimer, SCC, 2001). Additionally, there must be a “reasonable basis for the accused’s beliefs and actions,” however there may be “circumstances that legitimately affect the accused person’s ability to evaluate his situation” such as in the case of battered woman’s syndrome. A defence for necessity is restricted to establishing involuntariness, that the accused was forced to act in a certain way, and whether a reasonable human being would do it.
The Criminal Code of Canada’s self-defence section was recently revised in order to provide a more comprehensive definition of self-defence and codify a list of factors to be considered when evaluating a claim of this nature. Section 34 of the Code states that a person is not guilty of an offence if they believe on reasonable grounds that force (or a threat of force) is being used against them, that in defending themselves they are acting purely in order to defend themselves or another person from the use of force, and that they are reasonably defending themselves given the circumstances of the violence (or threat) being used against them (Criminal Code, s. 34(1). A court shall consider a list of factors, including, but not limited to:
- the nature of the force or threat;
- the extent to which the use of force was imminent and whether there were other means available to respond to the potential use of force;
- the person’s role in the incident;
- whether any party to the incident used or threatened to use a weapon;
- the size, age, gender and physical capabilities of the parties to the incident;
- the nature, duration and history of any relationship between the parties to the incident, including any prior use or threat of force and the nature of that force or threat;
f1. any history or interaction or communication between the parties to the incident;
- the nature and proportionality of the person’s response to the use or threat of force; and
- whether the act was committed was in response to a use or threat of force that the person knew was lawful.”
(Criminal Code of Canada, s. 34(2).
Sentencing & Parole
Those convicted of murder – either first or second degree, must be sentenced to imprisonment for life. For an adult who has been convicted of first degree murder, generally they will not be eligible for parole until they have served at least twenty-five years. For an adult who has been convicted of second degree murder, they will need to serve between ten and twenty-five years, as determined by the courts (Criminal Code, s. 235). As a result of capital punishment being abolished, section 745.6 of the Criminal Code was introduced, also known as the “faint-hope clause.” This clause provides those who have been convicted of murder an opportunity to apply for a reduction in the number of years they must serve in order to apply for parole, and can only be made after fifteen years have been served.
Although manslaughter is an offence which is considered to be a downgraded version of murder, it still carries with it considerable social stigma and penalty. Everyone who is convicted of manslaughter is guilty of an indictable offence and is liable to imprisonment for life, and where a firearm is used a minimum punishment of four years imprisonment (Criminal Code, s. 236). Sentencing for manslaughter can be very difficult and the punishment will be reflected by the facts of the case, therefore it is very hard to speculate on the existence of a benchmark for sentencing.