HOMICIDE

OVERVIEW

Homicide offences are among the most serious offences listed in the Criminal Code.

Homicide is explained under section 222(1) of the Criminal Code as the act of a person causing the death of another person. Homicide can be culpable or not culpable. Homicide that is not culpable is not an offence under the Criminal Code pursuant to section 222(4) of the Criminal Code.

A person commits culpable homicide when he/she causes the death of a human being by:

  1.   an unlawful act;
  2.   criminal negligence;
  3.  causing that human being by threats, or fear of violence, or by deception, to do anything that causes his/her death

TYPES OF HOMICIDE

Canada recognizes 3 types of culpable homicide:

  • Murder – first and second degree
  • Manslaughter
  • Infanticide
  • MURDER

Murder is the act of killing another person with the intent of causing death. Murder is divided into two types: first degree murder and second degree murder. Both forms of murder require one of the following categories of intent:

  • accused caused death and meant to cause death;
  • accused caused death and meant to cause bodily harm that he knew was likely to cause death, and was reckless whether death would ensue or not;
  • accused caused death by accident or mistake notwithstanding that he did not mean to cause death or bodily harm to the human being; or
  • accused caused death while pursuing an “unlawful object” that he knew or ought to have known was likely to cause death.
  • FIRST DEGREE MURDER

First degree murder must be “planned and deliberate”. The term “planned” requires that the murder was conceived and thought out prior to being committed. The plan can be simple and does not need to be in place for a long period of time. The term “deliberate” requires that the murder be intentional and have a purpose. It cannot be impulsive, it requires a degree of thought with respect to the act and the consequences of the act. First degree murder simply requires some degree of planning and execution of the plan. When a plan to kill someone is unsuccessfully carried out, the act may amount to an “attempt to commit murder” offence under section 239 of the Criminal Code.  

There are circumstances where a murder that is not planned or deliberate is still classified as first degree murder. There is a presumption that death arising from following non exhaustive list of offences are “planned and deliberate” and therefore do not the requite proof that the act was “planned and deliberate”:

  • Contract murder
  • Murder of an officer, sheriff or guard
  • Hijacking an aircraft
  • Sexual assault
  • Sexual assault with a weapon, threats to a third party of causing bodily harm
  • Aggravated sexual assault
  • Kidnapping and forcible confinement
  • Hostage taking
  • Criminal harassment
  • Terrorist activity
  • Criminal organization
  • Intimidation
  • SECOND DEGREE MURDER

Second degree murder is all murder that is not first degree murder. Specifically, second degree murder is any murder that is not planned or deliberate but is done with an intention to kill someone and cause death with a reasonably foreseeable consequence.

  • MANSLAUGHTER

Manslaughter is when a person commits a crime that unintentionally results in the death of another person. There are two broad categories of manslaughter: unlawful act or criminal negligence. “Unlawful act” refers to when a person commits a crime that unintentionally results in the death of another person. “Criminal negligence” refers to death that results from an act that showed wanton or reckless disregard for the lives of others.

  • INFANTICIDE

Infanticide is when a woman causes the death of her newly-born child, by a wilful act or omission, while not having fully recovered from the mental effects of giving birth to the child.

DEFENCES

Where the Crown prosecutor is able to establish the offence of homicide beyond a reasonable doubt, the accused may bring evidence to lower the degree of culpability or disprove the offence.

  • PROVOCATION

In certain circumstances, an individual who kills someone in a heat of passion (i.e. after being provoked) may be found guilty of manslaughter instead of murder. Provocation is a partial defence to murder, it is usually seen as a mitigation factor that can result in a lesser punishment.

  • DURESS

Duress was recently decided by Ontario Court of Appeal as an available excuse for murder. Duress occurs in circumstances where a person commits an offence while under compulsion of a threat made for the purpose of compelling him or her to commit the act of murder.

  • AUTOMATISM

A key element that the Crown prosecutor must prove beyond a reasonable doubt is that the act making out the offence is “voluntary”. Generally, there is a presumption that an accused’s actions are voluntary. However, the accused may bring evidence to show that there was reasonable possibility that the actions were not voluntary. This is a difficult defence to bring.

This is a non-exhaustive list of defences. Other defences may be available depending on the situation and facts surrounding the circumstances of the offence. The law surrounding homicide is extensive and complex, accordingly it is important to obtain legal advice and representation to handle the matter. A qualified legal practitioner will be able to review your matter and provide you with not only all of your options but also your best option. Contact Sack (Q.C.) and Bogle Law as soon as possible, if you or someone you know has been charged with a homicide related offence.

PENALTY

If convicted for murder in the first or second degree, there is a mandatory sentence of life imprisonment. Depending on the circumstances of the offence, there are various time periods for when an individual convicted of murder may apply for parole. Generally, for first degree murder an individual may apply for parole after 25 years. For second degree murder, there is no parole for a minimum of 10 years. For second degree murder, the Judge has discretion to lengthen the term for parole eligibility to a maximum of 25 years.

If convicted for manslaughter, the maximum sentence is life imprisonment. There is no minimum sentence for manslaughter, except when the offence is committed with a firearm for which the minimum sentence is 4 years imprisonment.

If convicted for infanticide, the maximum sentence is 5 years imprisonment.  

If you or someone you know has been charged with homicide, contact Sack (Q.C.) and Bogle Law today for assistance.