Murder and Manslaughter

The lawyers at Stern Shapray have extensive experience representing clients charged with both Murder and Manslaughter, and reaching favourable outcomes for them. It is vital that one charged with these offences seeks out the legal advice of an experienced criminal lawyer in order to put forth the best possible defence(s) before the Court or pursue alternate ways to resolve the matter without going to trial.
Definition of Culpable Homicide
Before we delve into Murder and Manslaughter, it is important to understand what Culpable Homicide is. This is because both Murder and Manslaughter are two major types of Culpable Homicide.
According to the Criminal Code, Culpable Homicide is when a person causes the death of another in one of the following ways:
- by an unlawful act;
- by criminal negligence;
- by causing the other person – through threats, fear of violence or deception – to do anything that causes their death; or
- by wilfully frightening the other person, in the case of a child or sick person.
Sentences for Murder and Manslaughter
When assessing whether to hire a lawyer when charged, it is important to first be aware of the legal consequences in the event one is found guilty of either Murder or Manslaughter.
Murder
Murder is a straight indictable offence and comes with an automatic minimum sentence of life imprisonment. For first-degree murder, the accused would not be eligible for parole until they have served 25 years of their sentence. For second-degree murder, this period of parole ineligibility is at least 10 years but not greater than 25 years.
Manslaughter
Manslaughter is a straight indictable offence. If a firearm was used in the commission of the Manslaughter, one would automatically receive a minimum imprisonment sentence of 4 years, with the maximum being life imprisonment.
In all other cases of Manslaughter, one would be subject to a maximum life imprisonment sentence but no minimum sentence, which leaves room for one to receive a considerably lesser sentence than they would have if found guilty of Murder. The ultimate sentence an accused will receive in such cases will be highly dependent on the aggravating circumstances of the offence.
When an accused gets sentenced for Manslaughter, they will become eligible for full parole after having served one-third or 7 years of their sentence, whichever is less. If an accused is sentenced anywhere between 2 years and life imprisonment for Manslaughter, the Court has the discretion to increase the parole ineligibility period to one-half or 10 years of the whole sentence, whichever is less.
Elements of Murder and Manslaughter
1) Murder
One can be charged with Murder under various subsections of the Criminal Code. The elements needed to be proven beyond a reasonable doubt to secure a conviction will depend on the specific subsection under which one gets charged.
Charged under s. 229(a):
This subsection consists of the following elements that must be proven for a conviction:
- The accused did something that caused the death of another person; and
- Either one of the following:
- The accused intended to cause the death, or
- The accused intended to cause bodily harm which the accused knew was likely to cause death, and the accused was reckless as to whether death would result or not.
a) Charged under s. 229(b):
This subsection deals with the situation where the accused killed the deceased by an accident or mistake while they had been intending to kill or cause bodily harm to another person as per the definition in s. 229(a). It is irrelevant that the accused had no intention to kill or harm the deceased. Therefore, the following elements must be proven to secure a conviction under this subsection:
- The accused either:
- Intended to cause the death of a person, or
- Intended to cause bodily harm that the accused knew was likely to cause death to the person;
- The accused was reckless as to whether death would result or not; and
- The accused by accident or mistake caused the death of a different person.
a) Charged under s. 229(c):
The following elements must be proven when charged under this subsection:
- The accused committed an act;
- The act is for an unlawful object;
- The accused knew that their act was likely to cause death to a person;
- The accused caused the death of a person as a result of their unlawful act.
It is irrelevant that that the accused wanted to effect their object without causing death or bodily harm to anybody. If the elements above are met, the accused will be convicted for Murder under this subsection.
2) First-Degree vs Second-Degree Murder
In addition to the elements above, a conviction for First-Degree murder specifically requires proof, beyond a reasonable doubt, that the murder had been “planned and deliberate”.
There are some exceptions. Even if a murder had not been “planned and deliberate”, it will be deemed a First-Degree Murder if it falls into one of these categories:
- It was a contracted killing;
- The victim/deceased was a police officer;
- The accused had been committing hijacking, sexual assault, kidnapping, criminal harassment, terrorist activity or intimidation, or had been part of a criminal organization, at the time of the alleged killing.
In contrast, any murder that is not “planned and deliberate” or does not fall into the exceptions above, is a Second-Degree Murder. Second-Degree Murder is made out mostly in cases where there is no planning but nonetheless an intent to kill is present.
3) Manslaughter
Manslaughter is when the accused lacked the specific intent to kill or cause bodily harm that they knew would likely cause death to a person, but nonetheless had been knowingly doing something unlawful that ended up causing someone’s death. Therefore, the following elements must be proven beyond a reasonable doubt for a manslaughter conviction:
- The accused committed an unlawful act;
- The accused did so with an intent that fell below a specific intent to kill;
- The unlawful act caused the death of a person; and
- The accused reasonably foresaw the risk of bodily harm, that was not trivial or transitory, from their act.
Common Defences
There are various ways in which charges of Murder or Manslaughter can be defended. We have discussed some below.
Self-defence
This is the most commonly used defence which, if successful, will result in the complete acquittal of an accused.
This defence applies in situations where the accused believed they had to defend themselves or another person from violence or threats of violence used against them. There are a number of factors in the Criminal Code which the Court will consider to assess the reasonableness of the accused’s belief to engage in self-defence, including but not limited to:
- the nature of the force or threats;
- the extent to which the force was imminent and whether there were alternatives to deal with the situation;
- whether there was a weapon involved,
- the nature and history of the relationships between the parties involved; and
- the proportionality of the accused’s response to the impending violence or threats.
Mental Illness
The accused could have been suffering from a mental illness at the time of the offence, which could have made them unable to understand the nature and consequences of their wrongful act and thus to form the specific intent to commit murder. If successfully established, this defence can result in the verdict of Not Criminally Responsible by Reason of Mental Disorder (NCRMD). This technically means that the accused would not have to go to jail but to a mental institution.
Provocation
This defence can reduce a charge of Murder to Manslaughter if successful. What needs to be proven is that the accused committed the offence of Murder in a “heat of passion” as a result of being suddenly provoked.
There are certain requirements in the Criminal Code in order for this defence to be successful:
- The victim/deceased had been committing an indictable offence under the Criminal Code that is punishable by 5 years of imprisonment or more;
- The victim/deceased’s conduct would reasonably deprive a person of their power of self-control, and
- The accused had acted on the provocation on the sudden and before they had time to cool off.
Charter Defences
The accused can bring Charter challenges before the Court for the exclusion of evidence and statements or for a stay of proceedings, if their constitutional rights had been violated during the investigation, arrest, and before or during the trial.
For reference, Homicide, Murder, and Manslaughter are outlined in the Criminal Code as follows:
Homicide
222 (1) A person commits homicide when, directly or indirectly, by any means, he causes the death of a human being.
Kinds of homicide
(2) Homicide is culpable or not culpable.
Non culpable homicide
(3) Homicide that is not culpable is not an offence.
Culpable homicide
(4) Culpable homicide is murder or manslaughter or infanticide.
Idem
(5) A person commits culpable homicide when he causes the death of a human being,
(a) by means of an unlawful act;
(b) by criminal negligence;
(c) by causing that human being, by threats or fear of violence or by deception, to do anything that causes his death; or
(d) by wilfully frightening that human being, in the case of a child or sick person.
Exception
(6) Notwithstanding anything in this section, a person does not commit homicide within the meaning of this Act by reason only that he causes the death of a human being by procuring, by false evidence, the conviction and death of that human being by sentence of the law.
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Murder
229 Culpable homicide is murder
(a) where the person who causes the death of a human being
(i) means to cause his death, or
(ii) means to cause him bodily harm that he knows is likely to cause his death, and is reckless whether death ensues or not;
(b) where a person, meaning to cause death to a human being or meaning to cause him bodily harm that he knows is likely to cause his death, and being reckless whether death ensues or not, by accident or mistake causes death to another human being, notwithstanding that he does not mean to cause death or bodily harm to that human being; or
(c) if a person, for an unlawful object, does anything that they know is likely to cause death, and by doing so causes the death of a human being, even if they desire to effect their object without causing death or bodily harm to any human being.
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Classification of murder
231 (1) Murder is first degree murder or second degree murder.
Planned and deliberate murder
(2) Murder is first degree murder when it is planned and deliberate.
Contracted murder
(3) Without limiting the generality of subsection (2), murder is planned and deliberate when it is committed pursuant to an arrangement under which money or anything of value passes or is intended to pass from one person to another, or is promised by one person to another, as consideration for that other’s causing or assisting in causing the death of anyone or counselling another person to do any act causing or assisting in causing that death.
Murder of peace officer, etc.
(4) Irrespective of whether a murder is planned and deliberate on the part of any person, murder is first degree murder when the victim is
(a) a police officer, police constable, constable, sheriff, deputy sheriff, sheriff’s officer or other person employed for the preservation and maintenance of the public peace, acting in the course of his duties;
(b) 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; or
(c) a person working in a prison with the permission of the prison authorities and acting in the course of his work therein.
Hijacking, sexual assault or kidnapping
(5) Irrespective of whether a murder is planned and deliberate on the part of any person, murder is first degree murder in respect of a person when the death is caused by that person while committing or attempting to commit an offence under one of the following sections:
- (a) section 76 (hijacking an aircraft);
- (b) section 271 (sexual assault);
- (c) section 272 (sexual assault with a weapon, threats to a third party or causing bodily harm);
- (d) section 273 (aggravated sexual assault);
- (e) section 279 (kidnapping and forcible confinement); or
- (f) section 279.1 (hostage taking).
Criminal harassment
(6) Irrespective of whether a murder is planned and deliberate on the part of any person, murder is first degree murder when the death is caused by that person while committing or attempting to commit an offence under section 264 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.
Murder — terrorist activity
(6.01) Irrespective of whether a murder is planned and deliberate on the part of a person, murder is first degree murder when 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 or omission constituting the offence also constitutes a terrorist activity.
Murder — criminal organization
(6.1) Irrespective of whether a murder is planned and deliberate on the part of a person, murder is first degree murder when
- (a) the death is caused by that person for the benefit of, at the direction of or in association with a criminal organization; or
- (b) 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.
Intimidation
(6.2) Irrespective of whether a murder is planned and deliberate on the part of a person, murder is first degree murder when the death is caused by that person while committing or attempting to commit an offence under section 423.1.
Second degree murder
(7) All murder that is not first degree murder is second degree murder.
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Murder reduced to manslaughter
232 (1) Culpable homicide that otherwise would be murder may be reduced to manslaughter if the person who committed it did so in the heat of passion caused by sudden provocation.
What is provocation
(2) Conduct of the victim that would constitute an indictable offence under this Act that is punishable by five or more years of imprisonment and that is of such a nature as to be sufficient to deprive an ordinary person of the power of self-control is provocation for the purposes of this section, if the accused acted on it on the sudden and before there was time for their passion to cool.
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Manslaughter
234 Culpable homicide that is not murder or infanticide is manslaughter.
Punishment for murder
235 (1) Every one who commits first degree murder or second degree murder is guilty of an indictable offence and shall be sentenced to imprisonment for life.
Minimum punishment
(2) For the purposes of Part XXIII, the sentence of imprisonment for life prescribed by this section is a minimum punishment.
Manslaughter
236 Every person who commits manslaughter is guilty of an indictable offence and liable
(a) where a firearm is used in the commission of the offence, to imprisonment for life and to a minimum punishment of imprisonment for a term of four years; and
(b) in any other case, to imprisonment for life.
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Sentence of life imprisonment
745 Subject to section 745.1, the sentence to be pronounced against a person who is to be sentenced to imprisonment for life shall be
(a) in respect of a person who has been convicted of high treason or first degree murder, that the person be sentenced to imprisonment for life without eligibility for parole until the person has served twenty-five years of the sentence;
(b) in respect of a person who has been convicted of second degree murder where that person has previously been convicted of culpable homicide that is murder, however described in this Act, that that person be sentenced to imprisonment for life without eligibility for parole until the person has served twenty-five years of the sentence;
(b.1) in respect of a person who has been convicted of second degree murder where that person has previously been convicted of an offence under section 4 or 6 of the Crimes Against Humanity and War Crimes Act that had as its basis an intentional killing, whether or not it was planned and deliberate, that that person be sentenced to imprisonment for life without eligibility for parole until the person has served twenty-five years of the sentence;
(c) in respect of a person who has been convicted of second degree murder, that the person be sentenced to imprisonment for life without eligibility for parole until the person has served at least ten years of the sentence or such greater number of years, not being more than twenty-five years, as has been substituted therefor pursuant to section 745.4; and
(d) in respect of a person who has been convicted of any other offence, that the person be sentenced to imprisonment for life with normal eligibility for parole.
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