Homicide (Canadian law)
Murder in Canada is defined as a culpable homicide with specific intentions. It is defined by the Criminal Code, a statute passed by the Parliament of Canada and which applies uniformly across Canada.
Types of culpable homicide
Murder is a sub-category of culpable homicide which is defined as causing the death of a human being,
- By means of an unlawful act;
- By criminal negligence;
- By causing that human being, by threats or fear of violence or by deception, to do anything that causes his death; or
- By wilfully frightening that human being, in the case of a child or sick person.
— Criminal Code, s 222.[1]
In addition, depending on the type of homicide offence, there may be different degrees of causation that the Crown is required to prove. The general test for causation in all homicide offences is a significant contributing cause of the victim's death. If the jury finds that the accused committed the murder in the context of one of the criteria listed for first degree murder (under s. 231(5)), then the jury must be satisfied the accused was a substantial cause of the victim's death before finding the accused guilty of first degree murder.[2]
Manslaughter
Manslaughter is any culpable homicide which is not murder or infanticide.[3]
Infanticide
Infanticide is the killing of a newly-born child by its mother where the mother's mind was disturbed as a result of giving birth or of consequent lactation.[4]
Murder
Murder occurs
- (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) 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 to any human being.[1]
In Canada, murder is classified as either first or second degree:[5]
| Type of murder | Nature |
|---|---|
| First degree | was planned and deliberate |
| was contracted | |
| was committed against an identified peace officer | |
| while committing or attempting to commit the hijacking of an aircraft | |
| while committing or attempting to commit sexual assault | |
| while committing or attempting to commit sexual assault with a weapon | |
| while committing or attempting to commit aggravated sexual assault | |
| while committing or attempting to commit kidnapping and forcible confinement | |
| during a hostage taking | |
| while committing criminal harassment | |
| was committed during terrorist activity | |
| while using explosives in association with a criminal organization | |
| while committing intimidation. | |
| Second degree | any murder which is not first degree murder |
Penalties
The mandatory sentence for any adult (or youth sentenced as an adult) convicted of murder in Canada is a life sentence, with various time periods before a person may apply for parole.[6] The ability to apply for parole does not mean parole is granted.
| Offence | Circumstances | Period ineligible |
|---|---|---|
| First degree murder | In general | 25 years |
| Where the offender was 16 or 17 years old at time of the offence | 10 years | |
| Where the offender was 14 or 15 years old at time of the offence | 5–7 years | |
| Second degree murder | In general | 10–25 years |
| Committed by an offender previously convicted of murder | 25 years | |
| Where the offender was 16 or 17 years old at time of the offence | 7 years |
For multiple murder offences committed after December 2, 2011, a court may, after considering any jury recommendation, impose consecutive periods of parole ineligibility for each murder. While the provision is not mandatory, this means, for example, that an individual convicted of three counts of first degree murder could face life with no parole for 75 years - or 25 years for each conviction. This provision has been used in several cases where parole ineligibility periods have been extended beyond 25 years; in two cases to 75 years prior to parole eligibility.
See also: Life imprisonment in Canada
For offences committed prior to December 2, 2011, someone guilty of a single murder could have his/her non-parole period reduced to no less than 15 years under the Faint hope clause. However, this provision is not available for offences committed after that date.
In cases of second-degree murder and within the parameters set under the law, the sentencing judge has the discretion to set the date for parole eligibility after considering recommendations from both the Crown and the defence, as well as any recommendation that a jury in the case may choose to make.
The maximum penalty for manslaughter is imprisonment for life. A mandatory minimum penalty (ranging from 4 to 7 years depending on the circumstances) only applies when the offence is committed with a firearm. Nevertheless, there is also a provision under which a person convicted of any "personal injury offence" meeting the statutory criteria may be declared a "dangerous offender". A dangerous offender is sentenced for an indeterminate period of imprisonment and is eligible for parole after serving a minimum of 7 years. An offender convicted of 1st or 2nd degree murder is ineligible to be declared a dangerous offender for that same homicide (since a mandatory life sentence already applies). However, an offender convicted of manslaughter can be declared a dangerous offender.
A youth (12 to 17 years) who is not sentenced as an adult does not face a life sentence. Instead, if convicted of first degree murder, they must serve a maximum sentence of 10 years, with a maximum of 6 of those years spent in custody. If convicted of second degree murder, they must serve a maximum of 7 years, with a maximum of 4 of those years spent in custody.[7]
Murder, under English and Irish law, also comes with a mandatory life sentence.
See also
References
- ^ a b Criminal Code, RSC 1985, c C-46, s 222.
- ^ R v Nette, [2001] 3 SCR 488, 2001 SCC 78.
- ^ Criminal Code, RSC 1985, c C-34, s 234.
- ^ Criminal Code, RSC 1985, c C-46, s 233.
- ^ Criminal Code, RSC 1985, c C-46, s 231.
- ^ Criminal Code, RSC 1985, c C-46, s 235.
- ^ Youth Criminal Justice Act, SC 2002, c 1, s 42(2)(q),(r).