3. Homicide

Summary of Homicide #

General points: #

Section 222 of the Criminal Code defines homicide as directly or indirectly causing the death of a human being. The Code sets out four forms of homicide: non-culpable, murder, manslaughter or infanticide.

Section 234 states “culpable homicide that is not murder or infanticide is manslaughter.”

Infanticide functions as both an offence (mother killing baby when still suffering post-partum effects) and a partial defence to murder (lowering murder to manslaughter).

Manslaughter may be punished up to life and has no mandatory minimum sentence, except with use of a firearm, which carries a 4-year minimum.

Murder carries a mandatory life sentence, with a minimum 10-year parole ineligibility period for second degree, and 25 years of ineligibility for first degree. (Different rules apply to a ‘young person’ who commits murder, even when sentenced as an adult.)

Manslaughter #

The most common forms of manslaughter are set out in section 222(5):

-section 222(5)(a) causing death by an unlawful act;1 or

-section 222(5)(b) by criminal negligence.

Unlawful act manslaughter: #

The actus reus of unlawful act manslaughter is an unlawful act that causes death. The unlawful act may consist of any federal or provincial offence other than an absolute liability offence, and one that entails a risk of bodily harm.2 (DeSousa)

The mens rea for unlawful act manslaughter is (a) the fault element for the unlawful act and (b) objective foreseeability of a risk of bodily harm beyond the trivial or transitory. (Creighton)

The reasonable person in this test (as in all objective fault offences) is one who is in the same circumstances as the accused and shares only the characteristics of the accused that would render her unable to appreciate the risk (i.e., the same incapacities as the accused). (Creighton)

Manslaughter caused by criminal negligence (s 220) #

Actus reus: An act or omission “showing wanton and reckless disregard” for the lives or safety of others, which is assessed on the basis of whether the conduct in question constituted a marked and substantial departure from the standard of care of the reasonable person in the circumstances + causing death.

Mens rea: (a) awareness of the risk presented by this conduct or (b) the failure to be aware of the risk where it was objectively foreseeable, and absent evidence of incapacity or a reasonable mistake of fact. (R. v. J(F))

Murder #

Section 229 sets out four ways to commit murder:

i. 229(a)(i) causing death where the accused means to cause death;

ii. 229(a)(ii) causing death where the accused means to cause bodily harm that he knows is likely to cause death;

iii. 229(b) where the accused means to cause death or bodily harm (that he knows is likely to cause death) in relation to one person but by accident or mistake kills another; or

iv. 229(c) where a person pursuing an unlawful object does anything that he knows is likely to cause death and causes death despite the fact that he desired to effect the unlawful object without causing death or bodily harm.

Knowledge that harm is “likely to cause death” in section 229(a)(ii) means knowledge that death is “probable” and not simply a possibility, a risk, or a chance. (Roks)

Causation for murder: #

In addition to special rules for causation in sections 224 to 226 of the Code, which apply to all forms of culpable homicide, the general common law test for causation applies to murder: “a significant contributing cause.” (Nette)

This test also applies to section 231(2), which states generally that “Murder is first degree murder when it is planned and deliberate”, and to provisions which raise to first degree the murdering of a police officer (231(4)) and murder in the case of a contract killing (231(3)).

A distinct causation test applies to provisions that raise second degree murder to first degree which contain the phrase “caused by that person” found in sections 231(5), 231(6), 231(6.01), (6.1), and (6.2): i.e., where death is intentionally caused during a sexual assault, kidnapping, hostage taking, criminal harassment, terrorism, etc.

For these provisions, the accused’s actions must be a “substantial and integral cause” (Harbottle).

First degree murder: #

First degree murder is not a distinct offence but a classification of a form of murder for sentencing purposes. (The Crown must first establish the elements for murder.)

Murder is first degree murder when it is planned and deliberate. (Section 231(2))

-planned means a “calculated scheme or design” though either can be simple. A murder may be “planned” even if it is immediately carried out. (Widdifield)

-deliberate means “slow in deciding,” “considered,” or “not impulsive.” (More)

-murder can be “planned and deliberate” even where it entails a plan to inflict bodily harm with knowledge that it is likely to cause death. (Nygaard)

A murder will be first degree under section 231(5) if death is caused “while committing” a series of offences including sexual assault and unlawful confinement. The victim of the murder need not be the victim of the listed offence. (Russell)

Where an accused has the mens rea for murder, and the murder is planned and deliberate but the accused by accident kills another person, that act is murder in the first degree. (Droste)

Where murder is raised from second to first degree under section 231(4) (murder of a peace officer in execution of duty, among other circumstances), the Crown must prove subjective knowledge of the facts in the provision (i.e., the victim was an officer in the execution of his duty, etc.). (Collins)

All murder that is not first degree murder is second degree. (Section 231(7))

  1. An unlawful act causing death might also be murder or infanticide, if the elements for those offences are made out (the elements are set out in sections 229 and 233, respectively). ↩︎

  2. The Supreme Court’s holdings in Creighton and DeSousa suggest that if the unlawful act here is a strict liability offence, the court should read in the standard of penal negligence: i.e., the Crown must prove BARD that the unlawful act constituted a marked departure from the conduct of the reasonable person. ↩︎

© Robert Diab, TRU Law, 2022