This blog will provide a brief and simplified overview to the law of murder, manslaughter and homicide in Canada. It will provide some basic information on the following legal terms:
- homicide
- culpable homicide
- non-culpable homicide
- first-degree murder
- second-degree murder
- manslaughter,
- unlawful act manslaughter, and
- criminal negligence causing death.
What is Homicide?
Simply put, any person who causes the death of another person has committed homicide. In Canada, section 222 of the Criminal Code defines homicide as follows:
A person commits homicide when, directly or indirectly, by any means, he causes the death of a human being.
A direct cause would be one person punching or shooting another. An indirect cause would be one person hiring another to kill a third party.
Homicide is further divided into two kinds: culpable (meaning criminally liable) and not culpable (meaning not criminally liable). An example of non-culpable homicide is where someone causes another person’s death by accident. This blog will only be dealing with culpable homicide, as non-culpable homicide is not a crime.
Related: Fatal Pedestrian Accidents in BC
What is Culpable Homicide?
Culpable homicide has three broad categories:
- murder,
- manslaughter, and
- infanticide.
This blog will only cover murder and manslaughter, not infanticide.
Murder
A homicide is a murder when a person means to cause another person’s death or means to cause harm to a person that they know is likely to cause the other person’s death. Section 229(a) of the Criminal Code defines murder as follows:
Where the person who causes the death of a human being either means to cause his death, or means to cause him bodily harm that he knows is likely to cause his death, and is reckless whether death ensues or not.
There are two types of murder: first-degree and second-degree.
First-degree Murder
The important difference between first and second-degree murder is the presence of planning and deliberation. First-degree murder is planed and deliberate. “Planned” means a scheme or design that is carefully thought out, while “deliberate” means considered, not impulsive, cautious, and slow in deciding. First-degree murder is a homicide that is both carefully thought out and considered, not impulsive. One example of a first-degree murder is a contract killing, where one party hires another party to kill a person. But not all cases of first-degree murder are contract killings. Any murder involving planing and deliberation is first-degree murder.e
Murder is also first-degree murder when a death occurs during the commission of certain offences, including but not limited to the following:
- sexual assault,
- sexual assault with a weapon,
- sexual assault causing bodily harm,
- aggravated sexual assault,
- criminal harassment,
- kidnapping,
- forcible confinement,
- hostage taking,
- terrorism,
- hijacking an aircraft, and
- intimidation of a justice system participant.
When murder is committed in the commission of these offences, planning and deliberation is not required for it to be first-degree murder – it is automatic.
Second-degree Murder
Second-degree murder is any murder that is not classified as first-degree murder. This means second-degree murder is any murder that is not planned or deliberate and is not committed during the commission of the offences listed above.
Murder: Parole Ineligibility
Both first and second-degree murder carry automatic life sentences. Because both first and second-degree murder carry life sentences, even if the offender is granted parole, they remain under the jurisdiction of the Parole Board of Canada for the rest of their lives. The offender’s warrant of committal does not expire until their death.
The primary difference is the difference in the length of parole ineligibility: first-degree murder carries a life sentence with no possibility of parole for at least 25 years. Second-degree murder carries a life sentence with no possibility of parole for at least 10 years. The courts can, and often do, extend the period of parole eligibility beyond the applicable mandatory minimum.
Related: Possible Outcomes of a Criminal Charge
Manslaughter
Manslaughter is not a murder but is a category of homicide. It may be the result of an unlawful act that causes a death or a sudden provocation. Any culpable homicide that is not murder (or infanticide) is manslaughter.
Unlawful act manslaughter is the most common form of manslaughter. It occurs when a person commits an unlawful act that results in the death of another person. The person does not intend the death of another but intends the underlying unlawful act. In addition, a reasonable person must be able to foresee that a nontrivial risk of bodily harm would result from the unlawful act. One example is punching another person who then falls, hits their head and dies. In this example, the person intended to punch the other person (which is an assault and an unlawful act) but did not intend to kill them.
The unlawful act does not need to be an inherently violent offence. For example, if someone stores a firearm illegally, loaded and without a trigger lock, and that firearm discharges causing the death of another person, then that person committed unlawful act manslaughter. Although the owner of the firearm did not intend to cause a death, when storing a firearm carelessly there is an objective foreseeability of risk of bodily harm that is neither trivial nor transitory.
Manslaughter can take many forms, from a punch not intended to kill to much more aggressive forms of violence where death is more likely. Consequently, the sentences for manslaughter vary greatly and depend significantly on the underlying unlawful act that caused the death.
Manslaughter: Provocation
Manslaughter also occurs when a homicide is the result of sudden provocation that causes an ordinary person to lose their power of self-control. Provocation is defined in section 232(2) of the Criminal Code as follows:
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.
Related: The Police Took My Stuff, Can I Get it Back?
Criminal Negligence Causing Death
Another form of homicide is criminal negligence causing death. This occurs where the homicide is the result of an act or a failure to act that showed a wanton or reckless disregard for the lives of others. Criminal negligence causing death occurs with an act or a failure to act.
The act or omission must be a marked and substantial departure from the conduct of a reasonable person in the circumstances. An example of a failure to act is a parent who leaves an infant alone for hours, leading to the child’s death. The parent had a duty to care for their child. Their omissions were a marked and substantial departure from what a reasonable person would do in the circumstances. Even though the parent did not directly intend the death of their child, they are guilty of criminal negligence causing death.
Criminal negligence causing death also occurs when a person commits an act contrary to a duty they have that is a marked and substantial departure from the conduct of a reasonable person in the circumstances. For example, a person drinks a large quantity of alcohol, gets in their vehicle, and starts speeding and driving through red lights. The driver has duty to other people around them and the driver’s actions are a marked and substantial departure from the conduct of a reasonable person in the circumstances. This driving behaviour could be charged as criminal negligence causing death or the less serious offence of dangerous driving causing death. What offence the accused is charged with or convicted of will depend on the degree to which their driving behaviour deviated from the standard of a reasonable driver.
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