Murder (Canadian law)

For a general discussion of the law of murder, see murder.

As defined in the Criminal Code of Canada, murder is a culpable homicide with specific intentions.

Culpable homicide 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.^[1]

Culpable homicide is elevated to murder when

• The person who causes the death of a human being 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;
• A person meant to cause the death of a human being or cause him bodily harm that he knows is likely to cause his death, and by accident or mistake causes death to another human being, notwithstanding that he does not mean to cause death or bodily harm to that person (see transferred intent); or
• A person, for an unlawful objective, does anything he knows is likely to cause death, and thereby causes death to a human being, notwithstanding that he desires to effect his objective without causing death or bodily harm to any human being.^[2]

First and second degree

In Canada, murder is classified as either first or second degree.^[3]

Degree	Definition
First degree murder	planned and deliberate
	contracted
	committed against an identified peace officer
	while committing or attempting to commit hijacking 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
	hostage taking
	while committing criminal harassment
	committed during terrorist activity
	while using explosives in association with a criminal organization
	while committing intimidation.[4]
Second degree murder	which is not first degree murder. It could be "spur of the moment".

Manslaughter

Manslaughter is any culpable homicide which is not murder or infanticide.^[5]

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. It is a type of homicide but is excluded from murder.^[6]

Causation

In addition, depending on the type of homicide offence, there may be different degrees of causation that the prosecutor 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 offences listed above (criteria (4) of first degree murder), 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.^[7]

Penalties

See also: Criminal sentencing in Canada

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.^[8] The ability to apply for parole does not mean parole is granted.

Offence/circumstances	Parole ineligibility period
Second degree murder	10–25 years
Second degree murder by an offender previously convicted of murder	25 years
Second degree murder (16 or 17 years old at time of the offence)	7 years
First degree murder	25 years
First degree murder (16 or 17 years old at time of the offence)	10 years
First/second degree murder (14 or 15 years old at time of the offence)	5–7 years

Someone guilty of a single murder could have his non-parole period reduced to no less than 15 years under the Faint hope clause.

There is a clause 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 at least 7 years. An offender convicted of 1st or 2nd degree murder is ineligible to be declared a dangerous offender. However, an offender convicted of manslaughter can be declared a dangerous offender.

A youth (12 years old or older) 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.^[9]

References

1. ^ Criminal Code of Canada, s. 222
2. ^ Criminal Code of Canada, s. 229
3. ^ Criminal Code of Canada, R.S., 1985, c. C-46, s. 231; R.S., 1985, c. 27 (1st Supp.), ss. 7, 35, 40, 185(F), c. 1 (4th Supp.), s. 18(F); 1997, c. 16, s. 3, c. 23, s. 8; 2001, c. 32, s. 9, c. 41, s. 9.
4. ^ Criminal Code
5. ^ Criminal Code of Canada, R.S., c. C-34, s. 217.
6. ^ Criminal Code of Canada, R.S., c. C-34, s. 216.
7. ^ R. v. Nette (S.C.C.)
8. ^ [http://everything2.com/e2node/Criminal%2520Code%2520of%2520Canada%2520-%2520Part%2520XXIII.3% 2520Sentencing%2520continued Parole eligibility, secs 745, 745.1]
9. ^ Youth Criminal Justice Act, ss 42(2)(q),(r)