Like in other Commonwealth nations, as well as the United States, Canada has different classifications for the offence of murder. The terms homicide and murder are often used interchangeably, but there is a difference.

What is Homicide?

Homicide is when a person, directly or indirectly, by any means, causes the death of another person.

Culpable homicide occurs when a person causes someone’s death:

Through an unlawful act;

  • by showing wanton or reckless disregard in doing anything, or in omitting to anything that it is that person’s duty to do (criminal negligence);
  • by causing a human being, by threats, fear of violence, or deception, to do anything that causes their death; or
  • in the case of a child or sick person, by willfully frightening them.

A homicide that falls under this definition is further classified as murder, manslaughter, or infanticide. As with all other criminal offences, if the accused does not have the requisite men’s rea, that is, the guilty mind, then an offence is not committed even if the action or omission resulted in a person’s death.

What is Murder?

Culpable homicide is murder if a person intends to cause someone’s death OR if a person intends to cause bodily harm that they know is likely to cause a person’s death and is reckless as to whether the death happens nor not.

First Degree Murder

First-degree murder is generally required to be planned and deliberate, though Canadian law sets out specific conduct or circumstances were causing a person’s death is assumed to be first-degree murder:

Contracted Murder. A person pays another person to murder someone else or

Party to First Degree Murder. A person assists in the first-degree murder of another or counsels another person to cause or assist in causing that death.

Peace Officers. The victim is a peace officer, police officer, warden, or similar.

Enumerated Offences. A murder that occurs while the person commits or attempts to commit: aircraft hijacking, sexual assault under various circumstances, kidnapping or forcible confinement, taking a hostage, or terrorist activity.

Criminal Organization: A person causes death for the benefit of a criminal organization. It is also first-degree murder if the death occurs while the person is committing or attempting to commit a crime to benefit a criminal organization.

Intimidation: The death happens while the person is committing or attempting to commit intimidation – this includes criminal harassment.

Second Degree Murder

Any murder that is not planned and deliberate is classified as second-degree murder.

*NOTE: Where someone intends to cause bodily harm and the death of another person results, the perpetrator would be guilty of manslaughter.

Does Canada Have the “Felony Murder Rule”?

While Canada does not have “felonies”, it has in the past had what is generally referred to as the felony murder rule. This rule states that if the death of someone occurs, even if it is unintentional or accidental, during the commission of a dangerous felony by a person, that person can be charged with murder.

For example, assume a person robs a bank. During the robbery, the bank security officer aims at the robber but accidentally shoots a bank customer behind the robber. The robber could be charged with the murder of the bank customer under the felony murder rule.

Taking the example to its most extreme, this time two people are robbing the bank. The security guard shoots and kills the first robber. The second robber could be charged with the murder of the first robber.

In R v Martineau, [1990] 2 SCR 633, the Supreme Court of Canada found that the felony murder rule violated the principles of fundamental justice and it was struck down. A small remnant of the felony murder rule does remain in one of the definitions of murder: a person, who is pursuing an unlawful objective, is guilty of murder if that person does anything they know is likely to cause death, and by doing so does cause the death of a human being, even if they intend to pursue their objective without causing death or bodily harm to another.

Difference In Penalties

The mandatory minimum sentence for a conviction of murder, whether first degree or second degree, is life imprisonment. Parole is possible after 25 years for a person convicted of first-degree murder, while a person convicted of second-degree murder will be eligible for parole after 10-25 years. Parole is never a guarantee, and if a person is released on parole, they will be supervised for the remainder of their life – hence, the “life sentence”. A second conviction of second-degree murder carries a mandatory 25 year period of parole ineligibility.

Consecutive Periods of Parole Ineligibility

2011 amendments to Canada’s Criminal Code opened the door for courts to impose consecutive periods of parole ineligibility for multiple murderers. In particularly heinous cases, this has been used to impose sentences of life in prison with parole ineligibility periods of 75 years. This change attracted criticism, and in 2020, the Quebec Court of Appeals ruled that consecutive periods of parole ineligibility are unconstitutional – it will be interesting to see if and how this will be addressed by the Supreme Court of Canada.

By |2023-08-11T10:34:12+00:00March 11th, 2021|Criminal Defence|

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