Murder Defence Lawyer

In Canada, murder is the most serious criminal offence you can be charged with. The facts are often complicated, and the stakes are very high. A lawyer’s legal expertise and advocacy experience is invaluable when dealing with this charge. 

What is murder?

Murder is intentional and culpable homicide. Under section 229 of the Criminal Code of Canada, a person commits murder when they cause the death of another person with the intent to cause their death or with the intent to cause them bodily harm that they know is likely to cause death and was reckless as to whether death ensued or not.

Murder can be in the first degree or second degree.

It is also important to note that manslaughter is considered to be a “lesser included offence” to murder. That means that even if you are charged with murder, you could ultimately be convicted of manslaughter instead, if the element of intention is not made out. Additionally, the Criminal Code allows for the partial defence of provocation which reduces murder to manslaughter.

What is first degree murder?

Generally, first degree murder is both planned and deliberate. A murder is planned when it is conceived and thought out. A murder is deliberate when it not impulsive and is, instead, purposeful. A plan to kill does not need to be lengthy and elaborate; there just needs to be some degree of planning and deliberation before the murder occurs.

In some cases, a homicide can be classified as first degree murder even when it is not planned and deliberate. For instance, any killing of a peace officer, such as a police officer, is first degree murder even if there is no planning and deliberation.

Additionally, irrespective of whether it is planned or deliberate, a homicide is considered first degree murder if it was done while committing or attempting to commit any one of the following offences:

• Hijacking an aircraft;
• Sexual assault;
• Sexual assault with a weapon;
• Aggravated sexual assault;
• Kidnapping and forcible confinement;
• Hostage taking;
• Criminal harassment;
• Terrorism;
• Any event committed on the direction or in association with a criminal organization; and
• Intimidation.

What is second degree murder?

Second degree murder is defined in the Criminal Code under section 231(7) as any murder that is not first degree murder. This means that second degree murder does not need to be planned and deliberate. So, second degree murder is an intentional homicide that is not planned and deliberate and was not done while committing or attempting to commit any of the offences listed above.

Arrest and bail:

When you are arrested, officers must tell you of your right to counsel. This right allows you to speak to and retain a murder lawyer following arrest. It is always a good idea to exercise this right and obtain legal advice before speaking to police.

Due to the very serious nature of the charge, you will be held in custody pending a bail hearing. You will be brought in front of a judicial official within 24 hours of your arrest. Not only will a murder lawyer in Toronto tell you what to do and what not to do when interacting with police, they can also start working on your release if you are being held in custody.

Everyone has a constitutional right to reasonable bail with respect to the amount of money sureties pledge and the conditions imposed on you. Reasonableness also includes the fact that you should not be denied bail without “just cause.”

The Crown will inevitably contest your release on a murder charge. A contested bail results in a bail hearing (also known as a “show cause” hearing). A murder charge is one of those situations where you will be required to demonstrate why your detention is not justified. Unlike other offences, it will be a judge of the Superior Court that will hear your bail hearing.

There are three grounds of detention upon which you can be denied bail. The Crown will state on which grounds they are seeking detention, which consider:

• • Whether you are a flight risk (primary ground);
  • Whether you pose a threat to the public (secondary ground); and
  • Whether your detention is required to maintain confidence in the administration of justice (for example, due to the seriousness of the allegations and/or the strength of the Crown’s case) (tertiary ground).

You will need to demonstrate that these grounds are not a concern. The court will look at factors, such as your ties to the community, your personal circumstances, the presence of a criminal record, the offence itself, and the strength of a proposed bail plan and adequacy of sureties, when considering these grounds.

As part of considering your release, the court will determine whether conditions should be imposed and what they should be to mitigate concerns, such as ensuring that you attend court and do not commit any further offences. In reverse onus situations, you will need to counter the concerns surrounding the seriousness of the offence and your release, so you will likely need to propose stringent conditions, such as:

• • Supervision through sureties;
  • Curfews or house arrest, including ankle monitoring;
  • Refraining from use of drugs and alcohol;
  • Mandatory counselling;
  • No contact with certain individuals; and/or
  • Restrictions on where you can travel.

If you are denied bail, then you will remain in custody until your trial or resolution, although it is possible to ask for a bail review at the Superior Court.

A bail hearing for murder is an uphill battle. A murder lawyer in Toronto knows what conditions to propose according to the circumstances, and they are in the best position to run a successful bail hearing. As such, hiring a criminal law lawyer maximizes your chances of being released.

It is important to recognize that breaching the terms of your bail conditions can result in further charges against you and the revocation of your bail.

Awaiting trial:

A lawyer can start preparing a successful defence for your case as soon as possible, if you choose to hire one.

A lawyer will ask the Crown for disclosure of all relevant evidence against you. The Crown is obligated to disclose evidence about your case to your lawyer, regardless of whether or not that evidence will be used by the Crown in court. This disclosure is a fundamental feature of our criminal justice system. It helps to ensure that you have a fair trial and that you have the information needed to provide a full answer and defence. Having a murder lawyer by your side can be an advantage, as there are certain items of disclosure that the Crown will only release to counsel. If you do not have a violent crime lawyer, you may have to make arrangements with the Crown to review this evidence, which can be extremely time-consuming.

In some cases, especially with murder charges, disclosure can include hundreds (and sometimes thousands) of pages of documents, as well as hours of police interviews and surveillance footage. A lawyer will review these documents and can use them  to effectively advocate for you.

A lawyer will then take steps to move the case along. Once disclosure is reviewed, a Crown pre-trial (CPT) is typically scheduled. The CPT allows the defence and the Crown to discuss issues in the case, as well as the Crown’s position. The CPT can be a springboard for further discussions and negotiations with the Crown. Depending on the case and how it proceeds, a judicial pre-trial (JPT) may also take place. The JPT allows a judge to weigh in and provide guidance in a more informal setting.

If you have retained a lawyer, you will not be present at the CPT or JPT. A lawyer’s expertise and experience can be invaluable at this stage. If you do not retain a lawyer, you most likely will have more difficulty speaking to the Crown, and your JPT will take place in open court instead of the judge’s chambers. You will be responsible for advocating for yourself, which can be an unnecessary stress added to an already challenging experience.

There can be a number of court appearances before a case is set down for trial or a plea is entered. A lawyer can explain the purpose of these appearances and even appear on your behalf, so you have one less thing to worry about.

If the case goes to trial, you do not have the option to make an election, the Criminal Code mandates that you will be tried by a judge and jury in the Superior Court, unless the Crown consents to a judge alone trial. Since murder carries with it a possible sentence of more than 14 years, you will also be entitled to a preliminary inquiry, which is a sort of mini-trial that determines whether there is sufficient evidence to even hold a trial on the charges. If the judge finds that there is not sufficient evidence, then you will be discharged. You will no doubt benefit from the support of a lawyer advising and guiding you through this lengthy and complicated process.

Consequences if found guilty:

Both first and second degree murder carry with it the most serious sentence: life imprisonment. The stakes are as high as they can be. For first degree murder, there is a mandatory sentence of imprisonment for life with no chance of parole until 25 years have been served. For second degree murder, there is a mandatory sentence of imprisonment for life with no chance of parole until 10 years have been been served.

In addition, you will be subject to a weapons prohibition order. There is also a DNA order involved, where your DNA is kept in a national database by the RCMP.

There is little leeway when it comes to the sentences available for murder. It is important to have a trained legal professional on your side.

It’s vital to hire a lawyer

Being charged with a criminal offence, especially the most serious offence that exists, is a stressful and life-altering experience. It is important to seek professional advice from a lawyer about your rights from the beginning.

A lawyer can also do much more. They can:

• Work to secure your release with the most favourable conditions;
• Help you navigate the criminal justice system;
• Ensure that the Crown meets its disclosure obligations;
• Identify systematic or administrative errors in the criminal process, including Charter rights violations;
• Speak to the Crown on your behalf, negotiate, and advise you of your options;
• Assess all the evidence against you and build a strong defence, so the charges are withdrawn or you are acquitted;
• Gather further evidence to support your version of the events;

All criminal cases are complex and fact specific. We have provided general information about how murder cases are handled. Hiring a lawyer provides your best chance at mounting a successful defence. For more information about how we can help, please contact our team.