Legal Topics for Canadian Criminal Investigators

Murder

Last updated: 2015-03-06
Henry Waldock

Principles

Homicide - causing death

Causing the death of another human being is homicide s.222. This can be done by accident or on purpose. But not all homicide is “culpable”. There are several different kinds of culpable homicide: unlawful act, accident, tricks, or frightening a weak person.

It's still homicide, whether the victim could have been saved, (s. 224) or if negligent treatment was the ultimate cause of death, (s. 225) or even if the victim was dying already. (s. 226)

Murder - wanting to kill or deliberately risking a likely killing - s.229 

It is murder when the attacker:

  1. means to cause the death of the victim; s.229(a)(i)
  2. means to cause bodily harm to the victim, knowing that it is likely to cause his death, and reckless whether death occurs or not; s.229(a)(ii)
  3. means to do (1) or (2), but by accident or mistake kills someone other than the intended victim; s.229(b)
  4. does a dangerous act, which he knows will likely kill someone, for the purpose of committing some crime other than killing the victim.  s.229(c).

Should have known the risks but didn't

It isn’t murder unless the murderer had a “subjective foresight of death.”  Only if the killer knew that his actions would likely kill someone could the killer be called a murderer.

If the attacker didn't know that his acts would likely kill, then it isn't murder, regardless of what the legislation says.  Section 230 defines as murder those killings which occurred during specified offences such as hijacking an aircraft, kidnapping, and assaulting a peace officer, whether or not the accused knew that death would likely occur.  Similarly, s.229(c) made it murder if the accused "ought to know" that his crime would result in a killing.

In R. v. Martineau[1990] 2 S.C.R. 633, the court found s.230 is unconstitutional, and so is the phrase "ought to know" in s.229(c).  Pretend they aren't there.

Attempted Murder

One would think that "attempted murder" is merely an unsuccessful attempt to do any of the things that qualifies as "murder".  The courts found that only a specific intention to kill - not mere recklessness as to whether death occurs - qualifies for a conviction for attempted murder. Ancio, [1984] 1 SCR 225.  For this reason, attempted murder is often more difficult to prove than murder.

1st Degree Murder - planning + deliberation or crimes of domination

Planning and deliberation make a first-degree murder. s. 231(2)

Intentional killing is first degree murder, even without planning and deliberation, if it was done as part of: hijacking, sexual assault, kidnapping, forcible confinement, hostage taking, criminal harassment, terrorism, arson or bombing for a criminal organization, or intimidating justice system personnel. s. 231

Party

A person can be guilty as the murderer, or as a party, or by counseling the commission of the offence. s. 21, s. 22

Manslaughter

If it ain’t murder, but he’s guilty of killing someone, then it’s probably manslaughter. s. 222

Intoxication

Intoxication sometimes reduces mental functioning to the point that mind never specifically intended anything in particular. This level of intoxication “reduces” a murder to manslaughter.

Provocation

Provocation may deprive a person of self-control -- if he acts “on the sudden and before there was time for his passion to cool”. s. 232

Investigative Implications

Evidence to seek out:

Cases

Mens Rea

The Latin phrase mens rea refers to what was in the accused's mind at the time of the offence.  Did the accused intend to commit the offence?

Ignore s.230.  The Supreme Court of Canada found it unconstitutional to convict people of murder if they didn't actually intend to kill or risk killing.  R. v. Sit [1991] 3 S.C.R. 124; R. v. Logan [1990] 2 S.C.R. 731; R. v. Vaillancourt, [1987] 2 S.C.R. 636.

To the extent that s.229(1)(c) could get a person convicted of a killing he didn't intend do or risk, it's also unconstitutional. Mr. Martineau 1990 SCC and his buddy planned a robbery. His buddy shot the occupants dead. The Crown couldn’t prove that Martineau intended this to happen or knew that it was likely. Murder conviction overturned.

Mr Shand 2011 ONCA 5 and his friends decided to steal marijuana from a local dealer.  Shand packed a handgun.  When things started going badly, he wielded it, it went off, and killed someone.  The jury found that at the very least, he knew that someone was likely to get killed, and persisted with his robbery none-the-less.  The court found this was sufficient intention for murder under s.229(c).

Parties

The fellow who hands a gun to the killer may be a party to the murder, but only if we can prove that he acted for the purpose of assisting the murderer.  s. 21(1)(b).

The killer's girlfriend who stood by yelling "kill him Georgie!" may also be a party because she encouraged ("abetted") the killing.  s. 21(1)(c).  R. v. Rochon, (2003 Ont C.A.)  But if the killer's girlfriend merely gives him a weapon for the purpose of attacking the victim, then she's only guilty of manslaughter.  And if he takes the weapon (like a beer bottle from her), then perhaps she did nothing, and should be acquitted.  Quinn 2009 BCCA 267

The home-invaders whose plan to use violence becomes a killing are parties to the killing, even if killing wasn't their original plan.  s. 22.  This will probably suffice to establish manslaughter.  However, courts won't convict them of murder unless the evidence establishes mens rea.

Presence at the scene of a crime isn't necessarily an offence.  A failure to act is an offence only if the person has a duty to act.  Thus a bystander can lawfully watch a killing. Davy, 2000 CanLII 16859 (ON C.A.).  On the other hand, a parent has a duty to provide food, shelter and medical treatment to a child.  s.215.  Thus Ms Kematch 2010 MBCA 18, who confined her child to the basement after a brutal beating could be liable to manslaughter or murder, even if she did not participate in the fatal blows.

Planning and Deliberation

MacDonald 2000 NSCA 60 approached the victim from behind while the victim was talking on the phone. He said “sorry bud”, and shot him in the head. He then attempted to shoot again, saying that one bullet doesn't always do the job. He had a motive (drug debts) and the victim was leaving town shortly. He later told a witness that he did the deed in front of another witness because he trusted her. Held: those brief moments of thought sufficed to establish planning and deliberation.

After a fracas at a bar, Mr Le, 2011 MBCA 83, crossed a busy road, then beckoned an adversary to cross the road to fight him.  The adversary crossed the road, apparently accepting the challenge.  Mr Le produced a handgun and shot him dead.  The court found that this evidence could properly establish a deliberate plan, and upheld his conviction for first degree murder.

M.M.K., 2006 ABCA 284 and his buddies said they were going to "beat" the victim and "kick his ass".  They discussed taking him out of town and abandoning him in the January cold.  They took the victim for a ride into the country.  They threw his cell phone out of the vehicle, and when he got out to retrieve it, they stabbed him 5 times and left him to die.  The trial judge convicted MMK of first degree murder, but the Court of Appeal reduced it to second.  Although there was a plan to harm the victim, and there was a "wilful" killing, there wasn't sufficient evidence of a plan to kill.  This was a second degree murder, not a first degree murder.

Murder and Forcible Confinement

Murder is first degree if done while committing or attempting to commit forcible confinement.  231(5)(e).  If the murder and the forcible confinement are one indistinguishable act, then this section does not apply.  For example, choking someone to death invariably requires immobilizing them.  This section does not turn every strangulation into first degree murder.  Menard, 2009 BCCA 462;

This provision applies even if the murderer confines a different person than the deceased.  Parris, 2013 ONCA 515

Murder and Robbery

When someone commits murder during a robbery, does s. 231 apply to make it first degree?  Yes.  Mr Pritchard 2008 SCC 59 robbed and killed a woman, and the evidence showed it took longer than few moments.  The court found that's sufficient for forcible confinement, a designated offence under that section.

Manslaughter

In the same incident as M.M.K., K.K.P. (2006 ABCA 299) and his buddies said they were going to "beat" the victim and "kick his ass".  They discussed taking him out of town and abandoning him in the Albertan countryside in January.  They took the victim for a ride into the country.  When they got the victim out of the car, K.K.P. dropped his cigarette, and stopped to pick it up.  He did not participate in the fatal stabbing.  The trial judge convicted him of manslaughter, and the court of appeal upheld it:  He participated in a plan to inflict non-trivial bodily harm, and death resulted.

Circumstantial Evidence

Murder can be proved by circumstantial evidence.  Mr Brown (2006 BCCA 326) and two others participated in a kidnapping.   They left in two cars, but returned in one.  The deceased was found stabbed to death in the trunk of the missing car, which was burned.  The trial judge threw out the case against Brown, but the Court of Appeal found that there was sufficient circumstantial evidence to establish his participation in a planned murder.

Post-Offence Conduct

One controversial kind of circumstantial evidence is what the killer did after the killing.  In many cases, efforts to dispose of the body or create a false alibi suggest that the suspect killed the victim, but they don't necessarily establish whether the killer intended to kill the victim during the assault.  This is the difference between murder and manslaughter. Arcangioli, Sabri, Bailey

However, Mr Giroux 2007 BCCA 488 claimed at trial that he was so intoxicated by alcohol and drugs that there was doubt whether he intended to kill.  The trial judge observed that Mr Giroux seemed to know exactly what he was doing after the killing, which tended to show that he wasn't so intoxicated.  See also Gould 2008 ONCA 855.

Intoxication

If you're too drunk to understand that what you intend to do next will kill someone, should you be convicted of murder if you do it?  At law, the answer is "no".  To be guilty of murder, you must expect that someone will die as a result of your action.  Intoxicated people don't always forsee what sober people would see.  If so, they might be guilty of manslaughter, but not murder.

Therefore, investigate the suspect's impairment.  Officers who deal with the suspect immediately before or after the killing should record notes or video of the suspect's symptoms of sobriety and impairment.

Mr Daley 2007 SCC 53 and his girlfriend partied with friends and drank all night.  She quit around 4:00am, but he went looking for more parties till 5:00am.  He returned pretty drunk.  He woke a new neighbour to welcome him to the neighbourhood - the neighbour wasn't impressed.  Nor was Daley's girlfriend.  Another neighbour heard Daley yelling about being locked out of his own house.  Later that day, Daley was found passed out in the bedroom, and she was dead of stab wounds in the hall.  The key question in the case became: "When he stabbed her, was he so drunk that he did not know that doing so could kill her?"  The investigating officers took care to collect all possible evidence of Mr Daley's actions before and after the incident.  The jury convicted Mr Daley of murder, and two of three appeal judges upheld the conviction.  This highlights the importance of investigating and documenting evidence of the suspect's sobriety before and after the offence.

Ms Arjun 2015 BCCA 273 hacked a friend to death over several hours.  She had a drinking problem, and had consumed some alcohol. Several hours after the killing, police attended.  She had no difficulty with balance or speech, but did seem shocked.  This evidence did not suffice to establish the kind of impairment by alcohol that would be required to deprive her of the understanding that hacking someone repeatedly with a large knife would kill him.

Mr MacDonald 2005 BCSC 473 put a gun to his wife's head and pulled the trigger. In his defence, he claimed alcohol may have affected his ability to appreciate the consequences of his act. He claimed that she attacked him with a shard of glass and threatened to kill him. Was there sufficient evidence to rebut these contentions? Read this case, thinking to yourself what these officers did to investigate the case and preserve evidence. Their careful work led the judge to conclude that Mr MacDonald was guilty of 2nd degree murder, not manslaughter.

Mr James (2006 Ont C.A.) was drunk when he raped and murdered a 17-year old girl.  Defence told the jury that the Crown had to disprove intoxication.  The judge corrected him.  The Crown does not have to disprove intoxication, but intoxication may affect the accused's intention at the time of the killing; and for a conviction of murder, the Crown must prove intent to kill.

Mr Chaulk, 2007 NSCA 84 went to a party and drank some beer.  And maybe smoked some marijuana.  And swallowed a "wake-up pill" that a friend gave him.  And maybe some acid and ecstasy too.  Then he went crazy and terrorized the neighbors.  He said he didn't know that what he took would make him so high.  After a technical discussion about admissibility of evidence (skip that part), the court analyzed self-induced intoxication as a defence.  Section 33.1 of the Criminal Code says it's not a defence to a general intent offence.  (Intoxication may reduce murder to manslaughter, but it shouldn't lead to acquittal.)  So when is intoxication "self-induced"?  Suppose a doctor gives you medicine, but doesn't tell you its intoxicating effects.  You drive your car and crash, but you're not guilty of impaired driving.  How much must the accused know about the drug he's taking to make him responsible for "self-induced" intoxication?  The court answered this question this way:

  1. The accused voluntarily consumed a substance which;
  2. S/he knew or ought to have known was an intoxicant and;
  3. The risk of becoming intoxicated was or should have been within his/her contemplation.

Therefore, where drugs are involved before the offence, you want to investigate the accused's general knowledge of these drugs, and whether the accused consumed them voluntarily.

Provocation

As explained in R. v. Humaid (2006 Ont C.A.), provocation does not negate either the act or the fault component of the crime of murder but arises after the Crown has proved all of the elements of murder beyond a reasonable doubt. Where the Crown has proved what would otherwise be murder, provocation as described in s. 232 will reduce murder to manslaughter.

There are four components to the provocation defence:

Mr Humaid killed his wife.  He claimed that a remark she made provoked him: she suggested that she had been unfaithful to him.  An expert testified that in his Islamic culture, killing would be an appropriate response to her unfaithfulness.  The court pointed out that in Canada, deliberately following such a cultural norm would be an intentional and deliberate act, not a reaction.  Only if the words robbed the accused of self-control could provocation apply.  Therefore, they upheld the conviction.

On the other hand, Mr Li 2007 ONCA 136 complained that in the course of an angry argument, his wife had insulted him and hit him in the back, trying to provoke a fight.  This, though thin, was sufficient to constitute provocation.

Ms Mayuran, 2012 SCC 31, a recent immigrant to Canada, killed her sister-in-law.  She told family members she did it because the sister-in-law scolded her for her lack of education.  Defence suggested that the court must take into account the special sensitivity a recent immigrant would feel to such insults.  The court refused.  To make special exceptions like this for over-sensitive people would undermine the law: over-excitable people would enjoy a defence that rational people would not.  Citizens should not be punished for being sensible.

Ms Willis, 2007 ONCA 365 shot her ex-husband dead in the heat of a custody battle. She stole her dad's gun, drove to her ex's place, and argued with him for 20 minutes while holding a baby. She put the baby in a car seat, retrieved the gun, walked up to him and shot him. What they were arguing about had been an issue between them for several months. This was not provocation. (Frankly, I'm surprised she wasn't convicted of first degree murder.)

Mr Tran 2008 ABCA 209 and his wife broke up.  Over the following months, he figured out who her new lover was.  He snuck into her apartment and found them in bed together.  In a rage, he attacked them with knives, injuring her and intentionally killing her lover.  The court found that his finding them in bed together was neither a "wrongful act" done to him, nor an insult.  Therefore, he was convicted of second degree murder.  In Tran, 2010 SCC 58, the Supreme Court of Canada agreed, and went on to say that a "ordinary person" standard must reflect current standards.  A racial slur might create a provocation, but a homosexual advance would generally not.

Mr Knibbs 2008 BCCA 426 was a drug dealer, who objected to Mr Habib - another drug dealer - selling drugs on his turf.  On the day Mr Habib died, he occupied a hotel room in the part of Vancouver's slums controlled by Mr Knibbs.  Knibbs and another guy burst in.  Habib shot the other guy.  Knibbs then beat and shot Habib to death.  Defence argued that Habib's first shot provoked Knibbs.  Section 232 says Habib didn't provoke if all he did was what he had a legal right to do.  Plainly Habib could have defended himself against attack.  But could the Crown prove beyond a reasonable doubt that's what Habib did?  Because the trial judge didn't instruct the jury correctly on Habib's self-defence, the court ordered a new trial.

Self-defence

Mr McKenna 2001 BCSC 962 shot Mr Lansing in the head, from behind.  He claimed it was self-defence.  The judge found it was manslaughter, not murder.  Although the accused believed that Lansing was fetching a lethal weapon, at the time of the shooting, McKenna had alternatives to pulling the trigger.  It's a good read to see the detail required in the investigation, and it shows the logic that the judge followed to reach her conclusions.

Causation - Murder

Mr Anderson 2007 ABCA 157 punched a man who then fell and died.  The autopsy showed that the combination of drugs, alcohol and a brain aneurism in the victim raised the possibility that the victim could have died from a combination of the assault and other causes.  Was Anderson guilty of "causing" the victim's death?  Yes.  The accused is guilty if his criminal act is a "significant contributing cause" of the victim's death.

Mr Sinclair, 2009 MBCA 71 and his buddies went out to rob.  They beat up a guy, and left him helpless but alive on the road.  Ten minutes later, a car drove over him and killed him.  Did these fellows "cause" the victim's death?  Absolutely.  One may expect that a car would come along the road.  The arrival of the car was not an "intervening event".  (But the evidence linking Mr Sinclair to the act was weak, and he beat the charge.  His buddy wasn't so lucky.)

Causation - 1st Degree Murder

Because 1st degree murder results in more serious penalties, the courts require a higher standard of causation.  The actions of the accused must form an essential, substantial and integral part of the killing.

After discussing a "nice" way to kill the victim with his friend Mr Ross, Mr Harbottle, [1993] 3 S.C.R. 306 held the victim's legs down while Mr Ross strangled her.  The discussion established the planning and deliberation; the action of holding the victim's legs so that she could not kick her way free established the substantial and integral part of the killing.

Over several weeks or months, Mr McKay and his partner Ms Kematch 2010 MBCA 18 beat her 5-year-old daughter, and confined her to the basement.  The beatings broke bones.  Mr McKay hit her on the head.  Ms Kematch hit her legs with a pole, and never got her medical attention.  Because she was the child's mother, she had an obligation to provide the necessaries of life.  (s.215).  Therefore, failing to do so left her liable to manslaughter and murder even if she did not strike the fatal blow. (s.21)  The court found that her unlawful confinement of the child to the basement (and failure to get medical help) were sufficiently integral to the killing to justify findings of first degree murder.

Abandonment

Suppose a group plan a killing, but part way through, one backs out, is that one still guilty of first degree murder?  Ms Bird, 2009 SCC 60 and others planned to entice a 13-year old girl away to a remote place, where she would be raped and killed.  They took the victim and a friend there.  Ms Bird struck the victim on the head with a wrench, and helped hold her down for another of the group to rape her.  Then Ms Bird took the victim's friend away from the scene "because [the friend] was cold and did not need to see this".  The trial judge found Ms Bird had abandoned the plan to kill by walking away from the scene.  Two of three judges in the Court of Appeal agreed with the trial judge, but the Supreme Court of Canada sided with the dissenting judge Costigan 2009 ABCA 45.  Abandonment requires "a change of intention on the part of the accused and, where practical and reasonable, a timely communication of the accused’s intention to abandon the common unlawful purpose".  What Ms Bird said indicated that she expected the killing to occur.  She said nothing to stop it or withdraw from the plan and was therefore guilty of first degree murder.

Sentence

It's surprising how many police officers, while interrogating suspects, say that the sentence for 1st degree murder is 25 years.  Don't say that.  It's wrong!  It's dangerous enough to give legal advice, but fatal to get it wrong.


Offence
Offender
Minimum Sentence
Parole Eligibility
1st degree
Adult
Life 745(a) 25 years 745(a)
2nd degree murder
Adult who committed a previous murder
Life 745(b) 25 years 745(b)
2nd degree murder
Adult
Life 745(c) 10 years or more.  Jury makes recommendation, but the judge decides.  745.4
1st or 2nd degree murder
Youth under 16
Life 745.1(a) 5-7 years.  Jury makes recommendation, but the judge decides.  745.3
1st degree murder
16 or 17 year old
Life 745.1(b) 10 years 745.1(b)
2nd degree murder
16 or 17 year old
Life 745.1(c) 7 years 745.1(c)
Manslaughter
Adult who commits it with a firearm
4 years (Max = life) 236(a) Judge may set it up to 1/2 of sentence or 10 years whichever is less.  s.743.6
Otherwise, if a life sentence was imposed, 7 years s.120(2) CCRA.
Otherwise 1/3 of sentence.  s.120(1) CCRA.

Manslaughter
Adult no gun
No minimum; max = life 236(b)
Manslaughter
Youth older than 14
No minimum; max = life YCJA s. 62 64

(Accellerated release does not apply to manslaughter.  s. 125(1)(a) CCRA.)