Last updated: 2017-09-22
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 is murder when the attacker:
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.
v. Martineau, 
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.
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,  1 SCR 225. For this reason, attempted murder is often more difficult to prove than murder.
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
If it ain’t murder, but he’s guilty of killing someone, then it’s probably manslaughter. s. 222
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 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
But the definition of what constitutes provocation changed on July 29, 2015. Before, it involved "insults" and "wrongful acts". Now, only offences punishable by 5 years or more qualify. s.232.
Evidence to seek out:
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  3 S.C.R. 124; R.
v. Logan, 
2 S.C.R. 731; R.
 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.
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).
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.
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
22. This will probably suffice to establish
manslaughter. However, courts won't convict them of murder
unless the evidence establishes mens
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.
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
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.
Fraser, 2016 BCCA 89 killed the guy who failed to pay him for growing marijuana on his property. But that guy was accompanied by another guy, who would have witnessed the murder. Fraser then killed him too. The time between killing the first and deciding to kill the witness sufficed for planning and deliberation.
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
2009 BCCA 462;
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.
Sexual activity - consensual or not - does not turn a killing into a murder. Murder involves intentional killing, (or intentional infliction of mortal wounds.)
Murdering someone in the commission of a sexual assault is first degree murder. 231 But the forensic evidence afterwards often leaves doubt: did the victim die before or after the sexual activity? Sex with a corpse isn't sexual assault. Except for two issues: Someone who does sexual things to a corpse without regard to whether they are alive or dead is attempting to engage in sex without consent. Someone who assaults someone with the intention that the attack include violation of the victim's sexual integrity commits a sexual assault even if the victim dies before the attacker gets to the sexual part of the attack. And that raises murder from second degree to first degree. Niemi, 2017 ONCA 720.
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.
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.
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.
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.
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.
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:
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.
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.
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.
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.)
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.
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.
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.
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.
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.)
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,
 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.
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.
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.
||Life 745(a)||25 years 745(a)|
|2nd degree murder
||Adult who committed a previous
||Life 745(b)||25 years 745(b)|
|2nd degree murder
||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)|
||Adult who commits it with a
||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.
||Adult no gun
||No minimum; max = life 236(b)|
||Youth older than 14
||No minimum; max = life YCJA s. 62 64|
(Accellerated release does not apply to manslaughter. s. 125(1)(a) CCRA.)