Murder (Canadian law)
In Canada, murder is defined in the Criminal Code, a statute passed by the Parliament of Canada that applies uniformly across the country. Murder is the most serious category of culpable homicide, the others being manslaughter and infanticide.
Culpable homicide
To commit homicide is to cause by any means, directly or indirectly, the death of a human being. All forms of culpable homicide require some form of intent (although not necessarily the intent to cause death, or the death of the victim) or criminal negligence. A death is culpable homicide if it occurs
- by means of an unlawful act;
- by criminal negligence;
- by causing the victim, by threats or fear of violence or by deception, to do anything that causes their death; or
- by wilfully frightening the victim, in the case of a child or sick person.[1]
The general test for causation for culpable homicide is that the accused was a significant contributing cause of the victim's death. However, for a culpable homicide to be murder in the first degree for one of the reasons listed under s. 231(5) of the Criminal Code, viz. hijacking, sexual assault, kidnapping or hostage taking, the judge or jury must also be satisfied that the accused's actions were "an essential, substantial and integral part of the killing of the victim".[2]
Categories of culpable homicide
Murder
Murder occurs where the author of the culpable homicide
- meant to cause the death of the victim or another person, or
- meant to cause bodily harm to the victim or another person, knowing that it was likely to cause death and being reckless whether death ensued or not;
- caused death by doing anything in pursuit of an unlawful object that they knew or ought to knew was likely to cause death, notwithstanding that there was no intention to cause death or bodily harm.[1]
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.[3]
Manslaughter
A culpable homicide which is not murder or infanticide is manslaughter.[4]
Classification of murder
In Canada, murder is classified as either first or second degree:[5]
| Degree | Nature |
|---|---|
| First degree | Planned and deliberate murder |
| Contracted murder | |
| Murder of a peace officer, jailer, etc. in the course of his duties | |
Murder while committing or attempting to commit
| |
| Murder while committing criminal harassment | |
| Murder committed in the course of terrorist activity | |
| Murder in connection with a criminal organization | |
| Murder while committing intimidation of a justice system participant, or a journalist reporting on organized crime | |
| Second degree | Any murder which is not first degree murder |
Penalties
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.[6] The ability to apply for parole does not mean parole is granted.
| Offence | Circumstances | Parole ineligibility period |
|---|---|---|
| First degree murder | In general | 25 years |
| Where the offender was 16 or 17 years old at time of the offence | 10 years | |
| Where the offender was 14 or 15 years old at time of the offence | 5-7 Years | |
| Second degree murder | Committed by an offender previously convicted of murder | 25 years |
| In general | 10–25 years | |
| Where the offender was 16 or 17 years old at time of the offence | 7 years |
For multiple murder offences committed after December 2, 2011, a court may, after considering any jury recommendation, impose consecutive periods of parole ineligibility for each murder. While the provision is not mandatory, this means, for example, that an individual convicted of three counts of first degree murder could face life with no parole for 75 years – or 25 years for each conviction. This provision has been used in several cases where parole ineligibility periods have been extended beyond 25 years; in five cases to 75 years prior to parole eligibility.
See also: Life imprisonment in Canada
For offences committed prior to December 2, 2011, someone guilty of a single murder could have his/her non-parole period reduced to no less than 15 years under the Faint hope clause. However, this provision is not available for offences committed after that date.
In cases of second-degree murder and within the parameters set under the law, the sentencing judge has the discretion to set the date for parole eligibility after considering recommendations from both the Crown and the defence, as well as any recommendation that a jury in the case may choose to make.
The maximum penalty for manslaughter is imprisonment for life. A mandatory minimum penalty (ranging from 4 to 7 years depending on the circumstances) applies only when the offence is committed with a firearm. Nevertheless, there is also a provision under which a person convicted of a "serious personal injury offence" meeting the statutory criteria may be declared a "dangerous offender". A dangerous offender may be sentenced for an indeterminate period of imprisonment and is eligible for parole after serving a minimum of 7 years. An offender convicted of murder is ineligible to be declared a dangerous offender for that same homicide (since a mandatory life sentence already applies).
A youth (12 to 17 years) 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.[7]