What is Homicide?

Section 222 of the Criminal Code states that a person commits homicide when, directly or indirectly, by any means, he causes the death of a human being. Homicide can be both culpable and non-culpable. Non-culpable homicide is not considered an offence, for example: self defence, war, police killing an offender, or doctors losing their patients. Culpable homicide, on the other hand, is an offence and can be divided into murder (first and second degree), manslaughter, or infanticide. The Criminal Code further states that a person commits culpable homicide when he causes the death of a human being

  1. By means of an unlawful act
  2. By criminal negligence
  3. By causing that human being, by threats or fear of violence or by deception, to do anything to cause his death or;
  4. By wilfully frightening that human being, in the case of a child or a sick person.

There are two components to culpable homicide. The first is the Actus Reus (guilty act) that precipitated the death of another person. The second component is the Mens Rea (guilty mind), or intent. This is often difficult to prove and comprised of different elements including the possibility of provocation, drunkenness or intoxication, or insanity.

History of Homicide Legislation

Prior to September 1, 1961, any person who was convicted of murder in Canada was sentenced to death. There was no hierarchy of severity or consideration of circumstances. Murder was murder and anyone convicted of murder was subject to execution.  In 1892 the Criminal Code of Canada was established and recognized ‘manslaughter’ for which the penalty was reduced to life in prison, anything else resulted in death by hanging. In 1961, amendments were made to the Criminal Code which divided murder into two categories. The first category, capital murder, was defined as “murder that is planned and deliberate, murder committed in the course of certain crimes of violence by the direct intervention or upon the counseling of the accused; and murder of a police officer or prison warden, acting in the course of duty, resulting from such direct intervention or counseling.”  Capital murder was punishable by hanging, unless the offender was under 18 years of age. All other types of murder fell into the second category, non-capital, and resulted in life in prison. Over the next few years changes were made to both capital and non capital murder. Capital murder no-longer resulted in execution but in a life sentence, and changes were made to the terms of eligibility of parole for non-capital murder. In 1976, the death penalty was completely abolished and the Criminal Code redefined murder as either first degree or second degree, both which resulted in life in prison without eligibility for 25 years (first degree) and 10-25 years (second degree) respectively.

Murder

Murder can be found under Section 229 of the Criminal Code: Culpable homicide is murder

  1. Where the person who causes the death of a human being
    1. Means to cause death or
    2. Means to cause bodily harm that he knows will likely cause his death and is reckless whether death ensues or not.
  2. Where a person meaning to cause death to a human being or meaning to cause him bodily harm that he knows is likely to cause his death, and being reckless whether death ensues or not, by accident or mistake causes death to another human being, notwithstanding that he does not mean to cause death or bodily harm to the human being or;
  3. Where a person, for an unlawful object, does anything that he knows or ought to know is likely to cause death, and thereby causes death to a human being, notwithstanding that he desires to effect his object without causing death or bodily harm to any human being.

Murder can be divided into two categories, first degree murder and second degree murder.

First Degree Murder

A homicide is automatically considered to be first degree murder in the following cases:

  • If it is planned and deliberate.
  • Contracted murder (ex: hiring a hit man).
  • Murder of a peace officer (on or off duty. Includes police, wardens, individuals working in a prison etc.).
  • Hijacking, sexual assault, or kidnapping.
  • Criminal harassment.
  • Murder during terrorist activity.
Example of First Degree Murder:  Cpl Marie-France Comeau and Jessica Lloyd

Corporal Marie-France Comeau, 37, was found raped and murdered in her home on November 25th, 2009. Two months later, 27 year old Jessica Lloyd went missing. Her body was later found on the side of a road, she had also been repeatedly sexually assaulted. The killer was Canadian Military Colonel Russell Williams. During court proceedings it was discovered that Russell Williams had broken into over 80 homes where he stole women’s undergarments and photographed himself wearing them while lying on the victims’ beds, and sexually assault two other women. Russell Williams pled guilty to two counts of first degree murder, two counts of sexual assault, two counts of forcible confinement and 82 break-ins/attempted break-ins. Russell Williams has been stripped of his rank and has been sentenced to two life sentences.

Second Degree Murder

Second degree murder is essentially a ‘catch all’ category meaning that all culpable homicide that is not first degree murder is second degree murder. The main thrust is that a murder is considered to be second degree if it is not planned or deliberate but is still intentional. For example, a murder that occurs in the “heat of the moment” would be considered second degree murder.

Example of Second Degree Murder:  Randal Dooley

September 2008, just 11 months after moving to Canada to live with his father, 7 year old Randal Dooley died of a brain injury likely caused by repeated shaking. An autopsy also showed 13 broken ribs, a lacerated liver, and a tooth in his stomach – the results of being stomped on and kicked. Although Randall was 7 years old, he only weighed 40 pounds at the time of his death. The trial judge referred to this case as “one of the worst cases of child abuse in Canadian history”. Randal’s father Tony and Stepmother Marcia were both convicted of second degree murder in 2002.

Sentencing

Anyone who commits either a first or second degree murder is guilty of committing an indictable offence and will be sentenced to life imprisonment. In cases of first degree murder, the offender will be sentenced to life without parole until a 25 year sentence has been served. The judge has no say in the amount of time before parole, the 25 years is automatic. In cases of second degree murder, the eligibility period for parole ranges from 10 years to 25 years, depending on mitigating factors which include: age, circumstances, abuse, and a variety of other aspects that may have played a role in the crime. However, under section 745.6(1) of the Criminal Code, an individual may apply, in writing, to the appropriate Chief Justice in the province in which their conviction took place for a reduction in the number of years of imprisonment without eligibility for parole if he:

  1. Has been convicted of murder or high treason
  2. Has been sentenced to imprisonment for life without eligibility for parole until more than 15 years of their sentence has been served and
  3. Has served at least 15 years of their sentence.

This application is known as the “faint hope clause” and does not apply to a person who has been convicted of more than one murder. If an offender is granted parole, he will have to report to a parole officer for the rest of his life and if the offender fails to follow any of the requirement conditions, he is sent directly back to prison without a hearing.

Manslaughter

Manslaughter is defined in section 234 of the Criminal Code as a culpable homicide that is not murder or infanticide and can be divided into two categories: voluntary and involuntary manslaughter. Involuntary manslaughter requires no Mens Rea (intent) to cause death, but involves death caused by recklessness or negligence. Voluntary manslaughter does include Mens Rea (intent) at the time of the offence, but mitigating factors (provocation, heat-of-the moment) distinguish it from murder.

Murder charges can be reduced to manslaughter for two reasons. The first is provocation, which is set out in the Criminal Code as a wrongful act or insult that is of such a nature as to be sufficient to deprive an ordinary person of power or self control. The accused has to have committed the act before having a chance to cool off. The court has to consider the time frame of events and the severity of the provocation. Two tests are considered: would a reasonable person be similarly affected by the provoking thought or act, and did the accused commit the crime in response to provocation, or did he/she did in fact have a chance to cool down? If provocation is considered to be applicable, it only results in a partial acquittal; the charges are reduced but the individual is still guilty of homicide.

The second reason to reduce murder charges to manslaughter is due to intoxication, which can only be used as a defence in specific intent offences. In such cases, it is up to the Crown to prove specific intent (ie: intent to kill someone) and if the Crown cannot do this, manslaughter (general intent) is the only option. However, as with provocation, intoxication only results in a partial acquittal; the individual is still charged with homicide.

Sentencing

Section 236 of the Criminal Code lays out the punishment for manslaughter as follows: Every person who commits manslaughter is guilty of an indictable offence and liable

  1. Where a firearm is used in the commission of the offence, to imprisonment for life and to a minimum punishment or imprisonment to a term of four years and
  2. In any other case, to imprisonment for life.

Since there are no minimum sentences for manslaughter if a weapon is not used, sentencing can vary greatly, ranging from a several months in prison to life in prison. Sentencing is greatly influenced by the mitigating factors of the crime and the state of the offender’s criminal record.

Example of Manslaughter: Jane Creba

On Boxing Day, 2005, a gun fight broke out between two gangs on Yonge Street in downtown Toronto. Jane Creba, a grade 9 student, was caught in the crossfire. Seven people were wounded in the wild gunfight, and Jane died not long after arriving at a local hospital. Two of the gang members; Tyshaun Barnett and Louis Woodcock, both faced second degree murder charges which were dropped to manslaughter as they did not specifically intend to kill Creba. Both men were sentenced to 15 years.

Infanticide

Infanticide is defined in the Criminal Code under section 233, which states:  A female person commits infanticide when by a wilful act or omission she causes the death of her newly-born child, if at the time of the act or omission she is not fully recovered from the effects of giving birth to the child and by reason thereof or of the effect of lactation consequent on the birth of the child her mind is then disturbed.

This type of homicide is very specific. The majority of infanticide cases are a result of post-partum depression, however social stigmas, the child’s heath, and economic status can also factor. It is important to note that if a child’s death results from the mother not seeking assistance during childbirth, it is considered to be infanticide. Hiding or concealing the body of an infant with intent to conceal that the mother had been pregnant is also considered to be a crime. Killing a child who is less than 24 hours old is referred to as neonaticide.

Example of Infanticide:  Angela Keuhl

Angela Keuhl, 27, gave birth to her son, Noah, in her bathroom on April 29, 2007. She had hid her pregnancy under baggy clothes, claiming weight gain as her reasoning behind her choice of attire, because her common-law husband did not want children. When her newborn son started crying, Angela smothered him with a plastic bag and threw his towel-wrapped body in the trash. Later, after having to go to the hospital to take care of her own injuries, Angela admitted to giving birth to a son who, at the time, lay dead with the garbage. Angela was first charged with second-degree murder which was changed to infanticide after psychiatric assessments found that she had suffered a “disturbance of the mind” after giving birth.

Sentencing

Infanticide is the only culpable homicide that may not result in a life sentence. There is no minimum sentence for infanticide, but section 237 of the Criminal Code states that the sentence may be liable to an imprisonment term of no more than 5 years.

Young Offenders and Murder

Legally, the term “youth” refers to individuals between the ages of 12 and 17. In 2007, 74 youths were accused of homicide, a decrease from the previous year, yet still the second highest recorded since 1961. Youth homicides differ from adult homicides in that the majority of youths use beatings instead of weapons and often work in groups. A high proportion of homicides committed by youths are gang-related. When a youth is charged with homicide, he or she may be tried as an adult or is tried as a youth under the YCJA (Youth Criminal Justice Act).

Youth Charged Under the YCJA

Section 42(q) states that a youth can serve a sentence not exceeding 10 years for first degree murder and 7 years for second degree murder comprised of:

  1. committal to custody to be served continuously, for a period that must not, subject to subsection 104(1) (continuation of custody), exceed six years from the date of committal, and
  2. a placement under conditional supervision to be served in the community in accordance with section 105.

Under this section, however, the custodial portions are not fixed, so it is possible for a young offender to get only one day custody for murder.

Youth Charged as an Adult

A youth can only be sentenced as an adult if he/she is at least 14 years of age and only in cases of an indictable offence for which an adult would be sentenced to more than 2 years imprisonment, for a presumptive offence (ie: murder or manslaughter) in which the Crown applies for an adult sentence, or when a youth sentence is too short to hold the individual accountable.

Plea Bargaining

Plea bargaining can have an enormous impact on sentencing in homicide trials. Plea bargaining is a form of negotiation between the accused and the Crown. It can take several forms: the accused may agree to plead guilty if the Crown recommends a lesser sentence, or an accused with multiple charges may agree to plead guilty to some if the Crown drops the others. Plea bargaining usually takes place before trial and is employed for two reasons. The first is to maintain a certainty that the accused will actually be punished and sentenced, even if it is for a lesser sentence or a smaller number of charges. The second reason is to save court time and the expenses of having to run a criminal trial. The most well-known and controversial example of plea bargaining in a homicide case is undoubtedly the case of Karla Homolka and Paul Bernardo. Dubbed “the deal with the devil”, Homolka made a deal with the prosecution in which she would plead guilty to manslaughter in exchange for a prison sentence of only 12 years.

Homicide in Canada

Homicide rates in Canada have been declining since their peak in the 1970s (when the baby boomers came of age). Although homicide rates themselves have declined, this can be partially explained by medical interference – more lives are being saved in hospital. In 2007, police reported 594 homicides across Canada, a rate of 1.80 per 100 000 people. In comparison to the rest of the world, Canada has a relatively low homicide rate.

Victims tend to be young, usually around 25, and most often male. This is the group that is most likely to engage in the riskiest behaviours. The majority of victims know at least one of their attackers. In 2007, one third of victims were killed by a family member, 36.5% were killed by acquaintances, and 14.5% by people known to them through criminal activity, leaving only 16% that had been killed by a stranger. Gang homicides are on the rise in Canada. In 2007, 1 in 5 homicides were gang-related. The majority of gang homicides take place in Canada’s large cities. Although homicide statistics are often very accurate and considered to be the most reliable crime statistics, some deaths are unaccounted in cases of missing people whose bodies have never been found.

Conclusion

Homicide in Canadian Law is not always straight forward. The judge and/or Crown may struggle to determine whether a homicide should fall under second degree murder or manslaughter, whether a mother who kills her child should be sentenced for committing first degree murder or infanticide. Mitigating factors and plea bargains play a huge role in these decisions, and make these decisions even more complex. However, as long and difficult a procedure as homicide prosecution may be, it is important that sentencing be appropriate to the circumstances and that society be protected from this most severe of crimes.