Canadian Criminal Law/Offences/Homicide
|s. 222 of the Crim. Code|
|Election / Plea|
|Minimum||life with parole in 25 years
life (2nd degree)
- 1 Overview
- 2 Legislation
- 3 Proof of the Offence
- 4 Constitutionality
- 5 Murder
- 6 Presumptions of First Degree Murder
- 7 Manslaughter
- 8 Proof of Death
- 9 Cases
Generally, homicide is the causing of death of another person (s.222(1)), irrespective of whether there was any intention to cause death or if it was by accident. There is culpable homicide and non-culpable homicide.(s. 222(2)).
Culpable homicide refers to the types of homicide for which there are criminal penalties. It includes causing death (s.222(5)):
- by means of an unlawful act,
- by criminal negligence,
- by causing that human being, by threats or fear of violence or by deception, to do anything that causes his death, or
- by wilfully frightening that human being, in the case of a child or sick person.
These methods are all categorized as either murder, manslaughter, or infanticide.(s.222(4))
229. Culpable homicide is murder
- (a) where the person who causes the death of a human being
- (i) means to cause his death, or
- (ii) means to cause him bodily harm that he knows is likely to cause his death, and is reckless whether death ensues or not;
- (b) 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 that human being; or
- (c) 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.
R.S., c. C-34, s. 212.
Classification of murder
231. (1) Murder is first degree murder or second degree murder.
Planned and deliberate murder
(2) Murder is first degree murder when it is planned and deliberate.
Second degree murder
(7) All murder that is not first degree murder is second degree murder.
R.S., 1985, c. C-46, s. 231; R.S., 1985, c. 27 (1st Supp.), ss. 7, 35, 40, 185(F), c. 1 (4th Supp.), s. 18(F); 1997, c. 16, s. 3, c. 23, s. 8; 2001, c. 32, s. 9, c. 41, s. 9; 2009, c. 22, s. 5.
Murder reduced to manslaughter
232. (1) Culpable homicide that otherwise would be murder may be reduced to manslaughter if the person who committed it did so in the heat of passion caused by sudden provocation.
What is provocation
(2) A wrongful act or an insult that is of such a nature as to be sufficient to deprive an ordinary person of the power of self-control is provocation for the purposes of this section if the accused acted on it on the sudden and before there was time for his passion to cool.
Questions of fact
- (3) For the purposes of this section, the questions
- (a) whether a particular wrongful act or insult amounted to provocation, and
- (b) whether the accused was deprived of the power of self-control by the provocation that he alleges he received,
are questions of fact, but no one shall be deemed to have given provocation to another by doing anything that he had a legal right to do, or by doing anything that the accused incited him to do in order to provide the accused with an excuse for causing death or bodily harm to any human being.
234. Culpable homicide that is not murder or infanticide is manslaughter.
R.S., c. C-34, s. 217.
236. Every person who commits manslaughter is guilty of an indictable offence and liable
- (a) where a firearm is used in the commission of the offence, to imprisonment for life and to a minimum punishment of imprisonment for a term of four years; and
- (b) in any other case, to imprisonment for life.
R.S., 1985, c. C-46, s. 236; 1995, c. 39, s. 142.
Proof of the OffenceEdit
- ♰ identity of accused
- ♰ date and time of incident
- ♰ jurisdiction (incl. region and province)
- ♰ the accused does anything that causes death;
- ♰ either:
- an intent to cause death or
- an intent to cause bodily harm that the accused knew was likely to cause death and was reckless as to whether death ensues or not.
- ♰ the accused's actions were planned and deliberate
Essential elements are those in bold.
First Degree MurderEdit
Proof of the element of "planned and deliberate", or any of the specific elements of 231(3),(4),(5),(6.01),(6.1), and (6.2), are necessary to make out first degree murder. Without this element, second degree murder is made out.
- R v Paskimin, 2012 SKCA 35 at 33
- ♰ identity of accused
- ♰ date and time of incident
- ♰ jurisdiction (incl. region and province)
- ♰ an unlawful act that causes the death of another;
- ♰ fault short of an intention to kill
- ♰ "reasonable foreseeability of the risk of bodily harm"
See also: R. v. Creighton, 1993 CanLII 61 (SCC),  3 S.C.R. 3, 105 D.L.R. (4th) 632 para. 42,43
The portion of s. 229(c) that states "ought to know" is unconstitutional and is of no force or effect to the provision.
Section 230 was found unconstitutional because first degree murder cannot be less than objective foresight of death.
- R. v. Martineau,  2 S.C.R. 633 -- found s.230 (constructive murder) unconstitutional)
R v Sit  3 SCR 124
- R v Vaillancourt,  2 SCR 636
R. v. Martineau,  2 S.C.R. 633 -- found s.230 (constructive murder) unconstitutional)
First degree and second degree murder are not separate offences. Section 231, defining first degree murder, is "purely a classification section and does not create a separate substantive offence." The distinction is only for the purpose of sentencing.
- R. v. Nygaard 1989 CanLII 6 (SCC),  2 SCR 1074 at para. 17
Both types of murder requires one of three categories of requisite intent set out in s.229:
- accused causes death and "means to cause death"; (s. 229(a)(i))
- the accused causes death and "means to cause him bodily harm that he knows is likely to cause his death, and is reckless whether death ensues or not". (s. 229(a)(ii))
- the accused causes death but does so by accident or mistake, while at some point during the act forms a meaning set out above in 229(a)(i) or 229(a)(ii). (s.229(b))
- causes death while pursuing an "unlawful object" that "he knows or ought to know is likely to cause death". (s.229(c))
The necessary intent for murder requires proving a subjective foresight of death.
The requisite intent does not need to be simultaneous to the act that causes death. The two must coincide with the "transaction" that forms the substance of the killing. The intent does not need to be present throughout the acts or series of actions or events. 
- R. v. Vaillancourt,  2 SCR 636
- R. v. Cooper,  1 S.C.R. 146
- R v Marshall (1986) 25 CCC (3d) 151 (NSCA)
- R. v. Prevost (1988), 42 C.C.C. (3d) 314 (ONCA)
Planned and DeliberateEdit
First degree murder must be "planned and deliberate".
There must be more than a "bare sufficiency of evidence" on planning and deliberation.
A "planned" murder refers to one that is "conceived and carefully thought out prior to being committed".
It must have "a design or scheme be arranged beforehand."
However, it can be "simple and need not necessarily be in place for a long period of time"
A "deliberate" murder is not impulsive. It must be a considered act where "he thinks about the consequences and carefully thinks out the act, rather than proceeding hastily, rashly or impulsively"
There does not need to be care consideration of acts. Planning and deliberation can be made out by evidence of even a brief moment of consideration before the act.
- s. 231(2) and R v PK 2006 ABCA 284 at para. 7 to 10
- R. v. Denison 2001 BCCA 703 (CanLII), (2001), 161 B.C.A.C. 169 at para. 13
- R v Nygaard, 1989 CanLII 6 (SCC),  2 S.C.R. 1074, at para. 18
- R. v. Jacquard, 1997 CanLII 374 (SCC),  1 S.C.R. 314 at para. 26
- Nygaard at para. 18
- R. v. More, 1963 CanLII 79 (SCC),  S.C.R. 522 at para. 35
- Jacquard, at para. 26
- R. v. Mitchell, 1964 CanLII 42 (SCC),  S.C.R. 471 at para. 41
- R. v. Duck, (1993), 85 Man.R. (2d) 91 (C.A.) at paras. 36 to 38
- e.g. R. v. MacDonald, 2000 NSCA 60 (CanLII) -- evidence showed offender said "sorry bud" before killing, and admitted doing it in front of a witness whom he trusted
Presumptions of First Degree MurderEdit
There are several categories of first murder which either presume the offence is "planned and deliberate" or does not require the proof of being "planned and deliberate".
Under s. 231(3), a "contract murder" is deemed to be planned and deliberate where there is:
- a murder
- the murder "is committed pursuant to an arrangement"
- the arrangement involves "money or anything of value passes or is intended to pass from one person to another", or "is promised by one person to another"
- the money is "consideration for that other’s causing or assisting in causing the death of anyone or counselling another person to do any act causing or assisting in causing that death"
The requirement that the murder be "pursuant to an arrangement" must include an arrangement "in place at the time of the murder".
- R. v. Smith 2007 NSCA 19 (CanLII) at paras. 137 and 139
Murder of an Officer, Sheriff or GuardEdit
Murder of peace officer, etc.
(4) Irrespective of whether a murder is planned and deliberate on the part of any person, murder is first degree murder when the victim is
- (a) a police officer, police constable, constable, sheriff, deputy sheriff, sheriff’s officer or other person employed for the preservation and maintenance of the public peace, acting in the course of his duties;
- (b) a warden, deputy warden, instructor, keeper, jailer, guard or other officer or a permanent employee of a prison, acting in the course of his duties; or
- (c) a person working in a prison with the permission of the prison authorities and acting in the course of his work therein.
Hijacking, sexual assault or kidnappingEdit
Hijacking, sexual assault or kidnapping
(5) Irrespective of whether a murder is planned and deliberate on the part of any person, murder is first degree murder in respect of a person when the death is caused by that person while committing or attempting to commit an offence under one of the following sections:
- (a) section 76 (hijacking an aircraft);
- (b) section 271 (sexual assault);
- (c) section 272 (sexual assault with a weapon, threats to a third party or causing bodily harm);
- (d) section 273 (aggravated sexual assault);
- (e) section 279 (kidnapping and forcible confinement); or
- (f) section 279.1 (hostage taking).
(6) Irrespective of whether a murder is planned and deliberate on the part of any person, murder is first degree murder when the death is caused by that person while committing or attempting to commit an offence under section 264 and the person committing that offence intended to cause the person murdered to fear for the safety of the person murdered or the safety of anyone known to the person murdered.
Murder — terrorist activity
(6.01) Irrespective of whether a murder is planned and deliberate on the part of a person, murder is first degree murder when the death is caused by that person while committing or attempting to commit an indictable offence under this or any other Act of Parliament if the act or omission constituting the offence also constitutes a terrorist activity.
Murder — criminal organization
(6.1) Irrespective of whether a murder is planned and deliberate on the part of a person, murder is first degree murder when
- (a) the death is caused by that person for the benefit of, at the direction of or in association with a criminal organization; or
- (b) the death is caused by that person while committing or attempting to commit an indictable offence under this or any other Act of Parliament for the benefit of, at the direction of or in association with a criminal organization.
(6.2) Irrespective of whether a murder is planned and deliberate on the part of a person, murder is first degree murder when the death is caused by that person while committing or attempting to commit an offence under section 423.1.
The underlying unlawful act must be "objectively dangerous, that is likely to injure another person"
The crown must prove the requisite mens rea of the underlying unlawful act.
The test requires an "objective foreseeability of the risk of bodily harm which is neither trivial nor transitory, in the context of a dangerous act." 
There is no need to establish a foreseeability of death.
- R. v. Creighton, 1993 CanLII 61 (SCC),  3 S.C.R. 3, 105 D.L.R. (4th) 632 para. 43
- R v DeSousa  2 SCR 944 at p.961
- R. v. DeSousa, 1992 CanLII 80 (SCC),  2 S.C.R. 944, 95 D.L.R. (4th) 595, at p. 961
- R. v. Creighton para. 43
R v DeSousa, at p. 961
Proof of DeathEdit
Death occurs once the vital functions and organs irreversibly cease to operate.
The Crown must prove as an essential element that the victim is dead. In most cases this is a trivial fact. It is only in murder cases with a missing body that there may be an issue in proving the element.
- R. v. Green (1988), 43 C.C.C. (3d) 413, 1988 CanLII 3274 (BC SC)
- e.g. R. v. Pritchard, 2007 BCCA 82, aff'd at SCC in 236 C.C.C. (3d) 301 -- conviction for first degree with no evidence of body or how the victim died
R v St-Germain, 2009 QCCA 1474