Homicide

Homicide means causing the death of another person, whether directly or indirectly and by any means. Canadian law divides homicide into two types: culpable homicide (legally blameworthy) and non-culpable homicide (not an offence).

Non-culpable homicide includes deaths caused in lawful self-defenceA defence involving force used to protect against force or threat. or by pure accident.

Culpable homicide covers three offences: murder, manslaughter, and infanticide. Under s.222(5) of the Criminal Code, a person commits culpable homicide when they cause the death of a human being by an unlawful act; by criminal negligence; by using threats, fear of violence, or deception to cause someone to do something that causes their own death; or by wilfully frightening a child or a sick person.

The specific charge that follows a culpable homicide depends on your state of mind and the surrounding circumstances. Murder requires an intention to cause death or to cause bodily harm that you know is likely to cause death. Manslaughter and infanticide cover other forms of culpable homicide and are discussed below.

Infanticide

Section 233 of the Criminal Code states that 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 of that, or of the effect of lactation following the birth, her mind is then disturbed.

Manslaughter

Manslaughter is covered under s.234 of the Code. If you commit an unlawful act that causes the death of another you could be convicted of manslaughter. Unlike murder, the death was not planned or foreseeable and there was no intent to kill. Manslaughter charges can also be laid in cases of criminal negligence. This would apply if a caregiver failed to provide the necessities of life to a child, for example. Essentially, if you do something wrong and a person dies you could be charged with manslaughter.

In some cases, a murder charge may be reduced to manslaughter if the mental faculties of the accused were impaired or if the homicide occurred in the heat of passion caused by sudden provocation (s.232).

Second Degree Murder

Second degree murder is defined in s.231(7) of the Criminal Code as any murder that is not first-degree murder. It is a deliberate killing that occurs without planning. For example, if you kill someone in the heat of passion or during an argument that could be considered second-degree murder. The difference between the two charges comes into play at sentencing.

First Degree Murder

First degree murder, s.231, is a homicide that is planned and deliberate such as a contract killing. Premeditation is the key. You can also be found guilty of first-degree murder while committing or attempting to commit one of a specific closed list of offences under the Criminal Code: hijacking an aircraft (s.76), sexual assault (s.271), sexual assault with a weapon (s.272), aggravated sexual assault (s.273), kidnapping and forcible confinement (s.279), and hostage taking (s.279.1). As well, you can be convicted of first-degree murder in the killing of an on-duty peace officerPeople involved in upholding justice, a correctional officer, or a prison employee.

• There are different things the Crown must prove depending on the type of homicide. For first-degree murder based on planning and deliberation, the Crown must prove that the killing was planned and deliberate. The Crown must also prove that the accused caused the death. In most homicide cases, this means the accused's act was a significant contributing cause of the death (R. v. Nette, 2001 SCC 78).
• With manslaughter, the Crown does not have to prove an intent to kill. It must still prove that the death was caused by an unlawful act or by criminal negligence. Self-defence may also matter if the force used was reasonable in the circumstances.

Murder and manslaughter are indictable offenceA more serious type of Canadian criminal offence.s, meaning they are tried in the higher courts and carry the most serious penalties available under Canadian law. Infanticide is a hybrid offenceAn offence the Crown can proceed with summarily or by indictment.. The Crown can choose to proceed by indictment (maximum five years) or by summary convictionUsed for lesser offences, and the sentence available depends on that election.

The maximum sentence for infanticide depends on how the Crown proceeds. If the Crown proceeds by indictment, the maximum is five years in prison with no minimum term. If the Crown proceeds by summary conviction, the maximum is two years less a day in custody and/or a fine of up to $5,000 under the default summary-conviction penalty in s.787 of the Criminal Code. There is no mandatory minimum for infanticide under either mode.

There is no minimum sentence for manslaughter. Penalties range from probation to life imprisonment, although a life term is not an automatic sentence for manslaughter. If a firearm was used in the commission of the offence there is a minimum prison sentence of four years.

Both first-degree and second-degree murder carry a mandatory life sentence. The difference between the charges affects parole eligibility. If you are convicted of first-degree murder there is no possibility of parole for a minimum of 25 years. If you are convicted of second-degree murder, the sentencing judge sets your parole ineligibility period at between 10 and 25 years, depending on your character, the nature of the offence, and the surrounding circumstances. Ten years is the starting point; the judge may increase it up to 25 years.

Once you have served your sentence for murder, you will be subject to the conditions of your parole for the rest of your life. If you were between 12 and 17 years old at the time you committed murder, the maximum youth sentence is 10 years for first-degree murder and seven years for second-degree murder.

Homicide is not itself a chargeable offence. Section 222 defines homicide as causing the death of a human being. Homicide that is not culpable is not an offence. Culpable homicide is charged as murder, manslaughter, or infanticide, depending on the facts.