QUICK TAKEAWAY
Homicide: Section 222 (1) of the Criminal Code mandates that a person commits a homicide when, directly or indirectly, they cause the death of anyone by threats or fear of violence or by deception to do anything that causes their death. There are four categories of homicide in Canada: first degree, second degree, manslaughter and infanticide. You can be acquitted on homicide charges if you can prove self-defence. You can also have the charge of murder bumped down to manslaughter. The maximum prison sentence for any homicide conviction is life in prison. There is no minimum sentence for manslaughter unless a firearm was used and no minimum prison term for infanticide.
Table of Contents:
What is Homicide?
If you intentionally cause the death of another or intentionally inflict bodily harm that you know is likely to cause death and you are not acting in self-defenceUsing a reasonable amount of force to protect yourself or the defence of another as defined by law, you could face homicide charges. This would be known as culpable homicide. A non-culpable homicide includes deaths that happen in an act of self-defence or as a result of an accident.
Homicide can include the most serious charge of first-degree murder, which is a killing that is planned and deliberate. Manslaughter charges can be laid if you killed someone but did not have the intention. For example, if you get into a fight and shove someone and they fall, hit their head and die.
Types of Homicide
Infanticide
Section 233 of the Criminal Code states that a female commits infanticide if she causes the death of her new-born child by a wilful act or omission when her mind is disturbed as a result of the effects of giving birth.
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 tried as manslaughter if the mental faculties of the accused were impaired of if the homicide occurred in the heat of passion.
Second Degree Murder
Second degree murder is defined in s.231 (7) of the Criminal Code in 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 an indictable offence such as a sexual assault, a kidnapping or a high jacking. As well, you can be convicted of first-degree murder in the killing of an on-duty police officer or a prison employee.
What is Needed to Convict
There are different burdens of proof to gain a conviction depending on the type of homicide. For first-degree murder, the Crown must prove beyond a reasonable doubt that you planned and deliberately killed the victim. The judge or jury must also be convinced your actions were essential to the killing. With manslaughter, the prosecutor is not required to show that you had the intent to kill, only that the death was the result of an unlawful act.
A defence attorneyA lawyer who represents the accused may be able to establish reasons why your arrest was not lawful under the Canadian Charter of Rights and Freedoms. If you were acting in self-defence and did not mean to cause death you could be acquitted.
Treated as an Indictable Offence
If you are facing trial for a homicide the Crown will proceed with the charge as an indictable offenceIndictable offences are more-serious criminal offences and you face imprisonment if convicted.
Penalties for Homicide
The maximum sentence for infanticide is five years in prison, with no minimum term.
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 you have been charged with using a firearm at the time 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 in the charges deals with parole eligibility. If you are convicted of second-degree murder parole is granted between 10 and 25 years. Parole is at the judge’s discretion. There is no possibility of parole for a minimum of 25 years if you have been convicted of first-degree murder.
Once you have served your sentence for murder, you will be limited by the conditions of your parole for the rest of your life. If you were between 12 and 17-years old at the time you were charged with murder the maximum sentence is 10 years for first-degree and seven for second-degree.
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McKay Ferg LLP
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Glossary of Legal Terms
Defence attorney
A criminal defence lawyer protects the rights of defendants and helps them build a defence that aims to have them acquitted. They ensure the accused's rights are protected throughout the judicial process.
Indictable offence
Indictable offences are the most serious offences under the Criminal Code and they come with more serious punishments, up to a maximum penalty of life in prison.
Self-defence
A person is not guilty of an offence if they reasonably believe on reasonable grounds that force was being used against them or another person. or that a threat of force was made. They can act in self defence to protect themselves or the other person, as long as their actions are reasonable in the circumstances.
