Manslaughter (Offence)

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Manslaughter
s. 236 of the Crim. Code
Election / Plea
Crown Election Indictment
Jurisdiction Prov. Court

Sup. Court w/ Jury (*)
Sup. Court w/ Judge-alone (*)

* Must be indictable. Preliminary inquiry also available.
Types of Release Releaseable only by Sup. Crt. Justice
Indictable Dispositions
Avail. Disp. Discharge (730)

Suspended Sentence (731(1)(a))
Fine (734)
Fine + Probation (731(1)(b))
Jail (718.3, 787)
Jail + Probation (731(1)(b))
Jail + Fine (734)

Conditional Sentence (742.1)
Minimum None
4 years incarceration (manslaughter w/ firearm)
Maximum Life
Reference
Offence Elements
Sentence Digests

Overview

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))

Pleadings

Offence
Section
Offence
Type
Crown Election Defence Election
s. 536(2)
s. 236 [manslaughter] Indictable Offence(s) N/A Yes

Offences under s. 236 are straight indictable. There is a Defence election of Court under s. 536(2).

Section 727 notice prior to plea is required if Crown is relying upon increased duration on a subsequent s. 109 weapons prohibition order.

Release
When charged under s. 236, the accused cannot be released by police under s. 497 or 498 and so must be held by police when arrested. They must then be brought before a judge or justice under s. 503 and are only to be released by an order of a judge or justice under s. 515. A youth will be subject to a maximum penalty of 3 years under s. 42(15) of the YCJA and can be given an attendance notice without arrest under s. 496 or a summons and if arrested, can be released by the arresting officer under s. 497 on a attendance notice or by an officer-in-charge under s. 498 on a promise to appear or recognizance. The youth can also be released by a justice under s. 515.

Under s. 515(6)(a)(vii), offences charged under s. 344 have a reverse onus on bail where it has "been committed with a firearm".

If police decide to bring the accused before a Justice pursuant to s. 503, there will be a presumption against bail (i.e. a reverse onus) if the offence, prosecuted by indictment, was committed:

  • while at large under s. 515 [bail release], 679 or 680 [release pending appeal or review of appeal] (s. 515(6)(a)(i));
  • "for the benefit of, at the direction of, or in association" with a criminal organization (s. 515(6)(a)(ii));
  • where the offence involved a firearm, cross-bow, prohibited weapon restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance, while the accused was subject to a prohibition order preventing possession of these items (s. 515(6)(a)(viii)); or
  • where the accused is not "ordinarily a resident in Canada" (s. 515(6)(b)).

Publication Bans
For all offences there is a discretionary general publication ban available on application of the Crown, victim or witness to prohibit the publishing of "any information that could identify the victim or witness" under s. 486.5(1) where it is "necessary" for the "proper administration of justice". Other available publication bans include prohibitions for publishing evidence or other information arising from a bail hearing (s. 517), preliminary inquiry (s. 539) or jury trial (s. 648). There is a mandatory publication ban in all youth prosecutions on information tending to identify young accused under s. 110 of the YCJA or young victims under s. 111 of the YCJA.

Offence Designations
See below in Ancillary Sentencing Orders for details on designations relating to sentencing orders.

Offence Wording

Manslaughter
234. Culpable homicide that is not murder or infanticide is manslaughter. R.S., c. C-34, s. 217.


CCC

Manslaughter
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.


CCC


Proof of the Offence

Proving manslaughter under s. 234, 236 should include:[1]

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. an unlawful act that causes the death of another (but for the unlawful act, death would not have occurred);
  5. an intention that faults short of an intention to kill;
  6. "reasonable foreseeability of the risk of bodily harm";
  7. a "firearm is used in the commission of the offence" (aggravating factor)
  1. R v Denny, 2016 NSSC 76 (CanLII) at para 9
    R v Quinn, 2016 ABPC 121 (CanLII), at para 10
    See also: R v Creighton, 1993 CanLII 61 (SCC), [1993] 3 SCR 3, 105 D.L.R. (4th) 632 para 42, 43

Interpretation

See also: Criminal Negligence (Offence)

"Manslaughter" is not explicitly defined in the Code. Section 234 states that "[c]ulpable homicide that is not murder or infanticide is manslaughter."

It exists in the broad zone of being less than murder and more than accident causing death.[1] It differentiate itself from murder by state of mine of the accused where there is an absence of an "intention to kill the victim".[2]

There are generally two broad forms of manslaughter. It can be through criminal negligence or through an "unlawful act".[3]

Unlawful Act Manslaughter

The underlying unlawful act must be "objectively dangerous, that is likely to injure another person"[4]

The crown must prove the requisite mens rea of the underlying unlawful act.[5] This mens rea is on an "objective" standard.[6]

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." [7] There is no need to establish a foreseeability of death.[8]

  1. R v Denny, 2016 NSSC 76 (CanLII) at para 2 ("It is the spectrum of criminal responsibility for unlawfully causing the death of another person, ranging from circumstances of “near accident” to “near murder”.")
    R v LaBerge, 1995 ABCA 196 (CanLII) at para 6 per Fraser CJA. ("...the offence of unlawful act manslaughter covers a wide range of cases extending from those which may be classified as near accident at the one extreme and near murder at the other")
  2. Denny at para 7
  3. R v Quinn, 2016 ABPC 121 (CanLII), at para 10
  4. R v Creighton, 1993 CanLII 61 (SCC), [1993] 3 SCR 3, 105 D.L.R. (4th) 632 para 43
  5. R v DeSousa, 1992 CanLII 80 (SCC), [1992] 2 SCR 944 at p.961
  6. Creighton, supra at p. 58 ("Objective mens rea, on the other hand, is not concerned with what the accused intended or knew. Rather, the mental fault lies in the failure to direct the mind to her risk which the reasonable person would have appreciated. Objective mens rea is not concern with what was actually in the accused’s mind, but what should have been there, had the accused proceeded reasonably.")
  7. R v DeSousa, at p. 961 (SCR)
  8. R v Creighton para 43
    R v DeSousa, at p. 961

Provocation

See also: Provocation

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.


CCC


Participation of Third Parties

See also: Role of the Victim and Third Parties and Testimonial Aids for Young, Disabled or Vulnerable Witnesses

Testimonial Aids
Certain persons who testify are entitled to make application for the use of testimonial aids: Exclusion of Public (s. 486), Use of a Testimonial Screen (s. 486), Access to Support Person While Testifying (s. 486.1), Close Proximity Video-link Testimony (s. 486.2), Self-Represented Cross-Examination Prohibition Order (s. 486.3), and Witness Security Order (s. 486.7).

A witness, victim or complainant may also request publication bans (s. 486.4, 486.5) and/or a Witness Identity Non-disclosure Order (s. 486.31). See also, Publication Bans, above.

On Finding of Guilt
Under s. 738, a judge must inquire from the Crown before sentencing whether "reasonable steps have been taken to provide the victims with an opportunity to indicate whether they are seeking restitution for their losses and damages".

Under s. 722(2), the judge must inquire "[a]s soon as feasible" before sentencing with the Crown "if reasonable steps have been taken to provide the victim with an opportunity to prepare" a victim impact statement. This will include any person "who has suffered, or is alleged to have suffered, physical or emotional harm, property damage or economic loss" as a result of the offence. Individuals representing a community impacted by the crime may file a statement under s. 722.2.


Sentencing Principles and Ranges

See also: Purpose and Principles of Sentencing, Sentencing Factors Relating to the Offender, and Sentencing Factors Relating to the Offence

Maximum Penalties
Offences under s. 236 are straight indictable. The maximum penalty is life.

Minimum Penalties
For offences under s. 236 [with firearm] there is a mandatory minimum penalty of 4 years.

Available Dispositions

Offence(s) Crown
Election
Discharge
s. 730
Suspended
Sentence

s. 731(1)(a)
Stand-alone
Fine

s. 731(1)(b)
Custody
s. 718.3, 787
Custody and
Probation
s. 731(1)(b)
Custody and
Fine
s. 734
Conditional
Sentence
(CSO)
s. 742.1
s. 236 any X Mark Symbol.png X Mark Symbol.png X Mark Symbol.png OK Symbol.png X Mark Symbol.png X Mark Symbol.png X Mark Symbol.png

If convicted under s. 236 a discharge is not available under s. 730(1) as it is "an offence for which a minimum punishment is prescribed by law or an offence punishable by imprisonment for fourteen years or for life".

Offences under s. 236 are ineligible for a conditional sentence order under s. 742.1(b) and (c), as there are mandatory minimum periods of incarceration and, when prosecuted by indictment, the maximum penalty is 14 years or life.

Offences under s. 236 [with a firearm] have mandatory minimums. There are no discharges, suspended sentences, stand-alone fines, or conditional sentences available.

Consecutive Sentences
There are no statutory requirements that the sentences be consecutive.

Principles

Manslaughter has some of the broadest ranges of sentence, from suspended sentences to life in prison.[1] This is because manslaughter ranges from "near accident" to "near murder".[2]

Courts have rejected the creation of subcategories of manslaughter for the purpose of sentencing.[3]

Most manslaughter cases fall within the range of 4 to 15 years.[4] Some opinions have suggested that the top range should be around 10 years since second degree murder will effectively be a 10 year sentence.[5]

Manslaughter runs a broad spectrum of unlawful acts ranging from near accidents to near murders.[6] The distinction is the level of moral culpability.

One factor to moral culpability is the nature of the unlawful act, including the level risk arising from the act and the foreseeability of the risk. This can be divided into three categories:[7]

  • Lowest: risk of bodily harm
  • Mid: risk of serious bodily harm
  • Highest: risk of life-threatening injury

In Ontario, domestic manslaughter will usually range between 7 and 12 years with some exception.[8] In Quebec, domestic homicide will be between 8 and 12 years.[9]

What has been called "aggravated manslaughter" will range from 8 to 12 years in Ontario.[10]

The Court may consider many aspects of the offence including:[11]

  • choice of weapon used,
  • the degree of force used,
  • extent of injuries,
  • degree of violence or brutality,
  • amount of additional gratuitous violence,

the degree of deliberation or planning,

  • the complexity of the act,
  • whether the offence was provoked
  • the time taken to perpetrate the
  • the elements of chance involved in the resulting death
  1. R v Henry, 2002 NSCA 33 (CanLII) at para 16
    R v Pettigrew, 1990 CanLII 5417 (BC CA), (1990), 56 CCC (3d) 390 (BCCA)
    R v Vaudreuil, 1995 CanLII 348 (BC CA), (1995), 98 CCC (3d) 316 (BCCA)
  2. R v Peters, 2014 BCSC 1009 (CanLII) at para 12
  3. Peters at para 12
    e.g. R v Cheddesingh, 2004 SCC 16 (CanLII)
    R v Devaney, 2006 CanLII 33666 (ON CA), [2006] O.J. No. 3996, 215 O.A.C. 253 (C.A.)
    R v Alexander, 2014 ONCA 22 (CanLII)
  4. R v Lawrence (1999), 172 N.S.R. (2d) 375 (NSCA), 2011 NSSC 186 (CanLII) - 4 to 10 years range
    R v Brisson, 2009 BCSC 1606 (CanLII) - 4 to 15 years
  5. R v Gillies (1998), 107 BCAC 157, at para 14 ("It must be remembered that while the sentence for second degree murder would be life without eligibility for parole for ten years, the effective sentence in most such cases is ten years and that is a good reason why the range for manslaughter cases should usually be below the ten year starting point.") c.f. R v Aburto, 2009 BCCA 446 (CanLII), at para 19: ("the ranges referred to in Gillies, are no more than suggestions. They do not impose upper limits on what sentences can be imposed for manslaughter.")
  6. R v Laberge, 1995 ABCA 196 (CanLII), (1995), 165 AR 375, [1995] AWLD 588 (CA), at para 6
  7. R v Valente, 2012 ABQB 151 (CanLII) at para 12
    R v LaBerge, 1995 ABCA 196 (CanLII) at para 9
  8. R v Turosky, 2013 ONSC 583 (CanLII) at paras 26 to 29
  9. R v Lemay, 1999 CanLII 13451 (QC CA), (1998), 142 CCC (3d) 82 (Que.C.A.), at p. 538, Lebel J.A.,
  10. R v Clarke, 2003 CanLII 28199 (ON CA), (2003), 172 O.A.C. 133 (C.A.)
    R v Cleyndert, (2006), 71 W.C.B. (2d) 146 (Ont. C.A.)
    c.f. R v Devaney, 2006 CanLII 33666 (ON CA) - found "aggravated" label unhelpful and inappropriate
  11. R v Laberge, per Fraser C.J.A. at p. 382

Ranges

see also: Homicide (Sentencing Cases)


Ancillary Sentencing Order

Offence-specific Orders

Order Conviction Description
DNA Orders s. 236
SOIRA Orders s. 234
  • On conviction under s. 234, as listed under s. 490.011(b), a SOIRA Order shall be ordered under s. 490.011(1)(b), on application of the prosecutor, "if the prosecutor establishes beyond a reasonable doubt that the person committed the offence with the intent to commit" any SOIRA designated offence listed under s. 490.011(a), (c), (c.1), or (d):
      • If there is a concurrent or prior conviction for a designated offence listed under s. 490.013(2)(a), (c), (c.1) or (d), the duration is life (s. 490.012(3))
      • Otherwise, the duration is life as the offence has "maximum term of imprisonment for the offence is life" (s. 490.013(2)(c))).
      • There is an option for early termination under s. 490.015 after 20 years.

Note that by function of s. 490.011(2) of the Code, SOIRA orders are not available when sentencing under the Youth Criminal Justice Act

Weapons Prohibition Orders s. 230 to 236
  • On conviction under s. 230 to 236 where "violence against a person was used, threatened or attempted", and punishable by "imprisonment for ten years or more", the weapons prohibition order is mandatory under s. 109(1)(a) or where "violence was used, threatened or attempted against" an enumerated party relating to a domestic partnership a weapons prohibition order is mandatory under s. 109(1)(a.1).The order prohibits "the person from possessing any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition and explosive".
      • Duration (first offence): The Order prohibiting to "firearms" (other than a prohibited firearm or restricted firearm) and "crossbow, restricted weapon, ammunition and explosive substance" is for not less than 10 years starting at release from custody or at sentencing where custody is not ordered. The Order prohibiting "prohibited firearm, restricted firearm, prohibited weapon, prohibited device" is for life.
      • Duration (subsequent s. 109 offence): The duration must be life for all enumerated weapons and firearms. Notice of increased penalty under s. 727 required.
Delayed Parole Order s. 236
  • Periods of imprisonment of 2 years or more for convictions under s. 236 are eligible for delayed parole order under s. 743.6(1) requiring the offender to serve at least "one half of the sentence or ten years, whichever is less", "where denunciation of the offence or the objective of specific or general deterrence so requires".

General Sentencing Orders

Order Conviction Description
Non-communication order while offender in custody (s. 743.21) any The judge has discretion to order that the offender be prohibited "from communicating...with any victim, witness or other person" while in custody except where the judge "considers [it] necessary" to communicate with them.
Restitution Orders (s. 738) any A discretionary Order is available for things such as the replacement value of the property; the pecuniary damages incurred from harm, expenses fleeing a domestic partner; or certain expenses arising from the commission of an offence under s.402.2 or 403.
Victim Fine Surcharge (s. 737) any A mandatory surcharge under s. 737 of 30% of any fine order imposed, $100 per summary conviction or $200 per indictable conviction. If offence occurs on or after October 23, 2013, the order is discretionary based on ability to pay and the minimum amounts are smaller (15%, $50, or $100).

General Forfeiture Orders

Forfeiture Conviction Description
Forfeiture of Proceeds of Crime (s. 462.37(1) or (2.01)) any Where there is a finding of guilt for an indictable offence under the Code or the CDSA in which property is "proceeds of crime" and offence was "committed in relation to that property", the property shall be forfeited to Her Majesty the Queen on application of the Crown.
Fine in Lieu of Forfeiture (s. 462.37(3)) any Where a Court is satisfied an order for the forfeiture of proceeds of crime under s. 462.37(1) or (2.01) can be made, but that property cannot be "made subject to an order", then the Court "may" order a fine in "an amount equal to the value of the property". Failure to pay the fine will result in a default judgement imposing a period of incarceration.
Forfeiture of Weapons or Firearms (s. 491) any Where there is finding of guilt for an offence where a "weapon, an imitation firearm, a prohibited device, any ammunition, any prohibited ammunition or an explosive substance was used in the commission of [the] offence and that thing has been seized and detained", or "that a person has committed an offence that involves, or the subject-matter of which is, a firearm, a cross-bow, a prohibited weapon, a restricted weapon, a prohibited device, ammunition, prohibited ammunition or an explosive substance has been seized and detained, that the item be an enumerated weapon or related item be connected to the offence", then there will be a mandatory forfeiture order. However, under s. 491(2), if the lawful owner "was not a party to the offence" and the judge has "no reasonable grounds to believe that the thing would or might be used in the commission of an offence", then it should be returned to the lawful owner.
Forfeiture of Offence-related Property (s. 490.1) any Where there is a finding of guilt for an indictable offence, "any property is offence-related property" where (a) by means or in respect of which an indictable offence under this Act or the Corruption of Foreign Public Officials Act is committed, (b) that is used in any manner in connection with the commission of such an offence, or (c) that is intended to be used for committing such an offence". Such property is to be forfeited to Her Majesty in right of the province.

See Also

References