Murder (Offence)

From Criminal Law Notebook
This page was last substantively updated or reviewed January 2020. (Rev. # 89592)


Murder
s. 235 of the Crim. Code
Election / Plea
Crown Election Indictment
Jurisdiction Sup. Court w/ Jury (*)

Sup. Court w/ Judge-alone (*)

* Preliminary inquiry also available.
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 life incarceration
Maximum Life
Reference
Offence Elements
Sentence Digests

Overview

See also: Homicide (Offence)

Offences relating to murder are found in Part VIII of the Criminal Code concerning "Offences Against the Person and Reputation".

Pleadings
Offence
Section
Offence
Type
Crown Election Defence Election
s. 536(2)
Preliminary Inquiry
s. 235 [first or second degree murder] Indictable Offence(s) (life max)

Offences under s. 235 [first or second degree murder] are exclusive jurisdiction offences under s. 469 and so cannot be tried by a provincial court judge. It is presumptively tried by judge and jury.

Before the Crown can rely on provisions increasing the duration of the weapons prohibition order due to a prior weapons prohibition order notice under s. 727 must be given prior to plea.

Release

Where an accused is charged with any offence listed in s. 469 [including 235], he will be remanded under s. 515(11). The accused may only be released by a superior court judge under s. 522.

Publication Bans

For all criminal or regulatory prosecutions, 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
Offence(s) Wiretap
Eligible

s. 183
Dangerous Offender
Designated Offence

s. 752
Serious Personal
Injury Offence

s. 752
AG Consent Required Serious Criminality
Offence
s. 36 IRPA
s. 235 [first or second degree murder] (primary)

Offences under s. 235 are designated offences eligible for wiretap under s. 183.


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

Offence Wording

Murder, Manslaughter and Infanticide
Murder

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) if a person, for an unlawful object, does anything that they know is likely to cause death, and by doing so causes the death of a human being, even if they desire to effect their object without causing death or bodily harm to any human being.

R.S., 1985, c. C-46, s. 229; 2019, c. 25, s. 77.
[annotation(s) added]

CCC (CanLII), (DOJ)


Note up: 229


Defined terms: "homicide" (s. 222)

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.
[omitted (3), (4), (5), (6), (6.01), (6.1) and (6.2)]

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.

CCC (CanLII), (DOJ)


Note up: 231(1) and (27)

Punishment for murder

235 (1) Every one who commits first degree murder or second degree murder is guilty of an indictable offence and shall be sentenced to imprisonment for life.

Minimum punishment

(2) For the purposes of Part XXIII [Pt. XXIII – Sentencing (ss. 716 to 751.1)], the sentence of imprisonment for life prescribed by this section is a minimum punishment.
R.S., c. C-34, s. 218; 1973-74, c. 38, s. 3; 1974-75-76, c. 105, s. 5.

CCC (CanLII), (DOJ)


Note up: 235(1) and (2)

Imprisonment for Life
Sentence of life imprisonment

745 Subject to section 745.1 [murder conviction – under 18 – instruction], the sentence to be pronounced against a person who is to be sentenced to imprisonment for life shall be

(a) in respect of a person who has been convicted of high treason or first degree murder, that the person be sentenced to imprisonment for life without eligibility for parole until the person has served twenty-five years of the sentence;
(b) in respect of a person who has been convicted of second degree murder where that person has previously been convicted of culpable homicide that is murder, however described in this Act, that that person be sentenced to imprisonment for life without eligibility for parole until the person has served twenty-five years of the sentence;
(b.1) in respect of a person who has been convicted of second degree murder where that person has previously been convicted of an offence under section 4 or 6 of the Crimes Against Humanity and War Crimes Act that had as its basis an intentional killing, whether or not it was planned and deliberate, that that person be sentenced to imprisonment for life without eligibility for parole until the person has served twenty-five years of the sentence;
(c) in respect of a person who has been convicted of second degree murder, that the person be sentenced to imprisonment for life without eligibility for parole until the person has served at least ten years of the sentence or such greater number of years, not being more than twenty-five years, as has been substituted therefor pursuant to section 745.4; and
[omitted (d)]

R.S., 1985, c. C-46, s. 745; R.S., 1985, c. 27 (2nd Supp.), s. 10; 1990, c. 17, s. 14; 1992, c. 51, s. 39; 1995, c. 22, s. 6; 2000, c. 24, s. 46.

CCC (CanLII), (DOJ)


Note up: 745

Draft Form of Charges

See also: Draft Form of Charges
Pre-ambles
"THAT [accused full name] stands charged that, between the <DATE> day of <MONTH>, <YEAR> and <DATE> day of <MONTH>, <YEAR>***, at or near <COMMUNITY/TOWN/CITY>, <PROVINCE>, he [or she]..." OR
"THAT [accused full name] stands charged that, on or about the <DATE> day of <MONTH>, <YEAR>, at or near <COMMUNITY/TOWN/CITY>, <PROVINCE>, he [or she]..." OR
"AND FURTHER at the same time and place aforesaid, he [or she]..."
Code Section Subject of Offence Draft Wording
235 first degree murder "..., did cause the death of [person] and thereby commit murder in the first degree, to wit: [conduct], contrary to section 235 of the Criminal Code.
235 second degree murder "..., did cause the death of [person] and thereby commit murder in the second degree, to wit: [conduct], contrary to section 235 of the Criminal Code.

Proof of the Offence

Proving murder under s. 229(a) should include:

  1. identity of accused as culprit
  2. date and time of the incident
  3. jurisdiction (incl. region and province)
  4. the accused does anything that causes death; and
  5. the accused either had:
    1. an intent to cause death or
    2. 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.[1]

Proving transferred intent murder under s. 229(b) should include:

  1. identity of accused as culprit
  2. date and time of the incident
  3. jurisdiction (incl. region and province)
  4. the culprit means:
    1. to cause death to a person or
    2. to cause bodily harm that he knows is likely to cause death to a person; and
  5. the culprit is reckless to whether death ensues
  6. the culprit causes death by accident or mistake of a different person

Proving unlawful act murder under s. 229(c) should include:[2]

  1. identity of accused as culprit
  2. date and time of the incident
  3. jurisdiction (incl. region and province)
  4. the culprit does a dangerous act
  5. the act is for an unlawful object
  6. he knows that the act is likely to cause death (knowledge or forethought)
  7. the unlawful act causes death

First Degree Murder

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.

Section 582 requires the indictment specially indications the charge of first degree murder before there can be a conviction for first degree murder.

  1. R v Paskimin, 2012 SKCA 35 (CanLII), 393 Sask R 30, per Herauf JA, at para 33
  2. see R v Roks, 2011 ONCA 618 (CanLII), 284 CCC (3d) 510, per Watt JA

Constitutionality

See also: Offences Found to be Unconstitutional#Constructive Murder

The portion of s. 229(c) that states "ought to know" is unconstitutional and is of no force or effect to the provision.[1]

Section 230 was found unconstitutional because first degree murder cannot be less than objective foresight of death.[2]

  1. R v Martineau, 1990 CanLII 80 (SCC), [1990] 2 SCR 633, per Lamer CJ -- found s.230 (constructive murder) unconstitutional
    R v Sit, 1991 CanLII 34 (SCC), [1991] 3 SCR 124, per Lamer CJ
  2. R v Vaillancourt, 1987 CanLII 2 (SCC), [1987] 2 SCR 636, per Lamer J
    Martineau, supra -- found s.230 (constructive murder) unconstitutional

Murder

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.[1] First degree murder is an "aggravated form of murder and not a distinct substantive offence."[2]

The offence of murder under s. 235 is an exclusive jurisdiction offence, and so cannot be tried before a provincial court judge.[3]

  1. R v Nygaard, 1989 CanLII 6 (SCC), [1989] 2 SCR 1074, per Cory J, at para 17
  2. R v Harbottle, 1993 CanLII 71 (SCC), [1993] 3 SCR 306, per Cory J at 323
  3. see s. 469 and Election

Causation

See Causation of Death

Intent

Both types of murder require one of three categories of requisite intent set out in s.229:

  1. the culprit causes death and "means to cause death"; (s. 229(a)(i))
  2. the culprit 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))
  3. the culprit 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))
  4. 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.[1]

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. [2]

An accused may still be convicted if he does not know the victim's identity[3] or is mistaken as to the victim's identity.[4]

Foreseeable Death (s. 229(a)(ii))

The Crown must prove that the accused had actual subjective forsight of the victim's death as a "probable consequence" of the assault.[5]

The phrase "is reckless whether death ensues or not" has been characterized as "largely redundant."[6]

Section 229(b)

Section 229(b) has the same requirements as s. 229(a) except that it applies where the conduct and intent was directed at a third party and the victim was killed by accident or mistake. This effectively creates a form of transferred intent for murder.

  1. R v Vaillancourt, 1987 CanLII 2 (SCC), [1987] 2 SCR 636, per Lamer J
  2. R v Cooper, 1993 CanLII 147 (SCC), [1993] 1 SCR 146, per Cory J
  3. R v Marshall, 1986 CanLII 4617 (NSCA), 25 CCC (3d) 151, per Clarke JA
  4. R v Prevost, 1988 CanLII 7058 (ON CA), 42 CCC (3d) 314, per Zuber JA
  5. R v Rodgerson, 2014 ONCA 366 (CanLII), 309 CCC (3d) 535, per Doherty JA, at para 24 ("The impugned instruction was given in the course of the trial judge’s description of the elements of self-defence, although a similar brief passage also appears in his instructions on intoxication. However, in the part of the instruction dealing specifically with the state of mind required for murder, the trial judge on at least three occasions correctly set out the foreseeability requirement in s. 229(a)(ii), telling the jury that the Crown had to prove that the appellant foresaw Ms. Young’s death as the probable consequence of his assault on her.")
    Vaillantcourt, supra, at para 11 ("Here again the accused must have actual subjective foresight of the likelihood of death. However, the Crown need no longer prove that he intended to cause the death but only that he was reckless whether death ensued or not. It should also be noted that s. 212(a)(ii) is limited to cases where the accused intended to cause bodily harm to the victim.")
  6. Rodgerson, ibid., at para 23

Planned and Deliberate (s. 231(2))

Murder by Unlawful Act or Object (s. 229(c) and 231(3) to (6))

Lesser Included Offences

See also: Lesser Included Offences

662
[omitted (1)]

First degree murder charged

(2) For greater certainty and without limiting the generality of subsection (1) [offence charged, part only proved], where a count charges first degree murder and the evidence does not prove first degree murder but proves second degree murder or an attempt to commit second degree murder, the jury may find the accused not guilty of first degree murder but guilty of second degree murder or an attempt to commit second degree murder, as the case may be.

Conviction for infanticide or manslaughter on charge of murder

(3) Subject to subsection (4) [conviction for concealing body of child where murder or infanticide charged], where a count charges murder and the evidence proves manslaughter or infanticide but does not prove murder, the jury may find the accused not guilty of murder but guilty of manslaughter or infanticide, but shall not on that count find the accused guilty of any other offence.
[omitted (4), (5) and (6)]
R.S., 1985, c. C-46, s. 662; R.S., 1985, c. 27 (1st Supp.), s. 134; 2000, c. 2, s. 3; 2008, c. 6, s. 38; 2018, c. 21, s. 20.
[annotation(s) added]

CCC (CanLII), (DOJ)


Note up: 662(2) and (3)

Where the Crown proves an intent to kill but fails to prove causation, the lesser included offence of attempted murder is available.[1]

  1. R v Sarrazin, 2010 ONCA 577 (CanLII), 259 CCC (3d) 293, per Doherty JA

Res Judicata

Circumstances of aggravation

610
[omitted (1)]

Effect of previous charge of murder or manslaughter

(2) A conviction or an acquittal on an indictment for murder bars a subsequent indictment for the same homicide charging it as manslaughter or infanticide, and a conviction or acquittal on an indictment for manslaughter or infanticide bars a subsequent indictment for the same homicide charging it as murder.

Previous charges of first degree murder

(3) A conviction or an acquittal on an indictment for first degree murder bars a subsequent indictment for the same homicide charging it as second degree murder, and a conviction or acquittal on an indictment for second degree murder bars a subsequent indictment for the same homicide charging it as first degree murder.
[omitted (4)]
R.S., c. C-34, s. 538; 1973-74, c. 38, s. 5; 1974-75-76, c. 105, s. 9.

CCC (CanLII), (DOJ)


Note up: 610(2) and (3)

Manslaughter

Proof of Death

Death occurs once the vital functions and organs irreversibly cease to operate.[1]

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.[2]

There is no rule requiring that body be found in order to prove a homicide.[3]

  1. R v Green, 1988 CanLII 3274 (BC SC), 43 CCC (3d) 413, per Wood J
  2. e.g. R v Pritchard, 2007 BCCA 82 (CanLII), 217 CCC (3d) 1, per Hall JA, aff'd at SCC in 236 CCC (3d) 301, 2008 SCC 59 (CanLII), [2008] 3 SCR 195, per Binnie J -- conviction for first degree with no evidence of body or how the victim died
    R v St-Germain, 2009 QCCA 1474 (CanLII), per Dufresne JA
  3. R v CMM, 2012 MBQB 141 (CanLII), 93 CR (6th) 155, per Joyal CJ ("For example, the absence of a body in a murder prosecution will not preclude a conviction where the other direct and/or circumstantial evidence establishes that an unlawful death has occurred involving an identifiable victim. ")

Special Procedure

High treason and first degree murder

582 No person shall be convicted for the offence of high treason or first degree murder unless in the indictment charging the offence he is specifically charged with that offence.
R.S., c. C-34, s. 511; 1973-74, c. 38, s. 4; 1974-75-76, c. 105, s. 6.

CCC (CanLII), (DOJ)


Note up: 582

Joinder or Severance of Counts
Count for murder

589 No count that charges an indictable offence other than murder shall be joined in an indictment to a count that charges murder unless

(a) the count that charges the offence other than murder arises out of the same transaction as a count that charges murder; or
(b) the accused signifies consent to the joinder of the counts.

R.S., 1985, c. C-46, s. 589; 1991, c. 4, s. 2.

CCC (CanLII), (DOJ)


Note up: 589

Defences

The statutory defence of duress is excluded by s. 17 from applying to offences of murder.

The argument of excessive use of force in self-defence does not reduce murder to manslaughter.[1]

  1. R v Reilly, 1984 CanLII 83 (SCC), [1984] 2 SCR 396, per Ritchie J
    see also Self-Defence and Defence of Another

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
Offence(s) Victim Notice
of Agreement
s. 606(4.1)
[SPIO]
Victim Queried
for Interest in Agreement
s. 606(4.2)
[5+ years]
Victim Notice
for Restitution
s. 737.1
Victim Notice
of Impact Statement
s. 722(2)
s. 235 [first or second degree murder]

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

History

See also: List of Criminal Code Amendments and Table of Concordance (Criminal Code)

2001 to 2009

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.

Contracted murder

(3) Without limiting the generality of subsection (2), murder is planned and deliberate when it is committed pursuant to an arrangement under which money or anything of value passes or is intended to pass from one person to another, or is promised by one person to another, as 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.

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 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).
Criminal harassment

(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 during 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 while committing or attempting to commit an indictable offence under this or any other Act of Parliament where the act or omission constituting the offence also constitutes a terrorist activity.

Using explosives in association with 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 the death is caused while committing or attempting to commit an offence under section 81 for the benefit of, at the direction of or in association with a criminal organization.

Intimidation

(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 while committing or attempting to commit an offence under section 423.1.

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.

CCC

See Also

References