Sentencing for Murder

From Criminal Law Notebook
This page was last substantively updated or reviewed January 2020. (Rev. # 89141)


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

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
Offence(s) Crown
Election
Maximum Penalty
s. 235 N/A life incarceration

Offences under s. 235 are straight indictable. The maximum penalty is life incarceration.

Minimum Penalties

For offences under s. 235 there is a mandatory minimum penalty of life incarceration [first or second degree murder].

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. 235 any

Offences under s. 235 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.

Parole Ineligibility

The parole ineligibility dates run from the date of arrest.[1]

Several jurisdictions approve of the user of starting points for parole ineligibility.[2]

Section 745.3 requires that a jury be polled regarding eligibility.

Where the offender is a youth, s. 745.3 does not apply.[3]

The minimum period of parole ineligibility is fixed and a sentence cannot go below 10 years after taking into account remand credit.[4]

General deterrence is a valid factor to consider in assessing parole ineligibility.[5]

An increase in ineligibility can be used to "express denunciation" and to reflect the "community's revulsion over the offence".[6]

  1. s. 746; R v Toor, 2005 BCCA 333 (CanLII), [2005] BCJ 1382 (BCCA), per Ryan JA, at para 13
  2. NS: R v Smith, 2014 NSSC 352 (CanLII), NSJ No 517, per Duncan J
    NB: R v Nash, 2009 NBCA 7 (CanLII), 240 CCC (3d) 421, per Robertson JA
  3. R v MT, 2009 CanLII 40314 (ONSC), [2009] OJ No 1351, per Nordheimer J
  4. R v Toews, 2015 ABCA 167 (CanLII), AJ No 538, per Costigan JA
  5. R v Hawkins, 2011 NSCA 7 (CanLII), 265 CCC (3d) 513, per Beveridge JA, at para 16
    R v Nash, 2009 NBCA 7 (CanLII), 240 CCC (3d) 421, per Robertson JA, at para 4
  6. Hawkins, ibid., at para 42

Principles

Any murder is considered brutal and vicious.[1]

Second Degree Murder

The penalty is a mandatory life sentence with a parole ineligibility period of between 10 and 25 years.

Sentencing for second degree murder is governed by s. 745(c), 745.2, and 745.4 in addition to the regular sentencing provisions.[2]

The process for parole ineligibility for second-degree murder is a "very fact-sensitive process" that accounts for:[3]

  1. the character of the offender
  2. the nature of the offence
  3. the circumstances surrounding the commission of the offence.

The purpose of s. 744 is to "give the trial judge an element of discretion in sentencing to reflect the fact that within second degree murder there is both a range of seriousness and varying degrees of moral culpability"[4]

The variable degrees of ineligibility is meant to reflect the "varying degrees of moral culpability".[5]

The starting point is that the sentence should be 10-year ineligibility that can be increased according to the principles in s. 744.[6]

  1. R v Paterson, 2001 BCCA 11 (CanLII), 151 CCC (3d) 1, per Hall JA (2:1) , at para 30
  2. R v Ledesma, 2019 ABQB 204 (CanLII), per Gates J, at paras 24 to 34
  3. R v Shropshire, 1995 CanLII 47 (SCC), [1995] 4 SCR 227, per Iacobucci J
    Ledesma, supra, at para 31
  4. Shropshire, supra, at para 33
  5. Shropshire, supra, at para 31 ("Parliament intended to recognize that, within the category of second-degree murder, there will be a broad range of seriousness reflecting varying degrees of moral culpability.")
  6. Shropshire, supra, at para 29


Factors

Aggravating factors for murder include:

  • the degree of brutality and viciousness;[1]
  • Efforts to conceal the body[2]
  1. Hindessa, 2011 ONCA 477
    R v Fernandes, 2018 ONSC 7784 (CanLII), per Fuerst J
  2. R v Boukhalfa, 2017 ONCA 660, {{{3}}}


Ranges

see also: Homicide (Sentencing Cases)

Second Degree

Parole ineligibility of 20 years or more are "reserved for offenders who have established patterns of violence" which infers a high risk to re-offend.[1]

In Nova Scotia, the parole ineligibility is set within the range of 12 to 15 years.[2]

Only in the extreme cases will the ineligibility be set at between 18 to 20 years.[3]

Intimate Partner Homicide

Murder of a spouse will usually be in the range of 10 to 15 years.[4]

In Ontario, domestic homicide of an unarmed partner has a range of 12 to 17 years. [5] This range was moved up from a bottom range of 10 years.[6]

  1. R v Hutchinson, 2014 NSSC 155 (CanLII), per Cacchione J, at para 53
  2. R v Hawkins, 2011 NSCA 6 (CanLII), 265 CCC (3d) 472, per Beveridge JA
    R v Ward, 2011 NSCA 78 (CanLII), 975 APR 216, per Saunders JA
  3. R v Cerra, 2004 BCCA 594 (CanLII), 192 CCC (3d) 78, per Donald JA, at para 17: (“...parole eligibility greater than 10 years is justified when there is some particularly aggravating feature; for a penalty of greater than 15 years, egregious circumstances of a higher order of moral culpability are present.”)
  4. R v Tan, 1996 CanLII 2500 (BCCA), 75 BCAC 181, per Prowse JA
  5. R v Czibulka, 2011 ONCA 82 (CanLII), 267 CCC (3d) 276, per Laskin JA, suggests an upper range of 17 years
    R v McKnight, 1999 CanLII 3717 (ON CA), 135 CCC (3d) 41, per Laskin JA (2:1), at para 48, (“No two cases are the same but similar cases from this province of brutal second-degree murders of an unarmed wife or girlfriend suggest a range of 12 to 15 years.”)
  6. R v Praljak, 2013 ONSC 298 (CanLII), per Dambrot J, at para 17

Ancillary Sentencing Order

Offence-specific Orders
Order Conviction Description
DNA Orders s. 235
SOIRA Orders s. 230 and 231
  • On conviction under s. 230 or 231, listed as a "secondary offence" under s. 490.011(1)(a), 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 the offender was subject to a SOIRA Order anytime prior to sentencing, 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.
General Sentencing Orders
Order Conviction Description
Non-communication order while offender in custody (s. 743.21) any The judge has the 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 discretionary surcharge under s. 737 of 30% of any fine order imposed, $100 per summary conviction or $200 per indictable conviction. If the offence occurs on or after October 23, 2013, the order has smaller minimum amounts (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 His Majesty the King on application of the Crown. NB: does not apply to summary offences.
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. NB: does not apply to summary offences.

Record Suspensions and Pardons

Convictions under s. 230 to 236 are ineligible for record suspensions pursuant to s. 4 of the Criminal Records Act as a mandatory life sentence does not expire. The sentence must have expired 10 years or more before a suspension can be obtained.

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