|s. 235 of the Crim. Code|
|Election / Plea|
|Jurisdiction||Sup. Court w/ Jury (*)|
Sup. Court w/ Judge-alone (*)
- 1 Overview
- 2 Offence Wording
- 3 Proof of the Offence
- 4 Constitutionality
- 5 Murder
- 6 Manslaughter
- 7 Proof of Death
- 8 Special Procedure
- 9 Defences
- 10 Participation of Third Parties
- 11 Sentencing Principles and Ranges
- 12 Parole Ineligibility
- 13 Ranges
- 14 Ancillary Sentencing Order
- 15 Record Suspensions and Pardons
- 16 History
- 17 See Also
Offences relating to murder are found in Part VIII of the Criminal Code concerning "Offences Against the Person and Reputation".
|Crown Election||Defence Election
|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.
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
|AG Consent Required||Serious Criminality|
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.
Draft Form of Charges
|"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|
|"..., contrary to section XXX of the Criminal Code.|
Proof of the Offence
Proving murder under s. 229(a) should include:
Proving transferred intent murder under s. 229(b) should include:
Proving unlawful act murder under s. 229(c) should include:
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.
The portion of s. 229(c) that states "ought to know" is unconstitutional and is of no force or effect to the provision.
Section 230 was found unconstitutional because first degree murder cannot be less than objective foresight of death.
R v Martineau, 1990 CanLII 80 (SCC),  2 SCR 633, per Lamer CJ -- found s.230 (constructive murder) unconstitutional
R v Sit, 1991 CanLII 34 (SCC),  3 SCR 124, per Lamer CJ
R v Vaillancourt, 1987 CanLII 2 (SCC),  2 SCR 636, per Lamer J
Martineau, supra -- found s.230 (constructive murder) unconstitutional
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. First degree murder is an "aggravated form of murder and not a distinct substantive offence".
Both types of murder require one of three categories of requisite intent set out in s.229:
- the culprit causes death and "means to cause death"; (s. 229(a)(i))
- 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))
- 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))
- 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.
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. 
- Foreseeable Death (s. 229(a)(ii))
The Crown must prove that the accused foresaw the victim's death as a "probable consequence" of the assault.
The phrase "is reckless whether death ensues or not" has been characterized as "largely redundant".
- R v Vaillancourt, 1987 CanLII 2 (SCC),  2 SCR 636, per Lamer J
- R v Cooper, 1993 CanLII 147 (SCC),  1 SCR 146, per Cory J
- R v Marshall (1986) 25 CCC (3d) 151 (NSCA), 1986 CanLII 4617 (NS CA), per Clarke JA
- R v Prevost (1988), 42 CCC (3d) 314 (ONCA), 1988 CanLII 7058 (ON CA), per Zuber JA
R v Rodgerson, 2014 ONCA 366 (CanLII), per Doherty JA, at para 24
Rodgerson, ibid., at para 23
Planned and Deliberate (s. 231(2))
Murder by Unlawful Act or Object (s. 231(3) to (6))
Lesser Included Offences
Where the Crown proves an intent to kill but fails to prove causation, the lesser included offence of attempted murder is available.
Proof of Death
Death occurs once the vital functions and organs irreversibly cease to operate.
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.
There is no rule requiring that body be found in order to prove a homicide.
- R v Green (1988), 43 CCC (3d) 413, 1988 CanLII 3274 (BC SC), per Wood J
e.g. R v Pritchard, 2007 BCCA 82 (CanLII), per Hall JA, aff'd at SCC in 236 CCC (3d) 301, 2008 SCC 59 (CanLII),  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
- R v CMM, 2012 MBQB 141 (CanLII), 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. ")
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.
Participation of Third Parties
- 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
s. 606(4.1), (4.2)
|Victim Notice |
of Impact Statement
|s. x [x]|
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
- Maximum Penalties
|s. 235||N/A||Life in custody|
Offences under s. 235 are straight indictable. The maximum penalty is life.
- Minimum Penalties
For offences under s. 235 there is a mandatory minimum penalty of life .
- Available Dispositions
s. 718.3, 787
- Consecutive Sentences
There are no statutory requirements that the sentences be consecutive.
Any murder is considered brutal and vicious.
- 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.
The process for parole ineligibility for second-degree murder is a "very fact-sensitive process" that accounts for:
- the character of the offender
- the nature of the offence
- 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"
The variable degrees of ineligibility is meant to reflect the "varying degrees of moral culpability".
The starting point is that the sentence should be 10-year ineligibility that can be increased according to the principles in s. 744.
- R v Paterson, 2001 BCCA 11 (CanLII), per Hall JA (2:1) , at para 30
- R v Ledesma, 2019 ABQB 204 (CanLII), per Gates J, at paras 24 to 34
R v Shropshire,  4 SCR 227, 1995 CanLII 47 (SCC), per Iacobucci J
Ledesma, supra, at para 31
- Shropshire, supra, at para 33
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.")
- Shropshire, supra, at para 29
The parole ineligibility dates run from the date of arrest.
Several jurisdictions approve of the user of starting points for parole ineligibility.
Section 745.3 requires that a jury be polled regarding eligibility.
Where the offender is a youth, s. 745.3 does not apply.
The minimum period of parole ineligibility is fixed and a sentence cannot go below 10 years after taking into account remand credit.
General deterrence is a valid factor to consider in assessing parole ineligibility.
An increase in ineligibility can be used to "express denunciation" and to reflect the "community's revulsion over the offence".
- s. 746; R v Toor, 2005 BCCA 333 (CanLII),  BCJ 1382 (BCCA), per Ryan JA, at para 13
NS: R v Smith, 2014 NSSC 352 (CanLII), per Duncan J
NB: R v Nash, 2009 NBCA 7 (CanLII), per Robertson JA
R v MT,  OJ No 1351, 2009 CanLII 40314 (ON SC), per Nordheimer J
- R v Toews, 2015 ABCA 167 (CanLII), per Costigan JA
R v Hawkins, 2011 NSCA 7 (CanLII), per Beveridge JA, at para 16
R v Nash, 2009 NBCA 7 (CanLII), per Robertson JA, at para 4
Hawkins, ibid., at para 42
- see also: Homicide (Sentencing Cases)
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.
In Nova Scotia, the parole ineligibility is set within the range of 12 to 15 years.
Only in the extreme cases will the ineligibility be set at between 18 to 20 years.
- Domestic Homicide
Murder of a spouse will usually be in the range of 10 to 15 years.
- R v Hutchinson, 2014 NSSC 155 (CanLII), per Cacchione J, at para 53
R v Hawkins, 2011 NSCA 6 (CanLII),  NSJ No. 33, per Beveridge JA
R v Ward, R v Ward, 2011 NSCA 78 (CanLII),  NSJ No. 481, per Saunders JA
- 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.”)
- R v Tan, 1996 CanLII 2500 (BC CA), (1996), 75 BCAC 181, per Prowse JA
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), (1999), 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.”)
- R v Praljak, 2013 ONSC 298 (CanLII), per Dambrot J, at para 17
Ancillary Sentencing Order
- Offence-specific Orders
|DNA Orders||s. 235||
|SOIRA Orders||s. 230 and 231||
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||
- General Sentencing Orders
|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 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.|
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.
2001 to 2009