View source for Murder (Offence)

{{Currency|January 2020}}
{{LevelZero}}{{HeaderHomicide}}

{{OffenceBox 
|OffenceTitle=Murder 
|OffencePage=Murder 
|Section=235 
|Act={{OBCCC}} 
|CrownElection={{OBIndictableElection}} 
|Jurisdiction={{OBJurisdictionExclusive}} 
|Bail={{OBBailSupJudge}}  
|IndictableDisp= {{OBDispFed}} 
|IndictableMin= {{OBTime|life}} 
|IndictableMax= {{OBMaxLife}} }}

==Overview==
{{seealso|Homicide (Offence)}}

{{OverviewVIII|murder}}

; Pleadings

{{PleadingsHeader-N}}
{{PleadingsIndictableList-N|s. 235 {{DescrSec|235}} | {{No}} | {{Yes}} | {{Yes-Life}} }}
{{PleadingsEnd}}

{{PleadingsExclusive|s. 235 {{DescrSec|235}}}}

{{Section109Notice}}

; 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 [[Release_on_Section_469_Offences|superior court judge under s. 522]].

; Publication Bans
{{GeneralPubBan}}

; Offence Designations
{{DesignationHeader}}
|-
|s. 235 {{DescrSec|235}} || {{OKMark}} <!--wire--> || {{OKMark}} (primary) <!--DO-->||{{OKMark}} <!--SPIO--> || {{XMark}} <!--consent--> || {{OKMark}}
{{DesignationEnd}}

{{WiretapDesignation|s. 235}}

<!--DESIGNATIONS
{{DesignatedSPIOA|XX}}
{{DesignatedSPIOB|XX}}
{{DODesignation|s. 235}}
{{DOPrimaryDesignation|XX}}
{{SIPODesignation|type|Section}}
-->

{{SeeBelowForAncillary}}

{{reflist|2}}

==Offence Wording==

{{quotation3|
; 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., {{LegHistory80s|1985, c. C-46}}, s. 229;
{{LegHistory10s|2019, c. 25}}, s. 77.
{{Annotation}}
|{{CCCSec2|229}}
|{{NoteUp|229}}
|{{Terms-
| "[[Homicide (Offence)|homicide]]" (s. 222)
}}
}}

{{quotation2|
; Classification of murder
231 (1) Murder is first degree murder or second degree murder.<br>

; Planned and deliberate murder
(2) Murder is first degree murder when it is planned and deliberate.<br>
{{removed|(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.
<br>
R.S., {{LegHistory80s|1985, c. C-46}}, s. 231; 
R.S., {{LegHistory80s|1985, c. 27 (1st Supp.)}}, ss. 7, 35, 40, 185(F), c. 1 (4th Supp.), s. 18(F); 
{{LegHistory90s|1997, c. 16}}, s. 3, c. 23, s. 8; 
{{LegHistory00s|2001, c. 32}}, s. 9, c. 41, s. 9; 
{{LegHistory00s|2009, c. 22}}, s. 5.
|{{CCCSec2|231}}
|{{NoteUp|231|1|27}}
}}

{{quotation2|
; 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.
<br>
; Minimum punishment
(2) For the purposes of Part XXIII {{AnnSec|Part XXIII}}, the sentence of imprisonment for life prescribed by this section is a minimum punishment.
<br>
R.S., c. C-34, s. 218; 1973-74, c. 38, s. 3; 1974-75-76, c. 105, s. 5. 
|{{CCCSec2|235}}
|{{NoteUp|235|1|2}}
}}

{{quotation2|
; Imprisonment for Life
; Sentence of life imprisonment
745 Subject to section 745.1 {{AnnSec7|745.1}}, 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
:{{removed|(d)}}
R.S., {{LegHistory80s|1985, c. C-46}}, s. 745; 
R.S., {{LegHistory80s|1985, c. 27 (2nd Supp.)}}, s. 10;
{{LegHistory90s|1990, c. 17}}, s. 14; 
{{LegHistory90s|1992, c. 51}}, s. 39; 
{{LegHistory90s|1995, c. 22}}, s. 6; {{LegHistory00s|2000, c. 24}}, s. 46.
|{{CCCSec2|745}}
|{{NoteUp|745}}
}}

===Draft Form of Charges===
{{seealso|Draft Form of Charges}}
{{DraftHeader}}
|-
| 235 
| first degree murder
|"{{ellipsis1}}, did cause the death of [person] and thereby commit murder in the first degree{{ToWit-Conduct}} {{contrary|235}}.
|-
| 235 
| second degree murder
|"{{ellipsis1}}, did cause the death of [person] and thereby commit murder in the second degree{{ToWit-Conduct}} {{contrary|235}}.
{{DraftEnd}}

==Proof of the Offence==

{{ElementHeader}}
{{ElementLeft}}
{{Proving|murder|229(a)}}
{{InitialElements}}
# {{box}} the accused does anything that [[Causation|causes]] death; and 
# {{box}} the accused either had:
## {{box}} an intent to cause death ''or'' 
## {{box}} 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.<ref>
{{CanLIIRP|Paskimin|fqs4z|2012 SKCA 35 (CanLII)|393 Sask R 30}}{{perSKCA|Herauf JA}}{{atL|fqs4z|33}}</ref>

{{ElementRight}}

{{Proving|transferred intent murder|229(b)}}
{{InitialElements}}
# {{box}} the culprit means:
## {{box}} to cause death to a person or 
## {{box}} to cause bodily harm that he knows is likely to cause death to a person; and
# {{box}} the culprit is reckless to whether death ensues
# {{box}} the culprit [[Causation|causes]] death by accident or mistake of a different person

{{ElementLeft}}

{{Proving|unlawful act murder|229(c)}}<ref>see {{CanLIIRP|Roks|fn7h4|2011 ONCA 618 (CanLII)|284 CCC (3d) 510}}{{perONCA|Watt JA}}</ref>
{{InitialElements}}
# {{box}} the culprit does a dangerous act 
# {{box}} the act is for an unlawful object 
# {{box}} he knows that the act is likely to cause death (knowledge or forethought)
# {{box}} the unlawful act causes death
{{ElementRight}}

{{ElementEnd}}

====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.

[[File:murder1tree.png|400px|thumb]]
[[File:murder2tree.png|400px|thumb]]
{{reflist|2}}

==Constitutionality==
{{seealso|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.<ref>
{{CanLIIRP|Martineau|1fssd|1990 CanLII 80 (SCC)|[1990] 2 SCR 633}}{{perSCC|Lamer CJ}} -- found s.230 (constructive murder) unconstitutional<br>
{{CanLIIRP|Sit|1fsj3|1991 CanLII 34 (SCC)|[1991] 3 SCR 124}}{{perSCC|Lamer CJ}}</ref>

Section 230 was found unconstitutional because first degree murder cannot be less than objective foresight of death.<ref>
{{CanLIIRP|Vaillancourt|1fthw|1987 CanLII 2 (SCC)|[1987] 2 SCR 636}}{{perSCC|Lamer J}}<br>
{{supra1|Martineau}} -- found s.230 (constructive murder) unconstitutional</ref>

{{reflist|2}}

==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.<ref>
{{CanLIIRP|Nygaard|1ft11|1989 CanLII 6 (SCC)|[1989] 2 SCR 1074}}{{perSCC|Cory J}}{{atL|1ft11|17}}</ref> 
First degree murder is an "aggravated form of murder and not a distinct substantive offence."<ref>
{{CanLIIRP|Harbottle|1fs0z|1993 CanLII 71 (SCC)|[1993] 3 SCR 306}}{{perSCC|Cory J}} at 323<br>
</ref>

The offence of murder under [{{CCCSec|235}} s. 235] is an [[Election#Absolute and Exclusive Jurisdiction|exclusive jurisdiction offence]], and so ''cannot'' be tried before a provincial court judge.<ref>
see s. 469 and [[Election]]
</ref>
{{reflist|2}}

===Causation===
See [[Causation of Death]]

===Intent===
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.<ref>
{{CanLIIRP|Vaillancourt|1fthw|1987 CanLII 2 (SCC)|[1987] 2 SCR 636}}{{perSCC|Lamer J}}</ref>

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.
<ref>
{{CanLIIRP|Cooper|1fs5v|1993 CanLII 147 (SCC)|[1993] 1 SCR 146}}{{perSCC|Cory J}}
</ref>

An accused may still be convicted if he does not know the victim's identity<ref>
{{CanLIIRP|Marshall|g9l3d|1986 CanLII 4617 (NSCA)|25 CCC (3d) 151}}{{perNSCA|Clarke JA}}</ref> or is mistaken as to the victim's identity.<ref>
{{CanLIIRP|Prevost|g9b1k|1988 CanLII 7058 (ON CA)|42 CCC (3d) 314}}{{perONCA|Zuber JA}}</ref>

; 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.<ref>
{{CanLIIRP|Rodgerson|g6sg6|2014 ONCA 366 (CanLII)|309 CCC (3d) 535}}{{perONCA-H|Doherty JA}}{{atL|g6sg6|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.")<br>
{{supra1|Vaillantcourt}}{{atL|1fthw|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.")
</ref>

The phrase "is reckless whether death ensues or not" has been characterized as "largely redundant."<ref>
{{ibid1|Rodgerson}}{{atL|g6sg6|23}}<br>
</ref>

; 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.

{{reflist|2}}

===Planned and Deliberate (s. 231(2))===
* [[Planned and Deliberate]]

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

===Lesser Included Offences===
{{seealso|Lesser Included Offences}}
{{quotation2|
662<br>
{{removed|(1)}}
; First degree murder charged
(2) For greater certainty and without limiting the generality of subsection (1) {{AnnSec6|662(1)}}, 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.
<br>
; Conviction for infanticide or manslaughter on charge of murder
(3) Subject to subsection (4) {{AnnSec6|662(4)}}, 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.<br>
{{removed|(4), (5) and (6)}}
R.S., {{LegHistory80s|1985, c. C-46}}, s. 662;
R.S., {{LegHistory80s|1985, c. 27 (1st Supp.)}}, s. 134;
{{LegHistory00s|2000, c. 2}}, s. 3; 
{{LegHistory00s|2008, c. 6}}, s. 38; 
{{LegHistory10s|2018, c. 21}}, s. 20.
{{Annotation}}
|{{CCCSec2|662}}
|{{NoteUp|662|2|3}}
}}

Where the Crown proves an intent to kill but fails to prove causation, the lesser included offence of attempted murder is available.<ref>
{{CanLIIRP|Sarrazin|2chrm|2010 ONCA 577 (CanLII)|259 CCC (3d) 293}}{{perONCA-H|Doherty JA}}
</ref>

{{reflist|2}}

===Res Judicata===
{{quotation2|
; Circumstances of aggravation
610<br>
{{removed|(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.
<br>
; 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.
<br>
{{removed|(4)}}
R.S., c. C-34, s. 538; 1973-74, c. 38, s. 5; 1974-75-76, c. 105, s. 9.
|{{CCCSec2|610}}
|{{NoteUp|610|2|3}}
}}

==Manslaughter==
* see [[Manslaughter (Offence)]]

==Proof of Death==
Death occurs once the vital functions and organs irreversibly cease to operate.<ref>
{{CanLIIRP|Green|22kn8|1988 CanLII 3274 (BC SC)|43 CCC (3d) 413}}{{perBCSC|Wood J}}</ref>

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.<ref>
e.g. {{CanLIIRP|Pritchard|1qg48|2007 BCCA 82 (CanLII)|217 CCC (3d) 1}}{{perBCCA|Hall JA}}, aff'd  at SCC in 236 CCC (3d) 301, [http://canlii.ca/t/21b1w 2008 SCC 59] (CanLII), [2008] 3 SCR 195{{perSCC-H|Binnie J}} -- conviction for first degree with no evidence of body or how the victim died<br>
{{CanLIIRx|St-Germain|2dvfk|2009 QCCA 1474 (CanLII)}}{{perQCCA|Dufresne JA}}</ref>

There is no rule requiring that body be found in order to prove a homicide.<ref>
{{CanLIIRP|CMM|frc6z|2012 MBQB 141 (CanLII)|93 CR (6th) 155}}{{perMBQB|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. ")
</ref>

{{reflist|2}}

==Special Procedure==
{{quotation2|
; 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.
<br>
R.S., c. C-34, s. 511; 
1973-74, c. 38, s. 4; 
1974-75-76, c. 105, s. 6.
|{{CCCSec2|582}}
|{{NoteUp|582}}
}}

{{quotation2|
; 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., {{LegHistory80s|1985, c. C-46}}, s. 589; 1991, c. 4, s. 2.
|{{CCCSec2|589}}
|{{NoteUp|589}}
}}

==Defences==
The statutory defence of [[Duress|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.<ref>
{{CanLIIRP|Reilly|1txk7|1984 CanLII 83 (SCC)|[1984] 2 SCR 396}}{{perSCC|Ritchie J}}<br>
see also [[Self-Defence and Defence of Another]]
</ref>

{{reflist|2}}

==Participation of Third Parties==
{{seealso|Role of the Victim and Third Parties|Testimonial Aids for Young, Disabled or Vulnerable Witnesses}}

; Testimonial Aids
{{3rdPTestimonyAids}}

; On Finding of Guilt
{{VictimHeader}} <!-- Sections / Notice of Agree / Notice of Restitution / Notice of VIS -->
|s. 235 {{DescrSec|235}} || || ||
|-
{{VictimEnd}}{{RestitutionNotice}}

{{VISNotice}}

==Sentencing Principles and Ranges==

* [[Sentencing for Murder]]

==History==
{{seealso|List of Criminal Code Amendments|Table of Concordance (Criminal Code)}}
===2001 to 2009===
{{quotation1|
; Classification of murder
231 (1) Murder is first degree murder or second degree murder.
<br>
; Planned and deliberate murder
(2) Murder is first degree murder when it is planned and deliberate.
<br>
; 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.
<br>
; 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.
<br>
; 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.
<br>
; 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.
<br>
; 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.
<br>
; Second degree murder
(7) All murder that is not first degree murder is second degree murder.
<br>
R.S., {{LegHistory80s|1985, c. C-46}}, s. 231; R.S., {{LegHistory80s|1985, c. 27 (1st Supp.)}}, ss. 7, 35, 40, 185(F), c. 1 (4th Supp.), s. 18(F); {{LegHistory90s|1997, c. 16}}, s. 3, c. 23, s. 8; {{LegHistory00s|2001, c. 32}}, s. 9, c. 41, s. 9.

|[http://canlii.ca/t/hzc3#sec239 CCC]
}}

==See Also==
* [[Homicide (Trial Verdicts)]]

; References
* [[Pre-Trial and Trial Motions Checklist]]

{{OffencesNavBar/Homicide}}

[[Category:Unconstitutional Offences]]