Murder (Offence): Difference between revisions

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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>
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. {{CanLIIR|Pritchard|1qg48|2007 BCCA 82 (CanLII)}}{{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|Binnie J}} -- conviction for first degree with no evidence of body or how the victim died<br>
e.g. {{CanLIIR|Pritchard|1qg48|2007 BCCA 82 (CanLII)}}{{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|Binnie J}} -- conviction for first degree with no evidence of body or how the victim died<br>
''R v St-Germain'', [http://canlii.ca/t/2dvfk 2009 QCCA 1474] (CanLII){{perQCCA|Dufresne JA}}</ref>
{{CanLIIR|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>
There is no rule requiring that body be found in order to prove a homicide.<ref>

Revision as of 10:30, 13 February 2021


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

Note up: 229

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.
...

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

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

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

...
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

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
"..., contrary to section XXX 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), per Herauf JA, at para 33
  2. ↑ see R v Roks, 2011 ONCA 618 (CanLII), 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 (CanLII), per Lamer CJ -- found s.230 (constructive murder) unconstitutional
    R v Sit, 1991 CanLII 34 (CanLII), per Lamer CJ
  2. ↑ R v Vaillancourt, 1987 CanLII 2 (CanLII), 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 (CanLII), per Cory J, at para 17
  2. ↑ R v Harbottle, 1993 CanLII 71 (CanLII), 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]

  1. ↑ R v Vaillancourt, 1987 CanLII 2 (CanLII), per Lamer J
  2. ↑ R v Cooper, 1993 CanLII 147 (CanLII), per Cory J
  3. ↑ R v Marshall (1986) 25 CCC (3d) 151 (NSCA), 1986 CanLII 4617 (NS CA), per Clarke JA
  4. ↑ R v Prevost (1988), 42 CCC (3d) 314 (ONCA), 1988 CanLII 7058 (ON CA), per Zuber JA
  5. ↑ R v Rodgerson, 2014 ONCA 366 (CanLII), 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. 231(3) to (6))

Lesser Included Offences

See also: Lesser Included Offences

662.
...

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.
...
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

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), per Doherty JA

Res Judicata

Circumstances of aggravation

610 (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.

Effect of previous charge of infanticide or manslaughter

(4)...
R.S., c. C-34, s. 538; 1973-74, c. 38, s. 5; 1974-75-76, c. 105, s. 9.

– CCC

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), 43 CCC (3d) 413, 1988 CanLII 3274 (BC SC), per Wood J
  2. ↑ 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), [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), 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

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

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 (CanLII), 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

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.

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), per Hall JA (2:1) , at para 30
  2. ↑ R v Ledesma, 2019 ABQB 204, per Gates J, at paras 24 to 34
  3. ↑ R v Shropshire, 1995 CanLII 47 (SCC), , [1995] 4 SCR 227 (CanLII), 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

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), per Duncan J
    NB: R v Nash, 2009 NBCA 7 (CanLII), per Robertson JA
  3. ↑ R v MT, [2009] OJ No 1351, 2009 CanLII 40314 (ON SC), per Nordheimer J
  4. ↑ R v Toews, 2015 ABCA 167 (CanLII), per Costigan JA
  5. ↑ 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
  6. ↑ Hawkins, ibid., at para 42

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]

Domestic 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), [2011] NSJ No. 33, per Beveridge JA
    R v Ward, R v Ward, 2011 NSCA 78 (CanLII), [2011] NSJ No. 481, 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 (BC CA), (1996), 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), 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
v • e
 
Homicide
Offences / Sentencing
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