A person commits homicide when, directly or indirectly, by any means, he causes the death of a human being. There is culpable homicide and non-culpable homicide. Fist degree murder, second degree murder and manslaughter are all forms of culpable homicide.
The Criminal Code of Canada defines culpable homicide as:
222(5) A person commits culpable homicide when he causes the death of a human being,
(a) by means of an unlawful act;
(b) by criminal negligence;
(c) by causing that human being, by threats or fear of violence or by deception, to do anything that causes his death; or
(d) by wilfully frightening that human being, in the case of a child or sick person.
What is first degree murder and second degree murder?
Murder is where a 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.
Therefore, in order for murder to be made out in law, the Crown Attorney must prove beyond a reasonable doubt the accused’s subjective foresight of death.
For example, in the case of an assault, the Crown Attorney would be required to prove the accused foresaw the victim’s death as a probable consequence of the assault.
Murder can be either first degree murder, or second degree murder. Murder is first degree murder when it is planned and deliberate. A planned murder requires the accused to conceive of a plan before committing the offence. In the words, there must be premeditation. For example, a husband hires a contract killer to murder his wife.
There must be deliberate contemplation as to the nature and consequences of the plan. The plan does not needs to be complicated, nor considered far in advance. A deliberate murder requires the accused thinks about their actions and the consequence for their action. A deliberate murder is not one that has resulted from a sudden decision based upon impulse, emotion, or passion.
All murder that is not first degree murder is second degree murder. First degree and second degree murder are not separate offences. The classification is a distinction only for the purpose of sentencing. In essence, first degree murder is an aggravated form of murder.
Under the Criminal Code of Canada, some homicides are automatically considered first degree murder. This includes murder of an on-duty police officer or prison employee; murder committed during a hijacking, sexual assault, kidnapping, hostage taking, criminal harassment, terrorism, or intimidation.
What is manslaughter?
Manslaughter is where a person commits an unlawful act that causes the death of another. It must be objectively foreseeable that the underlying unlawful act could cause bodily harm which is neither trivial or transitory. However, unlike murder, the accused had no intention to cause death, nor was death foreseeable.
The unlawful act may take the form of criminal negligence. Criminal negligence can result from the action or inaction of a person who owes a duty of care to another person. For example, a parent fails to provide the necessities of life to a child under their care.
The defence of provocation can reduce murder to manslaughter. The defence is available when:
- the victim’s actions constituted an indictable offence punishable by five or more years of imprisonment;
- that offence was of such a nature as to be sufficient to deprive an ordinary person of the power of self-control; and,
- if the accused acted on it suddenly and before there was time for their passion to cool.
If you or a loved one has been charged with a murder or manslaughter, please feel free to contact me for a free initial consultation. I will be glad to discuss all your available defences with you.