Canadian Criminal Law/Offences/Homicide

Overview
Generally, homicide is the causing of death of another person (s.222(1)), irrespective of whether there was any intention to cause death or if it was by accident. There is culpable homicide and non-culpable homicide.(s. 222(2)).

Culpable homicide refers to the types of homicide for which there are criminal penalties. It includes causing death (s.222(5)):
 * by means of an unlawful act,
 * by criminal negligence,
 * by causing that human being, by threats or fear of violence or by deception, to do anything that causes his death, or
 * by wilfully frightening that human being, in the case of a child or sick person.

These methods are all categorized as either murder, manslaughter, or infanticide.(s.222(4))

Murder Generally

 * 1) &#9840; identity of accused
 * 2) &#9840; date and time of incident
 * 3) &#9840; jurisdiction (incl. region and province)
 * 4) &#9840; the accused does anything that causes death;
 * 5) &#9840; either:
 * 6) an intent to cause death or
 * 7) 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.
 * 8) &#9840; the accused's actions were planned and deliberate

Essential elements are those in bold.

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.

Manslaughter

 * 1) &#9840; identity of accused
 * 2) &#9840; date and time of incident
 * 3) &#9840; jurisdiction (incl. region and province)
 * 4) &#9840; an unlawful act that causes the death of another;
 * 5) &#9840; fault short of an intention to kill
 * 6) &#9840; "reasonable foreseeability of the risk of bodily harm"

See also: R. v. Creighton, 1993 CanLII 61 (SCC), [1993] 3 S.C.R. 3, 105 D.L.R. (4th) 632 para. 42,43

Constitutionality
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.

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.

Causation
See Canadian Criminal Law/Causation

Intent
Both types of murder requires one of three categories of requisite intent set out in s.229:
 * 1) accused causes death and "means to cause death"; (s. 229(a)(i))
 * 2) the accused  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 accused 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.

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.

An accused may still be convicted if he does not know the victim's identity or is mistaken as to the victim's identity.

Planned and Deliberate
First degree murder must be "planned and deliberate".

There must be more than a "bare sufficiency of evidence" on planning and deliberation.

A "planned" murder refers to one that is "conceived and carefully thought out prior to being committed".

It must have "a design or scheme be arranged beforehand."

However, it can be "simple and need not necessarily be in place for a long period of time"

A "deliberate" murder is not impulsive. It must be a considered act where "he thinks about the consequences and carefully thinks out the act, rather than proceeding hastily, rashly or impulsively"

The elements of "planned and deliberate" can be proven on by circumstantial evidence. However, it cannot be equivocal or speculative of whether it was "planned and deliberate".

There does not need to be care consideration of acts. Planning and deliberation can be made out by evidence of even a brief moment of consideration before the act.

Presumptions of First Degree Murder
There are several categories of first murder which either presume the offence is "planned and deliberate" or does not require the proof of being "planned and deliberate".

Contract Murder
Under s. 231(3), a "contract murder" is deemed to be planned and deliberate where there is:
 * 1) a murder
 * 2) the murder "is committed pursuant to an arrangement"
 * 3) the arrangement involves "money or anything of value passes or is intended to pass from one person to another", or "is promised by one person to another"
 * 4) the money is "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"

The requirement that the murder be "pursuant to an arrangement" must include an arrangement "in place at the time of the murder".

Manslaughter
The underlying unlawful act must be "objectively dangerous, that is likely to injure another person"

The crown must prove the requisite mens rea of the underlying unlawful act.

The test requires an "objective foreseeability of the risk of bodily harm which is neither trivial nor transitory, in the context of a dangerous act."

There is no need to establish a foreseeability of death.

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.

Cases

 * Canadian Criminal Law/Cases/Homicide