Murder is defined within the Criminal Code of Canada (section 231(1) as either first degree or second degree murder. Any intentional killing of another that is planned and deliberate will constitute first degree murder.
First degree murder can also be extended to encapsulate circumstances: where a murder takes place as a result of an arrangement for an exchange of money or anything of value, where the victim is an agent of the government relating to the criminal justice system (police officer, jailer or prison worker), if the murder stems from any sexual assault offence, relates to a criminal organization or terrorism, forcible confinement or criminal harassment, among others (Criminal Code, s. 231, ss. 4-6).
Any murder which does not meet the requirement of being planned and deliberate, as well as the categories mentioned above and in section 231 of the Criminal Code of Canada, will be tried as second degree murder. Murder can be reduced to manslaughter where the accused committed the offence “in the heat of passion caused by sudden provocation” where they acted suddenly without sufficient time for their “passion to cool off” (Criminal Code, s. 232, ss. 1-2).
Manslaughter is any culpable homicide which is not considered murder or infanticide. An example of manslaughter is where someone commits an unlawful act that causes the death of another person. In R. v. Creighton (S.C.C., 1993), the accused was found guilty of manslaughter because the victim’s death was a direct consequence of an unlawful act, which in this case was injecting a large quantity of cocaine (albeit with the deceased’s consent) into the forearm of the victim. The actus rues for manslaughter or penal negligence uses the marked departure standard, which requires that the negligence constituted a marked departure from the standards of a reasonable person, which may “consist in carrying out the activity in a dangerous fashion, or in embarking on the activity when in all the circumstances it is dangerous to do so” (R. v. Creighton, S.C.C., 1993). The court held that manslaughter “falls into the class of offences where a mental element in relation to the consequence must be established,” (R. v. Creighton, S.C.C., 1993) and held unanimously that at the very least objective foresight is required to establish men rea (a guilty mind). In this particular example, a reasonable person would have foreseen the risk of bodily harm.
Sentencing & Parole
Those convicted of murder – either first or second degree, must be sentenced to imprisonment for life. For an adult who has been convicted of first degree murder, generally they will not be eligible for parole until they have served at least twenty-five years. For an adult who has been convicted of second degree murder, they will need to serve between ten and twenty-five years, as determined by the courts (Criminal Code, s. 235). As a result of capital punishment being abolished, section 745.6 of the Criminal Code was introduced, also known as the “faint-hope clause.” This clause provides those who have been convicted of murder an opportunity to apply for a reduction in the number of years they must serve in order to apply for parole, and can only be made after fifteen years have been served.
Although manslaughter is an offence which is considered to be a downgraded version of murder, it still carries with it considerable social stigma and penalty. Everyone who is convicted of manslaughter is guilty of an indictable offence and is liable to imprisonment for life, and where a firearm is used a minimum punishment of four years imprisonment (Criminal Code, s. 236). Sentencing for manslaughter can be very difficult and the punishment will be reflected by the facts of the case, therefore it is very hard to speculate on the existence of a benchmark for sentencing.