Murder & Homicide Lawyer in Brampton

In Canada, Homicide is a broad term under which there are three categories. Each category reflects the level of culpability (blameworthiness) of the accused party. These three categories are as follows:

• First-degree Murder
• Second-degree Murder
• Manslaughter.

Murder (encompassing both First-degree Murder and Second-degree Murder) is defined in section 229 of the Criminal Code of Canada:

Culpable Homicide is Murder

(a) where the person who causes the death of a human being

• means to cause his death, or
• 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.

Where any of the above conditions are satisfied, the Homicide will be considered either First-degree Murder or Second-degree Murder.

First-degree Murder requires planning and deliberation. Planning requires that the Murder was conceived and thought through before it took place. Deliberation requires that the Murder was intentional and had a purpose. In R. v. Robinson, [2017] O.J. No. 4142, the Court stated that:

A Murder is planned if it is the product of "a calculated scheme or design which has been carefully thought out, and the nature and consequences of which have been considered and weighed". A Murder is "deliberate" if it is "'considered,' 'not impulsive' ... implying that the accused must take time to weigh the advantages and disadvantages of his intended action”

Furthermore, where an accused person accidentally or mistakenly kills person B when person A was the target of a planned and deliberate Murder, the accused may be found guilty of First-degree Murder under the transferred intent doctrine of section 231(2) of the Criminal Code of Canada. Ironically, however, in R. v. Ching, [2019] O.J. No. 3866, the Court held that where an accused intentionally kills person B when in the course of carrying out the planned and deliberate Murder of person A, the accused may be found guilty of only Second-degree Murder (defined below). The reasoning for this is that in the first scenario, the actual killing may well have been impulsive. On the other hand, the accidental killing was still the result of a planned and deliberate act. In R. v. Ching, [2019] O.J. No. 3866, the accused planned to kill his ex-wife, who was staying at her uncle’s house. The accused went to her uncle’s house to see her, but her uncle refused to let him see her. The accused ultimately used a knife and hatchet to kill the uncle. At trial, the accused was found guilty of First-degree Murder. However, on appeal, the Court substituted a conviction for Second-degree Murder.

An unsuccessful plan to kill someone may amount to attempted Murder. Further, under the Criminal Code of Canada, an individual will be charged with First-degree Murder if it is committed in the course of certain other offences. These offences are listed in the Criminal Code. A Murder is considered First-degree if it takes place in the following circumstances:

• Hijacking
• sexual assault
• sexual assault with a weapon
• aggravated sexual assault
• kidnapping
• forcible confinement
• hostage taking
• terrorism
• intimidation
• any offence committed on behalf of a criminal organization
• when the victim is a peace officer

Section 231(7) of the Criminal Code of Canada defines Second-degree Murder as all Murder that is not First-degree Murder. In practice, Second-degree Murder is best described as an intentional act that is not premeditated or planned, nor committed in a reasonable “heat of passion”. Further, it can also be committed by an accused party through dangerous conduct which results in death.

In R. v. Ahmed, [2021] O.J. No. 1774, the Court set out the essential elements of Second-degree Murder the Crown must prove beyond a reasonable doubt for an accused to be found guilty. In terms of the actus reus, or physical element, it must be proved that: (1) the accused caused the deceased’s death; and (2) the accused caused the deceased’s death by an unlawful act. The mens rea, or mental element, of Second-degree Murder is as follows: (1) that the accused meant to cause the deceased’s death; or (2) meant to cause him bodily harm that he knew was likely to cause his death, and was reckless whether death ensued or not.

A Homicide committed without the intention to cause death, although there may have been an intention to cause harm. In essence, Manslaughter takes place when a person commits a crime that unintentionally results in the death of another person. Furthermore, a Homicide that would normally be considered a Murder may be reduced to Manslaughter if the person who committed it did so in the heat of passion caused by sudden provocation.

For an accused to raise a defence of provocation, the victim must have done something that would have constituted a criminal offence punishable by 5 or more years of imprisonment. Furthermore, the victim’s conduct must have been something sufficient to deprive an ordinary person of the power of self-control. In response to such conduct, the accused must have acted on it suddenly before there was time for their passion to cool. In R. v. Alas, [2021] O.J. No. 1859, the Court affirmed that in determining what an “ordinary person” would do, “the ordinary person must be taken to be of the same age, and sex, and must share with the accused such other factors as would give the act or insult in question a special significance. In other words, all the relevant background circumstances should be considered.” In R. v. Alas, [2021] O.J. No. 1859, the accused was upset because the victim had bullied one of his female friends during an evening at the bar. He ultimately stabbed the victim in the neck, killing him. At trial, the accused was found guilty of Second-degree Murder. However, on appeal, the Court imputed into the “ordinary person” test the fact that the accused’s father had been physically abusive to his mother; the “ordinary person” with such life experiences could have been deprived of their self-control seeing their female friend being bullied by a man. Thus, on appeal, a new trial was ordered.