Murder, Manslaughter and Criminal Negligence Causing Death Charges

In Canada, charges relating to the death of another individual generally fall under three categories: murder, manslaughter, and criminal negligence causing death. The classification of an offence will largely depend on the intent and mindset of the accused.

Murder Charges

Murder, as defined by the criminal code, is when the offender either:

1) means to cause the death of the other person;

2) means to cause bodily harm that he knows is likely to cause death, and is reckless as to whether death is caused of not;

3) means to cause death or bodily harm that he know is likely to result in death to one person, but ends up killing someone else (i.e. a gun shot misses the intended target and kills a bystander);

4) is in the commission of an offense and does something he knows or ought to know may cause death (even if death is not intended).

Murder is thus not limited to crimes where the offender actually intends to kill the other person. Simply intending to cause significant bodily harm can meet the definition.

Murder is classified as either 1st degree or 2nd degree. While both carry an automatic "life" sentence, the distinction is relevant in determining the minimum number of years that are required to be served in prison before the offender is eligible for parole.

1st Degree Murder

This is the most serious charge of murder. It includes acts that are:

1) planned and deliberate; -or-

2) instances involving: contracted murder, murder of a police officer (any peace officer performing his duties), hijacking, sexual assault, kidnapping, terrorism, criminal harassment, criminal organizations, intimidation.

The criminal code thus automatically deems murders that occur during the commission of several other offences as automatically 1st degree, even if they are not planned and deliberate.

Also, murder of a peace officer in the course of his duties is 1st degree, even if not planned and deliberate. For instance, Richard Kachkar was automatically charged with 1st degree murder in the killing of Toronto police officer Ryan Russell, despite that he likely did not plan the act of killing beforehand.

Penalty for 1st degree murder

Those convicted of 1st degree murder all receive the same sentence: life imprisonment with parole eligibility after 25 years. A 20 year old convicted of 1st degree murder will be eligible for parole at the age of 45 (and will likely receive parole if he behaves himself in prison, admits responsibility, and shows an interest in rehabilitating himself).

Despite a sentence of "life imprisonment" being imposed, the vast majority of first degree murders will eventually be released back into society. Their freedom, however, will be limited by the conditions of parole for the remainder of their lives. Further, a breach of parole could easily result in them having to return to prison to serve additional time.

2nd Degree Murder

Any murder (see four categories above) that does not meet the definition of 1st degree murder, is deemed to be 2nd degree murder.

Penalty for 2nd degree murder

All those convicted of 2nd degree murder will receive a sentence of life imprisonment. Their parole eligibility date will be within a range of 10 to 25 years at the discretion of the judge.

The code also requires those convicted of 2nd degree murder who have previous murder convictions to serve 25 years before parole eligibility. Other than this exception, parole eligibility dates of more than 20 years are extremely rare.

Furthermore, 10 year parole eligibility dates are not particularly uncommon. A 20 year old convicted of 2nd degree murder can reasonably expect to be out of prison in his 30s. While the 2nd degree murderer will likely be released earlier than the 1st degree murderer, both will remain on parole for the remainder of their lives upon release.

Manslaughter charges

Any "culpable homicide" that does not meet the definition of murder is said to be manslaughter. Culpable homicide is defined to include when a person causes the death of another human being by:

(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.

Manslaughter is reserved for killings where the level of intent is less than murder. Practically speaking, manslaughter is when someone is doing something wrong and someone else ends up dead as a result of it -and- the offender did not intend to kill or cause significant bodily harm that he knew may result in death.

It is not always obvious whether a killing is murder or manslaughter. Many times, the difference is based on what the accused was thinking at the time of the death, which can be extremely difficult to prove in court. For this reason, many cases that could potentially justify a murder conviction end up in a guilty plea for a manslaughter conviction.

Penalty for Manslaughter

Unlike for murder, manslaughter does not carry an automatic sentence of life imprisonment. It remains, however, an option for the court.

If life imprisonment is ordered, there is no minimum time that is automatically required to be served before parole eligibility. Those sentenced to life imprisonment for manslaughter would be eligible for parole after serving 7 years. It may be possible for the court to delay parole eligibility for a life sentence for manslaughter up to 10 years under section 743.6 of the criminal code.

It is also common for manslaughter convictions to result in sentences other than life imprisonment. A 9 year sentence, which is not uncommon, would allow the offender to be paroled after serving 3 years of his sentence. If a firearm is involved in the offence, a minimum sentence of 4 years is required (parole eligible after serving 1/3rd of this).

Bargaining a murder charge down to manslaughter

Knowing that the mindset of the accused is critical in determining whether a charge will support a murder of manslaughter conviction, the police will attempt to extract a statement from the accused about what happened as soon as possible.

Specifically, they will be looking for the accused to either admit that they intended to kill the other person, or that they knew their actions could result in the other person's death.

For example:

Accused: "I didn't want to kill him, just beat him up badly"
Police: "But what if he died?"
Accused: "I just wanted to beat him up, not kill him"
Police: "Surely you knew he could die if you beat him up that bad though?" Accused: "Yes, but it was my intent just to beat him up, not to kill him"

Here, the accused is adamant he did not intend to kill the victim, but just beat him up badly. Unfortunately, he admits that he knew the victim could die as a result of the beating. This is enough to support a 2nd degree murder conviction.

In this example, had the accused refused to speak to the police his lawyer would be in a much better position bargain for manslaughter instead of murder. This could have the practical effect of the accused having to serve 10 years behind bars vs. only a couple.

Of course, the sentence of manslaughter can vary, but generally it would require much less prison time than a murder conviction.

Criminal negligence causing death

The Criminal Code somewhat overlaps itself in that there is a specific provision of criminal negligence causing death (s. 220), and a separate provision for manslaughter as a result of "criminal negligence".

The sentencing provisions for are also identical in that criminal negligence causing death can result in a maximum of life imprisonment (parole eligibility after 7 years served), and a sentence of a minimum 4 years is required if a gun is involved in the incident.

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