Homicide (s. 234, s. 235, s. 236) Charges in Canada: Offences, Defences, Punishments

What is Homicide?

Sections 222(1)-(6)of the Canadian Criminal Code sets out two distinct types of homicide: culpable homicide (murder) and non-culpable homicide (this is not an offence within the Criminal Code). The plain meaning of the term ‘culpable’ means “deserving blame”. Culpable homicide within the Canadian Criminal Code includes murder, manslaughter and infanticide. This article outlines the offences, defences and punishments for murder (first and second degree) and manslaughter. For questions about infanticide, please see our article linked here.

As per section 222(5) of the Criminal Code, “a person commits culpable homicide when he causes the death of a human being,

1. by means of an unlawful act;
2. by criminal negligence;
3. by causing that human being, by threats or fear of violence or by deception, to do anything that causes his death; or
4. by wilfully frightening that human being, in the case of a child or sick person.

• Murder is first degree murder when it is planned and deliberate (see: Criminal Code section 231(2).
• All murder that is not first degree murder is second degree murder (see: Criminal Code section 231(7).
• Culpable homicide that is not murder or infanticide is manslaughter (see: Criminal Code section 234).

Differentiating between the three is seldom linear or easy. There can be overlap in what constitutes each type of culpable homicide (especially between what constitutes second degree murder and manslaughter). Generally, we distinguish murder from manslaughter by diminishing the level of intent for the offence; manslaughter captures homicides where the level of intent is less than murder. See this discussion here under “The Guilty Mind (Mens Rea)” heading for more on intent.

Examples

Homicide can be captured by an array of different acts which result in the death of another person.

Some examples might include:

• Constructing a carefully curated and meticulous plan for killing someone and following through.
• Getting into a physical fight with someone and delivering a blow which ultimately kills them.
• Hiring or contracting someone else to kill a person at your request.
• Driving recklessly and killing another driver or passenger.
• Careless use of a firearm resulting in someone’s death.

Defences

A strong defence to a charge of homicide will depend on the circumstances of one’s case.

However, some common defences against a charge of homicide include:

• Provocation
• Intoxication
• Self-Defence
• Necessity
• Not Criminally Responsible (NCR)
• Applicable Charter Defences

Punishment

Homicide is arguably the most serious offence in the Criminal Code and the prospective punishments reflect this. The penalty for murder (first and second degree), is an automatic life sentence. The reason they are prosecuted differently is that first-degree murder carries with it a longer term of imprisonment before parole eligibility. If convicted of first-degree murder, you are ineligible for parole for at least 25 years. If you are convicted of second-degree murder, you are ineligible for parole for at least 10 years but up to 25 years. This is laid out in section 745 of the Criminal Code. Manslaughter does not carry with it a mandatory minimum sentence unless a firearm is used in the commission of the offence. If a firearm is used, the penalty is at least 4 years imprisonment (see: section 236 of the Criminal Code).

While life imprisonment remains a possibility for a manslaughter conviction, parole eligibility is up to the discretion of the judge. As there are no minimum penalties associated with a manslaughter conviction. This means that if you have been convicted for manslaughter, as per s.120(2) of the Corrections and Conditional Release Act, you will be eligible for parole after you have served seven years of your sentence.  However, it is possible for the court to delay your parole eligibility for a life sentence for manslaughter up to 10 years, as per s.743.6 of the Criminal Code.

In cases where a firearm is used in the commission of manslaughter, there is a minimum penalty of four years in jail. This means that you will only be for parole after you have completed 1/3 of your sentence.).

Overview of the Offence

Homicide or offences against the person and reputation take up many pages in the Canadian Criminal Code. The sections are extensive and they detail many different kinds of culpable homicide. This article serves to highlight the sections pertaining to first-degree murder, second-degree murder and manslaughter.

The Criminal Code states:

The required elements for which the Crown must prove to secure a conviction differ depending on what type of culpable homicide one has been charged with. These elements are discussed individually for each offence (first degree murder, second degree murder and manslaughter) below. To convict someone of murder or manslaughter the Crown must always prove the requisite actus reus and mens rea elements of the offence.

The Guilty Act (Actus Reus)

First Degree and Second Degree Murder

As per section 222(1) of the Criminal Code, homicide occurs when a person directly or indirectly, by any means causes the death of another human. Whether homicide becomes murder is based on the intent of the accused. See the discussion on intent here. The key element in demonstrating sufficient actus reus is showing “causation”. In other words, the accused must have caused the victim’s death. In determining whether the accused causes a death, the court will consider whether the accused’s act was a “significant contributing cause of death beyond something trifling or minor”. This test was established in the case R v Smithers, 1977 CanLII 7 (SCC); 1 SCR 506. Furthermore, as established in the case R v Maybin, 2012 SCC 24 (CanLII); [2012] 2 SCR 30, “causation is in no way limited to a direct, an immediate, or the most significant cause”. However, the court does recognize intervening acts as breaking the chain of causation (see: R v Tower, 2008 NSCA 3 (CanLII)). An intervening act should be something “extraordinary or unusual” (see: R v Sinclair, 2009 MBCA 91 (CanLII)). An example of this might be beating someone severely and leaving them to die in the middle of the road but then a car runs over them ultimately killing them.

Murder is in the first degree when it is “planned and deliberate”. The British Columbia Court of Appeal in R v Denison (2001, BCCA 703 (CanLII)), the Court noted that there must be more than a “bare sufficiency of evidence” on planning and deliberation. Cases such as R v Nygaard, 1989 CanLII 6 (SCC), [1989] 2 SCR 1074, R v Jacquard, 1997 CanLII 374 (SCC), [1997] 1 SCR 314, and R v More, 1963 CanLII 805 (MBCA) have helped us establish notions of what “planned and deliberate” murder entails. “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, the plan 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 the [murderer] thinks about the consequences and carefully thinks out the act, rather than proceeding hastily, rashly or impulsively.” Proving that a murder was “planned and deliberate” can arise out of circumstantial evidence (see: R v Mitchell, 1964 CanLII 42 (SCC), [1964] SCR 471).

Murder is also in the first degree if it falls under one of the “presumptions of first-degree murder”. These are outlined in sections 231(3)-(6.2) of the Criminal Code. Presumptions of first-degree murder exist where a ‘hitman’ has been used; where a peace officer or other criminal justice officer is the victim of the offence; the death ensues during the commission of another offence such as hijacking an aircraft, sexual assault, aggravated assault, kidnapping or forcible confinement, a hostage-taking, criminal harassment, or intimidation; while participating in terrorist activity; or in affiliation with a criminal organization such as a gang.

All murder that is not first-degree murder is second-degree murder (see: section 231(7) of the Criminal Code).

Manslaughter

As per section 234 of the Criminal Code, “[c]ulpable homicide that is not murder or infanticide is manslaughter”. If the intent (mens rea) elements of murder cannot be proven, but the accused still causes one’s death (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, then they have committed manslaughter. The rules of causation, discussed here, still apply to manslaughter.

Manslaughter via an Unlawful Act

To convict a person of manslaughter under this heading, there must be an underlying unlawful act (see: R v K.T., 2005 MBCA 78 (CanLII)). The unlawful act may be an offence in the Criminal Code based upon negligence. As per the case of R v Curragh Inc., 1993 CanLII 4461 (NSSC), the “unlawful act” may be the breach of a provincial statute.

Manslaughter via Criminal Negligence

Manslaughter via criminal negligence is the same as the Criminal Code offence of “[c]ausing death by criminal negligence” (see: section 220 of the Criminal Code). Section 219(1) defines someone as criminally negligent who

(a) in doing anything, or

(b) in omitting to do anything that it is his duty to do,

shows wanton or reckless disregard for the lives or safety of other persons. In other words, one must commit an act or omit from an act and this action, or inaction, where a duty existed, causes one’s death. Duties are those which are imposed by law (see: section 219(2) of the Criminal Code). The Criminal Code sets out a non-exhaustive list of duties.

Some of these include:

• handle explosive substances with reasonable care (see: section 77 of the Criminal Code)
• provide the necessaries of life to children, spouses, common-law partners, infirm people and prisoners: (see: section 215 of the Criminal Code)
• provide medical treatment competently (except in emergencies): (see: section 216 of the Criminal Code)
• direct labourers safely: (see: section 217.1 of the Criminal Code)
• guard holes made in ice or land: (see: section 263 of the Criminal Code)

The list of legal duties is extensive and there exist both statutory legal duties (duties codified in the Criminal Code) and common law duties (duties created by the Canadian courts).

In the case R v Rogers, 1968 CanLII 813 (BCCA), “wanton” was defined as an “unrestrained disregard for consequences”. The “wanton” state of mind of an accused can be inferred from the nature of the accused’s conduct. Driving while heavily intoxicated displays the requisite attitude of mind (see: R v Walker (1974), 26 CRNS 268, 18 CCC (2d) 179)). The court in R v Menezes, 2002 CanLII 49654 (ONSC) noted that “wanton” is defined as “heedlessly” or “ungoverned” and “undisciplined” and an “unrestrained disregard for circumstances”.

To be “reckless means [to show] carelessness of the consequences of an act insofar as the lives and safety of other persons are concerned” (see: R v Rogers, 1968 CanLII 813 (BCCA)). As established in the case R v Willock, 2006 CanLII 20679 (ONCA), criminal negligence is not established by a momentary lapse of attention.

Manslaughter via Threats, Violence or Deception

The case of R v Graves, 1913 CanLII 71 (SCC), 47 SCR 568, serves as an example of this type of manslaughter. The victim sought to frighten drunken trespassers away from his property by brandishing a loaded gun. The trespassers rushed at him. There was evidence from which to infer that the victim held the gun by the barrel and struck at his attackers. This caused the gun to fire, causing the injury which killed him. The court said in this case that if the jury found that threats or fear of violence caused the deceased to kill himself, the accused could be convicted of manslaughter.

Manslaughter via Frightening a Child or Sick Person

Cases affiliated with this head of liability are rare. In R v Towers (1874), 12 Cox CC 530 (a British case), the accused went to a pub where a woman was holding a baby. He assaulted her. She screamed, which frightened the child so much that the baby started having convulsions and eventually died. The court held that the accused could be convicted of manslaughter under this head of liability.

The Guilty Mind (Mens Rea)

First Degree and Second Degree Murder

Section 229 of the Criminal Code sets out the requisite intent for murder. Requisite intent can include one of the four following:

1. The accused causes death and “means to cause death” (section 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” (section 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) (see: section 229(b)); or
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 demands the application of the subjective foresight test. In other words, we ask, “could the accused have foreseen the outcome?”. (See: R v Vaillancourt, 1987 CanLII 2 (SCC), [1987] 2 SCR 636).

The intent is not to be confused with motive. The Crown need not prove why one committed the murder but what the objective of one’s actions were (see: R v Paul, 2011 BCCA 46 (CanLII)). Furthermore, the mistaken identity of the victim or not knowing one’s victim does not rebut the intent element of the crime. This was established in the cases R v Marshall, 1986 CanLII 4617 (NSCA) and R v Prevost, 1988 CanLII 7058 (CanLII).

To gauge the intent of an accused, the courts use a common sense inference. If the reasonable person or sane/sober person acts in a way that has predictable consequences, then the trier of fact may infer that the person intended to cause those consequences. This is not a presumption at law, but an inference drawn from common sense (see: R v Seymour, 1996 CanLII 201 (SCC), [1996] 2 SCR 252). Furthermore, we don’t restrict this analysis to the sane/sober person because even a slightly intoxicated person can be expected to understand the consequences of his or her actions (see: R v Walle, 2012 SCC 41 (CanLII), [2012] 2 SCR 438).

Omissions to act can be considered as an intention to kill. For example, in R v Bottineau, 2011 ONCA 194 (CanLII), the parents purposefully starved and neglected their child who eventually died because of their inaction.

A judge is allowed to consider the age and maturity of an individual when determining whether to draw a common sense inference. This was held in the case of R v F.M., 2008 BCCA 111 (CanLII).

Manslaughter

Unlike murder, manslaughter uses an objective test to determine whether or not someone has committed manslaughter. If in the context of an unlawful act, the Crown must prove that the underlying unlawful act was “objectively dangerous, [and] that [it] is likely to injure another person” (see: R v Creighton, 1993 CanLII 61 (SCC), [1993] 3 SCR 3). The Crown must also prove the requisite mens rea for the unlawful act (see: R v Desousa, 1992 CanLII 80 (SCC), [1992] 2 SCR 944). The test, as laid out in R v Desousa, 1992 CanLII 80 (SCC), [1992] 2 SCR 944, requires “objective foreseeability of the risk of bodily harm which is neither trivial nor transitory, in the context of a dangerous act”. Nevertheless, foreseeability of death does not need to be established in the context of manslaughter (see: R v Creighton, 1993 CanLII 61 (SCC), [1993] 3 SCR 3).

Homicide Defences

The availability and strength of any defence depend entirely on the specific facts of one’s case. However, the following are some frequently referenced or frequently asked-about defences that may be used when fighting a homicide charge:

Provocation

As per section 232 of the Criminal Code, even if the evidence establishes the actus reus and mens rea for murder, the defendant may be convicted of the lesser offence of manslaughter if there remains doubt that the defendant was provoked. As per section 232(2) of the Criminal Code,

[c]onduct of the victim that would constitute an indictable offence under this Act that is punishable by five or more years of imprisonment and that is of such a nature as to be sufficient to deprive an ordinary person of the power of self-control is provocation for the purposes of this section, if the accused acted on it on the sudden and before there was time for their passion to cool.

There are many elements to proving provocation including looking at what constitutes a “wrongful act”, what constitutes an “insult”, who we consider the “ordinary person”, what the “loss of control” looks like, what “sudden” in the context of provocation means, etc. If you have been charged with murder but think you were provoked, contact one of our lawyers. If the issue is raised, it is the duty of the Crown to prove that there was no provocation; it is not your responsibility to prove that there was provocation (see: R v Thibert, 1996 CanLII 249 (SCC), [1996] 1 SCR 37).

Intoxication

Intoxication is only available as a defence for charges of murder and not manslaughter. It is a very rare defence and has only been recognized as a defence for violent crimes (including murder) as of quite recently by the Supreme Court of Canada. The law recognizes three types of intoxication (see: R v Daley, 2007 SCC 53 (CanLII), [2007] 3 SCR 523): mild, advanced, and extreme. Mild intoxication is not a defence. Advanced intoxication can be a partial defence and will demand of the court, that it consider whether the mens rea requirement is fully met.

Extreme intoxication can be a complete defence to a charge of murder, however, as mentioned, this is incredibly rare. Extreme intoxication is said to be akin to automatism (see discussion about this directly below) and is then said to become a barrier to forming the requisite mental intent (mens rea) for being at fault for an offence. The accused can put forth evidence relevant to the amount of alcohol consumed and the effects it had on them when attempting to establish an intoxication defence (see: R v Daviault, 1994 CanLII 61 (SCC), [1994]3 SCR 63); expert testimony (while perhaps likely to be more convincing), is not required to establish extreme intoxication (see: R v SJB, 2002 ABCA 143 (CanLII)).

Automatism

Again, automatism is a rare defence, but it is legally available. In R v Stone, 1999 CanLII 688 (SCC), [1999] 2 SCR 290, the Supreme Court of Canada defined automatism as “a state of impaired consciousness. This is in contrast with unconsciousness, in which an individual, though capable of action, has no voluntary control over that action. The person engages in involuntary behaviour such that “a person who, though capable of action, is not conscious of what he is doing”. In simpler terms, as put in R v Rabey, 1977 CanLII 48 (ONCA), “it means an unconscious involuntary act where the mind does not go with what is being done”. There are two legally recognized types of automatism: that of which are brought on by a mental disorder and those acts which are not (or non-mental disorder automatism). Automatism affected by a mental disorder will flow into a finding of “not criminally responsible” (NCR). NCR findings are discussed in more detail here. Non-mental disorder automatism, where properly established, results in an acquittal of the charges (see: R v Alexander, 2015 BCCA 484 (CanLII)).

The burden of proof rests heavily on the defendant to demonstrate a claim of automatism – the defendant must adduce evidence to raise the defence and must prove automatism “on a balance of probabilities”. Indications of automatism must be in the form of expert psychiatric evidence. The burden requires proof that the involuntariness is more than “plausible” (see: R v Stone, 1999 CanLII 688 (SCC), [1999] 2 SCR 290).

Self-defence

Self-defence is an available defence to a homicide charge.

The defence is statutorily embedded in the Criminal Code under section 34. Section 34(1) says that:

Parliament requires under section 34(2) of the Criminal Code, that the court consider an array of factors when adjudicating the plausibility of self-defence including but not limited to:

• the nature of the force or threat;
• the extent to which the use of force was imminent and whether there were other means available to respond to the potential use of force;
• whether any party to the incident used or threatened to use a weapon;
• the size, age, gender and physical capabilities of the parties to the incident;
• the nature and proportionality of the person’s response to the use or threat of force, etc.

As established in the case of R v Cuhna, 2016 ONCA 491 (CanLII), the section 34 test requires three elements:

1. Reasonable Belief: “the accused must reasonably believe that force or threat of force is being used against him or someone else”;
2. Defensive Purpose: “the subjective purpose for responding to the threat must be to protect oneself or others; and”
3. Reasonable Response: “the act committed must be objectively reasonable in the circumstances”.

Self-defence is a full justification for murder. It is to be considered in situations of “last resort” where a jury would accept that “the accused believed, on reasonable grounds, that his own safety and survival depended on killing the victim at that moment” (see: R v Cinous, 2002 SCC 29, [2002] 2 SCR 3).

Necessity

Simply put, necessity can be used as a defence in situations where there was no other legal alternative. The fact that there is no other alternative makes it so that the offence is entirely involuntary. “To be truly involuntary, the act must be inevitable and unavoidable” (see: R v McKay, 1992 CanLII 1952 (BCCA)). The fact that the defendant was engaging in criminal activity or an immoral act themselves, does not bar the availability of necessity defence (see: R v McKay, 1992 CanLII 1952 (BCCA)).

The elements to make out the defence of necessity (as established in Morgentaler v The Queen, 1975 CanLII 8 (SCC), [1976] 1 SCR 616) requires proof that:

1. the accused must be in imminent peril or danger;
2. the accused must have had no reasonable legal alternative to the course of action he or she undertook; and
3. the harm inflicted by the accused must be proportional to the harm avoided by the accused.

Not Criminally Responsible (NCR)

Section 16 of the Criminal Code is intended to appreciate the existence of mental illness in the criminal context and “the principle of law that a person who suffers from a mental disorder which renders him incapable of making rational or autonomous choices should not be held criminally responsible” (see: R v Ejigu, 2016 BCSC 1487 (CanLII)).

Section 16 of the Criminal Code reads that:

Both the defence or the Crown can raise the issue of NCR. The burden to prove the existence of a mental disorder rests on the party who raises it (see: section 16(3) of the Criminal Code). There is an automatic presumption at law that every person does not suffer from a mental disorder unless proven on a balance of probabilities (see: section 16(2) of the Criminal Code).

The party who raises the issue must demonstrate that the accused was:

1. suffering from a mental disorder; and,
2. unable to appreciate the “nature and quality” of the act, or
3. did not know it was “wrong” (see: R v Borsch, 2007 MBCA 111 (CanLII)).

The outcome of an NCR finding is prescribed by section 672.34 of the Criminal Code. The section reads:

Where the jury, or the judge or provincial court judge where there is no jury, finds that an accused committed the act or made the omission that formed the basis of the offence charged, but was at the time suffering from mental disorder so as to be exempt from criminal responsibility by virtue of subsection 16(1) [defence of mental disorder], the jury or the judge shall render a verdict that the accused committed the act or made the omission but is not criminally responsible on account of mental disorder.

As per R v Sullivan, 1995 CanLII 8931 (BCCA), “if there is a disease of the mind, it must be shown to be connected with the accused’s state of mind at the time of the offence. Specifically, that the disease of the mind caused the accused to be impaired. It must be a sufficiently serious disorder”. The court considers the effect of the mental disorder on the accused’s mental capacity as a whole (see: R v SH, 014 ONCA 303 (CanLII)). The party who raises the issue ought to present expert evidence about “the cause, nature and symptoms of the abnormal condition and how that condition is viewed and characterized medically” (see: R v SH, 014 ONCA 303 (CanLII)).

Some examples of diseases of the mind which have rendered NCR findings include:

• certain forms of psychopathy (see: Cooper v R, 1979 CanLII 63 (SCC), [1980 1 SCR 1149),
• retardation (see: R v MSR, 1996 CanLII 8294 (ONSC)),
• anxiety (see: R v MacLeod, 1980 CanLII 313 (BCCA)),
• delirium (see: R v Malcolm, 1989 CanLII 214 (MBCA)), etc.

A finding of NCR does lead to an acquittal for the offence. The court may still enforce a disposition, however, these are generally associated with the rehabilitation of the offender and are not necessarily sanction-based like conventional sentences for a criminal offence.

Applicable Charter Defences

The Canadian Charter sets out your rights and freedoms before and after your arrest. If the police fail to abide by these rights, either deliberately or inadvertently, it could aid in your defence. If any of your Charter rights have been violated before or after your arrest, you may be able to have some or all of the evidence that the Crown is relying on to secure a conviction excluded under s.24(2) of the Charter.

Homicide Punishment

First Degree and Second Degree Murder

Convictions for both first and second-degree murder as prescribed by section 235(1) of the Criminal Code, result in automatic life sentences. The reason they may be prosecuted differently is that parole ineligibility for first-degree murder is at least 25 years (see: section 745(a) of the Criminal Code), whereas parole ineligibility for second-degree murder is at least 10 years, but up to 25 years (see: section 745.1(b) of the Criminal Code).

If you are facing multiple murder charges these may be served “concurrently” or “consecutively”. A consecutive sentence means that if, for example, you were charged with three counts of first-degree murder, you would have to serve 75 years in prison before parole eligibility. A concurrent sentence would permit the offender in the same scenario to still apply for parole after 25 years because concurrent sentences are served at the same time or on top of each other.

Manslaughter

Additionally, after a conviction of murder or manslaughter, the court must: make an order for the taking of samples for the DNA databank: (see: section 487.051(1) of the Criminal Code); enforce a firearm prohibition in accordance with section 109 of the Criminal Code; compel weapons used in the commission of the offence for forfeiture (see: section 491 of the Criminal Code). The court may also place bans on communicating with witnesses/victims and/or implement a victim surcharge fine.

Frequently Asked Questions

Will a juvenile go to jail for homicide?

In short, a juvenile can absolutely be sentenced to a term of imprisonment for a homicide charge. Youth under the age of 12 cannot be held criminally responsible in Canada. Youth criminal offences committed by those between the ages of 12-17 are covered by the Youth Criminal Justice Act (YCJA). What is most important about this Act is its intention to appreciate the infancy of youth offenders, their diminished mental capacity in comparison to a cognitively, fully developed adult and therefore the importance of more restorative and rehabilitative sentencing practices. This Act sets out maximum penalties for certain criminal acts. The YCJA provides that for a first-degree murder charge, the maximum sentence is 10 years imprisonment. The maximum sentence for second degree murder is seven years imprisonment and the maximum sentence for manslaughter is three years. It is important to note that sentences can flow into adulthood – becoming an adult while serving your sentence does not terminate the sentence early.

Youth over the age of 14 can be tried as an adult for any serious offence in Canada (serious offences in Canada are those for which an adult could receive a sentence of two years imprisonment or more). Where the trial judge moves to try the young offender as an adult, the YCJA no longer applies, and sentences will be those outlined in the Criminal Code. These are illustrated in the chart linked here. Therefore, the possibility exists, that a youth could receive a life sentence for committing murder or manslaughter.

What is the sentence for homicide in Canada?

• First-degree murder: Life imprisonment with no chance of parole for 25 years.
• Second-degree murder: Life imprisonment with no chance of parole for at least 10 years but no more than 25 years.
• Manslaughter: There is no minimum sentence. The judge has wide discretion in instances of manslaughter unless the manslaughter was committed with a firearm. In this case, the minimum sentence is 4 years imprisonment. Theoretically, one could receive a non-custodial sentence for manslaughter, nevertheless, this is extremely rare.

Can you go to jail for homicide if it’s self-defence?

If argued successfully, an accused may be properly acquitted of the charge(s). In other words, if you were acting out of self-defence, you may not be convicted and therefore, you will not serve time in jail. The burden of proof for demonstrating self-defence is burdensome and you and your legal team will need to produce convincing evidence which supports the claim that you were acting in self-defence. The Crown, if the defence is raised, is tasked with proving that you were not acting in self-defence and must prove this beyond a reasonable doubt. If you do not have sufficient evidence for your claim, then you may be sentenced to a term of imprisonment if convicted of a homicide charge.

Published Decisions

R v Sundman, 2022 SCC 31 (CanLII)

Both the accused and the victim were drug dealers. The accused kidnapped the victim and confined him to the back of his pickup truck. While in transport, the victim saw an opportunity and escaped from the bed of the truck. The accused pursued the victim and shot him multiple times. The victim died at the scene. The question for the court was whether Mr. Sundman could be found guilty of first-degree murder because there was no planning/deliberation but he was unlawfully confining the victim which is one of the presumptive first-degree offences (i.e., one is guilty of first-degree murder if they were attempting to commit or were committing one of the many offences listed in section 231(5) of the Criminal Code including the offence of unlawful confinement). The accused argued that because the victim had escaped, he was no longer unlawfully confined and the presumption of first-degree murder could not be upheld. The Supreme Court of Canada did not agree with this line of argumentation and noted that “[e]ven though he was not physically restrained outside of the truck, he continued to be coercively restrained through violence, fear, and intimidation. The victim was deprived of his liberty and was not free to move about according to his inclination and desire. Therefore, the accused then murdered the victim while unlawfully confining him”. The Court said that “these two distinct criminal acts were part of a continuous sequence of events forming [one] single [transaction;] they were close in time and involved ongoing domination of the victim that began in the truck, continued when he escaped from the truck and when he ran for his life, and which ended with his murder”. Mr. Sundman was sentenced accordingly (life imprisonment with no chance of parole for at least 25 years).

You can read the full case here.

R v Nette, 2001 SCC 78 (CanLII), [2001] 3 SCR 488

A 95-year-old widow was robbed and left hog-tied in her room with a ligature around her neck. Over a period of 48 hours, she suffocated to death. During an undercover investigation, a suspect, Mr. Nette, admitted to an undercover officer that he had robbed and killed the widow.

Mr. Nette was arrested and charged with first-degree murder under section 231(5) of the Criminal Code, however, at trial, he was convicted of second-degree murder by a jury. This case was appealed to the Supreme Court of Canada because it was argued that the charge to the jury on the principles of causation (i.e., did the acts of the accused cause the victim’s death) was erroneous. The Supreme Court of Canada agreed that the principles of causation we improperly explained to the jury and the Supreme Court of Canada reaffirmed the Smithers Test for challenging causation in second-degree murder cases. See the test here. The accused was ultimately found guilty of second-degree murder.

You can read the full case here.

R v Javanmardi, 2019 SCC 54 (CanLII), [2019] 4 SCR 3

The accused was a naturopath who administered nutrients by way of an intravenous injection to the victim (her patient). The nutrient solution for the intravenous injection was prepared from separate vials that turned out to be contaminated. The patient reacted negatively almost immediately and died of endotoxic shock some hours later. The accused was arrested and charged with criminal negligence causing death and manslaughter. The trial judge was satisfied that the accused had the required skills to administer intravenous injections, followed required protocols and took sufficient precautions. Based on these findings, the trial judge acquitted the accused of both charges. The Crown appealed and the Provincial Court of Appeal set aside both acquittals and substituted a conviction on the charge of manslaughter. The accused appealed to the Supreme Court of Canada where the accused’s acquittals were upheld, and the decision of the Court of Appeal was overturned.

You can read the full case here.