Understanding the Difference Between Murder, Manslaughter, and Infanticide

PUBLISHED ON May 12, 2023

Under Canadian law, not every killing is a criminal offence. For example, an individual who kills another when acting in lawful self-defence is not guilty of committing a crime. Generally, culpable homicides can be classified as murder, manslaughter, and infanticide. This article only deals with murder and manslaughter: a discussion of infanticide is beyond its scope. The following is for informational purposes and is not legal advice. You should consult with a professional criminal lawyer for legal advice about your matter.

The Definition of Murder 

The intentional unlawful killing of another person or inflicting bodily harm with the knowledge that it will likely cause death (and being reckless whether death ensued) is murder. Specifically, “murder” is defined in the criminal code in section 229.

Murder

229 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 affect their object without causing death or bodily harm to any human being.

There is both “first-degree murder” and “second-degree murder”.

First-Degree Murder

Many are familiar with first-degree murder having to be both planned and deliberate. Planning on killing the victim in advance and doing so with malice and forethought elevates what would otherwise be second degree murder to first-degree murder. Many are unaware, however, that other circumstances can elevate what would otherwise be second-degree murder to first-degree murder, including:

  • Killing of a police officer
  • Killing during an act of terrorism or as part of a criminal organization
  • Killing someone in the commission of another unlawful act, such as sexual assault or kidnapping
  • Killing someone as a means of intimidating another individual or group

Specifically, the Criminal Code states:

231 (1) Murder is first-degree murder or second-degree murder.

  • Planned and deliberate murder

(2) Murder is first-degree murder when planned and deliberate.

  • Contracted murder

(3) Without limiting the generality of subsection (2), murder is planned and deliberate when it is committed under an arrangement under which money or anything of value passes or is intended to pass from one person to another or is promised by one person to another, as 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.

(4) Irrespective of whether a murder is planned and deliberate on the part of any person, murder is first-degree murder when the victim is

  • a police officer, police constable, constable, sheriff, deputy sheriff, sheriff’s officer or other person employed for the preservation and maintenance of the public peace, acting in the course of his duties;
  • a warden, deputy warden, instructor, keeper, jailer, guard or other officer or a permanent employee of a prison, acting in the course of his duties; or
  • a person working in a prison with the permission of the prison authorities and acting in the course of his work therein.

Hijacking, sexual assault or kidnapping

(5) Irrespective of whether a murder is planned and deliberate on the part of any person, murder is first-degree murder in respect of a person when the death is caused by that person while committing or attempting to commit an offence under one of the following sections:

  • section 76 (hijacking an aircraft);
  • section 271 (sexual assault);
  • section 272 (sexual assault with a weapon, threats to a third party or causing bodily harm);
  • section 273 (aggravated sexual assault);
  • section 279 (kidnapping and forcible confinement); or
  • section 279.1 (hostage taking).

Criminal harassment

(6) Irrespective of whether a murder is planned and deliberate on the part of any person, murder is first-degree murder when that person causes the death while committing or attempting to commit an offence under section 264 and the person committing that offence intended to cause the person murdered to fear for the safety of the person murdered or the safety of anyone known to the person murdered.

Murder — terrorist activity

(6.01) Irrespective of whether a murder is planned and deliberate on the part of a person, murder is first-degree murder when the death is caused by that person while committing or attempting to commit an indictable offence under this or any other Act of Parliament if the act or omission constituting the offence also constitutes terrorist activity.

Murder — a criminal organization

(6.1) Irrespective of whether a murder is planned and deliberate on the part of a person, murder is first-degree murder when:

  • the death is caused by that person for the benefit of, at the direction of or in association with a criminal organization; or
  • the death is caused by that person while committing or attempting to commit an indictable offence under this or any other Act of Parliament for the benefit of, at the direction of or in association with a criminal organization.

Intimidation

(6.2) Irrespective of whether a murder is planned and deliberate on the part of a person, murder is first-degree murder when the death is caused by that person while committing or attempting to commit an offence under section 423.1.

Second-Degree Murder

Simply put, any ‘murder’ that isn’t first-degree murder is second-degree murder.

Manslaughter 

Culpable homicide that is not murder or infanticide is manslaughter. If you commit an unlawful act that results in the death of another person, but you did not intend to cause death, you could face manslaughter charges. An example of this could be when someone hits another with an object, and the victim falls and hits their head and dies from the injury. An unlawful killing committed as a result of provocation in the heat of the moment (defined in the Criminal Code) can also result in a manslaughter charge and can even reduce a charge of murder to manslaughter.

Consequences for Murder in Canada 

First-degree murder carries a sentence of life imprisonment with no possibility for parole for a minimum of 25 years. A second-degree murder conviction also results in a life sentence. However, the parole ineligibility period ranges from 10-25 years. Manslaughter consequences vary, up to and including life in prison, and if you use a gun to commit manslaughter, the minimum sentence is four years.

Hire a Knowledgeable Attorney for a Strong Defence

If you’re facing charges for causing the death of someone, call (416) 658-5855 to speak with attorney Brian Ross in Toronto. He can help you understand the difference between murder, manslaughter, and infanticide and devise an effective defence strategy.

CONTACT BRIAN ROSS

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Brian Ross is a founding partner at Canada’s largest criminal Law firm, Rusonik, O’Connor, Robbins, Ross & Angelini, LLP. Prior to founding this firm, Brian was a partner at Pinkofskys, a leading law firm famous for its vigorous defence of its clients.

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