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Murder, Manslaughter and Attempted Murder

The Charge

While all criminal charges will impact an accused’s life, there are some charges that will have such a massive impact, it is critical for a person charged to select an extremely effective and experienced lawyer. These charges include:

  • Murder (first and second degree);
  • Attempted Murder; and
  • Manslaughter

These are the more serious offences. A conviction will result in a jail sentence, possibly for life. The central issue in distinguishing between these offences comes down to whether the accused had the intention to kill or not. Section 229 of the Criminal Code sets out that a person will be guilty of murder where that person causes the death of another person and the accused meant to cause death or meant to cause bodily harm that he knew was likely to cause death.

Section 231 provides that all murder that is not “first degree” murder is “second degree.” First degree murder requires, not only that the Crown prove the “intention to kill” element, but the Crown must additionally prove that the accused “planned and deliberated” the killing. Courts have interpreted this to mean “considered not impulsive.” Though in proving this additional element the Crown must prove that the accused calculated, schemed, or thought out a plan to kill, the plan need not be a complicated one. It is open for a court to find that a simple plan that is formulated a very short time before the killing amounts to first degree murder.

The penalties for murder are severe. Both first and second-degree murder convictions require mandatory life sentences. For second degree murder, there is a minimum of 10 years before the offender can be considered for parole; for first degree, there is a minimum 25 years of parole ineligibility.

Attempted murder involves the accused having the intent to kill and, who by any means attempts to carry out an act that would kill, but ends up not resulting in the death of the intended victim. There is a mandatory life sentence of imprisonment upon conviction. There is no mandatory minimum period of parole ineligibility for attempted murder, unless the offence involves use of a firearm, in which case there is a mandatory minimum of 4 years in jail.

Section 236 of the Criminal Code sets out that a person convicted of manslaughter is liable to a mandatory life sentence of imprisonment. There is no mandatory minimum period of parole ineligibility for manslaughter, unless the offence involves the use of a firearm, in which case there is a mandatory minimum of 4 years in jail. The Crown is not required that the accused had the intent to kill in a manslaughter case. Rather, the Crown need only prove that the death was the result of an unlawful act, such as an intentional or reckless application of force (i.e. an assault) by the accused upon the victim and that bodily harm was reasonably foreseeable.

The Investigation

Because of the serious consequences to all parties involved in murder and manslaughter cases, police will conduct very thorough investigations into all aspects of the file. They will have to prove all essential elements of the offence, including the identity of the perpetrator; that the actions of the perpetrator in fact caused death (“causation”); and, in murder cases, that the perpetrator intended to cause death.

Identification

Various police investigative techniques involve gathering statements from any eyewitnesses or other people who can comment on the whereabouts of the suspect at relevant times. Where there are no eyewitnesses, police will focus on various forensic identification techniques such as attempting to match DNA, fingerprints, or shoeprints of the suspect to the crime scene. They will also try to obtain any video or photographic surveillance evidence.

Causation

In order to prove that it was the actions of the accused, and not some other intervening factor, that caused the death of the victim, Crown counsel will often introduce medial expert evidence from a pathologist who will offer the court an opinion as to the cause of death. The expert will typically rely on other forensic evidence, such as blood spatter and the nature of the victim’s injuries in order to establish that it was the accused’s actions that caused death.

Intention

Because the accused’s state of mind is integral to whether an accused is guilty of first degree or second-degree murder, or of manslaughter, police investigators will try to obtain evidence from all sources in order to prove their case. The sources may be “circumstantial” sources, such as the number of injuries to the victim, or the sources may be direct, such as statements from witnesses, or even more directly, statements from the accused. As criminal defence lawyers, we are very aware of how important it is to a murder/manslaughter case for police to attempt to obtain statements from their suspect. In addition to direct interview attempts, police will often attempt to obtain indirect statements from their suspect by obtaining “wiretap” authorizations in order to intercept telephone and computer communications. Police will also conduct clandestine surveillance of murder/manslaughter suspects in an effort to gather evidence relating to the issue of the suspect’s intention to kill.

Recent Successes

R. vs. B.M. - Vancouver Provincial Court

Charge: Driving While Prohibited.
Issue: Whether it was appropriate for Crown counsel to proceed on this charge, which carries a mandatory minimum 12 month driving prohibition.
Result: Mr. Johnson was able to persuade Crown to proceed on the lesser offence of driving without a valid driver's licence. After hearing Mr. johnson's submissions, the court imposed a $500 fine. No driving prohibition.

R. vs. B.C. - Vancouver Provincial Court

Charge: Assault Causing Bodily Harm.
Issue: Given the rehabilitative steps our client had taken, whether it was in the public interest to proceed with the criminal charge.
Result: Mr. Johnson was able to persuade Crown counsel to stay the criminal charge. Our client entered into a Peace Bond for a period of 9 months. No criminal record.

R. vs. Z.H. - Port Coquitlam Youth Court

Charge: Assault Causing Bodily Harm.
Issue: Whether, given the history between our client and the complainant, it was reasonable for our client apply  the level of force he used.
Result: Mr. Johnson was able to persuade Crown to not approve any criminal charge but, rather, to resolve the matter through Restorative Justice. No criminal record.

Y.Y. vs. Superintendent of Motor Vehicles - Review of Driving Prohibition

Charge: Notice of Intent to Prohibit.
Issue: Whether RoadSafety BC had appropriate reasons to prohibit our client from driving for 4 months.
Result: Mr. Johnson was able to persuade the Superintendent's adjudicator that the 4 month driving prohibition was not warranted. The driving prohibition was reduced to 2 months.

R. vs. R.H. - North Vancouver Provincial Court

Charges: Assault (x2); Threatening; Breach of Undertaking (domestic).
Issue: Given the rehabilitative steps our client had taken, whether it was appropriate for the Court to convict him.
Result: Mr. Mines was able to persuade Crown to proceed on only a single count of assault. After hearing Mr. Mines' submissions, the Court granted our client a conditional discharge. No criminal conviction.  

R. vs. D.I. - Vancouver Provincial Court

Charges: Dangerous Driving Causing Bodily Harm; Driving Without Due Care and Attention.
Issue: Whether it was appropriate for Crown to charge our client under the Criminal Code or the Motor Vehicle Act in regard to an accident where our client's vehicle struck a cyclist from behind, causing serious injury.
Result: Mr. Mines was able to provide information to Crown which resulted in Crown proceeding under the Motor Vehicle Act. After hearing Mr. Mines' submissions, the Court sentenced our client to a $1000 fine and limited his ability to drive for 12 months. No criminal conviction. No loss of insurance coverage. No jail.

R. vs. C.G. - North Vancouver Provincial Court

Charge: s. 810 Peace Bond Application.
Issue: Given the rehabilitative steps our client had taken, whether the complainant continued to have fear of our client.
Result: Mr. Mines was able to persuade Crown counsel to withdraw its Peace Bond application. No conditions. No record.

R. vs. L.B. - North Vancouver Provincial Court

Charge: Fraud Over $5000 (from employer).
Issue: Given the rehabilitative steps our client had completed and given the compelling explanation of why the offence occurred, whether it was in the public interest for our client to recieve a conviction.
Result: Mr. Johnson was able to persuade the Crown to proceed summarily on the lesser offence of Fraud Under $5000, and after hearing Mr. Johnson's submission, the court granted our client an absolute discharge. No criminal record.

R. vs. R.G. - Vancouver Provincial Court

Charge: Assault.
Issue: Whether there was substantial likelihood of a conviction in this “road rage” assault case.
Result: Mr. Johnson provided information to the Crown that suggested our client was acting in self defence. No charge approved. No criminal record.

R. vs. R.R. - Vancouver Provincial Court

Charge: Theft Over $5000.
Issue: Given the steps taken by our client to repay a substantial amount of the alleged $70,000 theft from his employer, whether it was in the public interest for the Crown to pursue a jail sentence that, given the breach of trust, would normally be called for.
Result: Mr. Mines was able to persuade Crown counsel that they could only prove theft in the amount of $40,000. He was then able to persuade Crown to proceed summarily on 8 counts of Theft Under $5000 and to make a joint submission for a conditional sentence. After hearing Mr. Mines’ submissions, the court granted our client a 6 month conditional sentence and made a stand alone restitution order. No jail.

R. vs. T.G. - Vancouver Provincial Court

Charge: Assault with a Weapon; Assault Causing Bodily Harm.
Issue: Given the rehabilitative steps Mr. Johnson was able to steer our client through, whether our client would be convicted of the offences.
Result: After hearing Mr. Johnson’s submissions on our client’s behalf, the Judge granted our client a conditional discharge. No conviction; no criminal record.

UBC Independent Investigations Office vs. B.F.

Charge: Sexual Assault.
Issue: Whether the complainant could prove her allegation of being sexually assaulted.
Result: Mr. Johnson provided information to the investigator on our client’s behalf, and at the conclusion of the hearing, the allegation was dismissed.

The Defence

Alibi

The defences in murder/manslaughter cases are numerous. There are defences aimed at every element that the Crown must prove. For example, on the issue of identification, it may be that the defence can present evidence of alibi. The defence may be able to bring witnesses to court to establish that the accused was elsewhere at the time of the incident.

Unreasonable Search

Section 8 of the Charter guarantees that everyone is free from unreasonable search and seizure. Our role, as experienced defence counsel, is to analyze the circumstances and, in appropriate cases, challenge the admissibility at trial of evidence that was gathered unlawfully by police. In essence, police must have “reasonable and probable grounds” to search. In many situations, such as where police want to search the private property of a suspect (i.e. their home or computer), prior judicial authorization is required in the form of a search warrant. Where police overreach their authority, and conduct a search based on something less than “reasonable and probable grounds,” we will apply to the court under s. 24(2) of the Charter to have the unlawfully obtained evidence excluded from the trial.

Self Defence

The law, under s. 34 of the Criminal Code, permits that if a person reasonably believes that force is being used (or threatened to be used) against them, they are allowed to use reasonable force to defend themselves, or another person, so long as the force they use is not excessive. Self-defence is available even where the force used results in the death of the other person, so long as the accused, in the course of being attacked, reasonably believed that they were facing imminent force. In determining whether the force used by the accused was excessive or not, the court will consider various circumstances including:

  • The nature of the force or threat;
  • The extent to which there was an alternative to using force;
  • The size, gender and physical capabilities of the parties; and
  • The history and relationship of the parties.

In essence, self-defence is available to a murder/manslaughter charge to the extent that the accused, objectively, had to defend themselves (or another person). The force used must not be excessive in the circumstances. As experienced defence lawyers, we have the skills to assess cases before they get to trial. We are committed to working with our clients to develop successful defences to all criminal charges, including the most serious accusations.

Start with a free consultation.

If you are being investigated by police or if you’ve been charged with a criminal or driving offence, don’t face the problem alone. Being accused of an offence is stressful. The prospects of a criminal record or jail sentence can be daunting. Even if you think there is no defence, we may be able to help. To schedule a free initial consultation with one of our Vancouver lawyers, contact us now.