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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. V.P. - Vancouver Provincial Court

Charges: Assault with a Weapon; Assault Police Officer.
Issue: Given some weakness in the assault with weapon charge and the rehabilitative steps our client had taken, whether it was appropriate for the Crown to seek the jail sentence they were originally seeking.
Result: Mr. Johnson was able to persuade Crown counsel to enter a stay of proceedings on the AWW charge and to jointly seek a conditional discharge on the assault police officer charge. No jail. No criminal conviction.

R. vs. S.K. - Surrey Provincial Court

Charges: Fraud Over $5000 (from Employer).
Issue: Given the civil settlement  we were able to obtain on our client's behalf, whether it was in the public interest to proceed with criminal charges.
Result: Mr. Johnson, after successfully negotiating a civil settlement with the complainant, was able to persuade Crown counsel to not approve the criminal charges that RCMP had recommended. No jail. No criminal record.

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

Charges: Impaired Driving; Driving Over .08.
Issue: Whether it was in the public interest for Crown counsel to proceed with the criminal charges.
Result: Mr. Johnson was able to persuade Crown to allow our client to resolve this matter by pleading guilty to a lesser offence under the Motor Vehicle Act. Our client received a driving prohibition and fine. No criminal record.

R. v. S.W. - Courtenay RCMP Investigation

Charges: Possession for the Purpose of Trafficking.
Issue: Whether the search of the vehicle and our client was lawful.
Result: Mr. Mines was able to steer our client through the investigation and made representations to police that the search was unlawful. Police declined to recommend any  charges. No criminal record.

R. vs. A.N. - Vancouver Provincial Court

Charges: Assault with a Weapon.
Issue: Given the rehabilitative steps we guided our client through, whether it was in the public interest for Crown to seek a conviction on this charge.
Result: Mr. Johnson was able to persuade Crown to permit our client to plead to the lesser offence of common assault. After hearing Mr. Johnson's submissions, the court granted our client a conditional discharge. No criminal conviction.

R. vs. J.J. - Richmond Provincial Court

Charges: Assault Causing Bodily Harm.
Issue: Whether there was a substantial likelihood of  the Crown being able to prove that bodily harm occurred.
Result: Mr. Johnson was able to persuade Crown to permit our client to plead to the lesser offence of common assault. After hearing Mr. Johnson's submissions, the court granted our client a conditional discharge. No criminal conviction.

R. vs. S.W. - Vancouver Provincial Court

Charge: Assault (domestic).
Issue: Given that the complainant had instigated the altercation, whether it was in the public interest for our client to be convicted of the offence.
Result: We were able to guide our client through a course of rehabilitation and, after hearing Mr. Mines' submissions, the Court granted our client a conditional discharge and placed him on a non-reporting probation order for six months. No criminal conviction.

R. vs. S.W. - Richmond Provincial Court

Charge: Refusing to comply with a testing demand.
Issue: Given the circumstances of the offence and our client, whether it was in the public interest to proceed with the criminal prosecution.
Result: Mr. Mines was able to persuade Crown counsel to proceed on the lesser Motor Vehicle Act offence of driving without due care. Rather than a criminal conviction and a minimum 12 month driving prohibition, our client was liable to pay a $350 fine and a 2 month driving prohibition. No criminal record.

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

Charge: Driving While Prohibited.
Issue: Given the circumstances of the offence and our client, whether it was necessary for Crown to proceed with the driving while prohibited charge, which carries a mandatory minimum 12 month driving prohibition.
Result: Mr. Johnson was able to persuade Crown to proceed on the lesser Motor Vehicle Act charge of driving without a driver's licence. After hearing Mr. Johnson's submissions our client was sentenced to a fine and a 4 month driving prohibition.

R. vs. J.S. - North Vancouver Provincial Court

Charge: Assault Causing Bodily Harm (domestic).
Issue: Whether the Crown could prove that bodily harm resulted and, whether the rehabilitative steps our client had taken justified the Court granting a conditional discharge.
Result: Mr. Mines was able to persuade Crown counsel to proceed on the charge of common assault. After hearing Mr. Mines' submissions, the Court granted our client a conditional discharge. No criminal conviction.

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

Charge: Assault; Threatening.
Issue: Whether there was a substantial likelihood of conviction in this alleged "road rage" case.
Result: Mr. Johnson was able to provide information to Crown counsel on our client's behalf that led Crown to conclude there was no substantial likelihood of conviction. No charge approved. No criminal record.

R. vs. M.D. - North Vancouver Provincial Court

Charges: Theft Under $5000; Uttering Threats.
Issue: Whether, given our client's circumstances and remorse, whether it was in the public interest for criminal charges to proceed.
Result: We were able to provide information to police investigators which resulted in police deciding to not forward any charges to Crown. No criminal record.

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.