Murder, she wrote.

Well, actually, I'm a "he" but don't kill yourself over it.

Murder. Homicide.

Few words have more magnetism than ... murder!

Unable to keep a good thing alone when they see it, Canada's Parliament has taken many years to divide and sub-divide a fairly simple concept into what is now a complex definition. For the record, in Canada, as of 2007, there is first degree murder, second degree murder, infanticide, manslaughter, attempted murder and accessory to murder.

Murder is murder as far as 1st or 2nd degrees goes except that the classification as per degree will be relevant to sentencing. From R v Droste, (1984) 1 S.C.R. 208:

"(F)irst degree murder and second degree murder are not different offences. The substantive offence is murder. The characterization of murder as being in the first degree or in the second degree is for sentencing purposes only."

Murder used to simply be any death committed during the course of a crime, whether it was part of the plan out or not.

Eventually, because a conviction for murder meant capital punishment, it was thought that too harsh a penalty for all situations where death occurred during or as a result of a crime.

murder? Canada's Criminal Code states that there are two types of homicide: cuplable or non culpable or, to use plain English, blameworthy or not blameworthy.

Sometimes, a person kills another by accident and by none of his fault; for example, a person who runs out into traffic and is hit by a car. Another example is where a person kills another in a situation of self-defence which justified the use of deadly force.

Cuplable homicide is a seious offence in Canada (called "indictable") and is divided into infantacide (the culpable homicide of an infant) and murder of the first degree, of the second degree or manslaughter.

To prove the point of complexity that Canada's criminal law now has to be all things fair to accused persons, I provide as exhibit A sections 222, 231 and 232 of the 2007 Criminal Code:

222. (1) A person commits homicide when, directly or indirectly, by any means, he causes the death of a human being.

(2) Homicide is culpable or not culpable.

(3) Homicide that is not culpable is not an offence.

(4) Culpable homicide is murder or manslaughter or infanticide.

(5) A person commits culpable homicide when he causes the death of a human being by means of an unlawful act; by criminal negligence; by causing that human being, by threats or fear of violence or by deception, to do anything that causes his death; or by wilfully frightening that human being, in the case of a child or sick person.

(6) Notwithstanding anything in this section, a person does not commit homicide within the meaning of this Act by reason only that he causes the death of a human being by procuring, by false evidence, the conviction and death of that human being by sentence of the law.

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

 (2) Murder is first degree murder when it is planned and deliberate.
 
(3) Without limiting the generality of subsection (2), murder is planned and deliberate when it is committed pursuant to 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.

(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:

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

(6) Irrespective of whether a murder is planned and deliberate on the part of any person, murder is first degree murder when the death is caused by that person 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.

(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 while committing or attempting to commit an indictable offence under this or any other Act of Parliament where the act or omission constituting the offence also constitutes a terrorist activity.

(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 while committing or attempting to commit an offence under section 81 for the benefit of, at the direction of or in association with a criminal organization.
 
(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 while committing or attempting to commit an ofence under section 423.1.
 
(7) All murder that is not first degree murder is second degree murder.

232. (1) Culpable homicide that otherwise would be murder may be reduced to manslaughter if the person who committed it did so in the heat of passion caused by sudden provocation.
 
(2) A wrongful act or an insult 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 his passion to cool.

(3) For the purposes of this section, the questions whether a particular wrongful act or insult amounted to provocation, and whether the accused was deprived of the power of self-control by the provocation that he alleges he received, are questions of fact, but no one shall be deemed to have given provocation to another by doing anything that he had a legal right to do, or by doing anything that the accused incited him to do in order to provide the accused with an excuse for causing death or bodily harm to any human being.
 
(4) Culpable homicide that otherwise would be murder is not necessarily manslaughter by reason only that it was committed by a person who was being arrested illegally, but the fact that the illegality of the arrest was known to the accused may be evidence of provocation for the purpose of this section."

Phew!

There are hundreds of cases on the topic of murder in Canada, some with fancy titles like "Capital Offences in Canada", but all splitting hair after hair.

For example, the meaning of the words "planned and deliberate", a necessary element of first degree murder as per 231(2) above, has been the subject of many a hotly contested case. Every two or three years, yet another case is published which purports to simply the definition but in reality just gets added to the arsenal of defence counsel.

For the record, "planned and deliberate" was defined (again) in 1989 by the British Columbia Court of Appeal in R v Cairns, 51 CCC 3d 90, adopting these words:

"I think that in the (Criminal) Code, "planned" is to be assigned, I think, its natural meaning of a calculated scheme or design which has been carefully thought out, and the nature and consequences of which have been considered and weighed.

"But that does not mean, of course, to say that the plan need be a complicated one. It may be a very simple one, and the simpler it is perhaps the easier it is to formulate.

"The important element, it seems to me, so far as time is concerned, is the time involved in developing the plan, not the time between the development of the plan and the doing of the act. One can carefully prepare a plan and immediately it is prepared set out to do the planned act, or alternatively, you can wait an appreciable time to do it once it has been formed.

"As far as the word "deliberate" is concerned, I think that the Code means that it should also carry its natural meaning of "considered," "not impulsive," "slow in deciding," "cautious," implying that the accused must take time to weight the advantages and disadvantages of his intended action."

As set out in the Code extracts above, most notably at ¶232, provocation is recognized as a defence to murder.

In one case, R v Thibert, cited at [1996] 1 SCR 37, the Supreme Court of Canada had to consider these tragic facts, and could only issue a bare majority, 3-2 decision:

"The accused's wife was having an affair with a co-worker, and eventually left the accused for the co-worker. The accused hoped to talk to her to convince her to return to him. He was distraught and went without sleep for 34 hours. The accused, armed with a loaded rifle, followed his wife to her workplace. The accused asked his wife to go with him, but she refused. The co-worker appeared and began to lead the wife away. The accused took the rifle from his car. The co-worker began walking towards the accused while holding the wife between them, telling the accused to shoot him. The wife moved aside, and the co-worker continued to advance despite the accused's statements to stay back. The accused was retreating and his eyes were closed when he fired the rifle killing the co-worker."

The Court decided that provocation required an objective element:

"(T)he wrongful act or insult must be one which could, in light of the past history of the relationship between the accused and the deceased, deprive an ordinary person, of the same age, and sex, and sharing with the accused such other factors as would give the act or insult in question a special significance, of the power of self-control."

... and a subjective one:

"The background and history of the relationship between the accused and the deceased should be taken into consideration. This is particularly appropriate if it reveals a long history of insults, levelled at the accused by the deceased. This is so even if the insults might induce a desire for revenge so long as immediately before the last insult, the accused did not intend to kill."

A careful reading of the Criminal Code reveals the absence of any satisfactory definition of manslaughter, leaving it to the common law to fill the vacuum left by the statute.

In R v Cooperthwaite 2006 MBQB 111, Justice McElvey noted that:

"The offence of manslaughter is not expressly defined in the Criminal Code.  Manslaughter constitutes an unlawful killing of another person without malice, either express or implied.  The unlawful killing may be either voluntary by virtue of acting upon a sudden impulse, or involuntary."

In R v Henry, a 1974 Nova Scotia case, cited at 19 CCC 2d 112, adopted these words:

"If (a jury) found beyond reasonable doubt that the appellant intended his striking the deceased would likely cause death and did not concern himself about the consequences, this would be murder, but if they found that the appellant struck the deceased and inadvertently caused his death, this would be manslaughter."

The Criminal Code closes the wagons around "culpable homicide" by providing that "every person who attempts by any means to commit murder" (¶239)and "every one who is an accessory after the fact to murder" (¶240) commits an indictable offence and may face a life sentence.