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The three are forms of culpable homicide (crime for causing blameworthy killing) but the differences are major when it comes to the state of mind (intent) required on the part of the accused and the circumstances of the killing:

First Degree Murder:

• The most serious of the homicide offences, a first degree murder charge requires proof by the Crown that the killing was both planned and premeditated.

• 'Planned' means that it was conceived or designed beforehand, while 'deliberate' means that it was considered and not impulsive.

• First degree murder is also a killing that is automatically found in certain situations (for example, the victim is a police officer or prison employee acting in their course of duty, or the death is caused in the commission of another serious offence such as hijacking, sexual assault or kidnapping) without the need for proof of planning and deliberation as it relates to the killing itself.

Second Degree Murder:

• This is a category for all intentional killings that are not classified as first degree.

• The prosecution must still prove that the killing was intentional (that the accused had the intention to kill the person or cause them bodily harm knowing that it was likely to cause their death and being reckless whether death ensues or not), but there is no requirement that 'planned and deliberate' apply.

• A second degree murder is typically considered to be a killing that is intentional but takes place in the 'heat of passion', and so is not 'planned and deliberate' but must still meet the intent (mental) requirement.

Manslaughter:

• This applies to cases where a person commits a culpable homicide without the intent required for murder.

• There are two general categories:

  • Unlawful Act Manslaughter:

    • Causing death by committing an unlawful act that was not a trivial offence (i.e., assault where the death was not intended but was caused by the assault).

    • The Crown must establish the act was 'objectively dangerous' (defined as an act that a reasonable person would recognize as carrying a risk of bodily harm that is neither trivial nor transitory).

  • Criminal Negligence Manslaughter:

    • Causing death by committing an act or failing to act when there is a duty to do so in law (i.e., parental duty to child).

    • That act or omission must show wanton or reckless disregard for safety of life and others.

Provocation:

• A murder charge (of first or second degree) may be reduced to a charge of manslaughter if it is found that the killing took place 'in the heat of passion caused by sudden provocation' as provided for in a specific code test.

• The distinction is important because the difference may be dramatic when it comes to what defences you can argue, what the trial process can look like, and what penalties may apply.

A police investigation or arrest for murder is the worst possible outcome that can befall an accused person, and what you do/say thereafter is critical to your defence:

Right to Silence:

• The number one thing to know if you are being questioned or interviewed by the police in a murder investigation is that you exercise your right to silence.

• Do not answer their questions.

• Do not try to explain what happened.

• Do not deny your involvement, provide an alibi, or answer any questions about what happened, where you were, or what took place.

• Instead, say:
  "I do not want to answer your questions and I want to speak to a lawyer."

• Anything you say may be twisted, misinterpreted, or used as evidence against you at trial, even if you are entirely innocent.

Right to Counsel:

• Say to the police as often as you need to say it that you wish to consult counsel.

• Do not wait.

• Do not provide any further statement, answer questions, or otherwise act to the police without:

  • Consulting with counsel privately, and

  • Having your lawyer present at the police station and for any conversations with authorities if directed.

Searches:

• Do not agree to any search of your property, phone, or person unless you are permitted by law to do so.

DNA or Lineups:

• Do not provide a police officer with a sample (for DNA testing) or agree to participate in a lineup without first consulting a lawyer.

Have an Experienced Murder Defence Lawyer Called Immediately:

• At the first possible opportunity, you or someone on your behalf must contact a murder defence lawyer with experience defending homicide cases on your behalf.

• The stakes could not be higher, and you need the right representation from the start.

Those charged with murder are rarely released on bail in Canada, but it is possible. Here is what you need to know:

Reverse Onus:

• Unlike the vast majority of bail hearings on other offences, where the Crown is required to make the case why the accused should be detained, a bail hearing for a murder charge is the reverse:

• • As the accused, you have the onus of showing why your detention is not justified (i.e., why you should be released).

Superior Court Jurisdiction:

• Unlike most other bail hearings heard in the Ontario Court of Justice, bail hearings for murder are heard before the Superior Court of Justice given the seriousness of the alleged offence.

Grounds for Detention:

• The three grounds considered by the court are:

• 1. Primary Ground: Is detention required to make sure the accused attends court?
  2. Secondary Ground: Is detention required for the safety or protection of the public, including victims and witnesses of the alleged offence of the murder?
  3. Tertiary Ground: Is detention required to preserve public confidence in the administration of justice, having regard to:

• • • The apparent strength of the Crown's case,

• • • The gravity of the offence,

• • • The circumstances surrounding its commission, and

• • • The potential for a lengthy prison sentence.

Strict Conditions:

• Any bail granted will almost certainly come with very restrictive terms, including:

• • A large sum of money to be posted in surety (sometimes by more than one surety),

• • House arrest and/or GPS electronic monitoring,

• • Reporting requirements,

• • No contact with victims or their family,

• • Weapons prohibitions and related restrictions.

Lawyer is Essential:

• It takes a skilled criminal defence lawyer to succeed on a bail application for a murder charge.

• Your lawyer must be able to:

• • Present a strong plan of release,

• • Offer persuasive evidence on the relevant bail grounds,

• • Cross-examine Crown witnesses (if necessary), and

• • Argue ultimately for your release before the Superior Court judge presiding.

The best defences on a murder (or manslaughter) charge will depend on the facts and evidence in your case. The following are some of the more common defences raised in murder cases:

Identity:

• The defence makes arguments that the Crown has failed to prove identity (beyond a reasonable doubt that you are the person who committed the act resulting in the victim's death).

"No Intent" (for Murder):

• The defence argues that the Crown has not proven the intent (mental) element of the offence that is required for a finding of guilt on a charge of first or second degree murder.

• If the defence is successful in disproving the intent requirement, the result may be:

  • A full acquittal, or

  • A conviction on the lesser included charge of manslaughter (provided unlawful act or criminal negligence is proven).

Self-Defence / Defence of Others:

• The defence argues that the actions (committing the act resulting in a person's death) are justified based on facts that:

  • The accused believed (in the circumstances as they existed) that force or harm was being threatened against him/her (or another person), and

  • The actions taken were "reasonable in the circumstances relating to the threat of force."

Provocation (Partial Defence to Murder):

• The defence argues that the killing was committed by the accused "in the heat of passion caused by sudden provocation" as required by law,

• Resulting in any conviction entered for murder being reduced to the lesser offence of manslaughter.

Accident:

• The defence argues that the death took place by accident (not as a result of an unlawful act or criminal negligence of the accused).

Mental Disorder (NCRMD):

• The defence argues that the accused was not criminally responsible by reason of mental disorder ('NCRMD') because, at the time of the offence, they were:

  1. Suffering from a mental disorder,

  2. Unable to appreciate the nature and consequences of the act, or

  3. Unable to know that it was wrong to commit the act.

Automatism:

• This defence is rarely used and involves arguing that the acts being committed were involuntary (due to a concussion, sleepwalking, or another condition that does not fall within the 'mental disorder' definition).

Intoxication:

• In rare cases, the defence of intoxication may be argued to override the intent requirement for murder,

• Potentially resulting in a conviction on the lesser offence of manslaughter rather than providing a full excuse.

Charter Violations:

• The defence may challenge (through an application under the Charter of Rights and Freedoms) the use of any evidence at trial that was obtained through a violation of your rights under the Charter.

• For example:

  1. The evidence was the result of an illegal search and/or seizure;

  2. You made a statement that was not voluntary during a period of police questioning;

  3. You were denied the right to speak with your lawyer.

• If the evidence is excluded by the court, the Crown case may be defeated.

A murder case is defended by bringing all possible time and resources to the task. The process generally includes:

Immediate Consultation and Protection of Rights:

• Protecting your rights from the moment we are retained, including consultation with you on any communications to be had with the police.

Obtaining and Analyzing Disclosure:

• Receiving complete disclosure of all evidence the Crown intends to rely on.

• Reviewing everything provided, including:

  • Police reports,

  • Witness statements,

  • Video/audio statements,

  • Expert and forensic reports - including DNA, ballistics, pathologist/autopsy reports,

  • Expert witness reports,

  • Copies of search warrants and related materials from the investigation.

Independent Investigation:

• Ensuring your defence does not rely solely on the police investigation and conducting an independent defence investigation as warranted. This can include:

  • Retaining a seasoned private investigator to help track down and interview potential defence witnesses and to re-interview prosecution witnesses.

  • Visiting the scene of the alleged offence.

  • Production or gathering of documentation, records, or digital evidence as required.

Consulting Defence Experts:

• Retaining defence experts to review Crown expert or forensic evidence and provide a second/alternative opinion in areas such as:

  • Autopsy/pathology,

  • Psychiatric or psychological assessment (to address intent or possible NCR issues),

  • DNA analysis,

  • Ballistics,

  • Toxicology,

  • Use-of-force/crime scene reconstruction.

Identifying Weaknesses and Defences:

• Reviewing evidence for the presence of:

  • Inconsistencies,

  • Contradictions,

  • Holes in the Crown's case,

  • Allegations of Charter violations,

  • Grounds for legal defences to the charge.

Developing a Tailored Strategy:

• Determining the appropriate defence strategy with you based on the evidence, law, and forced entitlements.

• This can include:

  • Taking the position at a preliminary inquiry,

  • Making pre-trial Charter/exclusion of evidence applications,

  • Negotiating a resolution with the Crown on a lesser charge (if warranted),

  • Preparing the case for trial.

The preliminary hearing and trial are two separate court proceedings often held in homicide cases:

Preliminary Inquiry (or 'Prelim'):

• Purpose:
  This proceeding is heard in the Ontario Court of Justice (at a time and place prior to the scheduled trial of the case in the Superior Court of Justice) for the purpose of allowing the hearing judge to assess whether the Crown has presented enough evidence upon which a properly instructed jury could reasonably convict an accused on the charge (it is a screening mechanism).

• Process:
  The Crown presents its primary witnesses, who are examined under oath and cross-examined by the defence lawyer.
  This provides the defence with a chance to:

• • Probe the strengths and weaknesses of key elements in the Crown's case,

• • Learn what a witness may or may not say later at trial,

• • Have a witness 'lock in' their testimony for later use at trial.

• Outcome:

• • If the judge finds there is sufficient evidence, the case is 'committed' for trial, or ordered to trial in the Superior Court of Justice.

• • If not (rare), the accused is discharged.

Note: Recent legislative amendments have eliminated preliminary hearings in all but those cases with a maximum penalty of 14 years imprisonment or more. Murder is included in this category.

Murder Trial:

• Venue:
  A murder trial most often takes place in the Superior Court of Justice.

• Mode of Trial:
  Accused facing a murder charge generally have the right to elect trial by judge and/or judge and jury (12 jurors).
  Most homicide cases end up before a jury.

• Process:
  The murder trial is where guilt or innocence of the accused is decided.

• • Jury Selection (if applicable):
    Twelve jurors are selected from the community through a formal selection process.

• • Crown's Case:
    The prosecutor (Crown) calls all relevant and admissible evidence in presenting the charges for prosecution, including:

• • • Witness testimony,

• • • Documentary evidence,

• • • Expert/forensic evidence,

• • • Other physical evidence.
      Defence counsel cross-examines witnesses presented by the Crown.

• • Defence Case (Optional):
    Defence counsel may:

• • • Present evidence (including calling the accused as a witness, although the accused cannot be compelled to testify), or

• • • Elect to call no evidence and argue that the Crown has failed to prove the case beyond a reasonable doubt.
      The Crown has the right to cross-examine defence witnesses.

• • Closing Arguments:
    Counsel for each side make final submissions, summarizing the evidence and explaining why the judge/jury should return a verdict for the Crown or the Defence.

• • Judge's Charge to the Jury (if applicable):
    The trial judge explains to the jury the relevant legal rules, which evidence may be considered, and how the verdict is to be reached.

• • Jury Deliberation & Verdict:
    The jury deliberates (in camera) and must come to a unanimous decision (verdict) if the accused should be found guilty or not guilty of the offence charged, or a lesser included offence such as manslaughter.
    In a trial by judge alone, the verdict is delivered directly by the judge.
  • Sentencing (if convicted):
    If a verdict of guilty is entered, a sentencing hearing is scheduled for arguments to be heard at a subsequent hearing on the parole period (for second degree murder) or sentence imposed for manslaughter.