First-Degree Murder Laws: Intentional Killing with Premeditation

Introduction: What is First-Degree Murder?

In Canada, first-degree murder is a type of homicide. Homicide in Canada is either culpable or not (see: s. 222(2) of the Criminal Code). Culpable homicide includes crimes such as first-degree murder, second-degree murder, manslaughter, etc. Non-culpable homicide is not criminal (see: s. 222(3) of the Criminal Code). As per s. 229 of the Criminal Code, homicide is murder when:

• One who causes a death, “means to cause that person’s death” regardless of whether or not death was the accused person’s intended outcome”
• One who causes a death “means to cause him bodily harm that he knows is likely to cause his death, and is reckless whether death ensues or not” regardless of whether death was the accused person’s intended outcome
• In carrying out a different unlawful act “does anything that they know is likely to cause death, and by doing so causes the death of a human being”, even if this is their unintended outcome.

Murder is in the first degree “when it is planned and deliberate” (see: s. 231(2) of the Criminal Code).

Sections 222, 229, 231 and 235 of the Criminal Code

What is needed to convict a person of first-degree murder?

For the Crown to secure a conviction of first-degree murder, they must prove two main elements. At law, these are referred to as the actus reus and the mens rea. The actus reus requirements asks that the Crown prove that the actual act of murder in the first degree has been committed (i.e., the accused’s action caused the victim’s death with an added element of planning and deliberation). The mens rea requirements asks that the Crown prove the existence of intent (often we ask “could the accused have foreseen the outcome?” when establishing intent (see: R v Vaillancourt, 1987 CanLII 2 (SCC), [1987] 2 SCR 636)). Sometimes the actus reus is easier met when the act falls under one of the ‘presumptions of first-degree murder’. These are enumerated under ss. 232(3)-(6.2). To gauge the intent of an accused, the courts use a common-sense inference. If the reasonable person or sane/sober person acts in a way that has predictable consequences, then the trier of fact may infer that the person intended to cause those consequences (see: R v Seymour, 1996 CanLII 201 (SCC), [1996] 2 SCR 252).

What type of offence is first-degree murder?

First-degree murder is what we refer to as a “straight indictable offence”. Straight indictable offences are relatively rare because they are reserved for the most serious types of Criminal Code offences. In Canadian criminal law, there are three classifications of criminal offences: indictable, summary and hybrid. Indictable offences are the more serious category of criminal offences and summary offences are the ‘less’ serious category of criminal offences. Hybrid offences are election-based meaning that the Crown will decide whether to proceed via indictment or as a summary charge after reviewing evidence. The Crown’s election relies on several factors such as whether the accused has a criminal record or history, the circumstances surrounding the offence, precedent, etc.

Examples

Acts which could constitute a first-degree murder charge can include:

• Constructing a carefully curated and meticulous plan for killing someone and following through.
• Hiring a hitman to carry out a murder and the murder being executed (contract murder).
• Killing an on-duty police officer
• Killing someone in a hostage-taking
• Killing someone during the commission of a sexual assault
• Killing someone in affiliation with a gang activity

Note that this is a non-exhaustive list.

First-Degree Murder Defences

The availability and strength of any defence depend entirely on the specific facts of one’s case. However, the following are some frequently referenced or frequently asked-about defences that may be used when fighting a homicide charge: 

Provocation

As per section 232 of the Criminal Code, even if the evidence establishes the actus reus and mens rea for murder, the defendant may be convicted of the lesser offence of manslaughter if there remains doubt that the defendant was provoked. As per section 232(2) of the Criminal Code,

[c]onduct of the victim that would constitute an indictable offence under this Act that is punishable by five or more years of imprisonment and 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 their passion to cool.

If the issue is raised, it is the duty of the Crown to prove that there was no provocation; it is not your responsibility to prove that there was provocation (see: R v Thibert, 1996 CanLII 249 (SCC), [1996] 1 SCR 37).

Intoxication

Intoxication is a very rare defence and has only been recently recognized as a defence for violent crimes by the Supreme Court of Canada (including murder). The law recognizes three types of intoxication (see: R v Daley, 2007 SCC 53 (CanLII), [2007] 3 SCR 523): mild, advanced, and extreme. Mild intoxication is not a defence. Advanced intoxication can be a partial defence and will demand of the court, that it consider whether the mens rea requirement is fully met. Extreme intoxication can be a complete defence to a charge of murder, however, as mentioned, this is incredibly rare. Extreme intoxication is said to be akin to automatism (see discussion about this directly below) and is then said to become a barrier to forming the requisite mental intent (mens rea) for being at fault for an offence.

Automatism

Again, automatism is a rare defence, but it is legally available. In R v Stone, 1999 CanLII 688 (SCC), [1999] 2 SCR 290, the Supreme Court of Canada defined automatism as “a state of impaired consciousness. The person engages in involuntary behaviour such that “a person who, though capable of action, is not conscious of what he is doing”. In simpler terms, as put in R v Rabey, 1977 CanLII 48 (ONCA), “it means an unconscious involuntary act where the mind does not go with what is being done”. There are two legally recognized types of automatism: that of which are brought on by a mental disorder and those acts which are not. Automatism affected by a mental disorder will flow into a finding of “not criminally responsible” (NCR). NCR findings are discussed in more detail here. Non-mental disorder automatism, where properly established, results in an acquittal of the charges (see: R v Alexander, 2015 BCCA 484 (CanLII)).

Self-defence

Self-defence is an available defence to a homicide charge. The defence is statutorily embedded in the Criminal Code under section 34. Section 34(1) says that:

(1) A person is not guilty of an offence if

(a) they believe on reasonable grounds that force is being used against them or another person or that a threat of force is being made against them or another person;

(b) the act that constitutes the offence is committed for the purpose of defending or protecting themselves or the other person from that use or threat of force; and

(c) the act committed is reasonable in the circumstances.

Self-defence is a full justification for murder. It is to be considered in situations of “last resort” where a jury would accept that “the accused believed, on reasonable grounds, that his own safety and survival depended on killing the victim at that moment” (see: R v Cinous, 2002 SCC 29, [2002] 2 SCR 3). 

Not Criminally Responsible (NCR)

Section 16 of the Criminal Code is intended to appreciate the existence of mental illness in the criminal context and “the principle of law that a person who suffers from a mental disorder which renders him incapable of making rational or autonomous choices should not be held criminally responsible” (see: R v Ejigu, 2016 BCSC 1487 (CanLII)). Section 16 of the Criminal Code reads that:

16 (1) No person is criminally responsible for an act committed or an omission made while suffering from a mental disorder that rendered the person incapable of appreciating the nature and quality of the act or omission or of knowing that it was wrong.

There is an automatic presumption at law that every person does not suffer from a mental disorder unless proven on a balance of probabilities (see: section 16(2) of the Criminal Code). A finding of NCR does lead to an acquittal for the offence. The court may still enforce a disposition, however, these are generally associated with the rehabilitation of the offender and are not necessarily sanction-based like conventional sentences for a criminal offence.

Applicable Charter Defences

The Canadian Charter sets out your rights and freedoms before and after your arrest. If the police fail to abide by these rights, either deliberately or inadvertently, it could aid in your defence. If any of your Charter rights have been violated before or after your arrest, you may be able to have some or all of the evidence that the Crown is relying on to secure a conviction excluded under s. 24(2) of the Charter.

First-Degree Murder Punishment

A conviction of first-degree murder as prescribed by section 235(1) of the Criminal Code, results in an automatic life sentence. Parole ineligibility for first-degree murder is at least 25 years. If you are facing multiple murder charges these may be served “concurrently” or “consecutively”. A consecutive sentence means that if, for example, you were charged with three counts of first-degree murder, you would have to serve 75 years in prison before parole eligibility. A concurrent sentence would permit the offender in the same scenario to still apply for parole after 25 years because concurrent sentences are served at the same time or on top of each other.

Additionally, after a conviction of first-degree murder, the court must: make an order for the taking of samples for the DNA databank: (see: section 487.051(1) of the Criminal Code); enforce a firearm prohibition in accordance with section 109 of the Criminal Code; and compel weapons used in the commission of the offence for forfeiture (see: section 491 of the Criminal Code). The court may also place bans on communicating with witnesses/victims and/or implement a victim surcharge fine.

Frequently Asked Questions

What is the penalty for first-degree murder in Canada?

First-degree murder is an automatic life sentence without parole eligibility until serving at least 25 years in custody. For more on the penalty for first-degree murder see our discussion of punishment directly above.

Can you beat a first-degree murder charge?

In short, yes – with the right defence it is always possible to beat any criminal charge. Nevertheless, the likelihood of beating a first-degree murder charge is often going to prove to be more cumbersome than beating less serious criminal charges such as driving offences, white-collar crimes, etc. The prospect of beating a first-degree murder charge is entirely circumstantial and will depend on the facts and evidence related to your case. Our knowledgeable lawyers will always perform a comprehensive assessment of your case, will be entirely transparent with you on the likelihood of beating the charge and will provide informed advice on the best course of action.

Published Decisions

R v Tessier, 2022 SCC 35 (CanLII)

The main issue in this case was whether police interviews conducted almost a decade before the accused’s arrest were voluntary. The victim was found in a ditch with gunshot wounds to the head. Days later the accused was interviewed by police, however, the accused was thereafter charged 8 years later. The accused contested the evidence procured in the early police interviews because he suggested that they were involuntary, and he was never cautioned. The Supreme Court of Canada (SCC) found that despite the absence of a caution, the accused’s statements to the police were voluntary under the confessions rule (per the modern confessions rule, a statement would not be admissible if it was made under circumstances that raised a reasonable doubt as to whether the statement was given voluntarily). The court found that the accused exercised free or meaningful choice to speak to police and he was not unfairly denied his right to silence.

You can read the full case here.

R v Russell, 2001 SCC 53 (CanLII), [2001] 2 SCR 804

The accused forcibly confined one victim while he murdered another. The Crown proceeded with a presumptive first-degree murder charge under section 231(5) of the Criminal Code which makes any murder an automatic first-degree charge where the person commits or attempts to commit another enumerated offence. The accused argued that because the offence of forcible confinement was not being committed against the victim of the murder, that s. 231(5) did not apply and the murder charge could not be automatically presumed as first-degree. The SCC found that there is no indication in the law to suggest that Parliament intended the predicate offence be committed against the victim of the murder; only that an attempted or actual committal of one of the listed offences occur. Therefore, the SCC concluded that Mr. Russell was properly charged with first-degree murder.

You can read the full case here.

R v Harbottle, 1993 CanLII 71 (SCC), [1993] 3 SCR 306

The accused was convicted of first-degree murder arising from the brutal killing of B after she had been forcibly confined and sexually assaulted. By his admission, the accused had helped a companion, R, tie B’s arms behind her back and had watched R rape her and cut her with a knife that the accused had given him. R strangled her with her brassiere. The accused held her legs to stop her kicking. The issue on appeal was whether Mr. Harbottle could be charged with first-degree murder despite his role in holding the victim’s legs not being the direct cause of her ultimate death. On appeal to the SCC, the court was unable to distinguish between the blameworthiness of an accused who holds the victim’s legs thus allowing his co-accused to strangle a victim and the accused who performs the act of strangulation. The court determined that the test of causation for (at the time) s. 214(5) must be strict: the Crown must establish that the accused has committed an act or series of acts which are of such a nature that they must be regarded as a substantial and integral cause of death.

You can read the full case here.