What is a Homicide?
The crime of Homicide is regarded as the most heinous offence in Canada. Society’s degree of condemnation is reflected by the severity of punishments for this crime. A Homicide can be anything from manslaughter to murder. There are two divisions of murder and one of manslaughter in Canada:
- First-Degree Murder – Murder that is planned and deliberate; one in which the victim is a police officer, prison guard, hijack victim, sexual assault victim, or one committed by a person previously convicted of either first or second degree murder.
- Second-Degree Murder – Murder that is not premeditated
- Manslaughter – Manslaughter is culpable homicide that is not murder or infanticide, meaning that there is a lack of intent to kill
- Attempted Murder: attempted murder occurs where someone tries to take the life of another person unsuccessfully. To prove this charge the prosecution must prove the intention to kill.
- Criminal Negligence Causing Death: Negligence that meets a criminal standard and a death results. Any kind of behavior that is reckless or grossly negligent that results in death can attract criminal liability and jail time.
- The sentence for first-degree murder is life in jail a minimum of twenty-five years before parole eligibility.
- The sentence for second-degree murder is life in jail with a minimum of ten years to serve before eligibility for parole.
- Sentences for manslaughter range from eighteen months to life depending on the perceived severity of the crime, the most common sentences being from three to five years with parole eligibility after one-sixth of the sentence has been served.
Do I have a Defence?
Because Homicide is so serious, you can expect that the police investigation will be thorough and comprehensive, and involve advanced investigative techniques with unlimited resources. These techniques include undercover sting operations, constant surveillance, wiretaps, search warrants, and unrelenting police interrogations. Given the complexity of these investigations, many factual and legal issues give rise to possible defences, and it takes an experienced and devoted lawyer to identify these nuanced areas. Due to the intensity of the investigations, it is not uncommon for evidence to be gathered in breach of your Charter rights. Our lawyers may be able to apply to exclude evidence gathered against you in violation of your Constitutional rights and identify weaknesses in the Crown’s case that may result in reducing a charge of first or second-degree murder down to manslaughter, or obtaining an outright acquittal depending on the many factors at play in these cases.
The Criminal Code of Canada’s self-defence section was recently revised in order to provide a more comprehensive definition of self-defence and codify a list of factors to be considered when evaluating a claim of this nature. Section 34 of the Code states that a person is not guilty of an offence if they believe on reasonable grounds that force (or a threat of force) is being used against them, that in defending themselves they are acting purely in order to defend themselves or another person from the use of force, and that they are reasonably defending themselves given the circumstances of the violence (or threat) being used against them (Criminal Code, s. 34(1). A court shall consider a list of factors, including, but not limited to:
- the nature of the force or threat;
- the extent to which the use of force was imminent and whether there were other means available to respond to the potential use of force;
- the person’s role in the incident;
- whether any party to the incident used or threatened to use a weapon;
- the size, age, gender and physical capabilities of the parties to the incident;
- the nature, duration and history of any relationship between the parties to the incident, including any prior use or threat of force and the nature of that force or threat;
f1. any history or interaction or communication between the parties to the incident;
- the nature and proportionality of the person’s response to the use or threat of force; and
- whether the act was committed was in response to a use or threat of force that the person knew was lawful.
R v T.P.L.
T.P.L. was charged with second-degree murder after an incident that occurred in the early morning hours at a rural house party. Mr. McKay and Ms. Ferg came onto the file after the preliminary inquiry and the matter was scheduled for trial.
In the months leading up to the trial, Mr. McKay and Ms. Ferg sought further disclosure from the Crown and litigated two pre-trial motions. In terms of disclosure, the defence was able to obtain a number of important pieces of information in relation to the Crown’s star witness. This information was vital in destabilizing his credibility in cross-examination and casting doubt on what he said happened that night. The second pre-trial motion was an application to have a deceased eye witness’ prior statements introduced into evidence at trial. The version of events contained in this witness’ evidence was critical to the theory of the defence and was one of the only avenues available to corroborate what T.P.L. said happened. Both pre-trial motions were successful.
The trial was held before a judge and jury in superior court. It ran significantly longer than the parties anticipated and over the course of the trial, a number of unexpected legal issues arose. After the close of the Crown’s case, T.P.L. testified in her own defence. The case was left with the jury. After less than 24 hours of deliberation, the jury came back and T.P.L. was fully acquitted. She left court totally exonerated and was able to return home with her family.
R. v. K.W.
K.W. was charged with second-degree murder in the interior of British Columbia. This high profile, 6-week jury trial involved complex forensic and blood pattern analysis evidence. Mr. McKay and his team launched a vigorous defence on behalf of the client based upon the argument of self-defence.
R. v. P.S.
Mr. McKay’s client was charged with first-degree murder in the brutal shooting of a well-known drug dealer in Red Deer. In Canada, first-degree murder carries an automatic life sentence. After exhaustive preparation, Mr. McKay ran a preliminary inquiry and was able to expose many weaknesses in the police investigation. As a result, P.S. was cleared of ALL charges without having to go to trial. P.S. left the proceedings a free man no longer worried about spending the rest of his life in custody.