A. Homicide Offences
| Author | Kent Roach |
| Profession | Faculty of Law and Centre of Criminology. University of Toronto |
| Pages | 383-434 |
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There are three homicide offences: murder, manslaughter, and infanticide. Section 234 of the Criminal Code provides that manslaughter is the residual offence so that culpable homicide that is not murder or infanticide is manslaughter. All murder convictions carry with them a mandatory penalty of life imprisonment, whereas manslaughter without the use of a firearm and infanticide have no mandatory minimum penalty. Murder is classified as either first or second degree with first-degree murder under section 231 of the Code requiring that the accused serve twenty-five years in prison before being eligible for parole. Section 232 provides a defence of provocation that reduces murder to manslaughter. Murder with its special stigma and mandatory penalty of life imprisonment is distinguished from manslaughter or infanticide mainly on the basis of its higher requirements of subjective fault involving as a minimum the accused’s subjective knowledge that the victim would die.
The common actus reus for all homicide offences is the causing of the death of a human being. A human being is defined as a child who has completely proceeded from its mother in a living state whether or not the child has breathed, has an independent circulation, or has had its navel string severed.1A person can commit homicide if he or she causes injury to a child before or during its birth and the child dies as a result after becoming a human being as defined above.2
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Section 222(1) of the Code provides that a person commits homicide when, directly or indirectly, by any means, he or she causes the death of a human being. This is a broad definition that has been satisfied in a case where an accused abducted a child who subsequently was left in a car and died of hypothermia.3There are a variety of specific statutory rules relating to causation in homicide cases. Section 224 provides that a person is responsible for a death even though it might have been prevented by resorting to proper means. This section would apply where victims die as a result of a wound but could have been saved if they had accepted or received proper medical treatment.4A person who stabs another in a remote location will be held responsible for causing that person’s death even though the very same wound may not have been life-threatening if inflicted in a place with medical facilities.
Section 225 provides that a person who causes a dangerous injury is responsible for death, notwithstanding that the immediate cause of death is proper or improper treatment rendered in good faith. A person who stabs another will be responsible for causing death even though the immediate cause of death might be negligent treatment of the wound by a doctor. Indeed, section 225 might be less favourable to the accused than judge-made common law, which has held that very bad treatment that overtakes the initial wound can break the chain of causation, so that it is unfair to conclude that the accused caused the death.5
Under section 226, a person is deemed to have caused death even though the bodily injury that results in death accelerates a pre-existing disease. This provision suggests that an accused must assume responsibility if the victim’s "thin skull" takes the form of a pre-existing disease. Section 222(5)(c) provides that a person commits homicide when he or she causes another person by threats, fear of violence, or by deception to do anything that causes the person’s death. The Supreme Court has
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observed that "these statutory provisions and others like them preempt any speculation as to whether the triggering of a chain of events was then interrupted by an intervening cause which serves to distance and exonerate the accused from any responsibility for the consequences."6
The Criminal Code does not comprehensively codify all causation issues that may arise in a homicide case. As the Supreme Court has stated, "[w]here the factual situation does not fall within one of the statutory rules of causation in the Code, the common law general principles of criminal law apply to resolve any causation issues that may arise."7In R. v. Smithers,8the Supreme Court upheld a manslaughter conviction on the basis that the accused’s action of kicking the deceased in the stomach "was at least a contributing cause of death, outside the de minimis range," even though the death was in part caused by the victim’s malfunctioning epiglottis, which caused him to choke to death on his own vomit. Dickson J. upheld the applicability of the thin skull principle in the criminal law of homicide by stating:
Death may have been unexpected, and the physical reactions of the victim unforeseen, but that does not relieve the [accused]. . . .
It is a well-recognized principle that one who assaults another must take his victim as he finds him.9This test has been applied in a case to hold that the accused caused a victim’s death by a minor assault that was followed by a fatal heart attack even though the victim had a history of severe heart disease.10The accused had to accept that the victim had a "thin skull," in this case heart disease and anxiety that may have led to the heart attack.
Despite its breadth, the Smithers approach to causation in homicide cases has survived under the Charter. In R. v. Cribbin,11the Ontario Court of Appeal concluded that the de minimis causation test and thin skull principles approved in Smithers are consistent with the principles of fundamental justice that forbid the punishment of the morally innocent. Arbour J.A. stated:
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As the law of manslaughter stands, if a person commits an unlawful dangerous act, in circumstances where a reasonable person would have foreseen the risk of bodily harm which is neither trivial nor transitory, and the unlawful act is at least a contributing cause of the victim’s death, outside the de minimis range, then the person is guilty of manslaughter. Both causation and the fault element must be proved beyond a reasonable doubt before the prosecution can succeed. Combined in that fashion, both requirements satisfy the principles of fundamental justice in that any risk that the de minimis test could engage the criminal responsibility of the morally innocent is removed by the additional requirement of objective foresight.12The result is that a person could be convicted of manslaughter on the basis that his or her unlawful acts played more than a minimal role in the death, even though death was not reasonably foreseeable. A manslaughter conviction was upheld in Cribbin because the accused’s assault had contributed to the victim’s death, even though the victim had been subject to more serious assaults by another person and had died because he drowned in his own blood.
In R. v. Nette,13the Supreme Court held that "the causation standard expressed in Smithers is still valid and applicable to all forms of homicide" (that is, murder, manslaughter, and infanticide) but that to make it easier to explain to the jury it should be described as a requirement that the accused’s act be a "significant contributing cause" to death.14L’Heureux-Dubé J. with three other judges dissented and would have maintained the negative formulation of a not insignificant cause contemplated under Smithers. She argued that "[t]here is a meaningful difference between expressing the standard as ‘a contributing cause that is not trivial or insignificant’ and expressing it as a ‘significant contributing cause.’"15
All the judges in Nette were agreed, however, that the accused had caused the death of a ninety-five-year-old widow he had left hog-tied and alone after robbing her home. The victim died of asphyxiation some twenty-four to forty-eight hours later. Medical evidence showed that a number of factors contributed to the death, including the hog-tied position, a moderately tight ligature that the accused had left around the victim’s neck, as well as the victim’s age, asthma, and congestive heart failure. Arbour J. concluded that "the fact that the appellant’s actions
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might not have caused death in a different person, or that death might have taken longer to occur in the case of a younger victim, does not transform this case into one involving multiple causes."16Courts now articulate...
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