Jump to Navigation

Murder, Manslaughter and Homicide Lawyer in Toronto

Mississauga, Brampton and Newmarket Murder, Manslaughter and Homicide Lawyer

Commonly Asked Questions

1. What is first degree murder?

2. What is the sentence for first degree murder?

3. What is second degree murder?

4. What is the sentence for second degree murder?

5. What is manslaughter?

6. What is the sentence for manslaughter?

7. What are the defences for first degree murder?

8. What are the defences for second degree murder?

9. What are my Charter rights?

10. Can the Charter help my defence?

11. Can I get assistance from Legal Aid Ontario for my case?

If you are facing charges for murder or manslaughter, you need the best defence possible. A conviction for these offences will be completely life-altering. If you are under investigation for a homicide, or believe that you may be charged in connection with a homicide, you should call my office immediately.

I have more than 35 years of experience defending clients in high-stakes murder and manslaughter cases. My approach in these matters is proactive and thorough. I fully investigate the events, with the help of experts in forensics, ballistics and other fields if necessary. My practice is built on defending against serious charges, and there are none more serious than murder or manslaughter. I am ready to meet with you and begin building your defence.

Call Defence Lawyer Anthony De Marco for a Free Consultation

Contact my Toronto, Ontario, office today to discuss your murder, manslaughter or homicide case. I offer a free 30-minute consultation. For your convenience, I offer reasonable payment plans. I also accept Legal Aid in most cases. You can reach me by phone at (416) 651-2299 or toll free at 1-888-399-3164 or by e-mail.

Homicide

Section 222 of the Criminal Code of Canada sets out that a person commits homicide when, directly or indirectly, by any means, he causes the death of a human being. Homicide is either culpable or not culpable. Homicide that is not culpable is not a criminal offence. Culpable homicide is murder or manslaughter or infanticide.

Subsection 222(5) of the Criminal Code of Canada provides as follows:

222(5) A person commits culpable homicide when he causes the death of a human being,

(a) by means of an unlawful act;

(b) by criminal negligence;

(c) by causing that human being, by threats or fear of violence or by deception, to do anything that causes his death; or

(d) by wilfully frightening that human being, in the case of a child or sick person.

What is Murder?

Section 229 of the Criminal Code of Canada provides as follows:

229 Culpable homicide is murder

(a) where the person who causes the death of a human being

(i) means to cause his death, or

(ii) means to cause him bodily harm that he knows is likely to cause his death, and is reckless whether death ensues or not;

(b) where a person, meaning to cause death to a human being or meaning to cause him bodily harm that he knows is likely to cause his death, and being reckless whether death ensues or not, by accident or mistake causes death to another human being, notwithstanding that he does not mean to cause death or bodily harm to that human being; or

(c) if a person, for an unlawful object, does anything that they know is likely to cause death, and by doing so causes the death of a human being, even if they desire to effect their object without causing death or bodily harm to any human being.

What is First Degree Murder?

First degree murder is murder with planning and deliberation, murder for higher, murder of a police officer, or murder committed during another offence, such as robbery.

Section 231 of the Criminal Code of Canada provides as follows:

Classification of Murder

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

Planned and deliberate murder

(2) Murder is first degree murder when it is planned and deliberate.

Contracted murder

(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.

Murder of peace officer or other Law Enforcement Officials

(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) 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;

(b) 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

(c) a person working in a prison with the permission of the prison authorities and acting in the course of his work therein.

Hijacking, sexual assault or kidnapping

(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).

Criminal harassment

(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.

Murder - terrorist activity

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

Murder - criminal organization

(6.1) Irrespective of whether a murder is planned and deliberate on the part of a person, murder is first degree murder when

(a) the death is caused by that person for the benefit of, at the direction of or in association with a criminal organization; or

(b) the death is caused by that person while committing or attempting to commit an indictable offence under this or any other Act of Parliament for the benefit of, at the direction of or in association with a criminal organization.

Intimidation

(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 by that person while committing or attempting to commit an offence under section 423.1.

Second degree murder

(7) All murder that is not first degree murder is second degree murder.

What is Infanticide?

Section 233 of the Criminal Code of Canada provides as follows:

233 A female person commits infanticide when by a wilful act or omission she causes the death of her newly-born child, if at the time of the act or omission she is not fully recovered from the effects of giving birth to the child and by reason thereof or of the effect of lactation consequent on the birth of the child her mind is then disturbed.

What is Manslaughter?

Section 234 of the Criminal Code of Canada provides as follows:

234 Culpable homicide that is not murder or infanticide is manslaughter.

What is the Defence of Provocation?

Section 232 of the Criminal Code of Canada provides, in part, as follows:

Murder reduced to manslaughter

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.

What is provocation

(2) Conduct 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.

What is the Sentence for First Degree Murder and Second Degree Murder?

Section 235 of the Criminal Code of Canada provides that the minimum punishment for either first degree murder or second degree murder is imprisonment for life. The parole ineligibility period for first degree murder is a minimum of 25 years. The parole ineligibility for second degree murder is a minimum of 10 years. The parole ineligibility period begins on the date that the accused is arrested if the accused is not granted bail.

What is the Sentence for Manslaughter?

Section 236 of the Criminal Code of Canada provides as follows:

236 Every person who commits manslaughter is guilty of an indictable offence and liable

(a) where a firearm is used in the commission of the offence, to imprisonment for life and to a minimum punishment of imprisonment for a term of four years; and

(b) in any other case, to imprisonment for life.

What is the Sentence for Infanticide?

Section 237 of the Criminal Code of Canada provides as follows:

237 Every female person who commits infanticide is guilty of

(a) an indictable offence and liable to imprisonment for a term of not more than five years; or

(b) an offence punishable on summary conviction.

What is the Offence of Accessory After the Fact to Murder?

Section 240 of the Criminal Code of Canada provides as follows:

240 Every one who is an accessory after the fact to murder is guilty of an indictable offence and liable to imprisonment for life.

The offence of accessory after the fact to murder is established when the accused assists a murderer for the purpose of enabling the murderer to escape justice. In order to be convicted, the accused must have had actual knowledge that the other person committed the murder or must have had sufficient awareness of the other person's possible involvement in the murder to the point that the accused became suspicious but chose to remain ignorant as to the truth of the other person's involvement. This is known of the doctrine of willful blindness.

What is the Penalty for Conspiracy to Commit Murder?

Subsection 465(a) of the Criminal Code of Canada provides as follows:

465 (1) Except where otherwise expressly provided by law, the following provisions apply in respect of conspiracy:

(a) every one who conspires with any one to commit murder or to cause another person to be murdered, whether in Canada or not, is guilty of an indictable offence and liable to a maximum term of imprisonment for life

Parole Eligibility

First-degree murder is punishable by life in prison with no eligibility for parole for 25 years. Second-degree murder is punishable by life in prison without eligibility for parole for 10 to 25 years. Accessory after the fact to murder, manslaughter, attempted murder, and criminal negligence causing death are punishable by a maximum of life in prison. Accordingly, any sentence from a suspended sentence to life in prison without eligibility for parole for 7 years is possible depending on the facts of the particular case.

You should know that if the sentence is life in prison, even if you are eventually granted parole, you will be on parole for the rest of your life. If you breach a condition of parole at any point during your life, your parole can be revoked and you will go back to prison.

I will do everything possible to help you avoid the most serious consequences of conviction. You can rely on me to passionately and skilfully defend your rights and freedom.

What are the Defences for Murder?

There are various defences and partial defences to murder. The Court of Appeal for Alberta recently summarized the defences in R. v. Newborn, 2020 ABCA 120.

Murder is classified as a specific intent offence. What this means is that the intent for murder cannot be inferred merely from the fact that a killing occurred. The significance of this classification is that where an accused is unable to form the specific intent required to commit the offence of murder, the offence is not proven beyond a reasonable doubt and the accused can only be convicted of manslaughter which is an offence that does not require murderous intent. Manslaughter requires the objective foresight of the risk of bodily harm which is neither trivial nor transitory. The foreseeability of the risk of death is not required.

Provocation, which is set out in Section 232 of the Criminal Code of Canada, is a partial defence that applies only to murder. It does not negate the intent for murder, rather, it is a partial excuse provided to the accused out of a compassion for human frailty. The partial defence of provocation is restricted to cases in which there was conduct by the victim that would constitute an indictable offence punishable by 5 or more years of imprisonment. This requirement, however, was recently found to be unconstitutional by the Superior Court of British Columbia in R. v. Simard, 2019 BCSC 531 and by the Superior Court of Quebec in Fredette c. R., 2019 QCCS 4116. These 2 Superior Courts "read down" Section 232 so as to remove the requirement that the victim engaged in conduct that would constitute an indictable offence punishable by 5 or more years of imprisonment.

The defence of intoxication is also available for murder, but only to negate specific intent so as to reduce the charge to manslaughter. The question with respect to intoxication is whether, as a result of the impairment, the accused foresaw that his or her actions would likely cause the death of the victim.

Section 16 of the Criminal Code of Canada also sets out the defence of mental disorder. This requires a defence application that the accused be found Not Criminally Responsible, often referred to as an NCR application on account of mental disorder. Also, mental disorder, short of a Section 16 defence, is relevant to the question of whether the accused had the necessary intent for murder.

In addition to the aforementioned partial defences, there are complete defences available for murder, including self-defence, which is set out in Section 34, and possibly the defence of necessity. It is still an open question if necessity is actually available as a complete defence for murder. Another example of a complete defence for murder is the prevention of a criminal offence as set out in Section 27. There is also common law defences to murder. One such defence is automatism not caused by a mental disorder. Another such defence is "battered woman syndrome" established by the Supreme Court of Canada in R. v. Lavallée, [1990] 1 S.C.R. 852, which allows self defence to be raised on the basis of "reasonable grounds to apprehend death or serious bodily injury" even in the absence of an immediate attack.

Section 34 of the Criminal Code of Canada provides as follows:

34 (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.

(2) In determining whether the act committed is reasonable in the circumstances, the court shall consider the relevant circumstances of the person, the other parties and the act, including, but not limited to, the following factors:

(a) the nature of the force or threat;

(b) 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;

(c) the person's role in the incident;

(d) whether any party to the incident used or threatened to use a weapon;

(e) the size, age, gender and physical capabilities of the parties to the incident;

(f) 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;

(f.1) any history of interaction or communication between the parties to the incident;

(g) the nature and proportionality of the person's response to the use or threat of force; and

(h) whether the act committed was in response to a use or threat of force that the person knew was lawful.

(3) Subsection (1) does not apply if the force is used or threatened by another person for the purpose of doing something that they are required or authorized by law to do in the administration or enforcement of the law, unless the person who commits the act that constitutes the offence believes on reasonable grounds that the other person is acting unlawfully.

Section 27 of the Criminal Code of Canada provides as follows:

27 Every one is justified in using as much force as is reasonably necessary

(a) to prevent the commission of an offence

(i) for which, if it were committed, the person who committed it might be arrested without warrant, and

(ii) that would be likely to cause immediate and serious injury to the person or property of anyone; or

(b) to prevent anything being done that, on reasonable grounds, he believes would, if it were done, be an offence mentioned in paragraph (a).

Your best defence is my experience

I have a thorough understanding of the law surrounding confessions and identification, two areas of evidence that often prove to be critical in murder or manslaughter cases.

Murder cases must be tried by a jury, unless the Crown consents to a Judge alone trial which rarely occurs. I have the necessary experience, advocacy skills and confidence to convincingly argue your case to the jury.

My experience allows me to represent clients facing any type of homicide charge in or around Toronto, including:

  • First-degree murder: murder with planning and deliberation, murder for hire, murder of a police officer, murder committed during another offence, such as robbery or armed robbery
  • Second-degree murder
  • Attempted murder
  • Manslaughter
  • Criminal negligence causing death

Examples of Successful Cases

Click on the following links for summaries of a few of my successes:

R. v. C.D.


Charge: Manslaughter with a Firearm

R. v. K.L.D.S.


Charges:


(1) First Degree Murder;


(2) Aggravated Assault

R. v. J.M.


Charge: Second Degree Murder

R. v. R.F., et al


Charge: First Degree Murder

Please note that past results are not necessarily indicative of future results. Other litigation outcomes will vary according to the facts in individual cases.

DNA and Other Forensic Evidence

Forensic evidence, such as DNA evidence, is just one type of evidence that the Crown can try to introduce against a person accused of a crime. The defence can challenge the admissibility of forensic evidence on the basis of relevance, prejudice or that there is a lack of a sufficient scientific foundation to make the evidence reliable and worthy of being admitted, in other words, the forensic evidence is inadmissible because it is based on "junk science".

Over the years, there have been several types of forensic evidence that have been rejected by the courts in the United States and, to a lesser extent, Canada, including voice print identification, comparative bullet lead analysis and several indicators of arson dependent on visual cues.

Likewise, there are various other types of forensic evidence which are possibly unreliable, such as microscopic hair comparison, and "pattern comparison" evidence such as bite marks, tire marks and handwriting.

Even in cases where the forensic evidence is ruled admissible, the defence can still try to weaken the impact of the evidence by arguing, for example, that the results of the forensic testing were the subject of "motivated perception". In other words, the scientist who did the testing interpreted the results so as to support his or her expectations or the expectations of the police or Crown prosecutors. The defence can argue, or call evidence to show, that the forensic examiner should have first tested the evidence blindly without knowing anything about the case in order to avoid a subconscious bias. Studies have shown that even the opinion of fingerprint analysts can be affected by the analysts' preconceived notions about the case. Also, there is always a risk of a false positive. Moreover, if the laboratory that completed the testing, such as the Centre of Forensic Sciences, is known to have made errors on occasion in the past, the defence can argue that the error rates should also be entered in evidence.

In appropriate cases, and where funds permit, the evidence can be re-tested by an independent laboratory for verification.

A good defence lawyer should know the weaknesses of specific scientific techniques or seek out an appropriate defence consulting expert to learn about and present evidence regarding those weaknesses.

Pre-Trial Charter Applications

Often, the best defence to a criminal charge involves a challenge to the investigation that resulted in the arrest of the accused or the collection of evidence against the accused. The police are not allowed to breach the rights that are guaranteed to the accused by the Canadian Charter of Rights and Freedoms.

I will investigate any possible Charter breaches by carefully reviewing the Crown disclosure documents, including the documents used by the police to obtain search warrants for the home, car or other property of the accused, and the documents used by the police to obtain production orders, such as for cell phone records and wiretap authorizations.

If I detect any violation of the Charter rights of the accused or violation of acceptable investigative procedures established by the courts, I will proceed with an application asking for the exclusion of evidence from the trial of the accused obtained illegally by the police, including the statements of the accused and other evidence seized during the investigation.

I have an established reputation for success in pre-trial applications. Winning a Charter application will result in the exclusion of evidence if the court determines that not excluding the evidence will bring the administration of justice into disrepute. The exclusion of evidence often results in a finding of not guilty if the Crown's remaining evidence is insufficient to prove that the accused committed the offence beyond a reasonable doubt.

I have the necessary experience, research skills, writing skills, and advocacy skills to prepare and effectively argue pre-trial Charter applications. The value of legal writing skills cannot be overstated since proceeding with pre-trial Charter applications will require the preparation of several documents including a Notice of Application, an Affidavit, and a Factum setting out the relevant facts and summarizing the relevant case law.

Proceeding with a Preliminary Inquiry

In cases in which a Defendant is exposed to a possible period of 14 years or more in jail, the Defendant will have the right to proceed with a preliminary inquiry in the Ontario Court of Justice and then a trial in the Superior Court of Justice before a court composed of a Judge sitting with a jury or without a jury. In the past, this level of court was referred to as "High Court".

At a preliminary inquiry, the Crown is required to call some evidence upon which a properly instructed jury, acting reasonably, may return a verdict of guilt. This is an easy test for the Crown to meet in the vast majority of cases. Accordingly, it is relatively rare for someone who proceeds with a preliminary inquiry to be discharged with respect to all of the charges which he or she is facing. The real value in having a preliminary inquiry is not in the hope of being entirely discharged, thereby bringing the entire criminal proceedings to an end, but in being able to better prepare the case for trial. The defence lawyer will have an opportunity to cross-examine and test the evidence of the primary Crown witnesses. An experienced and skilled defence lawyer can discover the strengths and weaknesses of the Crown witnesses and commence building an effective defence strategy. A preliminary inquiry is especially valuable for the defence in cases involving young, infirm, unreliable or unsavory Crown witnesses.

Not Criminally Responsible (NCR) Applications

The Criminal Code of Canada provides that 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 is wrong. The question of whether the person knew that the act or omission was wrong involves a consideration of whether, in the circumstances, the person knew that the act or omission was "morally wrong" according to the moral standards of society.

I have extensive experience in pursuing Not Criminally Responsible (NCR) applications for clients. I have the experience, the research skills and the network of experts necessary to make a successful NCR defence on your behalf or on behalf of a loved one who suffers from mental health issues. A successful NCR application may mean the difference between spending as little as a year in a mental health facility or life in prison without eligibility for parole for 10 years or more.

Further information on Not Criminally Responsible (NCR) Applications is available here.

Representing Clients Through Legal Aid or a Rowbotham Order

Every person charged with a crime deserves a defence. Unfortunately, many accused people cannot afford legal counsel. If you or your loved one is in this predicament, you should consider applying for financial assistance through Legal Aid Ontario.

If you qualify for Legal Aid assistance, Legal Aid Ontario will issue a certificate that you can present to any defence lawyer who is on the criminal defence lawyer panel. I am on the panel and I often agree to represent Legal Aid clients. When you hire me as your lawyer, you will get the strongest possible defence. I pursue every possible legal option in an effort to win your acquittal or, with your permission, I try to have penalties reduced. I have been defending individuals accused of serious crimes since 1985. I am committed to protecting your rights and your freedom.

Rowbotham Applications

If you are unable to obtain assistance from Legal Aid Ontario, and you cannot defend yourself either because of the seriousness or the complexity of the charge you are facing, you may be a candidate for an application to the Superior Court of Justice for an order granting you state funded counsel to complete your defence.

Such an application is called a Rowbotham Application. If I review your case, and I arrive at the conclusion that you are a good candidate for a Rowbotham Order, I will proceed with your application free of cost, in other words, on a pro bono basis.

In very unique cases, even if your Rowbotham Application fails, I will complete your trial on a pro bono basis.

Further information on obtaining Legal Aid assistance or a Rowbotham Order to pay for your defence is available here.

Whether your case can be resolved through negotiations with the prosecution or must proceed to trial, you can rely on me to protect your rights.

Call Defence Lawyer Anthony De Marco for a Free Consultation

Contact my Toronto, Ontario, office today to discuss your murder, manslaughter or homicide case. I offer a free 30-minute consultation. For your convenience, I offer reasonable payment plans. I also accept Legal Aid in most cases. You can reach me by phone at (416) 651-2299 or toll free at 1-888-399-3164 or by e-mail.