s. 235 (1) Every one who commits first degree murder or second-degree murder is guilty of an indictable offence and shall be sentenced to imprisonment for life.
(2) […] the sentence of imprisonment for life prescribed by this section is a minimum punishment
Being charged with committing a violent offence, such as first/second-degree murder, is extremely serious. The offence of attempt murder is equally serious. The punishment is a mandatory life imprisonment and many other severe penalties. If you are found guilty, every aspect of your life will be completely and permanently altered. Retaining an experienced, detail-oriented and knowledgeable lawyer is a necessity in order to advance the best defence possible for your case, especially since murder charges are automatically tried by a jury trial at the Superior Court of Justice.
Murder is defined by the Criminal Code as “where the person who causes the death of a human being 1- means to cause his death, or 2- means to cause him bodily harm that he knows is likely to cause his death, and is reckless whether death ensues or not”.
Murders are classified as first degree or second degree. The difference between the two is that first degree murder is planned and deliberate.
However, some offences are automatically treated as first degree murders even if the act is not planned and deliberate, including:
- murder committed at the direction/benefit/in association with a criminal organisation
- murder committed while attempting or committing sexual assault (including aggravated sexual assault, and assault with a weapon)
- murder committed while attempting or committing hostage taking, kidnapping (including forcible confinement)
- murder of a police officer, peace officer, prison guard
Second degree murder are murders that do not fall under first degree.
A murder charge can sometimes be reduced to manslaughter, for example if the person who committed it did so in the heat of passion caused by sudden provocation.
Bail applications in murder charges
Presumption of innocence principle applies to each stage of a criminal proceeding, including bails. For this reason, in most cases Crown attorneys carry the burden of proving why an individual charged with a criminal offence should be detained pending trial. However, the criminal code under section 522(2) specifically addresses murder charge as one where a rare presumption of necessary detention plays against individuals accused of murder. As such, the accused person is one who carries the onus, on the balance of probabilities, of showing cause why he or she should be released from custody pending trial.
It is a spread known fact that loss of liberty due to a denied bail results in early guilty pleas even if the person is innocent. The waiting time for a trial, especially in Superior Courts, can be a couple of years. Spending all that time in a jail can be highly detrimental to a person’s security, physical and most of all mental health. Bringing forward an immaculately well-prepared bail application encompassing persuasive arguments, along with a strong plan is extremely important in securing bail for individuals charged with murder. It is highly recommended to seek the assistance of a knowledgeable criminal defence lawyer to assist you with setting a strong bail plan.
Contact Gavran Criminal Defence to secure legal assistance and representation if you or a family member is charged with a murder.