Murder and Manslaughter

Serious charges require immediate, disciplined preparation

A murder or manslaughter prosecution places a person’s liberty and future at risk in the most profound way. These cases can involve years of investigation, extensive forensic evidence, multiple witnesses, confidential informants, search warrants, intercepted communications and thousands of pages of disclosure.

The defence cannot wait until the trial is approaching.

Tyler MacDonald has defended clients charged with first-degree murder, second-degree murder, attempted murder and manslaughter in Toronto and elsewhere in Ontario. His experience includes lengthy jury trials, multi-accused prosecutions and cases involving ballistics, bloodstain evidence, forensic pathology, surveillance video and contested identification evidence.

Tyler has secured jury acquittals on first-degree murder, manslaughter, and attempted-murder charges and has represented clients whose murder charges were withdrawn. Every case is different, however, and past results do not guarantee a similar outcome.

For an arrest or urgent homicide investigation, call Tyler directly at 416-459-3352.
If Tyler cannot be reached immediately, call the firm’s emergency line at 416-598-1811.

If you or a family member has been arrested

A person arrested in a homicide investigation has the right to retain and instruct counsel without delay.

You should not try to persuade investigators of your innocence before receiving legal advice. Statements made during a homicide investigation can become an important part of the prosecution’s case, even where the person believes the statement is helpful or exculpatory.

If a family member has been arrested, provide the lawyer with:

  • The arrested person’s full name and date of birth
  • The police service and division involved
  • The location where the person is being held
  • The investigating officer’s name, if known
  • Any information about an upcoming court appearance
  • Details concerning dependants, employment and potential sureties

For urgent arrests, call rather than relying solely on email or a website form.

What should you do if you are under investigation?

A person may learn that they are a suspect before an arrest occurs. Police may ask for an interview, seek access to a cell phone, request a DNA sample or execute a search warrant.

Before making any decision about doing anything, immediately obtain legal advice. Early legal involvement allows the Defence to identify evidence before it is lost, advise on police requests and begin preparing for the next steps.

What is murder under Canadian law?

Not every unlawful killing is murder. The difference between murder and manslaughter frequently turns on what can be proven about the accused person’s state of mind, and the surrounding circumstances.

Generally, culpable homicide becomes murder when a person who causes a death:

  • Intended to cause death; or
  • Intended to cause bodily harm that they knew was likely to cause death and was reckless about whether death occurred.

The Crown must prove the required intent beyond a reasonable doubt. It is not enough merely to prove that the accused committed a dangerous act or that a death resulted.

The accused’s words, actions, weapon use, injuries caused, events before and after the incident, and surrounding circumstances may all be relied upon as circumstantial evidence of intent. The Defence must examine whether those circumstances support the Crown’s interpretation or a different reasonable conclusion.

First-degree murder

Murder is first-degree murder when it was planned and deliberate. “Planned” and “deliberate” have distinct legal meanings, and both must be proved.

The Criminal Code also classifies certain murders as first-degree regardless of whether the Crown proves conventional planning and deliberation. These include some murders involving:

  • A contractual arrangement
  • A police or correctional officer acting in the course of duty
  • Sexual assault, kidnapping or forcible confinement
  • Criminal harassment
  • Terrorist activity
  • Certain criminal-organization activity

For an adult, a first-degree murder conviction results in a mandatory life sentence without eligibility to apply for parole for 25 years. Eligibility to apply does not mean that parole will be granted.

Second-degree murder

All murder that is not first-degree murder is second-degree murder.

A conviction still results in mandatory life imprisonment. For an adult without a previous murder conviction, the period before parole eligibility is set between 10 and 25 years.

A second-degree murder prosecution may involve a spontaneous incident rather than an allegation of advance planning, but the Crown must still prove the intent for murder beyond a reasonable doubt.

Manslaughter

Manslaughter is culpable homicide that is not murder or infanticide. It commonly arises where a person causes death through an unlawful act but the Crown cannot prove the intent required for murder.

The distinction is critical. Manslaughter does not carry a mandatory life sentence, although life imprisonment remains the maximum available punishment. The Criminal Code also provides a minimum four-year sentence where a firearm is used in the commission of manslaughter.

Manslaughter cases can arise from:

  • A physical confrontation or assault that results in death
  • The unintentional discharge of a firearm
  • An unlawful act that creates an objectively foreseeable risk of bodily harm
  • Criminal negligence
  • A murder prosecution in which the Crown cannot prove the required intent
  • Circumstances in which the partial defence of provocation is legally available

There is no single sentence for manslaughter. The sentence depends on the degree of responsibility, circumstances of the offence, use of a weapon, the offender’s background and the aggravating and mitigating factors established at the sentencing hearing.

Attempted murder

Attempted murder requires proof of a specific intent to kill. An intention merely to cause bodily harm is not enough, even where the conduct created an obvious risk of death.

The Defence may therefore challenge:

  • Whether the accused was the person responsible
  • Whether the accused intended to kill
  • Whether the conduct went beyond preparation and became an attempt
  • Whether the accused acted in self-defence
  • Whether the Crown can establish liability as a party to another person’s conduct

Attempted murder is punishable by up to life imprisonment.

Can someone be convicted even if they did not cause the fatal injury?

Potentially. The Crown may argue that an accused person is legally responsible as a party because they aided or encouraged the person who committed the offence or participated in a common unlawful purpose.

Presence at the scene or association with another accused does not, by itself, establish guilt. Party-liability cases require close attention to:

  • What the accused knew
  • What the accused intended
  • What assistance or encouragement was allegedly provided
  • Whether the accused shared the relevant unlawful purpose
  • Whether the Crown can prove the mental element required for murder
  • Whether the accused withdrew from the activity

In multi-accused prosecutions, the evidence against each person must be considered separately. What one accused person said or did is not automatically admissible against everyone else.

Bail on a murder charge

Murder charges follow a special bail procedure. Only a judge of the Superior Court of Justice can order release, and the accused bears the burden of showing why detention is not justified.

Preparing the application invariably requires extensive meetings with the accused, family members and proposed sureties. A weak or incomplete plan can have serious consequences. Bail strategy should be developed as soon as possible after the arrest.

How murder and manslaughter cases are defended

No two homicide cases require the same defence. The work begins by identifying what the Crown must prove and testing each part of its theory.

Identification

Some cases turn on whether the accused was the person responsible. The Crown may rely on eyewitnesses, video, telephone records, vehicle data, DNA, fingerprints, firearms evidence or statements attributed to the accused.

Identification evidence can be honestly mistaken. Informants and cooperating witnesses may have motives to minimize their own responsibility or obtain favourable treatment. Video and digital records must be interpreted in context rather than assumed to be conclusive.

Intent

Even where the accused caused the death, the Crown must prove the state of mind required for murder. The defence may argue that the evidence establishes manslaughter, accident, self-defence or no criminal liability rather than murder.

A proper analysis considers the incident as a whole. Split-second events should not automatically be treated as proof of planning or an intention to kill.

Causation

The Crown must prove the necessary connection between the accused’s conduct and the death. Medical history, intoxication, intervening events, treatment and the conduct of other participants may become relevant.

Forensic pathology evidence should be examined for both what it establishes and what it cannot establish.

Self-defence

A person is not guilty if they reasonably believed that force or a threat of force was being used against them or another person, acted for a defensive purpose, and their response was reasonable in the circumstances.

Relevant considerations may include:

  • The nature and immediacy of the threat
  • Whether weapons were present
  • The parties’ size and physical capabilities
  • The accused’s role in the incident
  • The history between the parties
  • Other available means of responding

The nature and proportionality of the response

Self-defence does not require detached reflection in a rapidly unfolding confrontation. The evidence must be assessed from the circumstances confronting the accused, not merely with hindsight.

Witness credibility and reliability

Homicide prosecutions frequently depend on witnesses who were present during the incident, participated in related criminal activity or received some benefit for their cooperation.

The Defence may investigate:

  • Inconsistencies between statements and testimony
  • Motives to lie or shift responsibility
  • Prior relationships and conflicts
  • Access to information before giving a statement
  • Communications with other witnesses
  • Benefits, immunity or resolution of other charges
  • Whether objective evidence supports or contradicts the account

A confident witness is not necessarily an accurate or truthful witness.

Forensic evidence

Homicide cases may involve:

  • Forensic pathology
  • Ballistics and firearms examination
  • Bloodstain-pattern evidence
  • DNA and fingerprint comparison
  • Toxicology
  • Accident or scene reconstruction
  • Surveillance video
  • Telephone extraction and location evidence
  • Social-media and messaging records

Expert evidence must be tested, not merely accepted because it is presented as scientific. The Defence may consult or retain independent experts to assess methodology, limitations and alternative interpretations.

Statements and police conduct

The Defence must examine how the police obtained statements, physical evidence and digital records. Issues may include:

  • Whether a statement was voluntary
  • Compliance with the right to counsel
  • The legality of detention and arrest
  • Search warrants and production orders
  • Searches of telephones, homes and vehicles
  • DNA or bodily-sample collection
  • Intercepted communications
  • Whether evidence should be excluded under the Charter

A homicide investigation’s seriousness does not remove the constitutional limits on police authority.

Representative homicide results

Full jury acquittal on first-degree murder and attempted murder

Tyler represented a client accused of being the shooter in a targeted attack. The prosecution relied heavily on a witness who had already been convicted of first-degree murder for acting as the driver.

After a two-month Superior Court jury trial, the client was acquitted of first-degree murder and attempted murder. The verdict secured his release after he had spent nearly four years awaiting trial in custody.

Read: Client Acquitted of First Degree Murder and Attempted Murder

First-degree murder charge withdrawn

Tyler represented a client accused of committing an ambush-style shooting in downtown Toronto. Identification was the central issue.

After securing the client’s release on bail, carefully reviewing the evidentiary weaknesses and addressing the case through judicial pre-trials, Tyler obtained the withdrawal of the murder charge without the need for a trial.

Read: First Degree Murder Charge Withdrawn

Acquittals on murder and attempted murder in a complex shooting prosecution

A client was charged with first-degree murder and attempted murder after a struggle over a loaded handgun left one person dead and two others wounded.

The case involved ballistics, bloodstain evidence, forensic pathology and surveillance video. Tyler argued that the evidence did not prove murder or attempted murder. The jury acquitted the client of those charges and returned a manslaughter verdict concerning the fatal discharge, together with verdicts on other admitted or related offences.

Read: Client Not Guilty of Murder and Attempted Murder Charges Arising from Drug Robbery

Past results are not necessarily indicative of future results. Every outcome depends on the facts, admissible evidence and law applicable to the individual case.

What to expect when you contact Tyler

The first conversation will focus on the immediate situation:

  • Whether the person has been arrested or contacted by police
  • The known charge or investigative allegation
  • Where the person is being held
  • Whether police are requesting an interview, search or sample
  • The next court appearance
  • Bail and potential surety issues
  • Evidence that may need to be preserved
  • The scope and timing of the work required

Homicide cases demand clear communication with the accused and family. Tyler explains the process, the immediate priorities and the important decisions as the case develops.

Contact Tyler MacDonald

If you or a family member is facing a murder, attempted-murder or manslaughter investigation, obtain advice immediately.

Tyler accepts serious criminal cases in Toronto and throughout Ontario.

Direct line: 416-459-3352

Emergency firm line: 416-598-1811

Sophie Vaisman, Associate: 416-578-7931

Email: macdonald@criminaltriallawyers.ca

Office: 480 University Avenue, Suite 901, Toronto, Ontario

Request a free and confidential initial consultation

This page provides general legal information, not legal advice. The law and its application depend on the particular facts of each case.