Reforming Homicide Law to Separate Guilt from Sentence: An International Gloss

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Homicide, Sentence, Criminal Code, Offence, Elements, Guilt, Mandatory Sentences, Second-Degree Murder, Canada


This article argues that Canadian homicide law is handicapped by trying to combine two contradictory approaches. In general, Canadian criminal law adopts the approach of setting out relatively rigid rules for determining guilt or innocence. That is, the Criminal Code sets out particular offences, and if the elements of an offence can be proven, then failing the presence of any defence (also relatively rigidly defined), any accused will be found guilty. The question of guilt or innocence is not individualized to the circumstances of the offender. On the other hand, sentencing decisions adopt exactly the opposite approach, and are made on the assumption that it is necessary to individualize each separate decision.

Because first- and second-degree murder have mandatory sentences but the sentencing for manslaughter is flexible, the "guilt or innocence" question is simultaneously a sentencing decision. This approach therefore commits us to doing simultaneously two tasks to which we normally take diametrically opposed approaches. It is no surprise that difficulties should arise.

Drawing on the experience of a number of other countries with homicide law, defences, and sentencing, the author argues that the relatively simple step of abolishing the mandatory sentence for second-degree murder would resolve a number of inconsistencies and inelegancies in our law.