233

Infanticide

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.

Annotations | French

• Section 233
• Infanticide is a narrowly defined form of murder in which a mother causes the death of her newly-born child. Under section 2 of the Code, a newly-born child is a child under one-years old. The mother must: (1) wilfully cause the death or refrain from doing something to prevent the death, and (2) at the time of the wilful act or omission, the mother has a “disturbed mind” due to the effects of child birth or lactation: R v Borowiec, 2016 SCC 11 at para 13; R. v. L.B., 2011 ONCA 153at para. 58
• “Disturbed Mind”
• A disturbed mind is to be understood in its ordinary usage and meaning. It is not a legal term of art or defined in any statute. The word disturbed can mean someone who is “mentally agitated”, “mentally unstable”, or is experiencing “mental discomposure”. There is no requirement to prove a minimum threshold of a clinical diagnosis, or to prove a mental disorder under section 16 of the Code. The disturbance must be present at the time of acts or omissions causing the death of the child and must occur at a time that the accused has not recovered from giving birth or lactation. R v Borowiec, 2016 SCC 11 at para 35.
• The disturbance must be “by reason of” not being fully recovered from the effects of giving birth or from the effect of lactation after giving birth: R v Borowiec, 2016 SCC 11 at para 35. There is no requirement that the disturbance be the cause of the offence. Infanticide does not require any causal connection between the disturbance of the mind and the decision to do the thing that caused the child’s death: R v L.B., 2011 ONCA 153 at para 59; R v Borowiec, 2016 SCC at para 14.
• The Elements of the Offence
• Actus Reus
• The Crown must establish beyond a reasonable doubt that, (1) the actions or omissions of the mother actually caused the death of the child, (2) the mother’s mind was disturbed at the time of the unlawful act, and (3) at the time the mother’s mind was disturbed, she was operating under the effects of child birth or lactation. It does not need to be proven that the disturbed mind caused the act or omission that resulted in the death of the child: R v L.B., 2011 ONCA 153 at para 59.
• Mens Rea
• The Crown must establish beyond a reasonable doubt: (1) the intent for the underlying action or omission that caused the death, and (2) the objective foresight that the unlawful act gives rise to a risk of bodily harm that is neither trivial nor transitory. It does not require an intention to kill the child: R v L.B., 2011 ONCA 153 at paras 117, 121.
• Application as Offence or Defence or a Lesser and Included Offence
• Infanticide is a stand-alone offence and also a partial defence to murder or manslaughter: R. v. Borowiec, 2016 SCC 11 at para 15; R. v. L.B., 2011 ONCA 153 at paras 76, 99, 104.
• Where infanticide is used as a partial defence, defence must demonstrate that there is sufficient evidence to give that defence an air of reality. If that occurs, the onus is on the Crown to negate that defence beyond a reasonable doubt. If the Crown proves a culpable homicide, the jury must first consider infanticide. If the Crown is unable to negate at least one of the elements of infanticide, then the accused should be found not guilty of culpable homicide but guilty of infanticide. It is only where the Crown negates infanticide should there be a consideration of where the Crown has proved murder: R. v. Borowiec, 2016 SCC 11 at paras 15-17; R v L.B., 2011 ONCA 153 at para 139.

234

Manslaughter

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

Annotations | French

• Section 234
• Manslaughter involves conduct that causes the death of another person that falls short of the intention to kill. The primary difference between murder and manslaughter is the mental element, or the mens rea. Murder requires a person to subjectively intend or foresee death. Manslaughter only requires an objective foresight of bodily harm that is neither trivial or transitory: R v Creighton, [1993] 3 SCR 3 at p 44-45.

235

Punishment for murder

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.

Minimum punishment

(2) For the purposes of Part XXIII, the sentence of imprisonment for life prescribed by this section is a minimum punishment.

Annotations

• Part VIII

236

Manslaughter

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.

Annotations | French

• Section 236
• Manslaughter carries a maximum punishment of life imprisonment. There is no mandatory minimum sentence except in cases involving a firearm. These cases carry a mandatory minimum of 4 years: Criminal Code, RSC 1985, c C-46, s 236(a).
• Manslaughter captures a wide and disparate range of conduct. Consequently, the courts have rejected efforts to create subcategories of manslaughter cases for sentencing and a wide range of sentences have been imposed for this offence. This includes a suspended sentence in the case of an accused who was a victim of intimate partner violence: R v Alexander, 2014 ONCA 22 at para 41; R v Bennett, [1993] OJ No 1011 at paras 78-80
• The penalty can be relative to the foreseeability of harm in the circumstances: R v Laberge, 1995 ABCA 196 at para 17; R v Campbell, 2022 ABCA 410 at paras. 35-36; R v Bushby, 2021 ONSC 4082 at para 86.
• When Self-Defense Made Out in Relation to Unlawful Act
• When self-defence is made out with respect to the predicate offence, then the act is not unlawful. As such, the homicide is not culpable, and the accused must be acquitted: R v Baker, 45 C.C.C. (3d) 368 at para 12; R v Audette, 2022 ONCJ 104 at para 74. However, the timing of when to assess the accused’s state of mind with respect to self-defence is a fact-specific inquiry. It is not the case that where the judge assesses the elements of murder prior to self-defence, that the court is unable to properly assess self-defence in a case: R v Sylvester, 2021 ABCA 312 at paras 45-48.

237

Punishment for infanticide

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.

Annotations | French

• Section 237
• This offence may be charged by way of an indictable or summary offence. It has a maximum sentence of 5 years imprisonment. The reduced penalty for infanticide compared to murder and manslaughter represents the recognition of a lower moral culpability: R v L.B., 2011 ONCA 153 at para 71.

238

Killing unborn child in act of birth

238 (1) Every one who causes the death, in the act of birth, of any child that has not become a human being, in such a manner that, if the child were a human being, he would be guilty of murder, is guilty of an indictable offence and liable to imprisonment for life.

Saving

(2) This section does not apply to a person who, by means that, in good faith, he considers necessary to preserve the life of the mother of a child, causes the death of that child.

Annotations

• Part VIII

239

Attempt to commit murder

239 (1) Every person who attempts by any means to commit murder is guilty of an indictable offence and liable

(a) if a restricted firearm or prohibited firearm is used in the commission of the offence or if any firearm is used in the commission of the offence and the offence is committed for the benefit of, at the direction of, or in association with, a criminal organization, to imprisonment for life and to a minimum punishment of imprisonment for a term of

(i) in the case of a first offence, five years, and

(ii) in the case of a second or subsequent offence, seven years;

(a.1) in any other case 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.

Subsequent offences

(2) In determining, for the purpose of paragraph (1)(a), whether a convicted person has committed a second or subsequent offence, if the person was earlier convicted of any of the following offences, that offence is to be considered as an earlier offence:

(a) an offence under this section;

(b) an offence under subsection 85(1) or (2) or section 244 or 244.2; or

(c) an offence under section 220, 236, 272 or 273, subsection 279(1) or section 279.1, 344 or 346 if a firearm was used in the commission of the offence.

However, an earlier offence shall not be taken into account if 10 years have elapsed between the day on which the person was convicted of the earlier offence and the day on which the person was convicted of the offence for which sentence is being imposed, not taking into account any time in custody.

Sequence of convictions only

(3) For the purposes of subsection (2), the only question to be considered is the sequence of convictions and no consideration shall be given to the sequence of commission of offences or whether any offence occurred before or after any conviction.

Annotations

• Part VIII

240

Accessory after fact to murder

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

Annotations

• Part VIII

241

Counselling or aiding suicide

241 (1) Everyone is guilty of an indictable offence and liable to imprisonment for a term of not more than 14 years who, whether suicide ensues or not,

(a) counsels a person to die by suicide or abets a person in dying by suicide; or

(b) aids a person to die by suicide.

Exemption for medical assistance in dying

(2) No medical practitioner or nurse practitioner commits an offence under paragraph (1)(b) if they provide a person with medical assistance in dying in accordance with section 241.2.

Exemption for person aiding practitioner

(3) No person is a party to an offence under paragraph (1)(b) if they do anything for the purpose of aiding a medical practitioner or nurse practitioner to provide a person with medical assistance in dying in accordance with section 241.2.

Exemption for pharmacist

(4) No pharmacist who dispenses a substance to a person other than a medical practitioner or nurse practitioner commits an offence under paragraph (1)(b) if the pharmacist dispenses the substance further to a prescription that is written by such a practitioner in providing medical assistance in dying in accordance with section 241.2.

Exemption for person aiding patient

(5) No person commits an offence under paragraph (1)(b) if they do anything, at another person’s explicit request, for the purpose of aiding that other person to self-administer a substance that has been prescribed for that other person as part of the provision of medical assist­ance in dying in accordance with section 241.2.

Clarification

(5.1) For greater certainty, no social worker, psychologist, psychiatrist, therapist, medical practitioner, nurse practitioner or other health care professional commits an offence if they provide information to a person on the lawful provision of medical assistance in dying.

Reasonable but mistaken belief

(6) For greater certainty, the exemption set out in any of subsections (2) to (5) applies even if the person invoking the exemption has a reasonable but mistaken belief about any fact that is an element of the exemption.

Definitions

(7) In this section, medical assistance in dying, medical practitioner, nurse practitioner and pharmacisthave the same meanings as in section 241.1.

Annotations

• Part VIII

241.1

Definitions

241.1 The following definitions apply in this section and in sections 241.2 to 241.4.

medical assistance in dying means

(a) the administering by a medical practitioner or nurse practitioner of a substance to a person, at their request, that causes their death; or

(b) the prescribing or providing by a medical practitioner or nurse practitioner of a substance to a person, at their request, so that they may self-administer the substance and in doing so cause their own death. (aide médicale à mourir)

medical practitioner means a person who is entitled to practise medicine under the laws of a province. (médecin)

nurse practitioner means a registered nurse who, under the laws of a province, is entitled to practise as a nurse practitioner — or under an equivalent designation — and to autonomously make diagnoses, order and interpret diagnostic tests, prescribe substances and treat patients. (infirmier praticien)

pharmacist means a person who is entitled to practise pharmacy under the laws of a province. (pharmacien)

Annotations

• Part VIII

241.2

Eligibility for medical assistance in dying

241.2 (1) A person may receive medical assistance in dying only if they meet all of the following criteria:

(a) they are eligible — or, but for any applicable minimum period of residence or waiting period, would be eligible — for health services funded by a government in Canada;

(b) they are at least 18 years of age and capable of making decisions with respect to their health;

(c) they have a grievous and irremediable medical condition;

(d) they have made a voluntary request for medical assistance in dying that, in particular, was not made as a result of external pressure; and

(e) they give informed consent to receive medical assistance in dying after having been informed of the means that are available to relieve their suffering, including palliative care.

Grievous and irremediable medical condition

(2) A person has a grievous and irremediable medical condition only if they meet all of the following criteria:

(a) they have a serious and incurable illness, disease or disability;

(b) they are in an advanced state of irreversible decline in capability;

(c) that illness, disease or disability or that state of decline causes them enduring physical or psychological suffering that is intolerable to them and that cannot be relieved under conditions that they consider acceptable; and

(d) their natural death has become reasonably foreseeable, taking into account all of their medical circumstances, without a prognosis necessarily having been made as to the specific length of time that they have remaining.

Safeguards

(3) Before a medical practitioner or nurse practitioner provides a person with medical assistance in dying, the medical practitioner or nurse practitioner must

(a) be of the opinion that the person meets all of the criteria set out in subsection (1);

(b) ensure that the person’s request for medical assist­ance in dying was

(i) made in writing and signed and dated by the person or by another person under subsection (4), and

(ii) signed and dated after the person was informed by a medical practitioner or nurse practitioner that the person has a grievous and irremediable medical condition;

(c) be satisfied that the request was signed and dated by the person — or by another person under subsection (4) — before two independent witnesses who then also signed and dated the request;

(d) ensure that the person has been informed that they may, at any time and in any manner, withdraw their request;

(e) ensure that another medical practitioner or nurse practitioner has provided a written opinion confirming that the person meets all of the criteria set out in subsection (1);

(f) be satisfied that they and the other medical practitioner or nurse practitioner referred to in paragraph (e) are independent;

(g) ensure that there are at least 10 clear days between the day on which the request was signed by or on behalf of the person and the day on which the medical assistance in dying is provided or — if they and the other medical practitioner or nurse practitioner referred to in paragraph (e) are both of the opinion that the person’s death, or the loss of their capacity to provide informed consent, is imminent — any shorter period that the first medical practitioner or nurse practitioner considers appropriate in the circumstances;

(h) immediately before providing the medical assist­ance in dying, give the person an opportunity to withdraw their request and ensure that the person gives express consent to receive medical assistance in dying; and

(i) if the person has difficulty communicating, take all necessary measures to provide a reliable means by which the person may understand the information that is provided to them and communicate their decision.

Unable to sign

(4) If the person requesting medical assistance in dying is unable to sign and date the request, another person — who is at least 18 years of age, who understands the nature of the request for medical assistance in dying and who does not know or believe that they are a beneficiary under the will of the person making the request, or a recipient, in any other way, of a financial or other material benefit resulting from that person’s death — may do so in the person’s presence, on the person’s behalf and under the person’s express direction.

Independent witness

(5) Any person who is at least 18 years of age and who understands the nature of the request for medical assist­ance in dying may act as an independent witness, except if they

(a) know or believe that they are a beneficiary under the will of the person making the request, or a recipient, in any other way, of a financial or other material benefit resulting from that person’s death;

(b) are an owner or operator of any health care facility at which the person making the request is being treated or any facility in which that person resides;

(c) are directly involved in providing health care serv­ices to the person making the request; or

(d) directly provide personal care to the person making the request.

Independence — medical practitioners and nurse practitioners

(6) The medical practitioner or nurse practitioner providing medical assistance in dying and the medical practitioner or nurse practitioner who provides the opinion referred to in paragraph (3)(e) are independent if they

(a) are not a mentor to the other practitioner or responsible for supervising their work;

(b) do not know or believe that they are a beneficiary under the will of the person making the request, or a recipient, in any other way, of a financial or other material benefit resulting from that person’s death, other than standard compensation for their services relating to the request; or

(c) do not know or believe that they are connected to the other practitioner or to the person making the request in any other way that would affect their objectivity.

Reasonable knowledge, care and skill

(7) Medical assistance in dying must be provided with reasonable knowledge, care and skill and in accordance with any applicable provincial laws, rules or standards.

Informing pharmacist

(8) The medical practitioner or nurse practitioner who, in providing medical assistance in dying, prescribes or obtains a substance for that purpose must, before any pharmacist dispenses the substance, inform the pharmacist that the substance is intended for that purpose.

Clarification

(9) For greater certainty, nothing in this section compels an individual to provide or assist in providing medical assistance in dying.

Annotations

• Part VIII

241.3

Failure to comply with safeguards

241.‍3 A medical practitioner or nurse practitioner who, in providing medical assistance in dying, knowingly fails to comply with all of the requirements set out in paragraphs 241.‍2(3)‍(b) to (i) and subsection 241.‍2(8) 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.

Annotations

• Part VIII

241.31

Filing information — medical practitioner or nurse practitioner

241.31 (1) Unless they are exempted under regulations made under subsection (3), a medical practitioner or nurse practitioner who receives a written request for medical assistance in dying must, in accordance with those regulations, provide the information required by those regulations to the recipient designated in those regulations.

Filing information — pharmacist

(2) Unless they are exempted under regulations made under subsection (3), a pharmacist who dispenses a substance in connection with the provision of medical assist­ance in dying must, in accordance with those regulations, provide the information required by those regulations to the recipient designated in those regulations.

Regulations

(3) The Minister of Health must make regulations that he or she considers necessary

(a) respecting the provision and collection, for the purpose of monitoring medical assistance in dying, of information relating to requests for, and the provision of, medical assistance in dying, including

(i) the information to be provided, at various stages, by medical practitioners or nurse practitioners and by pharmacists, or by a class of any of them,

(ii) the form, manner and time in which the information must be provided,

(iii) the designation of a person as the recipient of the information, and

(iv) the collection of information from coroners and medical examiners;

(b) respecting the use of that information, including its analysis and interpretation, its protection and its publication and other disclosure;

(c) respecting the disposal of that information; and

(d) exempting, on any terms that may be specified, a class of persons from the requirement set out in subsection (1) or (2).

Guidelines — information on death certificates

(3.1) The Minister of Health, after consultation with representatives of the provincial governments responsible for health, must establish guidelines on the information to be included on death certificates in cases where medical assistance in dying has been provided, which may include the way in which to clearly identify medical assist­ance in dying as the manner of death, as well as the illness, disease or disability that prompted the request for medical assistance in dying.

Offence and punishment

(4) A medical practitioner or nurse practitioner who knowingly fails to comply with subsection (1), or a pharmacist who knowingly fails to comply with subsection (2),

(a) is guilty of an indictable offence and liable to a term of imprisonment of not more than two years; or

(b) is guilty of an offence punishable on summary conviction.

Offence and punishment

(5) Everyone who knowingly contravenes the regulations made under subsection (3)

(a) is guilty of an indictable offence and liable to a term of imprisonment of not more than two years; or

(b) is guilty of an offence punishable on summary conviction.

Annotations

• Part VIII

241.4

Forgery

241.4 (1) Everyone commits an offence who commits forgery in relation to a request for medical assistance in dying.

Destruction of documents

(2) Everyone commits an offence who destroys a document that relates to a request for medical assistance in dying with intent to interfere with

(a) another person’s access to medical assistance in dying;

(b) the lawful assessment of a request for medical assistance in dying;

(c) another person invoking an exemption under any of subsections 227(1) or (2), 241(2) to (5) or 245(2); or

(d) the provision by a person of information under section 241.31.

Punishment

(3) Everyone who commits an offence under subsection (1) or (2) 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.

Definition of document

(4) In subsection (2), document has the same meaning as in section 321.

Annotations

• Part VIII

242

Neglect to obtain assistance in childbirth

242 A female person who, being pregnant and about to be delivered, with intent that the child shall not live or with intent to conceal the birth of the child, fails to make provision for reasonable assistance in respect of her delivery is, if the child is permanently injured as a result of the failure or dies immediately before, during or in a short time after birth, as a result of the failure, 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.

Annotations

• Part VIII

243

Concealing body of child

243 Every person who in any manner disposes of the dead body of a child, with intent to conceal the fact that its mother has been delivered of it, whether the child died before, during or after birth, is guilty of

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

(b) an offence punishable on summary conviction.

Annotations

• Part VIII

244

Discharging firearm with intent

244 (1) Every person commits an offence who discharges a firearm at a person with intent to wound, maim or disfigure, to endanger the life of or to prevent the arrest or detention of any person — whether or not that person is the one at whom the firearm is discharged.

Punishment

(2) Every person who commits an offence under subsection (1) is guilty of an indictable offence and liable

(a) if a restricted firearm or prohibited firearm is used in the commission of the offence or if the offence is committed for the benefit of, at the direction of, or in association with, a criminal organization, to imprisonment for a term not exceeding 14 years and to a minimum punishment of imprisonment for a term of

(i) in the case of a first offence, five years, and

(ii) in the case of a second or subsequent offence, seven years; and

(b) in any other case, to imprisonment for a term not exceeding 14 years and to a minimum punishment of imprisonment for a term of four years.

Subsequent offences

(3) In determining, for the purpose of paragraph (2)(a), whether a convicted person has committed a second or subsequent offence, if the person was earlier convicted of any of the following offences, that offence is to be considered as an earlier offence:

(a) an offence under this section;

(b) an offence under subsection 85(1) or (2) or section 244.2; or

(c) an offence under section 220, 236, 239, 272 or 273, subsection 279(1) or section 279.1, 344 or 346 if a firearm was used in the commission of the offence.

However, an earlier offence shall not be taken into account if 10 years have elapsed between the day on which the person was convicted of the earlier offence and the day on which the person was convicted of the offence for which sentence is being imposed, not taking into account any time in custody.

Sequence of convictions only

(4) For the purposes of subsection (3), the only question to be considered is the sequence of convictions and no consideration shall be given to the sequence of commission of offences or whether any offence occurred before or after any conviction.

Annotations

• Part VIII

244.1

Causing bodily harm with intent — air gun or pistol

244.1 Every person who, with intent

(a) to wound, maim or disfigure any person,

(b) to endanger the life of any person, or

(c) to prevent the arrest or detention of any person,

discharges an air or compressed gas gun or pistol at any person, whether or not that person is the person mentioned in paragraph (a), (b) or (c), is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years.

Annotations

• Part VIII

244.2

Discharging firearm — recklessness

244.2 (1) Every person commits an offence

(a) who intentionally discharges a firearm into or at a place, knowing that or being reckless as to whether another person is present in the place; or

(b) who intentionally discharges a firearm while being reckless as to the life or safety of another person.

Definition of place

(2) For the purpose of paragraph (1)(a), place means any building or structure — or part of one — or any motor vehicle, vessel, aircraft, railway vehicle, container or trailer.

Marginal note:Punishment

• (3) Every person who commits an offence under subsection (1) is guilty of an indictable offence and

  • (a) if a restricted firearm or prohibited firearm is used in the commission of the offence or if the offence is committed for the benefit of, at the direction of or in association with a criminal organization, is liable to imprisonment for a term of not more than 14 years and to a minimum punishment of imprisonment for a term of

    • (i) five years, in the case of a first offence, and

    • (ii) seven years, in the case of a second or subsequent offence; and

  • (b) in any other case, is liable to imprisonment for a term of not more than 14 years and to a minimum punishment of imprisonment for a term of four years.

Subsequent offences

(4) In determining, for the purpose of paragraph (3)(a), whether a convicted person has committed a second or subsequent offence, if the person was earlier convicted of any of the following offences, that offence is to be considered as an earlier offence:

(a) an offence under this section;

(b) an offence under subsection 85(1) or (2) or section 244; or

(c) an offence under section 220, 236, 239, 272 or 273, subsection 279(1) or section 279.1, 344 or 346 if a firearm was used in the commission of the offence.

However, an earlier offence shall not be taken into account if 10 years have elapsed between the day on which the person was convicted of the earlier offence and the day on which the person was convicted of the offence for which sentence is being imposed, not taking into account any time in custody.

Sequence of convictions only

(5) For the purpose of subsection (4), the only question to be considered is the sequence of convictions and no consideration shall be given to the sequence of commission of offences or whether any offence occurred before or after any conviction.

Annotations

• Part VIII

245

Administering noxious thing

245 (1) Every person who administers or causes to be administered to any other person or causes any other person to take poison or any other destructive or noxious thing is guilty

(a) of an indictable offence and liable to imprisonment for a term of not more than 14 years, if they did so with intent to endanger the life of or to cause bodily harm to that person; or

(b) of an indictable offence and liable to imprisonment for a term of not more than two years or of an offence punishable on summary conviction, if they did so with intent to aggrieve or annoy that person.

Exemption

(2) Subsection (1) does not apply to

(a) a medical practitioner or nurse practitioner who provides medical assistance in dying in accordance with section 241.2; and

(b) a person who does anything for the purpose of aiding a medical practitioner or nurse practitioner to provide medical assistance in dying in accordance with section 241.2.

Definitions

(3) In subsection (2), medical assistance in dying, medical practitioner and nurse practitioner have the same meanings as in section 241.1.

Annotations

• Part VIII