What’s the Difference between First, Second, and Third Degree Murder

You undoubtedly know that murder is a serious charge, but you may not realize that murder charges range from first and second-degree murder to manslaughter.  The differences between these charges are significant. Better understanding the criminal charge you’re facing – whatever it is – can help you strategize a smoother path forward toward your case’s best possible resolution. One of the most important steps anyone facing a criminal charge can take is consulting with an experienced criminal defence lawyer early in the process.

Homicide vs. Murder

If you’ve ever seen a police procedural, you’re familiar with the terms homicide and murder and may think they’re interchangeable. There is, however, a distinction. Homicide refers to taking someone else’s life, but it includes taking someone else’s life in defence of your own, which is not classified as murder. Murder, on the other hand, refers to criminal – or culpable – homicide that either causes or is intended to cause someone else to lose their life.

Culpable homicide is divided into three separate categories in Canada that include:

• First-degree murder;
• Second-degree murder; and
• Manslaughter.

A culpable homicide is classified as murder when:

1. The accused means to cause the deceased’s death or means to cause them bodily harm that the accused knows is likely to cause death and is reckless whether death occurs or not;
2. The accused means to cause someone’s death or bodily harm but accidentally or mistakenly kills another person; or
3. While pursuing an unlawful goal, the accused does something that causes a person’s death and that they know could cause a person’s death, even if they prefer not to cause death or bodily harm while pursuing the unlawful goal.

What is the difference between first and second-degree murder and manslaughter charges in Canada? The defining factors are intention and planning.

Murder Defined

The Canadian Criminal Code identifies murder – or culpable homicide – as causing the death of a human being by any of the following means:

• By engaging in an unlawful act
• By engaging in criminal negligence
• By causing the other person – via threat, fear of violence, or deception – to do anything that causes their own death

First-Degree Murder

For a homicide charge to be classified as first-degree murder, which is the highest level, it must be deliberate as well as planned. A prime example is a contract killing in which the murder is plotted out ahead of time and premeditated murder in which the act is deliberate – or intentional. All of the following acts qualify as first-degree murder:

• Any murder that is both planned and deliberate
• Any murder that is committed in the course of carrying out a specific kind of criminal act, including kidnapping, sexual offences, intimidation, criminal harassment, terrorist activity, organized crime, and hijacking
• The murder of any police or custodial officer who was killed in the line of duty
• Any murder committed by someone who already has a first or second-degree murder or their record

Obtaining a Conviction

To obtain a conviction on a first-degree murder charge, the Crown must prove beyond a reasonable doubt that the accused planned to kill and deliberately murdered the victim.

Ultimately, both the judge and the jury handling the case must be completely satisfied that the actions of the accused were instrumental in causing the murder in question before a final verdict of guilty can be issued.

Sentencing

If convicted of first-degree murder in Canada, the mandatory sentence is life imprisonment with eligibility for parole after 25 years served. It’s also important to note that when parole is granted, it’s permanent – and any legal infraction can send the parolee back to prison.

Second-Degree Murder

Second-degree murders are deliberate killings that lack the planning of first-degree murders and that don’t fall into the specific categories that qualify as first-degree murders. For example, it’s a second-degree homicide – or murder – to kill someone in the course of a fight. While the murder wasn’t planned, the intention to cause harm was there.

When it comes to sentencing for a second-degree murder conviction, the Crown has the discretion to base parole eligibility on the strength of the case against the person as well as on the strength of the defence – along with jury recommendations. If the person being sentenced is a repeat offender, however, there is a mandatory sentence of at least 25 years before parole can be granted.

Under certain circumstances, second-degree murder charges can be reduced to manslaughter charges, such as if the act was committed in the heat of the moment or if the mental facilities of the accused were impaired at the time.

Manslaughter

Third-degree murder is also called voluntary manslaughter here and the charge refers to a homicide that is committed without intent to murder – although the intent to cause harm may have been present. Manslaughter itself is divided into the following two distinct categories:

• By unlawful act
• Through criminal negligence

A critical element of most murder cases is determining if the act is manslaughter or second-degree murder. Murder involves the deliberate intent to kill the other person, and in many murder cases, there is planning or conspiring involved. For the charge of manslaughter to apply, the elements of intention and planning must be absent. Instead, the accused must have played a role in the victim’s death or must have contributed to the victim’s death – and self-defence can’t have been the sole motivation.

Manslaughter by Unlawful Act

An unlawful act is one that is against the law to begin with, such as assault. Common examples of assault that are associated with manslaughter charges include:

• Strangling the other person
• Throwing a punch at the other person
• Violently throwing the other person

Assault is against the law, and when the assault results in death, manslaughter charges can apply.

When you engage in assaultive behaviour solely as a means of defending yourself against harm – or as a matter of self-defence – the charge of manslaughter doesn’t apply. This means that punching or otherwise harming someone else as a means of escaping further harm or threat to yourself can be used to bolster your defence.

Choosing to assault someone else in order to start a fight or to keep a fight going, however, is unlawful, and if the person you’re fighting ultimately dies, it can lead to manslaughter – or even to murder – charges.

Manslaughter through Criminal Negligence

Manslaughter through criminal negligence is similar to manslaughter by an unlawful act, but it’s reserved for acts that are extremely irresponsible. In other words, failing to live up to the responsibility one has to the safety of others – such as the duty of care motorists owe one another – can lead to the charge of manslaughter through criminal negligence.

This responsibility to others – or duty of care owed to others – applies in a range of circumstances that include all the following:

• In schools,
• In the workplace,
• On the road, and
• In hospitals.

Parents also owe a duty of care to their children. This means that, in an extreme situation, a homicide committed by a parent who fails to intervene in the other’s known abuse of a shared child can lead to a manslaughter charge for the parent who failed to intervene.

When it comes to convictions, there is no predetermined minimum sentence for manslaughter cases. If, however, a gun is used in the commission of the crime, a four-year mandatory minimum sentence is applicable.

Is It Murder, or Is It Manslaughter?

Determining whether an act is manslaughter or murder is challenging, and it comes down to intention. Proving what someone else intended to do, however, can be very difficult, and the matter must be resolved in accordance with the evidence. For example, any proof of planning is evidence of intent. When intent can’t be established, the charge of murder is often lessened to manslaughter.

To prove manslaughter, the Crown must demonstrate that another reasonable person in the same position as the accused would have recognized that death was the likely result of their reckless behaviour.

The Charge of Attempted Murder

In addition to the charges for the three degrees of murder, there is also the charge of attempted murder, which applies when each of the following is true:

• The accused had the specific intention to murder someone else.
• The accused had the means to murder someone else.
• The accused took some direct action in an attempt to commit the murder in question.

The Action of the Offence

For the charge of attempted murder to apply, the accused needn’t intend to kill a specific person. Instead, the charge is based on the action of the person committing the offence. For example, when someone fires a gun into a group of people without shooting at any one of them specifically, it can lead to the charge of attempted murder. Under some circumstances, simply pointing a gun at someone else can rise to the level of attempted murder.

To prove the charge of attempted murder, the Crown must show that the accused had the specific intention of committing murder and took at least one step – beyond preparation – in that direction.

Minimum Sentencing Requirements

There are minimum sentencing requirements for attempted murder charges that include all the following:

• For a first offence of attempted murder in which a restricted firearm is used, there is a five-year minimum prison sentence. For an offence involving any other kind of firearm, a four-year minimum sentence is imposed.
• If the accused is involved with a criminal organization and uses a firearm in the commission of an attempted murder, there is a five-year minimum prison sentence.
• For a second or subsequent offence of attempted murder, there is a seven-year minimum prison sentence.

Consult with an Experienced Criminal Defence Lawyer Today

If you or someone you care about is facing a murder or manslaughter charge, having seasoned legal guidance in your corner can make a significant difference in the outcome of your case and, as a result, in your future. The trusted criminal defence lawyers at Alberta Legal are committed to skilfully advocating for your case’s best possible resolution, and we encourage you to reach out and contact or call us for more information about what we can do to help you today.