Few offenses in the Criminal Code garner as much attention as murder. There is often confusion between what differentiates first and second-degree murder. The difference between the two is not complex but making out a case for first-degree murder remains a high bar to meet for the prosecution. For a person convicted, the difference can be decades of incarceration. A strong legal defense can make all the difference in the outcome to a murder charge.
In the Criminal Code, homicide is classified as either culpable or non-culpable. A non-culpable homicide is not an offense and includes justified uses of force by police or military as well as self-defense by civilians. Culpable homicide has three categories: murder, manslaughter or infanticide.
A person commits a culpable homicide when they cause the death of a human being by an unlawful act, criminal negligence, or by causing that human being through threats of violence, fear of violence or by deception to do anything that causes his death. A homicide is also culpable where someone “wilfully frightens” another human being in the case of a child or sick person.
Murder as a Culpable Homicide
According to the Criminal Code, a murder occurs where the person who causes the death of a human being means to cause the death, or causes bodily harm knowing that it will likely cause death and is reckless as to whether death ensues or not.
If a person intends to cause death to a human being or intends to cause bodily harm knowing it will likely lead to death to a human being, and by accident or mistake causes death to another human being that is also murder. This concept is known as transferred intent.
If a person, for unlawful object does anything that he knows is likely to cause death, and thereby causes death to a human being, this is murder, even though he may have desired to affect his object without causing death.
First Degree Murder
There are various ways for culpable homicide to amount to first-degree murder. The most well-known way for a culpable homicide to qualify as first-degree murder is if it is a planned and deliberate murder.
According to case law such as R. v. More , R. v. Mitchell (1964) and R. v. Smith (1979): planned has been held to mean a “calculated scheme or design which has been carefully thought out, and the nature and consequences of which have been considered and weighed”, while deliberate has been held to mean “considered and not impulsive”. Planning and deliberation is not always a requirement for a first-degree murder conviction. Murdering a peace officer in the course of his/her duties will also be considered a first-degree murder.
Murder is also first-degree murder if the murder occurs in the commission of certain offences: sexual assault, sexual assault with a weapon, aggravated sexual assault, hijacking, kidnapping or forcible confinement, hostage taking, and terrorist activity, an offence on behalf of a criminal organization, criminal harassment, and intimidation.
Regardless of the route the Crown elects to take in pursuing a first-degree murder charge, the standard of proof of beyond a reasonable doubt continues to apply.
Second Degree Murder
Second-degree murder is defined in the Criminal Code as all murder that is not first-degree murder. In the case of second-degree murder, there will still be death, intent to cause death, or intent to cause bodily harm knowing it would likely result in death.
Penalty for Murder
There is a mandatory minimum sentence of life imprisonment for being convicted of either first degree or second-degree murder. This mandatory minimum is compliant with the Charter of Rights and Freedoms.
For first degree murder, life imprisonment comes with no possibility of parole for 25 years. For second degree murder, life imprisonment comes with no possibility of parole for a minimum of 10 years.
In second-degree murder cases, the judge is able to set the parole eligibility date after receiving recommendations from the Crown, defense, and the jury. In the case that a conviction is given to a repeat murder offender, they will automatically receive a life sentence with no parole eligibility for 25 years.
Young Persons Sentenced for Murder
For a person under the age of sixteen who has been convicted of first or second-degree murder (and sentenced as an adult), the parole ineligibility period is between five and seven years of the sentence at the discretion of the presiding judge. If the judge makes no specification on the parole ineligibility, the parole ineligibility period is five years. For a person between the ages of sixteen and seventeen at the time of the offense and who is sentenced as an adult, the parole ineligibility period is ten years if convicted of first-degree murder, and 7 years for second-degree murder.
A youth convicted of murder that is not sentenced as an adult will not face a life sentence. The maximum sentence of ten years is available for first-degree murder and seven years for second-degree murder.
Parole and Life Sentences
Once an offender on a life sentence is released on parole, they will remain on parole for the rest of their life. As part of their parole, they will be subject to specific conditions and can be sent back to prison without a hearing if they break their conditions of release.
If there are multiple murder offenses, the consequences could be more serious, and offenders might receive consecutive periods of parole ineligibility.
Murder Reduced to Manslaughter
Murder can be reduced to manslaughter if the person who committed the act did so in the heat of passion caused by sudden provocation. Provocation is defined as conduct by the victim that would constitute an indictable offense punishable by five years or more imprisonment; and is sufficient to “deprive an ordinary person of the power of self-control”. There is an important subjective element to the test for this partial defense, and that is that the accused must have committed the killing because he was provoked, not just because the provocation existed. The suddenness aspect is present to ensure the act was not one of vengeance.
Infanticide, like murder reduced to manslaughter, is another partial defense to murder. This offense can only occur when a female commits murder by a wilful act or omission causing the death of her newly-born child. This partial defense is only available if the female is not fully recovered from the effects of giving birth to the child and by that reason, or by the effect of lactating subsequent to birth, the offender’s mind is then disturbed. The punishment for infanticide is imprisonment not exceeding five years.
Manslaughter is a culpable homicide that is not murder or infanticide. There is no minimum punishment for manslaughter, meaning that it carries a very wide sentencing range. If a firearm is used, however, a mandatory minimum punishment of four years is in effect. Otherwise, there is only the maximum, which is imprisonment for life.
Proving First Degree Murder
In Canada, first-degree murder is the most serious accusation one can face. The stakes are high – being convicted of first or second-degree murder results in life imprisonment. Even if you are granted parole, you can still be remitted to custody at any time for breaching that parole.
If you or a loved one has been accused of a murder charge, it is imperative that you seek legal advice immediately. At Weisberg Law, our criminal lawyers can help you build a solid defense and will always represent your best interests. Contact us to find out how we can assist you.