Difference Between First Degree Murder, Second Degree Murder, and Manslaughter

The Canadian Criminal Code sets out two distinct types of homicide: culpable homicide (murder) and non-culpable homicide (this is not an offence within the Criminal Code).

Culpable homicide within the Canadian Criminal Code includes murder, manslaughter and infanticide.

As per section 222(5) of the Criminal Code, “a person commits culpable homicide when he causes the death of a human being,

1. by means of an unlawful act;
2. by criminal negligence;
3. by causing that human being, by threats or fear of violence or by deception, to do anything that causes his death; or
4. by wilfully frightening that human being, in the case of a child or sick person.

Homicide Overview:

• Murder is first-degree murder when it is planned and deliberate (see: Criminal Code section 231(2).
  
• All murder that is not first-degree murder is second-degree murder (see: Criminal Code section 231(7).
• Culpable homicide that is not murder or infanticide is manslaughter (see: Criminal Code section 234).
• Infanticide can only be committed by a female who causes the death of her newly born child (see: Criminal Code section 233).

All four types of homicide and their differences are discussed in more detail below.

First-Degree Murder

Overview

In Canada, first-degree murder is a type of culpable homicide. As per s. 229 of the Criminal Code, homicide is murder when:

• One who causes a death, “means to cause that person’s death” regardless of whether or not death was the accused person’s intended outcome”
• One who causes a death “means to cause him bodily harm that he knows is likely to cause his death, and is reckless whether death ensues or not” regardless of whether death was the accused person’s intended outcome
• In carrying out a different unlawful act “does anything that they know is likely to cause death, and by doing so causes the death of a human being”, even if this is their unintended outcome.

Murder is in the first degree “when it is planned and deliberate” (see: s. 231(2) of the Criminal Code).

Examples

Acts which could constitute a first-degree murder charge can include:

• Constructing a carefully curated and meticulous plan for killing someone and following through.
• Hiring a hitman to carry out a murder and the murder being executed (contract murder).
• Killing an on-duty police officer
• Killing someone in a hostage-taking
• Killing someone during the commission of a sexual assault
• Killing someone in affiliation with a gang activity

Second-Degree Murder

Overview

In Canada, second-degree murder is also a type of culpable homicide. See when homicide is murder here. Second-degree murder can be explained, in a sense, as the ‘default’ homicide charge. As per s. 231(7) of the Criminal Code, “[a]ll murder that is not first-degree murder is second-degree murder”. Therefore, to elevate second-degree murder to first-degree murder, the Crown must show planning and deliberation. Murder is lessened to manslaughter when the intent of the offender is diminished.

Examples

Acts which could constitute a second-degree murder charge can include:

• In following through on a plan to murder one individual, your plan is somewhat derailed because of the unexpected presence of another individual so you murder all those present (this would be one count first-degree [for the intended victim] and one count second-degree for the unanticipated victim]).
• In a heated argument with your neighbour, you impulsively grab a weapon and kill them
• You get into a physical fight with someone and deliver a blow which ultimately kills them.
• You leave someone to slowly die with a ligature around their neck.

Manslaughter

Overview  

As per s. 234 of the Criminal Code, “[c]ulpable homicide that is not murder or infanticide is manslaughter”. If the intent (mens rea) elements of murder cannot be proven (in other words, the accused did not intend to cause the victim’s death), but the accused still causes his death by (a) means of an unlawful act; (b) criminal negligence; (c) causing that human being, by threats or fear of violence or by deception, to do anything that causes his death; or (d) wilfully frightening that human being, in the case of a child or sick person, then they have committed manslaughter.

Examples

Some examples of manslaughter could be:

• A parent fails to provide the necessaries of life and their child therefore, dies (i.e., the parent fails to provide proper nutrition, shelter, fails to obtain proper medical attention for the child when ill, etc.).
• Driving recklessly and killing another driver or passenger.
• Careless use of a firearm resulting in someone’s death.

What are the Differences?

Differences between First- and Second-Degree Murder  

The key difference between all types of homicide is the level of intent.

Section 229 of the Criminal Code for the Crown to demonstrate that the accused has committed murder, they must convince the court that either the accused:

• Meant to cause that person’s death regardless of whether or not death was the accused person’s intended outcome;
• Meant to cause him bodily harm that he knows is likely to cause his death, and is reckless whether death ensues or not regardless of whether death was the accused person’s intended outcome; or
• Did anything that they knew was likely to cause death, and by doing so caused the death of a human being, even if this is their unintended outcome (see: 229 of the Criminal Code).

The difference between the two, however, is that for second-degree murder to be elevated to first-degree murder, there must be some showing of planning or deliberation in achieving one of the three outcomes listed above (see: s. 231(2) of the Criminal Code; also see: R v Nygaard, 1989 CanLII 6 (SCC), [1989] 2 SCR 1074).

Differences between Murder and Manslaughter  

Alike first-degree and second-degree murder, the actus reus requires the Crown to prove causation. In other words, the accused’s act must have caused the victim’s death or been a “significant contributing cause of death beyond something trifling or minor” (see: R v Smithers, 1977 CanLII 7 (SCC); 1 SCR 506). As discussed above, the accused commits manslaughter where he or she causes the victim’s death by (a) means of an unlawful act; (b) criminal negligence; (c) causing that human being, by threats or fear of violence or by deception, to do anything that causes his death; or (d) wilfully frightening that human being, in the case of a child or sick person.

Unlike murder, manslaughter uses an objective test to determine whether someone has committed manslaughter. The Crown must prove that act was “objectively dangerous, [and] that [it] is likely to injure another person” (see: R v Creighton, 1993 CanLII 61 (SCC), [1993] 3 SCR 3). The test, as laid out in R v Desousa, 1992 CanLII 80 (SCC), [1992] 2 SCR 944, and requires “objective foreseeability of the risk of bodily harm which is neither trivial nor transitory, in the context of a dangerous act”. Nevertheless, the foreseeability of death does not need to be established in the context of manslaughter (see: R v Creighton, 1993 CanLII 61 (SCC), [1993] 3 SCR 3).

Other Murder Offences

Infanticide

Infanticide is criminalized under s. 233 of the Criminal Code. It is another type of culpable homicide among murder and manslaughter. Infanticide occurs when a new mother who “is not fully recovered from the effects of giving birth” wilfully, or through a failure to act “causes the death of her newly-born child”. Nevertheless, the court has found that there is no need to establish that the “mental disturbance” caused by childbirth influenced the decision to kill. Further, it has been held that the mens rea (mental intent) required for infanticide is no more than the mens rea required for manslaughter: at the very least the intentional doing of an act that carries an objective foreseeability of death (see: R v LB, 2011 ONCA 153 (CanLII)). The punishment for committing infanticide is found under s. 237 of the Criminal Code. If convicted, the offender is liable to no more than 5 years imprisonment if charged via indictment and no more than 2 years less a day imprisonment and/or a $5000 fine if charged summarily.

Attempted Murder

Attempted murder is criminalized under s. 239 of the Criminal Code of Canada. Attempted murder is a very serious offence and is, therefore, automatically prosecuted as a straight indictable offence (the more serious category of the two types of criminal offences in Canada). Attempted murder involves an intention to kill which is either interrupted or not followed through on. In other words, it is the incomplete or unsuccessful act of killing someone. As a principle adopted in a case called R v Henderson, 1947 CanLII 370 (BCCA), “… if the actual transaction has commenced which would have ended in the crime if not interrupted, there is clearly an attempt to commit the crime.” The maximum punishment for attempted murder is life imprisonment. If no weapon or a weapon besides a firearm is used there is no minimum penalty. Where a restricted or prohibited firearm is used or the attempted murder is carried out in affiliation with a criminal organization, the minimum term of imprisonment is 5 years. If a type of firearm is used which is neither restricted nor prohibited, the minimum sentence is 4 years imprisonment (see: section 239(1) of the Criminal Code).

Accessory After the Fact

Being an accessory after the fact is criminalized under s. 23 of the Criminal Code. The section reads: an accessory after the fact to an offence is one who, knowing that a person has been a party to the offence, receives, comforts or assists that person for the purpose of enabling that person to escape. This section does not only apply to accessories to murder – it can apply to all Criminal Code offences. To be convicted of accessory after the fact, the accused must know of the original offence, must have aided the principal offender, and the accused must have intended to enable the principal’s escape of justice. To be an accessory and not an accomplice to an offence, the offence must be complete before the accused person’s involvement (R v Knott, 2006 CanLII 6588 (ONSC)). As per s. 240 of the Criminal Code, an accessory after the fact to murder is liable to up to life imprisonment if convicted.

Defences for Homicide

Defences to Both Murder and Manslaughter  

Self-Defence

Self-defence is an available defence to a homicide charge. The defence is statutorily embedded in the Criminal Code under section 34. Section 34(1) says that:

(1) A person is not guilty of an offence if

(a) they believe on reasonable grounds that force is being used against them or another person or that a threat of force is being made against them or another person;

(b) the act that constitutes the offence is committed for the purpose of defending or protecting themselves or the other person from that use or threat of force; and

(c) the act committed is reasonable in the circumstances.

Self-defence is a full justification for murder. It is to be considered in situations of “last resort” where a jury would accept that “the accused believed, on reasonable grounds, that his own safety and survival depended on killing the victim at that moment” (see: R v Cinous, 2002 SCC 29, [2002] 2 SCR 3).

Automatism

Automatism is a very rare defence, but it is legally available. In R v Stone, 1999 CanLII 688 (SCC), [1999] 2 SCR 290, the Supreme Court of Canada defined automatism as “a state of impaired consciousness. This is in contrast with unconsciousness, in which an individual, though capable of action, has no voluntary control over that action. The person engages in involuntary behaviour such that “a person who, though capable of action, is not conscious of what he is doing”. In simpler terms, as put in R v Rabey, 1977 CanLII 48 (ONCA), “it means an unconscious involuntary act where the mind does not go with what is being done”. There are two legally recognized types of automatism: that of which are brought on by a mental disorder and those acts which are not (or non-mental disorder automatism). Automatism affected by a mental disorder will flow into a finding of “not criminally responsible” (NCR). NCR findings are discussed in more detail here. Non-mental disorder automatism, where properly established, results in an acquittal of the charges (see: R v Alexander, 2015 BCCA 484 (CanLII)).

Not Criminally Responsible (NCR)

Section 16 of the Criminal Code is intended to appreciate the existence of mental illness in the criminal context and “the principle of law that a person who suffers from a mental disorder which renders him incapable of making rational or autonomous choices should not be held criminally responsible” (see: R v Ejigu, 2016 BCSC 1487 (CanLII)). Section 16 of the Criminal Code reads that:

16 (1) No person is criminally responsible for an act committed or an omission made while suffering from a mental disorder that rendered the person incapable of appreciating the nature and quality of the act or omission or of knowing that it was wrong.

There is an automatic presumption at law that every person does not suffer from a mental disorder unless proven on a balance of probabilities (see: section 16(2) of the Criminal Code). A finding of NCR does lead to an acquittal for the offence. The court may still enforce a disposition, however, these are generally associated with the rehabilitation of the offender and are not necessarily sanction-based like conventional sentences for a criminal offence.

Applicable Charter Defences

The Canadian Charter sets out your rights and freedoms before and after your arrest. If the police fail to abide by these rights, either deliberately or inadvertently, it could aid in your defence. If any of your Charter rights have been violated before or after your arrest, you may be able to have some or all of the evidence that the Crown is relying on to secure a conviction excluded under s. 24(2) of the Charter. 

Defences to Murder Only

Provocation

As per section 232 of the Criminal Code, even if the evidence establishes the actus reus and mens rea for murder, the defendant may be convicted of the lesser offence of manslaughter if there remains doubt that the defendant was provoked. As per section 232(2) of the Criminal Code,

[c]onduct of the victim that would constitute an indictable offence under this Act that is punishable by five or more years of imprisonment and that is of such a nature as to be sufficient to deprive an ordinary person of the power of self-control is provocation for the purposes of this section, if the accused acted on it on the sudden and before there was time for their passion to cool.

There are many elements to proving provocation including looking at what constitutes a “wrongful act”, what constitutes an “insult”, who we consider the “ordinary person”, what the “loss of control” looks like, what “sudden” in the context of provocation means, etc If the issue is raised, it is the duty of the Crown to prove that there was no provocation; it is not your responsibility to prove that there was provocation (see: R v Thibert, 1996 CanLII 249 (SCC), [1996] 1 SCR 37).

Intoxication

Intoxication is a very rare defence and has only been recognized as a defence for violent crimes (including murder) as of quite recently by the Supreme Court of Canada. The law recognizes three types of intoxication (see: R v Daley, 2007 SCC 53 (CanLII), [2007] 3 SCR 523): mild, advanced, and extreme. Mild intoxication is not a defence. Advanced intoxication can be a partial defence and will demand of the court, that it consider whether the mens rea requirement is fully met.

Extreme intoxication can be a complete defence to a charge of murder, however, as mentioned, this is incredibly rare. Extreme intoxication is said to be akin to automatism (see discussion about this directly below) and is then said to become a barrier to forming the requisite mental intent (mens rea) for being at fault for an offence. The accused can put forth evidence relevant to the amount of alcohol consumed and the effects it had on them when attempting to establish an intoxication defence (see: R v Daviault, 1994 CanLII 61 (SCC), [1994]3 SCR 63); expert testimony (while perhaps likely to be more convincing), is not required to establish extreme intoxication (see: R v SJB, 2002 ABCA 143 (CanLII)).

Frequently Asked Questions

What is Worse, First-Degree Murder, Second-Degree Murder or Manslaughter?

Based on punishment alone, Parliament has implied that first-degree murder is the most serious type of homicide given that it carries the weightiest potential sentence. Both first-degree and second-degree murder carry automatic life sentences, however, parole eligibility can be sooner for second-degree murder making it, in some respects, ‘less serious’ than first-degree murder. If convicted of first-degree murder parole eligibility doesn’t begin until after 25 years served. If convicted of second-degree murder, parole eligibility can be set anywhere after 10-25 years imprisonment.

What are the Four Types of Homicide?

• First-degree murder
• Second-degree murder
• Manslaughter
• Infanticide

How Many Years Do You Get in Jail for Manslaughter?

Manslaughter unlike murder, is more discretionary at sentencing. While murder (both first-degree and second-degree) carry automatic life sentences, a manslaughter conviction has no minimum mandatory sentence (unless manslaughter is carried out with a firearm) leaving prospective sentences in the hands of the court. This is often why a defence lawyer will sometimes try to show that a murder charge should be prosecuted as manslaughter because sentencing has more potential to be tailorable and therefore, to fit the circumstances surrounding the offence and the offender. See manslaughter sentences and parole eligibility outlined in the table below:

What Does Culpable Mean?

Sections 222(1)-(6) of the Canadian Criminal Code sets out two distinct types of homicide: culpable homicide (murder) and non-culpable homicide (this is not an offence within the Criminal Code). The plain meaning of the term ‘culpable’ means “deserving blame”. Culpable homicide within the Canadian Criminal Code includes murder, manslaughter and infanticide. As per section 222(5) of the Criminal Code, “a person commits culpable homicide when he causes the death of a human being,

1. by means of an unlawful act;
2. by criminal negligence;
3. by causing that human being, by threats or fear of violence or by deception, to do anything that causes his death; or
4. by wilfully frightening that human being, in the case of a child or sick person.

 What is Third-Degree Murder?

Third-degree murder is synonymous in some jurisdictions with what is known in Canada as manslaughter. Nevertheless, Canadians do not use the term “third-degree murder” to describe any type of homicide in the Criminal Code. Manslaughter in Canada is a type of homicide with a diminished mental intent compared to that of murder. More on manslaughter can be read here.

What is Criminal Negligence Manslaughter?

Manslaughter via criminal negligence is the same as the Criminal Code offence of “[c]ausing death by criminal negligence” (see: section 220 of the Criminal Code). Section 219(1) defines someone as criminally negligent who

(a) in doing anything, or

(b) in omitting to do anything that it is his duty to do,

shows wanton or reckless disregard for the lives or safety of other persons. In other words, one must commit an act or omit from an act and this action, or inaction, where a duty existed, causes one’s death. Duties are those which are imposed by law (see: section 219(2) of the Criminal Code). The Criminal Code sets out a non-exhaustive list of duties.

Some of these include:

• handle explosive substances with reasonable care (see: section 77 of the Criminal Code)
• provide the necessaries of life to children, spouses, common-law partners, infirm people and prisoners: (see: section 215 of the Criminal Code)
• provide medical treatment competently (except in emergencies): (see: section 216 of the Criminal Code)
• direct labourers safely: (see: section 217.1 of the Criminal Code)
• guard holes made in ice or land: (see: section 263 of the Criminal Code)

The list of legal duties is extensive and there exist both statutory legal duties (duties codified in the Criminal Code) and common law duties (duties created by the Canadian courts).

In the case R v Rogers, 1968 CanLII 813 (BCCA), “wanton” was defined as an “unrestrained disregard for consequences”. The “wanton” state of mind of an accused can be inferred from the nature of the accused’s conduct. Driving while heavily intoxicated displays the requisite attitude of mind (see: R v Walker (1974), 26 CRNS 268, 18 CCC (2d) 179)). The court in R v Menezes, 2002 CanLII 49654 (ONSC) noted that “wanton” is defined as “heedlessly” or “ungoverned” and “undisciplined” and an “unrestrained disregard for circumstances”.

To be “reckless means [to show] carelessness of the consequences of an act insofar as the lives and safety of other persons are concerned” (see: R v Rogers, 1968 CanLII 813 (BCCA)). As established in the case R v Willock, 2006 CanLII 20679 (ONCA), criminal negligence is not established by a momentary lapse of attention. 

How is Manslaughter Different than First- and Second-Degree?

Alike first-degree and second-degree murder, the actus reus requires the Crown to prove causation. In other words, the accused’s act must have caused the victim’s death or been a “significant contributing cause of death beyond something trifling or minor” (see: R v Smithers, 1977 CanLII 7 (SCC); 1 SCR 506). As discussed above, the accused commits manslaughter where he or she causes the victim’s death by (a) means of an unlawful act; (b) criminal negligence; (c) causing that human being, by threats or fear of violence or by deception, to do anything that causes his death; or (d) wilfully frightening that human being, in the case of a child or sick person.

Unlike murder, manslaughter uses an objective test to determine whether someone has committed manslaughter. The Crown must prove that act was “objectively dangerous, [and] that [it] is likely to injure another person” (see: R v Creighton, 1993 CanLII 61 (SCC), [1993] 3 SCR 3). The test, as laid out in R v Desousa, 1992 CanLII 80 (SCC), [1992] 2 SCR 944, and requires “objective foreseeability of the risk of bodily harm which is neither trivial nor transitory, in the context of a dangerous act”. Nevertheless, the foreseeability of death does not need to be established in the context of manslaughter (see: R v Creighton, 1993 CanLII 61 (SCC), [1993] 3 SCR 3).

Published Decisions

R v Shaoulle, 2016 SCC 16 (CanLII), [2016] 1 SCR 268

The victim was sexually assaulted, killed by strangulation and then burned. Before the attack and murder, the accused and the deceased were seen together in security videos before her death. The accused’s DNA was found in tissue samples underneath the deceased’s fingernails, but no other DNA evidence linked the accused to the deceased. At trial, the judge convicted the accused of first-degree murder finding that the underlying offence of sexual assault and murder were one part of a single transaction and accepted evidence that the accused’s partner witnessed his conduct after the deceased’s death, which included unusual washing, as well as a record of the accused’s conversation with an undercover officer, regarding the burning of a body to dispose of it, as probative circumstantial evidence. The accused appealed his conviction to both the provincial Court of Appeal and the Supreme Court of Canada (SCC), however, these were both dismissed as it was determined that the verdict was not unreasonable and was one that a properly instructed jury, acting judicially, could have rendered.

You can read the full case here.

R v Ellard, 2009 SCC 27 (CanLII) [2009] SCR 19

A teenage victim was brutally beaten and then killed underneath a bridge in a ‘swarming’. Both the accused and the co-accused were charged as adults with second-degree murder of the victim. Although convicted by a jury, on appeal a new trial was ordered. From there, the second trial ended in a mistrial. At the third trial, in 2005, the jury again convicted the accused of murder. At trial, the key witness testified that she saw the victim walk three-quarters of the way across the bridge and observed both the accused and the co-accused following her. However, in her initial statement to the police, the witness had said nothing about seeing the victim being followed by the accused and co-accused. The accused appealed the conviction. Once again, the appeal was allowed and a new trial ordered. The Crown appealed to the Supreme Court of Canada where the appeal was allowed on the basis that admitting the statements without providing limiting instruction on the use of those prior consistent statements was a serious error, but it was more of a technical error. The statements had no probative value or impact in the context of the trial, which made the error harmless. You can read the full case here.

R v Maybin, 2012 SCC 24 (CanLII), [2012] 2 SCR 30

Late at night, in a busy bar, the appellants Timothy and Mathew Maybin, repeatedly punched the victim in the face and head. Timothy Maybin eventually struck a blow that rendered the victim unconscious. Arriving at the scene within seconds, a bar bouncer then struck the unconscious victim in the head. The medical evidence was inconclusive about which blows caused the victim’s death. As a result, the trial judge acquitted the appellants and the bouncer. At the Court of Appeal, the Court concluded that factual causation had been established: “but for” the actions of the appellants the victim would not have died. The Court of Appeal grappled with the question of whether the intervening act was connected to the appellants’ actions in a way that causation was fluid, however, the Court of Appeal couldn’t agree on this matter. The accused’ appealed to the Supreme Court of Canada (SCC). The SCC determined that an accused who undertakes a dangerous act and contributes to a death should bear the risk that other foreseeable acts may intervene and contribute to that death.

You can read the full case here.