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

By Last Updated: July 22, 2022

First Degree Murder Second Degree Murder and ManslaughterUnder s.222(1) of the Criminal Code a person commits homicide when, directly or indirectly, by any means, he causes the death of a human being. Homicide can be either culpable or non-culpable, where culpable homicide is when a person causes the death of a human being by an unlawful act, criminal negligence, by threats or fear of violence or by deception, or by willfully frightening that human being, in the case of a child or sick person.

Murder is defined by s.229 of the Criminal Code and is when a “person who causes the death of a human being means to cause his death or means to cause him bodily harm that he knows is likely to cause his death and is reckless whether death ensues or not.”

Furthermore, s.231(1) of the Criminal Code further indicates that murder can be classified as either first-degree or second-degree murder.

What is First Degree Murder?

The definition of first-degree murder can be found in s.231(2) of the Criminal Code. Murder is classified as first-degree murder if it is planned and deliberate. As such, first-degree murder must have an element of premeditation to it. First-degree murder is not an act that is committed in the heat of the moment or in passion, rather you need to have deliberated your actions and consequences of your plan to murder the victim. Furthermore, murder is also automatically considered first degree regardless of any planning and deliberation when the victim is:

  1. a)A police officer, police constable, constable, sheriff, deputy sheriff, sheriff officer or another person employed for the preservation and maintenance of the public peace, acting in the course of his duties;
  2. b)A warden, deputy warden, instructor, keeper, jailor, guard or other officer or a permanent employee of a prison, acting in the course of his duties; or
  3. c)A person working in a prison with the permission of the prison authorities acting in the course of his work therein.

In addition to the above forementioned, murder is also considered to be first-degree if death is caused while committing certain specified offences listed in s.231(5) of the Criminal Code

These offences include the following:

  • Hijacking an aircraft;
  • Sexual assault;
  • Sexual assault with a weapon, threats to a third party or causing bodily harm;
  • Aggravated sexual assault;
  • Kidnapping and forcible confinement; or
  • Hostage-taking.

To be guilty of first-degree murder the Crown must prove both that the accused possessed subjective knowledge, that being that the accused was aware of the prohibited act and that the accused possessed the required intent in that the murder was planned. Additionally, the Crown must also prove that the accused directly or indirectly caused the death of another person.

First-degree murder carries an automatic life imprisonment sentence.

What is Second Degree Murder?

All murder that is not first-degree murder is classified as second-degree murder. Second-degree murder occurs without any planning or deliberation. The classification between first-degree and second-degree murder exists for the purposes of sentencing.

Similar to first-degree murder, the Crown must prove that the accused directly or indirectly caused the death of another person and that there was subjective knowledge or intent.

The minimum sentence that second-degree murder carries is 10 years imprisonment with no parole. However, the maximum sentence associated with a second-degree murder conviction is life imprisonment, which is 25 years imprisonment with no parole.

What is Manslaughter?

 Manslaughter is a form of culpable homicide that is not murder or infanticide. There are two categories of manslaughter: unlawful act manslaughter and criminal negligence.

For unlawful act manslaughter, the unlawful act must be objectively dangerous and be likely to injure another person. To be convicted of manslaughter the Crown must showcase that there was objective foreseeability of the risk of bodily harm which is neither trivial nor transitory in the context of a dangerous act. This is an objective standard which is not concerned with what was actually in the accused mind at the time of the offence, but rather what should have been in the mind of the accused as a reasonable person.

For criminal negligence manslaughter, the unlawful act is the result of criminal negligence. Criminal negligence can by someone doing anything or omitting to do anything that it is their duty to do, showing a wanton or reckless disregard for the lives or safety of other persons.

There is no minimum sentence that is associated with a manslaughter conviction. However, if manslaughter is committed with a firearm, then the minimum sentence for such a charge is four years imprisonment.

What do I do if I am arrested for a Criminal Offence?

If you have been charged with a criminal offence, contact a lawyer as soon as possible. You have a legal right to ask for a lawyer when you have been arrested. More importantly, you are under no obligation to answer the police’s questions or provide a statement. Rather, it is smarter not to give any statement at all as anything that you say could be used to incriminate you.

A well-experienced and reputable lawyer is able to help you understand the criminal process in defending your criminal charges and advocate on your behalf. More importantly, if you have been arrested your lawyer is able to work with you to help you create a bail plan that aids in getting you released on bail and return to your life as normal.

About The Author

Michael Oykhman

Managing Partner

Michael Oykhman is a senior lawyer and founder of Oykhman Criminal Defence, a full-service criminal law firm with central law offices across Western Canada and Ontario.

My professional experience consists of countless court appearances and thousands of successful defences and satisfied clients. Over the last 10 years, I have worked to build a law office where all the lawyers share our collective experience, resources, and passion to help people. Our team approach to legal representation is client–rather than only law–centered. We look for opportunities to add value to our clients through strategic thinking and creative solutions.

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