A Primer on Canada’s Different Degrees of Murder
By Isabelle Currie, Summer Student
Have you ever wondered what the difference is between the different degrees of murder in Canada? Have you been confused between the US model and our model for murder? Look no further – here is a quick breakdown.
Canada has three main categories of murder, and one extra category you may not know about. There is first-degree murder, second-degree murder, manslaughter, and criminal negligence causing death.
First-degree murder and second-degree murder are captured within the definition of culpable homicide: where the person who causes the death of a human being either 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 of not (s.229(a) of the Criminal Code RSC 1985 c. C-46).
The two degrees are separated by an important aspect of first-degree murder: planning and deliberation (s.231(2) of the Criminal Code). Planned means “arranged beforehand” and deliberate means “considered, not impulsive” (More v The Queen, 1963 SCC 522). Both aspects must be present: even if the killing was deliberate, it must also have been planned in order to be first-degree murder (R v Smith 1979 1 SKCA 213). All murders that are not first-degree murder are second-degree murder (s.231(7) of the Criminal Code).
The sentence for first degree and second-degree murder are the same. Both offences carry an automatic life sentence (s.235(1) of the Criminal Code). The parole ineligibility period may differ, however. For persons convicted of first-degree murder, there is a parole ineligibility period of 25 years (s.745(a) of the Criminal Code). For persons convicted of second-degree murder, the parole ineligibility period must be at least 10 years but not more than 25 years (s.745(c) of the Criminal Code).
First-degree murder also captures some murders that are not planned and deliberate. For instance, where the victim is a peace officer, the court will construe first-degree murder (s.231(4) of the Criminal Code). In those cases, the accused has to know or perceive the risk that the victim was a peace officer (R v Collins 1989 32 ONCA 296). Murder will also be found to be first-degree murder when the death is caused by a person while committing or attempting to commit specified offences, including hijacking an aircraft, sexual assault, sexual assault with a weapon, sexual assault causing bodily harm, aggravated sexual assault, kidnapping and forcible confinement, or hostage taking (s.231(5) of the Criminal Code). There are also exceptions to the “planned and deliberate” requirement for contracted murder, murder as part of terrorist activity, murder relating to organized crime, and murder relating to criminal harassment and intimidation (s.231 of the Criminal Code).
Culpable homicide that would otherwise be murder may be reduced to manslaughter if the offence was committed in the heat of passion caused by sudden provocation (s.232(1) of the Criminal Code). Manslaughter with a weapon carries a mandatory minimum of four years; the maximum penalty is life incarceration (s.236(a) of the Criminal Code). Manslaughter without a weapon carries a maximum penalty of life incarceration (s.236(b) of the Criminal Code).
Another charge that exists in the Canadian regime is that of criminal negligence causing death. Criminal negligence is found where anyone does or omits to do something that is their duty, showing wanton or reckless disregard for the life or safety of others (s.219 of the Criminal Code). Criminal negligence is an objective fault crime, which means that the court will assess whether the behaviour was a marked and substantial departure from that of a reasonable person (R v F(J) 2008 3 SCC 215). When a person is criminally negligent causing death, they are liable to life imprisonment (s.220(b) of the Criminal Code).
Now you know a bit more about the different degrees of murder in Canada!