In Canada, the difference between first- and second-degree murder as well as manslaughter comes down to intent, planning, and circumstances of the killing. While first-degree murder is intentional and planned, second-degree murder is intentional but not premeditated. In turn, both manslaughter through criminal negligence and unlawful act manslaughter are neither intentional nor planned.
For the accused, these differences can result in different minimum and maximum sentences as well as different eligibility for parole. Below, we explore all three charges side-by-side, compare sentences and parole eligibility, and discuss how murder charges can be reduced to manslaughter.
Key Takeaways
- The difference between first-degree murder, second-degree murder and manslaughter comes down to intent and planning: first-degree murder generally requires both, second-degree murder requires intent only, and manslaughter is neither intentional nor planned.
- First- and second-degree murder convictions carry a mandatory life sentence. Manslaughter carries no minimum sentence unless a firearm was involved, in which case the mandatory sentence is four years.
- The parole eligibility varies depending on the type of offence: 25 years for first-degree murder and 10 to 25 years for second-degree murder. For manslaughter, the parole eligibility is typically earlier and often around one-third of the sentence, depending on the Parole Board’s decision.
- Murder charges can sometimes be reduced to manslaughter by challenging intent, raising the defence of provocation, or through negotiating a plea agreement.
First-Degree Murder vs Second-Degree Murder vs Manslaughter
| Type | First-Degree Murder | Second-Degree Murder | Manslaughter |
|---|---|---|---|
| Definition | Deliberate and planned (premeditated) murder | Murder that is not first-degree murder (deliberate but not premeditated) | Culpable homicide that does not involve an intent to kill or planning to cause death |
| Presence of intent to kill | Yes | Yes | No |
| Presence of premeditation | Yes | No | No |
| Section of the Criminal Code | Section 231(2) | Section 231(7) | Section 234 |
| Minimum sentence | Lifetime in prison | Lifetime in prison | Four years when involving a firearm or no minimum sentence |
| Maximum sentence | Lifetime in prison | Lifetime in prison | Lifetime in prison |
| Parole Eligibility | After 25 years of prison time served | After 10 to 25 years of prison time served | Usually, one-third of the prison time is served, depending on the Parole Board’s decision. |
| Examples | Killing someone as a result of planned action with or without weapons | Killing someone during a heated argument | Killing someone in a heat of passion caused by a sudden provocation, for example, after being attacked. |
What Is First-Degree Murder?
First-degree murder is the most serious criminal charge in Canada, with a life term in prison as a minimum punishment and parole eligibility after 25 years. Defined in Section 231(2) of the Criminal Code, it generally requires an intent to kill with premeditation, which means carefully planning the killing. While premeditation can take hours or months, first-degree murder is generally not a spontaneous act.
Importantly, irrespective of whether the killing is planned and deliberate, the Criminal Code of Canada defines it as a first-degree murder in cases involving,
- contracted murder committed under an arrangement of passing money or anything of value from one person to the other,
- a victim who is a member of the police or another person employed for the preservation of public peace and acting when performing their duties,
- hijacking an aircraft, sexual assault, kidnapping or hostage taking,
- criminal harassment,
- terrorist activity,
- criminal organization,
- intimidation.
What Is Second-Degree Murder?
The main difference between first- and second-degree murder lies in planning. Second-degree murder is a killing that is still intentional but is not premeditated. Unlike first-degree murder, second-degree murder can be spontaneous, for example, committed in a heat of passion.
Although second-degree murder lacks planning, it still requires intent to kill or knowing that the committed bodily harm will likely cause death or being reckless about the outcome. With lifetime imprisonment as a minimum punishment, second-degree murder usually has parole eligibility after 10-25 years from the date of imprisonment, as defined by the sentencing judge.
What Is Manslaughter?
Finally, manslaughter is a killing which is neither intentional nor premeditated as defined in Section 234 of the Criminal Code. Generally, it can take either of two main forms, including an unlawful act manslaughter and criminal negligence manslaughter.
Unlawful act manslaughter happens when the death occurs from an objectively dangerous criminal act, for example, an assault, which does not involve the intent to kill. In turn, criminal negligence manslaughter happens when death results from conduct showing wanton or reckless disregard for another person’s life or safety.
Sentence and Parole Eligibility Compared
The sentences for killing someone in Canada reflect the gravity of the offence and the danger to the public. Both first-degree murder and second-degree murder sentences in Canada are life in prison as a minimum punishment. Manslaughter has no mandatory minimum unless a firearm was used, while the maximum punishment is still a life term.
In murder charges, the general parole eligibility is either 25 years for the first-degree or between 10 and 25 years for second-degree cases. At the same time, a conviction for manslaughter often allows eligibility for parole after about one-third of the actual prison time served, depending on the Parole Board’s decision.
When considering parole eligibility, Parliament repealed the “faint hope” clause for new offences, which previously allowed inmates facing parole ineligibility of more than 15 years to apply for it sooner. At the same time, the recent ruling in R. v. Bissonnette struck down the application of consecutive parole ineligibility periods for multiple murders as cruel and unusual treatment or punishment.
Can Murder Charges Be Reduced to Manslaughter
The question of whether murder charges can be reduced to manslaughter is often central in many cases involving the killing of someone in Canada. Generally, the presence or absence of intent and the Crown’s ability to prove it can make all the difference between murder and manslaughter charges and potential sentencing.
While the defence strategy for cases involving the victim’s death is always case-specific, murder lawyers explore various ways to challenge the charges. These can include challenging the intent based on standards set in R. v. Vaillancourt and R. v. Martineau, which confirm that the accused must have had subjective foresight of death or that the victim’s death was a likely consequence of their act.
Other types of defences may include the defence of intoxication, although it rarely succeeds on its own. The defence of provocation is another common path to reduce murder to manslaughter in cases where the accused acted in the heat of passion. Finally, a manslaughter plea may resolve the case where the Crown accepts it instead of proceeding to trial on a murder charge.
Charged with Murder or Manslaughter in Ontario: First Steps
If you or someone you know is facing charges for murder or manslaughter in Canada, having a qualified legal counsel by your side can make all the difference for your case. Using your constitutional right to remain silent when questioned by the police and engaging an experienced murder lawyer are the first most critical steps.
Your lawyer can help develop a solid bail plan and request full disclosure of evidence the police and the Crown have against you to start working on your defence. For more information on manslaughter vs murder and legal assistance, please don’t hesitate to contact Vilkhov Law criminal lawyers in Toronto to discuss your options during the initial free consultation.
FAQs
How many years do you get for second-degree murder in Canada?
The minimum sentence for second-degree murder in Canada is the same as for first-degree murder, which is a life sentence. However, those convicted of second-degree murder can be eligible for parole within 10-25 years, depending on the decision by the sentencing judge, compared to 25 years for the first-degree murder.
Is manslaughter a murder charge?
The Criminal Code defines manslaughter as a culpable homicide that is not murder. Unlike first- and second-degree murder, manslaughter does not include intent to kill or premeditation to cause death.
What is the minimum sentence for manslaughter in Canada?
Unless a firearm was involved, there is no minimum sentence for manslaughter in Canada. In cases when a firearm was used in the commission of manslaughter, the minimum punishment is four years in prison.
Can you get parole for first-degree murder?
Yes, those convicted of first-degree murder in Canada are eligible for parole. Currently, the parole eligibility for first-degree murder generally starts after serving 25 years in prison.
What makes a murder automatically first-degree?
Generally, a first-degree murder is both intentional and premeditated. However, irrespective of the presence of intent or premeditation, a murder is a first-degree when it involves:
- contracted murder,
- killing a peace officer or another person employed for the preservation of the public peace who was performing their duties,
- hijacking, sexual assault, or kidnapping,
- criminal harassment,
- terrorist activity,
- criminal organization,
- intimidation.
