Understanding the difference between murder and manslaughter

By Greg Dunn

Police will be looking to lay charges whenever someone is unlawfully killed. But will the suspect be charged with first-degree murder, second-degree murder or manslaughter? It all depends on the circumstances and the intent behind the act.

According to 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. That section goes on to explain that homicide is either “culpable or not culpable” and that a homicide that “is not culpable is not an offence.”

The Code lists four types of culpable homicides that occur when a person causes the death of another human being:

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

In cases of culpable homicides, suspects will be charged with either first- or second-degree murder charges or with manslaughter.

What is first-degree murder?

A first-degree murder charge is laid when the killing is planned and deliberate. It can also be laid if the death was a contracted hit, with money or something else of value being rewarded for the action.

There are some exceptions where a first-degree charge is laid even if the death was not “planned and deliberate.” They include if the victim was:

• a police officer, police constable, constable, sheriff, deputy sheriff, sheriff’s officer or other person employed for the preservation and maintenance of the public peace, acting in the course of his duties;
• a warden, deputy warden, instructor, keeper, jailer, guard or other officer or a permanent employee of a prison, acting in the course of his duties;
• a person working in a prison with the permission of the prison authorities and acting in the course of his work; or
• when the death is caused by a person while committing or attempting to commit an indictable offence.

First-degree murder charges will also result in deaths resulting from hijacking, sexual assault, kidnapping, criminal harassment or intimidation.

An example of a first-degree murder charge being successfully prosecuted in Alberta concerns the death of a 15-year-old girl on the John D'Or Prairie First Nation Reserve. According to a news report, a 39-year-old man was found guilty of sexual assault and murder and given a life sentence with no chance of parole for 25 years.

To be convicted of first-degree murder, the Crown prosecutor must prove beyond a reasonable doubt that the accused intended to kill the victim. First-degree murder carries the mandatory sentence of life imprisonment without being eligible for parole for 25 years. Eligibility does not mean automatic release, as full parole must be granted by the Parole Board of Canada.

What is second-degree murder?

Section 231(7) of the Code offers a simple explanation of this charge: “All murder that is not first-degree murder is second-degree murder.”

Second-degree murder is committed with intent but without premeditation. A person may be committing an offence and intentionally take the life of someone at the scene.

An example of that happened in a deadly 2021 shooting in Sherwood Park, Alta. As a news report notes, a man had been charged with first-degree murder of his nephew but was found guilty of the lesser charge of second-degree murder. Court documents show that while the judge had “no doubt” that the man intended to kill his nephew, “the Crown has not proved beyond a reasonable doubt that the accused engaged in a planned and deliberate murder.”

This charge can also be laid if a death is caused by a reckless disregard for human life.

Like first-degree murder, second-degree murder carries a mandatory sentence of life imprisonment. The difference is that parole can be granted after 10 years, at the judge’s discretion.

What is manslaughter?

Manslaughter is a homicide but what separates it from first- and second-degree murder lies in the lack of intent behind the act. Manslaughter is committed when a death occurs even though there was no intention on behalf of the suspect to cause death.

In some circumstances, a lawyer will be able to convince a judge to reduce a murder charge to manslaughter if it can be shown the suspect acted in the heat of passion or as a result of a sudden provocation. Sudden provocation is defined as circumstances of such a nature that any ordinary person would be deprived of the power of self-control.

The sentences given for manslaughter vary widely, depending on the nature of the crime, with the maximum penalty being life imprisonment. If someone uses a firearm to commit the offence they will be imprisoned for a least four years.

An example of a successful manslaughter conviction concerns a man who sped off in a stolen cube van without paying for $198 of fuel from a gas station in Thorsby, Alta. According to a news report, he struck and killed a 54-year-old man as he drove away. He was initially charged with second-degree murder but he pleaded guilty to manslaughter and was given a seven-year sentence.

What is attempted murder?

If a premeditated murder fails to be carried out the perpetrator may be charged under s. 239 (1) of the Code with attempted murder. The maximum sentence is life imprisonment. If a firearm was used in the offence the minimum sentence is four years imprisonment. If the action was for the benefit of, at the direction of, or in association with a criminal organization the minimum sentence rises to five years for a first offence and and seven years for any subsequent offence.

An example of where attempted murder charges were laid concerns a house fire in Camrose, Alta. According to a news report, a man is now facing several counts of attempted murder, “accused of setting fire to a home … while his mother, sister, niece and nephew were barricaded inside. They were rescued by police and the fire was put out, the report adds.

Contact us for assistance

To sum up, first-degree murder is essentially the planned and deliberate death of another person. Second-degree murder is murder that is not planned but is deliberate. Manslaughter is the death of another person that is neither planned nor deliberate, but results from the actions of the accused. If you or someone you know are facing any of these charges you need the guidance of experienced legal counsel. Contact us for a free consultation.