First vs. second degree murder

There seems to be some public confusion about the difference between first and second degree murder. This column is intended to reduce that confusion.

Please be warned that this topic may not be suitable for younger readers.

To start, not all homicide (human killing another human) is blameworthy or subject to punishment (nor should it be). For example, imagine someone falling/stumbling from a viewing deck (at a firing range) into the line of fire (and being killed by gun fire). Undoubtedly, the shooter caused the death; but, his actions are not blameworthy.

In contrast, homicide is blameworthy if it is second or first degree murder. I will explain.

Put briefly, second degree murder occurs when someone 1) causes the death of another person; and 2) intends to cause that person’s death OR intends to cause bodily harm that he/she knows is likely to cause that person’s death.

Consider the following example: Fred, who has quite a temper, goes to the supermarket and, while there, Barney gives Fred a dirty look. Fred impulsively retaliates, beating him senselessly, knowing that the harm is likely to cause Barney’s death. Barney dies from the beating. This is second degree murder.

First degree murder is, essentially, an elevated form of second degree murder.

To start, in order to prove first degree murder, Crown Prosecutors must be able to prove second degree murder. In other words, the Crown must still prove that the assailant 1) caused the death of another person; and 2) intended to cause that person’s death OR cause bodily harm that the assailant knew would likely cause that person’s death.

In order for second degree murder to become (be elevated to) first degree murder, one of the following things must also occur: 1) the assailant kill a peace officer; 2) the assailant plan or scheme the killing; OR 3) the assailant kill someone while committing (or attempting to commit) one of the offences listed in section 231(5)-(6.2) of the Criminal Code.

For ease of reference, the offences (that elevate murder listed in s. 231, alluded to above) include sexual assault, kidnapping, hostage taking, and offences regarding terrorist or criminal organization/activity.

Here are two examples of first degree murder to illustrate:

1) Fred goes to the supermarket; but, he isn’t buying groceries. Instead, Fred is there to ambush (and kill Barney). Fred knows that Barney is shopping and waits for Barney in the parking lot. As Barney leaves the market, Fred walks towards Barney, pulls a gun, and shoots Barney, killing him instantly. This planned killing is first degree murder.

2) One day, after working at the rock quarry, Fred, being his normal, unreasonable self, gets into an argument with poor Barney. During the argument, Fred punches Barney, temporarily disorienting him. At that moment, Fred puts Barney into the trunk of his vehicle (against Barney’s will). Fred then drives his vehicle to a deserted parking lot and beats him, knowing that the beating is likely to cause Barney’s death (but not actually intending to cause Barney’s death). As a result of the beating, Barney dies. Despite the lack of planning, this is first degree murder (as Barney was killed during the kidnapping).

Whether or not it is first or second degree murder, the punishment for either offence is life in prison, as indicated by s. 235 of the Criminal Code. However, the length of time before the offender is eligible for parole (i.e. release) depends on whether the offender is convicted of first or second degree murder. Parole eligibility will be discussed in a future column.

**The information contained in this column should not be treated by readers as legal advice and should not be relied on without detailed legal counsel being sought.

This article is written by or on behalf of an outsourced columnist and does not necessarily reflect the views of Castanet.