First-Degree And Second-Degree Murder
Murder in Canadian Criminal Law
Murder is defined under Section 229 of the Criminal Code:
Murder: The unlawful killing of a human being, with intent to cause death or bodily harm that is likely to cause death, or while committing certain offenses (like sexual assault or kidnapping).
Murder is divided into first-degree and second-degree, depending on intent, circumstances, and aggravating factors.
1. First-Degree Murder (s. 231 Criminal Code)
Definition
First-degree murder is planned and deliberate, or occurs in certain circumstances specified by the Code.
Key Elements
Intentional killing: The accused intended to kill or cause grievous bodily harm.
Planning and deliberation: The killing was premeditated (a decision made before the act).
Specific circumstances under s. 231(2):
Killing a peace officer or correctional employee
Killing during hijacking, sexual assault, kidnapping, terrorism
Murder in prison or related to organized crime
Mens Rea
Purposeful intent: The accused planned the killing.
Awareness: The accused knew that death was the likely result.
Sentencing
Mandatory life imprisonment
Parole ineligibility: Typically 25 years, but sometimes reduced to 10–25 years for certain exceptions (rare).
Leading Cases
R v. Martineau, [1990] 2 S.C.R. 633
SCC held that subjective foresight of death is required for first-degree murder.
Planning and deliberation must be proven, not assumed.
R v. Nette, [2001] 3 S.C.R. 488
Clarified causal connection between act and death.
Even if the accused did not personally kill, but intended death, first-degree murder may apply under certain circumstances (like aiding/abetting).
R v. Smith (1987), 1 S.C.R. 1045
Planning and deliberation distinguish first-degree from second-degree murder.
Deliberation requires considered thought, not a sudden impulse.
2. Second-Degree Murder (s. 229, 235 Criminal Code)
Definition
Second-degree murder is any murder that is not first-degree.
Key Elements
Intent to kill or cause serious bodily harm, but without premeditation.
Act causing death: The killing must be deliberate in the sense of intention, but not planned in advance.
No specific circumstances required (unlike first-degree).
Mens Rea
Intention to kill or seriously harm, or knowledge that death is likely to result.
Sentencing
Mandatory life imprisonment
Parole ineligibility: Typically 10–25 years, depending on judge’s discretion.
Leading Cases
R v. Nette (2001)
Clarified that foreseeability of death can establish mens rea for murder.
The accused must have intended or been recklessly indifferent to death.
R v. Vaillancourt, [1987] 2 S.C.R. 636
Held that reckless indifference to human life can sustain a second-degree murder conviction.
R v. Ipeelee, 2012 SCC 13
While primarily about sentencing, emphasized circumstances of the accused (like background) are relevant in sentencing for second-degree murder, though not for first-degree.
3. Distinguishing First- and Second-Degree Murder
| Feature | First-Degree Murder | Second-Degree Murder |
|---|---|---|
| Planning | Yes, planned and deliberate | No premeditation |
| Circumstances | Often statutory (police, prison, sexual assault, organized crime) | Any murder not meeting first-degree criteria |
| Intent | Intent to kill or cause grievous bodily harm, with planning | Intent to kill or cause grievous bodily harm, or reckless indifference |
| Mens Rea | Purposeful, with premeditation | Purposeful or reckless but unplanned |
| Sentence | Life imprisonment, parole 25 years | Life imprisonment, parole 10–25 years |
4. Key Principles from Case Law
Planning and deliberation distinguish first-degree murder:
R v. Martineau
R v. Smith
Recklessness can suffice for second-degree murder:
R v. Vaillancourt
Causation: The accused’s actions must be a significant contributing cause of death:
R v. Nette
Aiding and abetting / parties to an offense:
Can result in first- or second-degree murder depending on intent and knowledge (R v. Nette, R v. Logan, 1990).
Mitigating factors:
Indigenous or youth background, mental health, and circumstances may influence parole ineligibility for second-degree murder (R v. Ipeelee).
5. Examples
First-Degree Murder Example
A person plans to ambush their rival, buys a weapon, waits, and kills them.
Courts see planning and deliberation, meeting first-degree criteria.
Second-Degree Murder Example
A bar fight escalates; one participant punches another, causing fatal injuries.
Death is intended or foreseeable, but there is no prior planning, so second-degree murder applies.
6. Summary Table of Cases
| Case | Year | Key Point |
|---|---|---|
| R v. Martineau | 1990 | Subjective foresight required; distinguishes first-degree |
| R v. Smith | 1987 | Planning and deliberation essential for first-degree |
| R v. Nette | 2001 | Causal connection; recklessness can establish second-degree |
| R v. Vaillancourt | 1987 | Reckless indifference sufficient for second-degree |
| R v. Ipeelee | 2012 | Sentencing considerations, especially for second-degree |

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