Second-Degree Murder

Under the Criminal Code, homicide is either culpable (criminal) or non-culpable. Non-culpable homicide is not a crime. Culpable homicide includes murder (first or second degree), manslaughter, and infanticide.

Murder is a single charge, classified at sentencing as either first or second degree. Both carry a mandatory life sentence. The key difference is when you can first apply for parole.

Murder is first-degree in several circumstances. It is first-degree when it is planned and deliberate. It is also first-degree regardless of planning when the victim is an on-duty peace officerPeople involved in upholding justice or correctional officer (s.231(4)), or when the death occurs during the commission of one of certain listed offences, including hijacking, sexual assault, kidnapping, or hostage-taking (s.231(5)). Other specific circumstances, such as a killing connected to criminal harassment, terrorist activity, or a criminal organization, can also result in a first-degree finding.

Everything that is murder but is not first-degree is second-degree murder (s.231(7)).

To be convicted of murder, the Crown must prove beyond a reasonable doubt that you caused the death, and that you either meant to cause death, or meant to cause bodily harm that you knew was likely to cause death (s.229). If you acted in lawful self-defenceA defence involving force used to protect against force or threat. or defence of another, you would be acquitted, not simply reclassified.

The Crown prosecutorA lawyer who conducts a criminal prosecution on behalf of the public. must prove beyond a reasonable doubtThe high standard the Crown must meet to prove guilt. that you are the person who committed the unlawful act and that act contributed to the death. It must be proven that you foresaw death as a probable consequence of your actions. Witnesses may play an important role at trial, describing the incident and testifying about your involvement.

You may be able to defend against the charge under s.34 of the Criminal Code. Under s.34, you are not guilty of an offence if: (a) you believed on reasonable grounds that force was being used or threatened against you or another person; (b) your act was done to defend yourself or that other person from that force or threat; and (c) your act was reasonable in the circumstances. A court will consider factors such as the nature of the threat, whether a weapon was involved, the size and physical capabilities of the people involved, and whether your response was proportionate to what you faced.

You may also be able to argue that your rights under the Canadian Charter of Rights and Freedoms were violated. One example is if police conducted a search without lawful authority. If a court finds that evidence was obtained in a way that violated your Charter rights, it may exclude that evidence under s.24(2) of the Charter if admitting it would bring the administration of justice into disrepute.

If you have been charged with any homicide, including second-degree murder, the Crown will proceed with the charge as an indictable offenceA more serious type of Canadian criminal offence. and you will be imprisoned if convicted.

If you are convicted of second-degree murder, you will receive a mandatory life sentence. A judge will set when you can first apply for paroleConditional release from custody before the full sentence ends., at a minimum of ten years and a maximum of twenty-five years (ss.745(c) and 745.4 of the Criminal Code).

If you have previously been convicted of murder (that is, of culpable homicide that is murder), you must serve a full twenty-five years before you can apply for parole. This is a fixed mandatory minimum, not the upper end of a range (s.745(b)).

If you were between twelve and seventeen years old at the time of the offence, the Youth Criminal Justice Act applies. For second-degree murder, the maximum sentence under the YCJA is seven years, made up of a period in custody of no more than four years followed by a period of conditional supervision in the community (s.42(2)(q)(ii) of the YCJA).

Upon conviction, a mandatory firearms prohibition will also be imposed under s.109 of the Criminal Code. For a first conviction, this prohibition lasts at least ten years after release for non-prohibited firearms, and for life for prohibited or restricted firearms.

When you become eligible for parole, the Parole Board of Canada will consider your behaviour in prison, your remorse, and your chances of rehabilitation. Parole does not reduce your sentence. It allows you to serve part of it in the community under strict conditions. If released on parole, those conditions apply for the rest of your life, and you can be returned to prison for violating them.

Second-degree murder is any murder that is not first-degree murder. A conviction carries an automatic life sentence. What varies is how long the person must wait before they can apply for parole.