1st Degree vs 2nd Degree Murder in Canada
Both charges carry a mandatory life sentence. What separates them is planning, deliberation, and parole eligibility. This guide walks through the legal distinctions under the Criminal Code — written by Calgary criminal defence lawyers who defend these cases every year.
This page was written by the criminal defence lawyers at Hoare Claxton based on their experience appearing in Calgary courts. It is reviewed periodically for accuracy.
Same mandatory sentence
Both first degree and second degree murder carry an automatic sentence of life imprisonment. The trial judge has no discretion to impose a shorter sentence on either charge.
Different parole eligibility
First degree: no parole for 25 years. Second degree: 10 years minimum, up to 25 years, set by the sentencing judge. Parole eligibility is where the practical difference is most felt.
Planning is the dividing line
First degree requires proof that the killing was planned and deliberate, or that it fits a section 231 category. Everything else that is murder is second degree.
Side-by-side under the Criminal Code
The starting point is intent
Every murder prosecution in Canada begins at section 229 of the Criminal Code. Culpable homicide is murder where the person who caused the death either meant to cause death, or meant to cause bodily harm that they knew was likely to cause death and was reckless as to whether death ensued. That mental element is the same for first degree and second degree murder.
If the Crown cannot prove that state of mind beyond a reasonable doubt, the charge cannot be murder at all. The appropriate verdict in that scenario is manslaughter — a culpable homicide without the intent required for murder. Attacking intent is one of the central defence strategies in serious homicide files.
What makes murder first degree
The most common route to a first degree conviction is proof that the killing was planned and deliberate. Both elements are required, and both mean specific things at law.
Planned means the killing was the result of a scheme or design conceived before the act. The plan can be simple. It does not have to be sophisticated or long-standing, but it must be more than an impulsive decision made in the moment.
Deliberate means considered, not impulsive. The accused turned their mind to the consequences of the act and went ahead. Deliberation is closely tied to whether the accused had the capacity to weigh what they were about to do — intoxication, mental disorder, and provocation are commonly raised to negate this element.
A jury that finds the killing intentional but not planned and deliberate will return a verdict of second degree murder.
When first degree is automatic
Certain categories of murder are treated as first degree by the Criminal Code regardless of whether the Crown proves planning and deliberation. The most frequently prosecuted categories include:
- Murder of a peace officer, correctional officer, or other justice-system participant acting in the course of their duties (s. 231(4)).
- Murder committed while committing or attempting to commit hijacking, sexual assault, sexual assault with a weapon, aggravated sexual assault, kidnapping, forcible confinement, or hostage-taking (s. 231(5)).
- Murder committed while committing criminal harassment (s. 231(6)), while carrying out terrorist activity (s. 231(6.01)), or for the benefit of a criminal organization (s. 231(6.1)).
The Crown must still prove the murder itself — the mental element under s. 229 does not go away. What changes is that once murder is proven and the qualifying circumstance is proven, the classification is first degree without any need to prove planning.
Where the practical difference lives
Every murder conviction — first or second degree — carries a mandatory sentence of life imprisonment. The trial judge cannot impose a shorter sentence. The critical distinction between the two charges is the parole ineligibility period set by section 745.
First degree: parole ineligibility is 25 years. Fixed by statute. No judicial discretion. An offender convicted at 30 cannot apply for full parole until age 55.
Second degree: parole ineligibility is set by the sentencing judge at between 10 and 25 years. The judge considers the character of the offender, the nature of the offence, the circumstances of the killing, and any recommendation from the jury under section 745.2. In practice, second degree ineligibility periods in Alberta commonly land between 12 and 17 years, but the range is wide.
Sentencing submissions on parole eligibility are one of the most consequential exercises in second degree murder litigation. A five-year difference in ineligibility is a decade of a person's life.
Manslaughter and the intent battleground
Any conversation about first versus second degree murder eventually arrives at manslaughter, because it is the verdict that becomes available whenever the Crown cannot prove the intent required for murder. Manslaughter is culpable homicide without the s. 229 mental element — a death caused by an unlawful act or by criminal negligence, without the intent to kill or the intent to cause bodily harm known to be likely to cause death.
Manslaughter carries no mandatory minimum sentence, except where a firearm was used, in which case the minimum is four years. The maximum is life imprisonment, but the actual sentence imposed depends on moral culpability, the circumstances of the death, and the strength of the sentencing submissions. A manslaughter conviction can result in a sentence measured in single-digit years in appropriate cases.
Because manslaughter avoids the mandatory life sentence entirely, defending the intent element and securing a manslaughter verdict is one of the most significant outcomes available in a homicide prosecution. In many files, the real fight at trial is not whether the accused caused the death — it is whether the Crown can prove what was in their mind when it happened.
Questions we hear from families
What is the main difference between 1st and 2nd degree murder in Canada?
Both require the Crown to prove intent to kill or intent to cause bodily harm known to be likely to cause death. The distinguishing element for first degree murder is that the killing was planned and deliberate, or that it falls within one of the categories listed in section 231 of the Criminal Code. Anything else that is murder is second degree.
How long before someone convicted of murder can apply for parole?
A first degree conviction carries no parole eligibility for 25 years. A second degree conviction carries a minimum ten years, with the sentencing judge setting the actual period anywhere from 10 to 25 years based on the character of the offender, the nature of the offence, the circumstances of the killing, and any jury recommendation.
Can second degree murder become first degree?
Yes. If the Crown proves at trial that the killing was planned and deliberate, or that one of the section 231 triggers applies (for example, the death occurred during a sexual assault or forcible confinement), a jury or judge can convict of first degree even if the charge started as second degree, provided the accused had proper notice of the theory. The reverse also happens: a first degree charge often results in a second degree conviction where planning and deliberation are not proven beyond a reasonable doubt.
Is planning the same as premeditation?
Canadian law uses the terms planning and deliberation, not premeditation. Planning means the killing was thought out in advance — a scheme or design carried out. Deliberate means the accused considered the consequences and proceeded rather than acted on impulse. The time required for planning and deliberation can be short, but it must be more than a momentary decision.
Does the murder of a police officer automatically become first degree?
Yes. Under section 231(4), the murder of a peace officer, correctional officer, or other named justice-system personnel acting in the course of their duties is first degree murder regardless of planning and deliberation. The Crown still has to prove the mental element for murder itself.
What happens if intent to kill cannot be proven?
If the Crown cannot prove the intent required under s. 229(a) beyond a reasonable doubt, the appropriate verdict is manslaughter rather than murder. Manslaughter carries no mandatory minimum unless a firearm was used, in which case the minimum is four years. Reducing a murder charge to manslaughter is one of the most significant outcomes available in homicide litigation.
Can someone charged with murder in Alberta get bail?
Yes, but murder carries a reverse onus at the bail hearing, meaning the accused must justify release rather than the Crown justify detention. The application is heard by a superior court judge and requires a comprehensive plan addressing public safety and attendance in court. Bail on a murder charge is possible with the right plan and the right counsel.
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