The term “third degree murder” is not an official offence in the Canadian Criminal Code. Third degree murder is an official US term used in Pennsylvania, Florida, and Minnesota. All other states use the term manslaughter, similar to Canada.
So, what is manslaughter in Canada? You commit manslaughter if you kill another person without intending to cause their death. Unlike first and second degree murder, manslaughter does not have a mandatory minimum jail sentence unless a firearm is used. The most common types of manslaughter that proceed to trial are: death by an unlawful act and criminal negligence manslaughter.
This article will discuss everything you need to know about manslaughter, different types of homicide, culpable and non culpable manslaughter and murder, penalties and jail time for manslaughter, and possible defences to manslaughter.
If you are facing manslaughter or murder charges, you will need an experienced criminal defence lawyer. Pyzer Criminal Lawyers have successfully defended all types of murder charges. If you are charged with murder or manslaughter, you want to have trusted Toronto murder lawyers by your side. Contact us today for a free consultation.
Homicide in Canada
In Canada there are four categories of culpable homicide:
First degree murder,
Second degree murder,
A person commits homicide when they kill another person directly or indirectly by any means. The specific offence that you will be charged with – first degree, second degree, manslaughter, or infanticide – is distinguished primarily on the level of intent.
However, this does not mean that criminal charges will be laid every time someone causes the death of another person. The Criminal Code differentiates between “culpable” or “non culpable” homicide.
What Does Culpable Mean?
The Criminal Code states “homicide that is not culpable is not an offence”. This means that in order to be found guilty of first or second degree murder, manslaughter, or infanticide, you need to be found culpable.
Section 222(5) of the Criminal Code states a person commits culpable homicide if they cause the death of a human by:
doing an unlawful act;
threats or fear of violence or by deception that causes the victim to cause their own death; or
wilfully frightening the victim in the case of a child or sick person.
If you or someone you know has been arrested for manslaughter or murder who may not be culpable, call Pyzer Criminal Lawyers. The prosecution will enlist all of the powerful resources of the government against you, so you need an criminal defence lawyer you can trust. At Pyzer Criminal Lawyers, we know the law around homicide, and you can trust we will vigorously fight for you and take every step possible to mount a full defence. Contact us today to learn how we can help with your manslaughter or murder charge.
What is Third Degree Murder?
In Canada, the Criminal Code refers to manslaughter as a culpable homicide that is not first degree or second degree murder. In simple terms, a person commits manslaughter if they kill someone without intending to kill them. For example, consider two people in a bar both get into a consensual fight. Person A smashes a bottle over the head of Person B, killing Person B. Person A may have meant to injure and cause harm to Person B by smashing the bottle over their head, but they did not intend to kill Person B. Therefore, Person A will likely be charged with manslaughter.
An accidental death will not be considered manslaughter unless the death occurred under one of the scenarios under section 222(5): by doing an unlawful act, by criminal negligence, by threats or fear of violence or by deception that causes the victim to cause their own death, or wilfully frightening the victim in the case of a child or sick person.
Based on section 222(5), two general forms of manslaughter often formed the basis of a manslaughter charge in Canada: death by an unlawful act or death by criminal negligence.
Unlawful Act Manslaughter
To be convicted of unlawful act manslaughter, proof of an unlawful act is required. This means the Crown needs to prove that a crime (other than murder) was happening before or during the death. Further, the Crown needs to prove that a risk of bodily harm was objectively foreseeable. For example, in R v C.W., the accused sold illegal drugs to a teenager who later died of the drugs. The accused was convicted of unlawful act manslaughter because he illegally sold drugs to the teenager that caused her death. The selling of illegal drugs in this case constituted the unlawful act.
In R v Sinclair, a father became angry with his four year old daughter so he shook and threw her onto a bed before she landed on the floor hitting her head. She died from brain injuries sustained while hitting the floor, and her father was convicted of unlawful act manslaughter. The court found that although he did not mean to kill his daughter, the accused committed assault when he threw his daughter onto the bed, which constituted unlawful act manslaughter.
Criminal Negligence Manslaughter
Similar to unlawful act manslaughter, to be convicted of criminal negligence the Crown must prove bodily harm was objectively foreseeable. You can be convicted of criminal negligence manslaughter for failing to prevent a death, or by your actions that create the risk of death.
In R v Canhoto, a grandmother was attempting an exorcism on her two year old granddaughter to expel evil spirits. The grandmother forced the two year old to drink water until she vomited the evil spirits out. The two year old’s mother heard her daughter in pain, but did nothing to help. The mother was convicted of criminal negligence manslaughter for failing to help her daughter.
How is Third Degree Different Than First and Second Degree?
The difference largely depends on the level of planning and intent. First degree murder and second degree murder require planning and a specific intent to deliberately cause death to a person. Manslaughter does not require intent and deliberation. For first degree murder and second degree murder, the Crown has to prove that the accused intended to kill the victim, or intended to cause bodily harm that they knew would likely cause death.
The Criminal Code states first degree murder is murder that is planned and deliberate. In other words, first degree murder is premeditated. Consider our example of the bar fight. If Person A went to the bar with the intention to kill Person B, Person A would be charged with first degree murder.
Second degree murder is also deliberate and intentional, but not premeditated like first degree murder. Second degree murder is often committed in the spur of the moment. Consider Person A did not go to the bar with a plan to deliberately kill Person B. During the fight, however, if Person A grabbed the bottle with the intent to kill Person B, that would likely be considered second degree murder.
One caveat to a second degree murder charge: if you commit a murder because of a direction or involvement with a criminal organization, you will be charged with first degree murder even if it was not planned and deliberate.
Murder Reduced to Manslaughter
Another caveat – section 232(1) of the Criminal Code states that first or second degree murder “may be reduced to manslaughter if the person who committed it did so in the heat of passion caused by sudden provocation”. Provocation is therefore considered a partial defence because it reduces first or second degree murder to manslaughter. In order to prove provocation, there is an objective and subjective threshold that must be met. If you have been charged with murder, manslaughter, or any other crime, call Pyzer Criminal Lawyers. We know the law around provocation and have decades of experience defending murder charges. We will help explain your charges to you, and determine whether the partial defence of provocation can be used in your case.
Comparison Table: First Degree Murder, Second Degree Murder and Manslaughter
First Degree Murder
Second Degree Murder
Less planned than first degree murder
Intentionally committed an unlawful killing
Accused intended to cause harm
Life imprisonment, no parole for 25 years
Life imprisonment, no parole for 10 years
No minimum sentence unless firearm is used
Punishments for Homicide in Canada
Penalties for First Degree Murder
First degree murder is the most severe crime you can be charged with in Canada. It is the intentional taking of a life. If you are convicted of first degree murder, you will receive a life prison sentence. You will be eligible for parole after 25 years. If you are granted parole after 25 years, you will remain under conditions and supervision of a parole officer for the rest of your life. The government of Canada lists the myths and realities of parole here.
Penalties for Second Degree Murder
Second degree murder also has a life prison sentence. However, you will be eligible for parole after 10 years.
Penalties for Third Degree Murder
There is no minimum sentence for manslaughter unless you commit the offence with a firearm. If a firearm is used, the minimum sentence is four years in prison. The maximum sentence for manslaughter is life in prison.
Based on past cases, the sentence for manslaughter can range from four to 15 years. It is up to the sentencing judge to consider all of the evidence against the accused in order to determine the prison sentence.
What is Infanticide?
Infanticide occurs when a woman intentionally causes the death of her newly-born child. A homicide is considered infanticide when the mother’s mind is not fully recovered from the effects of giving birth.
How Common is Homicide?
In 2020, there were 743 homicides in Canada, up from 687 in 2019. In Toronto, 71 homicides occurred in 2020, down from 79 in 2019.
Criminal Code Definitions
Homicidesection 222(1): causing death to a human being directly or indirectly, by any means
Culpable homicidesection 222(4): culpable homicide is first degree murder, second degree murder, manslaughter, or infanticide
Non culpable homicidesection 222(3): homicide that is not culpable is not an offence
Murder section 231(1): murder is first degree or second degree murder
First degree murdersection 231(2): murder is first degree murder when it is planned and deliberate
Second degree murdersection 231(7): all murder that is not first degree murder is second degree murder
Manslaughter section 234: culpable homicide that is not murder or infanticide is manslaughter
Infanticide section 233: a female person commits infanticide when by a wilful act or omission she causes the death of her newly-born child, if at the time of the act or omission she is not fully recovered from the effects of giving birth to the child and by reason thereof or of the effect of lactation consequent on the birth of the child her mind is then disturbed.
What Does the Degree of Intent Mean for Murder?
The degree of intent considers whether the accused intended to kill the victim. The degree of intent is relevant when the Crown is deciding how to charge an accused who killed someone. If the accused intended to kill the person, they will be charged with first degree murder or second degree murder. By definition, manslaughter is a culpable homicide that is not first degree murder or second degree murder. There is no intent required to be found guilty of manslaughter.
What Does the Crown Need to Prove to be Found Guilty of 3rd Degree Murder?
In order to be found guilty of manslaughter the Crown needs to prove beyond a reasonable doubt that by an act or omission you caused the death of another person. The Crown does not need to prove you intended to cause death.
To prove unlawful act manslaughter the Crown must prove you did an underlying unlawful act that led to the death of the victim. To prove this, the Crown needs to prove that a risk of bodily harm was objectively foreseeable. In other words, the accused should have known their actions would cause bodily harm to the victim. It is not necessary for the Crown to prove foreseeability of the risk of death.
Similarly, to prove criminal negligence manslaughter, the Crown must prove a risk of bodily harm was objectively foreseeable.
Possible Defences for Homicide Charges
If you have been charged with homicide in Ontario, call Pyzer Criminal Lawyers. We have years of successfully defending all types of homicides. We will vigorously fight against your charges and put forward the best possible defence. Call us today for a free consultation.
Self defence is a possible defence that can justify a homicide charge. Section 34(1) of the Criminal Code states a person is not guilty of a crime if:
They believe on reasonable grounds that force, or a threat of force, is being used against them or another person;
The act that constitutes the offence is committed for the purpose of defending or protecting themselves or the other person from that use or threat of force; and
The act committed is reasonable in the circumstances.
There has to be evidence of all three factors in order to utilize this defence. The Crown is responsible to disprove self-defence beyond a reasonable doubt. The defence of self-defence is fact specific, and requires an extremely experienced criminal lawyer. Call us today to see how we can help you, and whether the defence of self-defence is possible in your case.
The Charter of Rights and Freedoms protects Canadians from unreasonable searches by the police and other government agents. If the police unreasonably searched you as part of their investigation and obtained evidence through the unreasonable search, it is possible to have that evidence excluded from trial. Excluding evidence may make the Crown’s case against you extremely weak, so they may drop the charges against you. Or, the judge might find that there is not enough evidence for the Crown to prove their case beyond a reasonable doubt, and may acquit you of the charges.
Mental Illness Defence
In order to be found guilty of homicide, you need to be culpable. If you were suffering from a mental illness at the time of the crime, you may not be culpable for your actions. The defence of mental illness is referred to as “not criminally responsible due to mental disorder” (NCRMD). If you are successful with this defence, you will be found NCRMD, and will be placed under the supervision of the provincial review board. This doesn’t mean that you are found “guilty”, nor are you found “not guilty”. Being found NCRMD is a distinct disposition that allows the offender to treat their mental illness in a forensic psychiatric program.
What is the Difference Between Homicide and Murder?
Homicide and murder have two different meanings in the Criminal Code. The Code states “a person commits homicide when, directly or indirectly, by any means, he causes the death of a human being”. Therefore, the term homicide encompasses first degree murder, second degree murder, manslaughter, and infanticide. In the Criminal Code, first and second degree are considered murder. Manslaughter is not considered murder, nor is infanticide.
Call Pyzer Criminal Lawyers Today
Being charged with first degree murder, second degree murder, manslaughter, or infanticide are the most serious offences in Canada, and you will need an experienced criminal defence lawyer. Call Pyzer Criminal Lawyers today for a free case evaluation, and see what our clients are saying about us.
Criminal Defence Lawyer (B.A., L.L.B.)
Jonathan is a highly skilled and sought after criminal defence lawyer who represents clients charged with criminal offences all over the Province of Ontario. He is a member in good-standing with the Law Society of Upper Canada, Criminal Lawyers’ Association and Toronto Lawyers Association.
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