Attempted Murder (Offence)
|s. 239 of the Crim. Code|
|Election / Plea|
Sup. Court w/ Jury (*)
|Minimum||4, 5, or 7 years incarceration|
- 1 Overview
- 2 Offence Wording
- 3 Proof of the Offence
- 4 Interpretation of the Offence
- 5 Participation of Third Parties
- 6 Sentencing Principles and Ranges
- 7 Ancillary Sentencing Orders
- 8 Record Suspensions and Pardons
- 9 History
- 10 See Also
Offences relating to attempted murder are found in Part VIII of the Criminal Code concerning "Offences Against the Person and Reputation".
|Crown Election||Defence Election
|s. 239 [attempted murder]||Indictable Offence(s)||(life max)|
Offences under s. 239 [attempted murder] are straight indictable. There is a Defence election of Court under s. 536(2) to trial in provincial court, superior court with a judge-alone or superior court with judge-and-jury.
Before the statutory increased penalties can be applied for convictions under 239(1)(a)(ii), notice of increased penalty under s. 727 must be given. Before the Crown can rely on provisions increasing the duration of the weapons prohibition order due to a prior weapons prohibition order notice under s. 727 must be given prior to plea.
by Peace Officer
by Judge or Justice
s. 508(1), 512(1), or 788
s. 498, 499, and 501
a Judge or Justice
on a Release Order
s. 515 to 519
|Direct to Attend |
for Fingerprints, etc.
Identification of Criminals Act
s. 2 ID Crim. Act
|s. 239 [attempted murder]|
When charged under s. 239 [attempted murder], the accused can be given a judicial summons without arrest. If arrested, he can be released by the arresting officer under s. 498 or 499 on an undertaking with or without conditions. He can also be released by a justice under s. 515.
Under s. 515(6)(a)(vii), offences charged under s. 239 have a reverse onus on bail where it was "committed with a firearm".
- Reverse Onus Bail
If police decide to bring the accused before a Justice pursuant to s. 503, there will be a presumption against bail (i.e. a reverse onus) if the offence, prosecuted by indictment, was committed:
- while at large under s. 515 [bail release], 679 or 680 [release pending appeal or review of appeal] (s. 515(6)(a)(i));
- "for the benefit of, at the direction of, or in association" with a criminal organization (s. 515(6)(a)(ii));
- where the offence involved a firearm, cross-bow, prohibited weapon restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance, while the accused was subject to a prohibition order preventing possession of these items (s. 515(6)(a)(viii)); or
- where the accused is not "ordinarily a resident in Canada" (s. 515(6)(b)).
- Fingerprints and Photos
A peace officer who charges a person under s. 239 [attempted murder] of the Code can require that person to attend for the taking of fingerprints, photographs or other similar recordings that are used to identify them under the Identification of Criminals Act.
- Publication Bans
For all criminal or regulatory prosecutions, there is a discretionary general publication ban available on application of the Crown, victim or witness to prohibit the publishing of "any information that could identify the victim or witness" under s. 486.5(1) where it is "necessary" for the "proper administration of justice". Other available publication bans include prohibitions for publishing evidence or other information arising from a bail hearing (s. 517), preliminary inquiry (s. 539) or jury trial (s. 648). There is a mandatory publication ban in all youth prosecutions on information tending to identify young accused under s. 110 of the YCJA or young victims under s. 111 of the YCJA.
- Offence Designations
|AG Consent Required||Serious Criminality|
s. 36 IRPA
|s. 239 [attempted murder]||(Primary)|
Section s. 239 [attempted murder] offences are "primary designated offences" under s. 752 for a Dangerous Offender Order. The offender will be deemed a "substantial risk" for a Long-Term Offender Order under s. 753.1.
See below in Ancillary Sentencing Orders for details on designations relating to sentencing orders.
Draft Form of Charges
|"THAT [accused full name] stands charged that, between the <DATE> day of <MONTH>, <YEAR> and <DATE> day of <MONTH>, <YEAR>***, at or near <COMMUNITY/TOWN/CITY>, <PROVINCE>, he [or she]..." OR|
|"THAT [accused full name] stands charged that, on or about the <DATE> day of <MONTH>, <YEAR>, at or near <COMMUNITY/TOWN/CITY>, <PROVINCE>, he [or she]..." OR|
|"AND FURTHER at the same time and place aforesaid, he [or she]..."|
|Code Section||Subject of Offence||Draft Wording|
|239(b)||attempted murder||"did attempt to cause the death of [alleged victim] [to wit: description of action] and thereby attempt to commit murder, contrary to section 239(b) of the Criminal Code. |
|239(b)||attempted murder||"did attempt to cause the death of [alleged victim] [to wit: description of action] and thereby commit an indictable offence contrary to section 239(b) of the Criminal Code.|
|239(a.1)||attempted murder (firearm)||"did attempt to cause the death of [alleged victim] by use of a firearm [to wit: description of action] and thereby commit an indictable offence contrary to section 239(a.1) of the Criminal Code. |
|239(a)||attempted murder (firearm + crim org)||"did attempt to cause the death of [alleged victim] by use of [describe class of firearm] [for the benefit of, at the direction of, or in association with] a criminal organization and thereby commit an indictable offence contrary to section 239(a) of the Criminal Code. |
Proof of the Offence
Proving attempted murder under s. 239 should include:
Interpretation of the Offence
- Actus Reus
The actus reus of the offence requires that the accused begin at least one of a series of acts intended to result in death.
It is not necessary that the act be directed at any specific person. Random shooting into a crowd will suffice.
- Attempting vs Preparation
There must be at least one step beyond mere preparation. The distinction between preparation and attempting is one of proximity of the act to the crime. However, mere proximity of time is not determinative.
The assessment is not based on any signal rule. It should be "qualitative" and based on "common sense". 
Pointing a firearm at someone, irrespective of an intent to pull the trigger, is a sufficient step to amount to attempted murder.
Attending the waiting room of a hospital carrying a weapon while intending to kill the victim who is in the hospital is an attempt to commit murder.
Deutsch v The Queen, 1986 CanLII 21 (SCC),  2 SCR 2, per Le Dain J, at p. 25 ("completion or attempted completion of one of a series of acts intended by [the accused] to result in killing is an attempt to murder even although this completed act would not, unless followed by other acts, result in killing. It might be the beginning of the attempt, but would none the less be an attempt.")
R v Marshall, 1986 CanLII 4617 (NS CA), per Clarke CJ
- Marshall, ibid.
R v Goldberg, 2014 BCCA 313 (CanLII) , 316 CCC (3d) 367, per Newbury JA
R v Boudreau, 2005 NSCA 40 (CanLII), per MacDonald CJ , at para 30
- Deutsch, supra, at pp. 23, 24, 26 ("relative proximity may give an act which might otherwise appear to be mere preparation the quality of attempt")
- Deutsch, supra, at p. 26 ("But an act which on its face is an act of commission does not lose its quality as the actus reus of attempt because further acts were required or because a significant period of time may have elapsed before the completion of the offence.")
- Boudreau, supra
- Boudreau, supra , at para 30
- R v Mantley, 2013 NSCA 16(CanLII), per Farrar JA, at paras 49, 54
Mens Rea: Intent to Kill
The crown must prove a specific intent to kill at the time of the actions.  Anything less than a "subjective foresight" that is required for the offence of murder would amount to a violation of section 7 of the Charter. It is not sufficient to simply have an intention to harm with consequences that could have led to death. Nor is it enough that he knows his actions are likely to cause death or was reckless to the possible consequences. Due to the stigma associated with the offence there must be subjective foresight of the consequences of the accused's conduct.
It is not necessary to prove a specific intent to kill a known individual. Shooting into a crowd can infer sufficient intent to kill any person who is hit. However, the doctrine of transferred intent does not apply to attempted murder. So an intent to kill one person cannot be imposed on a different individual.
Life threatening wounds alone are not sufficient evidence of an intent to kill. There must be evidence from which the trier of fact may infer that the accused intended something more than the actual or natural consequence of his wounding act. However, some wounds provide evidence of intent to kill. For example, a shot is to the head may be evidence of intent to kill. It is a question of degree having regard to all of the circumstances.
The intent to kill is often established by way of utterances of the accused of their desire to cause death.
A firearm that is discharged at close quarters while directed at a vital area of the body may be inferred to have been discharged with the intent to kill. However, it is generally a "question of degree" in light of type of the firearm, "the range, the calibre, the load, the projectile, the number of shots, the aim, and the vital or non-vital portion of the anatomy struck by the bullet.".
When deliberating on consent, a jury can be instructed to rely on the common sense inference that "a person usually knows what the predictable consequences of his or her actions are, and means to bring them about".
R v JM (1995), 134 Nfld. & P.E.I.R. 161 (NLPC)(*no CanLII links)
acquitted because accused changed her mind
R v Marshall, 1986 CanLII 4617 (NS CA), per Clarke CJ
R v Ancio, 1984 CanLII 69 (SCC) ,  1 SCR 225, per McIntyre J
R v Logan, 1990 CanLII 84 (SCC) ,  2 SCR 731,  S.C.J. No. 89 (SCC), per Lamer CJ
R v Reeves, 2012 BCCA 98 (CanLII), per Neilson JA, at para 10 ("The Crown must prove the accused acted with subjective foresight of the consequences of his conduct. Objective foresight of the consequences will not suffice.")
- R v Marshall, 1986 CanLII 4617 (NS CA), per Clarke CJ
- R v Gordon, 2009 ONCA 170 (CanLII), per Watt JA
R v Roberts, 2006 SKQB 441 (CanLII), per Gabrielson J, at para 8
R v Ross, 2003 MBCA 70 (CanLII), per Philp JA conviction overturned
R v ADY, 1992 CanLII 192 (BC CA) , (1992), 11 BCAC 154 (CA), per Hinds JA
R v Bains,  OJ No 41 (C.A.)(*no CanLII links)
R v Rajanayagam,  OJ No 393 (S.C.J.)(*no CanLII links) , at para 17
Rajanayagam, ibid., at para 18
- R v Walle, 2012 SCC 41 (CanLII), per Moldaver J, at para 64
The statutory defence of duress is excluded by s. 17 from applying to offences of attempted murder.
The defence of provocation is not available for a charge of attempted murder.
Where the charge for attempted murder is not particularized it will not include aggravated assault. Nor does it include offences of causing bodily harm with the intent to wound or assault causing bodily harm.
Where the offence includes an appropriate description of the use of a firearm, then an offence of attempting to cause bodily harm is included as a lesser offence.
- R v Pelletier, 2012 ONCA 566 (CanLII), per Watt JA, at paras 104 to 126
- R v g99bs, 1981 CanLII 3284 (ON CA), per Martin JA ("For the reasons given, I am of the opinion that the offence of attempted murder is not so "described" in s. 222 as to include the offences of causing bodily harm with intent to wound, assault causing bodily harm and unlawfully causing bodily harm.")
- R v Rowley, 1999 CanLII 3804 (ON CA), per Finlayson JA ("The words in the indictment in the case in appeal, “did attempt to murder Ruby Bible by shooting her”, are sufficient to include attempting to cause bodily harm and are sufficient to inform the appellants of this included offence.")
Participation of Third Parties
- Testimonial Aids
Certain persons who testify are entitled to make application for the use of testimonial aids: Exclusion of Public (s. 486), Use of a Testimonial Screen (s. 486), Access to Support Person While Testifying (s. 486.1), Close Proximity Video-link Testimony (s. 486.2), Self-Represented Cross-Examination Prohibition Order (s. 486.3), and Witness Security Order (s. 486.7).
A witness, victim or complainant may also request publication bans (s. 486.4, 486.5) and/or a Witness Identity Non-disclosure Order (s. 486.31). See also, Publication Bans, above.
- On Finding of Guilt
For serious personal injury offences or murder, s. 606(4.1) requires that after accepting a guilty plea, the judge must inquire whether "any of the victims had advised the prosecutor of their desire to be informed if such an agreement were entered into, and, if so, whether reasonable steps were taken to inform that victim of the agreement". Failing to take reasonable steps at guilty plea requires the prosecutor to "as soon as feasible, take reasonable steps to inform the victim of the agreement and the acceptance of the plea" (s. 606(4.3)).
Under s. 738, a judge must inquire from the Crown before sentencing whether "reasonable steps have been taken to provide the victims with an opportunity to indicate whether they are seeking restitution for their losses and damages".
Under s. 722(2), the judge must inquire "[a]s soon as feasible" before sentencing with the Crown "if reasonable steps have been taken to provide the victim with an opportunity to prepare" a victim impact statement. This will include any person "who has suffered, or is alleged to have suffered, physical or emotional harm, property damage or economic loss" as a result of the offence. Individuals representing a community impacted by the crime may file a statement under s. 722.2.
Sentencing Principles and Ranges
- For general principles and factors of violence and assault-based offences, see Violent and Assaultive Offences
- Maximum Penalties
|s. 239 [attempted murder]||N/A||life incarceration|
Offences under s. 239 [attempted murder] are straight indictable. The maximum penalty is life incarceration.
- Minimum Penalties
Where no aggravating factors proven, there is no mandatory minimum. If a restricted firearm or prohibited firearm was used or a firearm was used and it related to a criminal organization , the minimum penalty is '5 years incarceration' (no priors) or 7 years incarceration (one or more priors) . If the offence otherwise involved the "use" of a "firearm", the mandatory minimum is 4 years incarceration.
- Available Dispositions
s. 718.3, 787
If convicted under s. 239(b) a discharge is not available under s. 730(1) as it is "an offence for which a minimum punishment is prescribed by law or an offence punishable by imprisonment for fourteen years or for life".
Offences under s. 239(b) are ineligible for a conditional sentence order under s. 742.1(c), when prosecuted by indictment, as the maximum period of incarceration is 14 years or life.
- Consecutive Sentences
There are no statutory requirements that the sentences be consecutive.
An offender convicted of attempted murder has been referred to as a "lucky murderer".
The general objective of the offence under s. 239(1)(a) is to "deter the use of restricted weapons on the part of everyone engaged in the serious offence of attempted murder which would include the members of the public and police officers". The more specific purpose of s. 239(1)(a) is "to deter members of criminal organizations from the use of restrictive weapons to commit serious criminal offences such as attempted murder". The purpose of s. 239 is not limited to "deterring the use of firearms solely to criminals by seeking to deter everyone from the use of firearms to commit serious crimes".
The primary consideration is denunciation and deterrence.
The level of moral culpability of an offender who commits attempted murder is equal to that of a person convicted of murder. The only difference is luck of not succeeding, not due to any mitigation.
Attempted murder sentences can often be more severe than manslaughter due to the moral culpability for intending to kill.
- Hired Killings
R v Ljeskovica, 2008 CanLII 63569 (ON SC),  OJ No 4935, per Trotter J, at para 14
Ljeskovica, ibid., at para 14
Ljeskovica, ibid., at para 14
R v Martineau, 1990 CanLII 80 (SCC),  2 SCR 633, per Lamer CJ
R v Forcillo, 2016 ONSC 4896 (CanLII), per Then J, at para 150
Forcillo, ibid., at para 150
Forcillo, ibid., at para 150
R v TH,  OJ No 5849 (S.C.J.)(*no CanLII links)
, at para 24
R v Situ,  OJ No 1990 (C.J.)(*no CanLII links) , at para 12
R v Thompson, 2009 ONCA 243 (CanLII),  OJ No 1109 (C.A.), per Goudge JA, at para 26
R v Johnston, 2009 NSSC 218 (CanLII),  N.S.J. No. 349 (S.C.), per Cacchione J, at para 46
R v Clarke, 2010 ONSC 656 (CanLII),  OJ No 325 (S.C.J.), per Thorburn J, at para 63
R v Adamson, 2013 ONSC 2365 (CanLII), per Gray J, at para 50
R v McArthur, 2004 CanLII 8759 (ON CA), per Doherty JA, at para 47
Ljeskovica, supra, at para 15
- Ljeskovica, supra, at paras 14 to 16
R v Schulz, 2006 CanLII 37958 (ON SC), at para 36
R v Chase and Armitage (1979), 10 C.R. (3d) S-1 (Ont. H.C.)(*no CanLII links)
R v Bonello,  OJ No 2142 (C.A.)(*no CanLII links) , at para 2
Shulz, supra, at para 37
Where the attempted murder, in particular a shooting, occurred in a public place is an aggravating factor.
R v Chanda,  OJ No 6315 (Ont. C. J.)(*no CanLII links)
, at paras 6, 7
R v Melanson, 1998 CanLII 12185 (NB CA),  N.B. J. No. 140 (C.A.), per Hill J, at para 11
R v Currie, 2002 CanLII 44973 (ON CA),  OJ No 2191 (C.A.), per Charron JA, at para 83
R v TH,  OJ No 5849 (Ont. C.J.)(*no CanLII links) , at para 31
R v Gordon, 2009 ONCA 170 (CanLII),  OJ No 724 (C.A.), per Watt JA, at para 86
R v Thompson, 2009 ONCA 243 (CanLII),  OJ No 1109 (C.A.), per Goudge JA, at para 26
R v Guedez-Infante, 2009 ONCA 739 (CanLII),  OJ No 4351 (C.A.), per curiam, at para 5
R v Clarke, 2010 ONSC 656 (CanLII),  OJ No 325 (S.C.J.), per Thorburn J, at para 29
R v Kipp, 2010 BCSC 584 (CanLII),  BCJ No. 762 (S.C.), at para 81
R v LeBlanc, 2010 NSSC 347 (CanLII),  NSJ No. 490 (S.C.), at paras 5, 24
- see also: Attempted Murder (Sentencing Cases)
In Ontario, the appropriate range is usually between 6 years to life.
In Nova Scotia, attempted murder in domestic situations will attract 8 years or more absent exceptional circumstances. 
A serious gun offence where a person is wounded by a gun shot will range from 7 to 11 years. However, attempted murder with a firearm is in the range of 10 years to life regardless of the role played.
The mandatory minimum penalties associated with attempted murder under s.239(1)(a) do not violate s. 7 or 12 of the Charter.
Ancillary Sentencing Orders
|DNA Orders||s. 239 [attempted murder]||
|Weapons Prohibition Orders||s. 239 [attempted murder]||
|Delayed Parole Order||s. 239 [attempted murder]||
- General Sentencing Orders
|Non-communication order while offender in custody (s. 743.21)||any||The judge has the discretion to order that the offender be prohibited "from communicating...with any victim, witness or other person" while in custody except where the judge "considers [it] necessary" to communicate with them.|
|Restitution Orders (s. 738)||any||A discretionary Order is available for things such as the replacement value of the property; the pecuniary damages incurred from harm, expenses fleeing a domestic partner; or certain expenses arising from the commission of an offence under s.402.2 or 403.|
|Victim Fine Surcharge (s. 737)||any||A discretionary surcharge under s. 737 of 30% of any fine order imposed, $100 per summary conviction or $200 per indictable conviction. If the offence occurs on or after October 23, 2013, the order has smaller minimum amounts (15%, $50, or $100).|
- General Forfeiture Orders
|Forfeiture of Proceeds of Crime (s. 462.37(1) or (2.01))||any||Where there is a finding of guilt for an indictable offence under the Code or the CDSA in which property is "proceeds of crime" and offence was "committed in relation to that property", the property shall be forfeited to Her Majesty the Queen on application of the Crown.|
|Fine in Lieu of Forfeiture (s. 462.37(3))||any||Where a Court is satisfied an order for the forfeiture of proceeds of crime under s. 462.37(1) or (2.01) can be made, but that property cannot be "made subject to an order", then the Court "may" order a fine in "an amount equal to the value of the property". Failure to pay the fine will result in a default judgement imposing a period of incarceration.|
|Forfeiture of Weapons or Firearms (s. 491)||any||Where there is finding of guilt for an offence where a "weapon, an imitation firearm, a prohibited device, any ammunition, any prohibited ammunition or an explosive substance was used in the commission of [the] offence and that thing has been seized and detained", or "that a person has committed an offence that involves, or the subject-matter of which is, a firearm, a cross-bow, a prohibited weapon, a restricted weapon, a prohibited device, ammunition, prohibited ammunition or an explosive substance has been seized and detained, that the item be an enumerated weapon or related item be connected to the offence", then there will be a mandatory forfeiture order. However, under s. 491(2), if the lawful owner "was not a party to the offence" and the judge has "no reasonable grounds to believe that the thing would or might be used in the commission of an offence", then it should be returned to the lawful owner.|
|Forfeiture of Offence-related Property (s. 490.1)||any||Where there is a finding of guilt for an indictable offence, "any property is offence-related property" where (a) by means or in respect of which an indictable offence under this Act or the Corruption of Foreign Public Officials Act is committed, (b) that is used in any manner in connection with the commission of such an offence, or (c) that is intended to be used for committing such an offence". Such property is to be forfeited to Her Majesty in right of the province.|
Record Suspensions and Pardons
Convictions under s. 239 [attempted murder] are eligible for record suspensions pursuant to s. 3 and 4 of the Criminal Records Act after 5 years after the expiration of sentence for summary conviction offences and 10 years after the expiration of sentence for all other offences. The offender may not have the record suspended where the offender was (1) convicted of 3 or more offences with a maximum penalty of life, and (2) for each 3 offences he "was sentenced to imprisonment for two years or more".
Prior to October 2, 2009 amendments:
Prior to July 2, 2008 amendments: