Attempted Murder (Offence): Difference between revisions

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===Attempt===
===Attempt===
The ''actus reus'' of the offence requires that the accused begin at least one of a series of acts intended to result in death.<ref>
The ''actus reus'' of the offence requires that the accused begin at least one of a series of acts intended to result in death.<ref>
Deutsch v The Queen, [http://canlii.ca/t/1fts2 1986 CanLII 21] (SCC), [1986] 2 SCR 2 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.")
Deutsch v The Queen, [http://canlii.ca/t/1fts2 1986 CanLII 21] (SCC), [1986] 2 SCR 2{{perSCC|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.")
</ref>
</ref>


'''Attempting vs Preparation'''<br>
'''Attempting vs Preparation'''<br>
There must be at least one step beyond mere preparation.<ref>
There must be at least one step beyond mere preparation.<ref>
R v Boudreau, [http://canlii.ca/t/1jvpd 2005 NSCA 40] (CanLII) at para 30
R v Boudreau, [http://canlii.ca/t/1jvpd 2005 NSCA 40] (CanLII){{perNSCA|MacDonald CJ}} at para 30
</ref>
</ref>
The distinction between preparation and attempting is one of proximity of the act to the crime.
The distinction between preparation and attempting is one of proximity of the act to the crime.
<ref>
<ref>
Deutsch at p. 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. 23, 24, 26 ("relative proximity may give an act which might otherwise appear to be mere preparation the quality of attempt")
</ref>
</ref>
However, mere proximity of time is not determinative.<Ref>
However, mere proximity of time is not determinative.<Ref>
Deutsch 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.")
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.")
</ref>
</ref>


Pointing a firearm at someone, irrespective of an intent to pull the trigger, is a sufficient step to amount to attempted murder.<ref>
Pointing a firearm at someone, irrespective of an intent to pull the trigger, is a sufficient step to amount to attempted murder.<ref>
R v Boudreau, at para 30
Boudreau{{supra}} at para 30
</ref>
</ref>


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.<ref>
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.<ref>
R v Mantley, [http://canlii.ca/t/fw14k 2013 NSCA 16](CanLII) at para 49, 54
R v Mantley, [http://canlii.ca/t/fw14k 2013 NSCA 16](CanLII){{perNSCA|Farrar JA}} at para 49, 54
</ref>
</ref>


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The crown must prove a specific ''intent to kill'' at the time of the actions. <ref>
The crown must prove a specific ''intent to kill'' at the time of the actions. <ref>
R v J.M. (1995), 134 Nfld. & P.E.I.R. 161 (NLPC){{NOCANLII}} acquitted because accused changed her mind</ref> Anything less would amount to a violation of section 7 of the Charter.<ref>
R v J.M. (1995), 134 Nfld. & P.E.I.R. 161 (NLPC){{NOCANLII}} acquitted because accused changed her mind</ref> Anything less would amount to a violation of section 7 of the Charter.<ref>
R v Ancio, [http://canlii.ca/t/1txj9 1984 CanLII 69] (SCC), [1984] 1 SCR 225<br>  
R v Ancio, [http://canlii.ca/t/1txj9 1984 CanLII 69] (SCC), [1984] 1 SCR 225{{perSCC|McIn­tyre J}}<br>  
R v Logan, [http://canlii.ca/t/1fssn 1990 CanLII 84] (SCC), [1990] 2 SCR 731, [1990] S.C.J. No. 89 (SCC)</ref>
R v Logan, [http://canlii.ca/t/1fssn 1990 CanLII 84] (SCC), [1990] 2 SCR 731, [1990] S.C.J. No. 89 (SCC){{perSCC|Lamer CJ}}</ref>
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.<ref>
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.<ref>
Ancio{{supra}}<br>
Ancio{{supra}}<br>
Logan{{supra}}<br>
Logan{{supra}}<br>
R v Reeves, [http://canlii.ca/t/fqllv 2012 BCCA 98] (CanLII) 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 Reeves, [http://canlii.ca/t/fqllv 2012 BCCA 98] (CanLII){{perBCCA|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.")
</ref>
</ref>


'''Evidence'''<br>
;Evidence
Life threatening wounds alone is 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.<ref>
Life threatening wounds alone is 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.<ref>
R v Roberts, [http://canlii.ca/t/1prnx 2006 SKQB 441] (CanLII) at para 8 <br>
R v Roberts, [http://canlii.ca/t/1prnx 2006 SKQB 441] (CanLII){{perSKQB|Gabrielson J}} at para 8 <br>
R v Ross, [http://canlii.ca/t/5b22 2003 MBCA 70] (CanLII) conviction overturned<br>
R v Ross, [http://canlii.ca/t/5b22 2003 MBCA 70] (CanLII){{perMBCA|Philp JA}} conviction overturned<br>
</ref> 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.<ref>Roberts<br>Ross{{ibid}}</ref>
</ref> 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.<ref>Roberts<br>Ross{{ibid}}</ref>


The ''intent to kill'' is often established by way of utterances of the accused of their desire to cause death.<ref>
The ''intent to kill'' is often established by way of utterances of the accused of their desire to cause death.<ref>
for example:<br>
for example:<br>
R v A.D.Y. (1992), 11 BCAC 154 (CA), [http://canlii.ca/t/1d9mz 1992 CanLII 192] (BC CA)<br>
R v A.D.Y. (1992), 11 BCAC 154 (CA), [http://canlii.ca/t/1d9mz 1992 CanLII 192] (BC CA){{perBCCA|Hinds JA}}<br>
</ref>
</ref>


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.<ref>
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.<ref>
R v Bains, [1985] O.J. No. 41 (C.A.){{NOCANLII}} p. 4<br>  
R v Bains, [1985] O.J. No. 41 (C.A.){{NOCANLII}} p. 4<br>  
R v Rajanayagam, [2001] O.J. No. 393 (S.C.J.){{NOCANLII}} at para 17<br>
R v Rajanayagam, [2001] O.J. No. 393 (S.C.J.){{NOCANLII}}{{at|17}}<br>
</ref> However, it is generally a "question of degree" in light of type of the firearm, "the range,  
</ref> 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.".<ref>
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.".<ref>
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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".<ref>
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".<ref>
R v Walle, [http://canlii.ca/t/fs5k8 2012 SCC 41] (CanLII) at para 64 per Moldaver J.</ref>
R v Walle, [http://canlii.ca/t/fs5k8 2012 SCC 41] (CanLII){{perSCC|Moldaver J}} at para 64</ref>


{{Reflist|2}}
{{Reflist|2}}
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The defence of provocation is not available for a charge of attempted murder.<Ref>
The defence of provocation is not available for a charge of attempted murder.<Ref>
R v Lavallee, [http://canlii.ca/t/h2nls 2017 SKPC 27] (CanLII)
R v Lavallee, [http://canlii.ca/t/h2nls 2017 SKPC 27] (CanLII){{perSKPC|Schiefner J}}
[[Provocation]]<br>
[[Provocation]]<br>
</ref>
</ref>
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===Included Offences===
===Included Offences===
Where the charge for attempted murder is not particularized it will ''not'' include aggravated assault.<ref>
Where the charge for attempted murder is not particularized it will ''not'' include aggravated assault.<ref>
R v Pelletier, 2012 ONCA 566 at paras 104 to 126 per Watt J.A.
R v Pelletier, [http://canlii.ca/t/fsjc2 2012 ONCA 566] (CanLII){{perONCA|Watt JA}}{{ats|104 to 126}}
</ref>
</ref>


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Attempted murder is one of the "most serious offences known to our law".<ref>
Attempted murder is one of the "most serious offences known to our law".<ref>
R v Ljeskovica, [http://canlii.ca/t/21rpj 2008 CanLII 63569] (ON SC), [2008] O.J. No. 4935, per Trotter J at para 14<br>
R v Ljeskovica, [http://canlii.ca/t/21rpj 2008 CanLII 63569] (ON SC), [2008] O.J. No. 4935{{|per Trotter J}} at para 14<br>
</reF>
</reF>
It is often ranked higher than the offence of manslaughter.<ref>
It is often ranked higher than the offence of manslaughter.<ref>
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An offender convicted of attempted murder has been referred to as a "luck murderer".<ref>
An offender convicted of attempted murder has been referred to as a "luck murderer".<ref>
Ljeskovica at para 14<br>
Ljeskovica at para 14<br>
R v Martineau, [http://canlii.ca/t/1fssd 1990 CanLII 80] (SCC), [1990] 2 SCR 633 per Lamer CJ<br>
R v Martineau, [http://canlii.ca/t/1fssd 1990 CanLII 80] (SCC), [1990] 2 SCR 633{{perSCC|Lamer CJ}}<br>
</ref>
</ref>


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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 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".
<ref>
<ref>
R v Forcillo, [http://canlii.ca/t/gsqhf 2016 ONSC 4896] (CanLII) at para 150<br>
R v Forcillo, [http://canlii.ca/t/gsqhf 2016 ONSC 4896] (CanLII){{perONSC|Then J}} at para 150<br>
</ref>
</ref>
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".<ref>
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".<ref>
Line 247: Line 247:
R v T.H., [2005] O.J. No. 5849 (S.C.J.){{NOCANLII}} para 24<br>  
R v T.H., [2005] O.J. No. 5849 (S.C.J.){{NOCANLII}} para 24<br>  
R v Situ, [2006] O.J. No. 1990 (C.J.){{NOCANLII}} para 12<br>
R v Situ, [2006] O.J. No. 1990 (C.J.){{NOCANLII}} para 12<br>
R v Thompson, [http://canlii.ca/t/22s5d 2009 ONCA 243] (CanLII), [2009] O.J. No. 1109 (C.A.) at para 26 <br>
R v Thompson, [http://canlii.ca/t/22s5d 2009 ONCA 243] (CanLII), [2009] O.J. No. 1109 (C.A.){{perONCA|Goudge JA}} at para 26 <br>
R v Johnston, [http://canlii.ca/t/24zfl 2009 NSSC 218] (CanLII), [2009] N.S.J. No. 349 (S.C.) at para 46 <br>
R v Johnston, [http://canlii.ca/t/24zfl 2009 NSSC 218] (CanLII), [2009] N.S.J. No. 349 (S.C.){{perNSSC|Cacchione J}} at para 46 <br>
R v Clarke, [http://canlii.ca/t/27qz6 2010 ONSC 656] (CanLII), [2010] O.J. No. 325 (S.C.J.) at para 63<Br>
R v Clarke, [http://canlii.ca/t/27qz6 2010 ONSC 656] (CanLII), [2010] O.J. No. 325 (S.C.J.){{perONSC|Thorburn J}} at para 63<Br>
</ref>
</ref>


'''Culpability'''<br>
'''Culpability'''<br>
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.<ref>
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.<ref>
R v Adamson, [http://canlii.ca/t/fxdc7 2013 ONSC 2365] (CanLII) at para 50<br>
R v Adamson, [http://canlii.ca/t/fxdc7 2013 ONSC 2365] (CanLII){{perONSC|Gray J}} at para 50<br>
R v McArthur, [http://canlii.ca/t/1gk4v 2004 CanLII 8759] (ON CA) at para 47<br>
R v McArthur, [http://canlii.ca/t/1gk4v 2004 CanLII 8759] (ON CA){{perONCA|Doherty JA}} at para 47<br>
Ljeskovica{{supra}} at para 15<Br>
Ljeskovica{{supra}} at para 15<Br>
</ref>
</ref>
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Where the attempted murder, in particular a shooting, occurred in a public place is an aggravating factor.<ref>
Where the attempted murder, in particular a shooting, occurred in a public place is an aggravating factor.<ref>
R v Chanda, [1997] O.J. No. 6315 (Ont. C. J.){{NOCANLII}} at para 6,7<br>  
R v Chanda, [1997] O.J. No. 6315 (Ont. C. J.){{NOCANLII}} at paras 6, 7<br>  
R v Melanson, [http://canlii.ca/t/1kvtg 1998 CanLII 12185] (NB CA), [1998] N.B. J. No. 140 (C.A.), para 11;<br>  
R v Melanson, [http://canlii.ca/t/1kvtg 1998 CanLII 12185] (NB CA), [1998] N.B. J. No. 140 (C.A.){{perNBCA|Hill J}}{{at|11}}<br>  
R v Currie, [http://canlii.ca/t/1cwgh 2002 CanLII 44973] (ON CA), [2002] O.J. No. 2191 (C.A.) at para 83<br>  
R v Currie, [http://canlii.ca/t/1cwgh 2002 CanLII 44973] (ON CA), [2002] O.J. No. 2191 (C.A.){{perONCA|Charron JA}} at para 83<br>  
R v T.H., [2005] O.J. No. 5849 (Ont. C.J.){{NOCANLII}} at para 31<br>  
R v T.H., [2005] O.J. No. 5849 (Ont. C.J.){{NOCANLII}} at para 31<br>  
R v Gordon, [http://canlii.ca/t/22kr0 2009 ONCA 170] (CanLII), [2009] O.J. No. 724 (C.A.) at para 86<br>  
R v Gordon, [http://canlii.ca/t/22kr0 2009 ONCA 170] (CanLII), [2009] O.J. No. 724 (C.A.){{perONCA|Watt JA}} at para 86<br>  
Thompson{{supra}}, at para 26<br>
Thompson{{supra}}, at para 26<br>
R v Guedez-Infante, [http://canlii.ca/t/2680l 2009 ONCA 739] (CanLII), [2009] O.J. No. 4351(C.A.) at para 5<br>
R v Guedez-Infante, [http://canlii.ca/t/2680l 2009 ONCA 739] (CanLII), [2009] O.J. No. 4351 (C.A.){{TheCourt}} at para 5<br>
Clarke{{supra}}, at para 29<br>  
Clarke{{supra}}, at para 29<br>  
R v Kipp, [http://canlii.ca/t/29gmw 2010 BCSC 584] (CanLII), [2010] BCJ No. 762 (S.C.) at para 81<br>
R v Kipp, [http://canlii.ca/t/29gmw 2010 BCSC 584] (CanLII), [2010] BCJ No. 762 (S.C.) at para 81<br>
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In Ontario, the appropriate range is usually between 6 years to life.<ref>
In Ontario, the appropriate range is usually between 6 years to life.<ref>
R v Tan, [http://canlii.ca/t/20385 2008 ONCA 574] (CanLII)
R v Tan, [http://canlii.ca/t/20385 2008 ONCA 574] (CanLII){{perONCA|Laskin JA}}
</ref>
</ref>


In Nova Scotia, attempted murder in domestic situations will attract 8 years or more absent exceptional circumstances.
In Nova Scotia, attempted murder in domestic situations will attract 8 years or more absent exceptional circumstances.
<ref>
<ref>
R v Bryan, [http://canlii.ca/t/21xnm 2008 NSCA 119] (CanLII) at para 60</ref>
R v Bryan, [http://canlii.ca/t/21xnm 2008 NSCA 119] (CanLII){{perNSCA|Saunders JA}} at para 60</ref>


A serious gun offence where a person is wounded by a gun shot will range from 7 to 11 years.<ref>
A serious gun offence where a person is wounded by a gun shot will range from 7 to 11 years.<ref>
R v Bellissimo, [http://canlii.ca/t/225g6 2009 ONCA 49] (CanLII), [2009] O.J. No. 179 (C.A.)</ref>  
R v Bellissimo, [http://canlii.ca/t/225g6 2009 ONCA 49] (CanLII), [2009] O.J. No. 179 (C.A.){{TheCourt}}</ref>  
However, attempted murder with a firearm is in the range of 10 years to life regardless of the role played.<ref>
However, attempted murder with a firearm is in the range of 10 years to life regardless of the role played.<ref>
R v Smith, [http://canlii.ca/t/fnqjw 2011 NSSC 413] (CanLII) at para 28</ref>
R v Smith, [http://canlii.ca/t/fnqjw 2011 NSSC 413] (CanLII){{perNSSC|Coady J}} at para 28</ref>


'''Constitutionality'''<br>
'''Constitutionality'''<br>
The mandatory minimum penalties associated with attempted murder under s.239(1)(a) do not violate s. 7 or 12 of the Charter.<ref>
The mandatory minimum penalties associated with attempted murder under s.239(1)(a) do not violate s. 7 or 12 of the Charter.<ref>
R v Forcillo, [http://canlii.ca/t/gsqhf 2016 ONSC 4896] (CanLII)
R v Forcillo, [http://canlii.ca/t/gsqhf 2016 ONSC 4896] (CanLII){{perONSC|Then J}}
</ref>
</ref>


Revision as of 19:10, 12 December 2018


Attempted Murder
s. 239 of the Crim. Code
Election / Plea
Crown Election Indictment
Jurisdiction Prov. Court

Sup. Court w/ Jury (*)
Sup. Court w/ Judge-alone (*)

* Must be indictable. Preliminary inquiry also available.
Indictable Dispositions
Avail. Disp. Discharge (730)

Suspended Sentence (731(1)(a))*
Fine (734)*
Fine + Probation (731(1)(b))*
Jail (718.3, 787)
Jail + Probation (731(1)(b))
Jail + Fine (734)
Conditional Sentence (742.1)

(* varies)
Minimum 4, 5, or 7 years incarceration
Maximum Life
Reference
Offence Elements
Sentence Digests

Overview

Offences relating to attempted murder are found in Part VIII of the Criminal Code concerning "Offences Against the Person and Reputation".

Pleadings

Template:PleadingsIndictableList
Offence
Section		 Offence
Type		 Crown Election Defence Election
s. 536(2)

Offences under s. 239 are straight indictable. There is a Defence election of Court under s. 536(2).

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.

Release

Offence(s) Appearance Notice
by Peace Officer
s. 497		 Summons
by Judge or Justice
s. 508(1), 512(1), or 788		 Release by
Peace Officer
on Undertaking
s. 498, 499, and 501		 Release By
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 Template:ReleaseProfileOnlyBail

Template:ReleaseOnlyBail

Under s. 515(6)(a)(vii), offences charged under s. 239 have a reverse onus on bail where it was "committed with a firearm".

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 weapon, being 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)).

And, regardless of Crown election, if the offence alleged was one:

  • where the offence was an allegation of violence against an "intimate partner" and the accused had been previously convicted of an offence of violence against an "intimate partner" (s. 515(6)(b.1));
  • where the offence alleged is a breach under s. 145(2) to (5) while (s. 515(6)(c));
  • where the offence committed (or conspired to commit) was an offence under s. 5 to 7 of the CDSA that is punishable by life imprisonment (s. 515(6)(d));

A peace officer who charges a person under s. 239 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
Section s. 239 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.

Offence Wording

Attempt to commit murder
239. (1) Every person who attempts by any means to commit murder is guilty of an indictable offence and liable

(a) if a restricted firearm or prohibited firearm is used in the commission of the offence or if any firearm is used in the commission of the offence and the offence is committed for the benefit of, at the direction of, or in association with, a criminal organization, to imprisonment for life and to a minimum punishment of imprisonment for a term of
(i) in the case of a first offence, five years, and
(ii) in the case of a second or subsequent offence, seven years;
(a.1) in any other case where a firearm is used in the commission of the offence, to imprisonment for life and to a minimum punishment of imprisonment for a term of four years; and
(b) in any other case, to imprisonment for life.

Subsequent offences
(2)...

Sequence of convictions only
(3) ...

R.S., 1985, c. C-46, s. 239; 1995, c. 39, s. 143; 2008, c. 6, s. 16; 2009, c. 22, s. 6.


– CCC

Proof of the Offence

Proving attempted murder under s. 239 should include:

  1. ☐ identity of accused as culprit
  2. ☐ date and time of the incident
  3. ☐ jurisdiction (incl. region and province)
  4. the manner in which the attempt occurred
  5. injuries, if any, to the victim
  6. there was no consent
  7. there was no provocation
  8. there was an intent to kill

Interpretation of the Offence

See also: Attempts

Attempt

The actus reus of the offence requires that the accused begin at least one of a series of acts intended to result in death.[1]

Attempting vs Preparation
There must be at least one step beyond mere preparation.[2] The distinction between preparation and attempting is one of proximity of the act to the crime. [3] However, mere proximity of time is not determinative.[4]

Pointing a firearm at someone, irrespective of an intent to pull the trigger, is a sufficient step to amount to attempted murder.[5]

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.[6]

  1. ↑ Deutsch v The Queen, 1986 CanLII 21 (SCC), [1986] 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.")
  2. ↑ R v Boudreau, 2005 NSCA 40 (CanLII), per MacDonald CJ at para 30
  3. ↑ Deutsch, supra at p. 23, 24, 26 ("relative proximity may give an act which might otherwise appear to be mere preparation the quality of attempt")
  4. ↑ 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.")
  5. ↑ Boudreau, supra at para 30
  6. ↑ R v Mantley, 2013 NSCA 16(CanLII), per Farrar JA at para 49, 54

Mens Rea: Intent to Kill

The crown must prove a specific intent to kill at the time of the actions. [1] Anything less would amount to a violation of section 7 of the Charter.[2] 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.[3]

Evidence

Life threatening wounds alone is 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.[4] 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.[5]

The intent to kill is often established by way of utterances of the accused of their desire to cause death.[6]

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.[7] 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.".[8]

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".[9]

  1. ↑ R v J.M. (1995), 134 Nfld. & P.E.I.R. 161 (NLPC)(*no CanLII links) acquitted because accused changed her mind
  2. ↑ R v Ancio, 1984 CanLII 69 (SCC), [1984] 1 SCR 225, per McIn­tyre J
    R v Logan, 1990 CanLII 84 (SCC), [1990] 2 SCR 731, [1990] S.C.J. No. 89 (SCC), per Lamer CJ
  3. ↑ Ancio, supra
    Logan, supra
    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.")
  4. ↑ 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
  5. ↑ Roberts
    Ross, ibid.
  6. ↑ for example:
    R v A.D.Y. (1992), 11 BCAC 154 (CA), 1992 CanLII 192 (BC CA), per Hinds JA
  7. ↑ R v Bains, [1985] O.J. No. 41 (C.A.)(*no CanLII links) p. 4
    R v Rajanayagam, [2001] O.J. No. 393 (S.C.J.)(*no CanLII links) , at para 17
  8. ↑ Rajanayagam, ibid. at para 18
  9. ↑ R v Walle, 2012 SCC 41 (CanLII), per Moldaver J at para 64

Defences

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.[1]

  1. ↑ R v Lavallee, 2017 SKPC 27 (CanLII), per Schiefner J Provocation

Included Offences

Where the charge for attempted murder is not particularized it will not include aggravated assault.[1]

  1. ↑ R v Pelletier, 2012 ONCA 566 (CanLII), per Watt JA, at paras 104 to 126

Participation of Third Parties

See also: Role of the Victim and Third Parties and Testimonial Aids for Young, Disabled or Vulnerable Witnesses

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

See also: Purpose and Principles of Sentencing, Sentencing Factors Relating to the Offender, and Sentencing Factors Relating to the Offence
For general principles and factors of violence and assault-based offences, see Violent and Assaultive Offences

Maximum Penalties

Offence(s) Crown
Election		 Maximum Penalty
s. 239 [attempt murder] N/A life in custody

Offences under s. 239 are straight indictable. The maximum penalty is life.

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 (one or more priors). If the offence otherwise involved the "use" of a "firearm", the mandatory minimum is 4 years incarceration.

Available Dispositions

Offence(s) Crown
Election		 Discharge
s. 730		 Suspended
Sentence
s. 731(1)(a)		 Stand-alone
Fine
s. 731(1)(b)		 Custody
s. 718.3, 787		 Custody and
Probation
s. 731(1)(b)		 Custody and
Fine
s. 734		 Conditional
Sentence (CSO)
s. 742.1
s. 239(a) N/A
s. 239(b) N/A

Offences under s. 239(a) and (a.1) have mandatory minimums. There are no discharges, suspended sentences, stand-alone fines, or conditional sentences available.

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.

Increased Penalties

239. ...
Subsequent offences
(2) In determining, for the purpose of paragraph (1)(a), whether a convicted person has committed a second or subsequent offence, if the person was earlier convicted of any of the following offences, that offence is to be considered as an earlier offence:

(a) an offence under this section;
(b) an offence under subsection 85(1) or (2) or section 244 or 244.2; or
(c) an offence under section 220, 236, 272 or 273, subsection 279(1) or section 279.1, 344 or 346 if a firearm was used in the commission of the offence.

However, an earlier offence shall not be taken into account if 10 years have elapsed between the day on which the person was convicted of the earlier offence and the day on which the person was convicted of the offence for which sentence is being imposed, not taking into account any time in custody.
Sequence of convictions only
(3) For the purposes of subsection (2), the only question to be considered is the sequence of convictions and no consideration shall be given to the sequence of commission of offences or whether any offence occurred before or after any conviction.
R.S., 1985, c. C-46, s. 239; 1995, c. 39, s. 143; 2008, c. 6, s. 16; 2009, c. 22, s. 6.


– CCC


Principles

Attempted murder is one of the "most serious offences known to our law".[1] It is often ranked higher than the offence of manslaughter.[2]

An offender convicted of attempted murder has been referred to as a "luck murderer".[3]

Purpose

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". [4] 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".[5] 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".[6]

Objectives
The primary consideration is denunciation and deterrence.[7]

Culpability
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.[8]

Attempted murder sentences can often be more severe than manslaughter due to the moral culpability for intending to kill.[9]

Hired Killings
Contract killings are among the most dangerous and despicable offences known to society.[10] Where the intent to kill is so obvious, the motive for doing so becomes irrelevant.[11]

  1. ↑ R v Ljeskovica, 2008 CanLII 63569 (ON SC), [2008] O.J. No. 4935{{|per Trotter J}} at para 14
  2. ↑ Ljeskovica, ibid. at para 14
  3. ↑ Ljeskovica at para 14
    R v Martineau, 1990 CanLII 80 (SCC), [1990] 2 SCR 633, per Lamer CJ
  4. ↑ R v Forcillo, 2016 ONSC 4896 (CanLII), per Then J at para 150
  5. ↑ Forcillo, ibid. at para 150
  6. ↑ Forcillo, ibid. at para 150
  7. ↑ R v T.H., [2005] O.J. No. 5849 (S.C.J.)(*no CanLII links) para 24
    R v Situ, [2006] O.J. No. 1990 (C.J.)(*no CanLII links) para 12
    R v Thompson, 2009 ONCA 243 (CanLII), [2009] O.J. No. 1109 (C.A.), per Goudge JA at para 26
    R v Johnston, 2009 NSSC 218 (CanLII), [2009] N.S.J. No. 349 (S.C.), per Cacchione J at para 46
    R v Clarke, 2010 ONSC 656 (CanLII), [2010] O.J. No. 325 (S.C.J.), per Thorburn J at para 63
  8. ↑ 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
  9. ↑ Ljeskovica, supra at paras 14-16
  10. ↑ 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, [1992] O.J. No. 2142 (C.A.)(*no CanLII links) at para 2
  11. ↑ Shulz, supra, at para 37

Factors

Where the attempted murder, in particular a shooting, occurred in a public place is an aggravating factor.[1]

  1. ↑ R v Chanda, [1997] O.J. No. 6315 (Ont. C. J.)(*no CanLII links) at paras 6, 7
    R v Melanson, 1998 CanLII 12185 (NB CA), [1998] N.B. J. No. 140 (C.A.), per Hill J, at para 11
    R v Currie, 2002 CanLII 44973 (ON CA), [2002] O.J. No. 2191 (C.A.), per Charron JA at para 83
    R v T.H., [2005] O.J. No. 5849 (Ont. C.J.)(*no CanLII links) at para 31
    R v Gordon, 2009 ONCA 170 (CanLII), [2009] O.J. No. 724 (C.A.), per Watt JA at para 86
    Thompson, supra, at para 26
    R v Guedez-Infante, 2009 ONCA 739 (CanLII), [2009] O.J. No. 4351 (C.A.), per curiam at para 5
    Clarke, supra, at para 29
    R v Kipp, 2010 BCSC 584 (CanLII), [2010] BCJ No. 762 (S.C.) at para 81
    R v LeBlanc, 2010 NSSC 347 (CanLII), [2010] NSJ No. 490 (S.C.) at para 5, 24

Ranges

see also: Attempted Murder (Sentencing Cases)

In Ontario, the appropriate range is usually between 6 years to life.[1]

In Nova Scotia, attempted murder in domestic situations will attract 8 years or more absent exceptional circumstances. [2]

A serious gun offence where a person is wounded by a gun shot will range from 7 to 11 years.[3] However, attempted murder with a firearm is in the range of 10 years to life regardless of the role played.[4]

Constitutionality
The mandatory minimum penalties associated with attempted murder under s.239(1)(a) do not violate s. 7 or 12 of the Charter.[5]


  1. ↑ R v Tan, 2008 ONCA 574 (CanLII), per Laskin JA
  2. ↑ R v Bryan, 2008 NSCA 119 (CanLII), per Saunders JA at para 60
  3. ↑ R v Bellissimo, 2009 ONCA 49 (CanLII), [2009] O.J. No. 179 (C.A.), per curiam
  4. ↑ R v Smith, 2011 NSSC 413 (CanLII), per Coady J at para 28
  5. ↑ R v Forcillo, 2016 ONSC 4896 (CanLII), per Then J

Ancillary Sentencing Orders

Order Conviction Description
DNA Orders s. 239
Weapons Prohibition Orders s. 239
  • On conviction under s. 239 where "violence against a person was used, threatened or attempted", and punishable by "imprisonment for ten years or more", the weapons prohibition order is mandatory under s. 109(1)(a) or where "violence was used, threatened or attempted against" an enumerated party relating to a domestic partnership a weapons prohibition order is mandatory under s. 109(1)(a.1).The order prohibits "the person from possessing any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition and explosive".
      • Duration (first offence): The Order prohibiting to "firearms" (other than a prohibited firearm or restricted firearm) and "crossbow, restricted weapon, ammunition and explosive substance" is for not less than 10 years starting at release from custody or at sentencing where custody is not ordered. The Order prohibiting "prohibited firearm, restricted firearm, prohibited weapon, prohibited device" is for life.
      • Duration (subsequent s. 109 offence): The duration must be life for all enumerated weapons and firearms. Notice of increased penalty under s. 727 required.
Delayed Parole Order s. 239
  • Periods of imprisonment of 2 years or more for convictions under s. 239 are eligible for delayed parole order under s. 743.6(1) requiring the offender to serve at least "one half of the sentence or ten years, whichever is less", "where denunciation of the offence or the objective of specific or general deterrence so requires".

General Sentencing Orders

Order Conviction Description
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 Conviction Description
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 His Majesty the King on application of the Crown. NB: does not apply to summary offences.
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. NB: does not apply to summary offences.

History

See also: List of Criminal Code Amendments

Prior to October 2, 2009 amendments:

Attempt to commit murder
239. (1) Every person who attempts by any means to commit murder is guilty of an indictable offence and liable

(a) if a restricted firearm or prohibited firearm is used in the commission of the offence or if any firearm is used in the commission of the offence and the offence is committed for the benefit of, at the direction of, or in association with, a criminal organization, to imprisonment for life and to a minimum punishment of imprisonment for a term of
(i) in the case of a first offence, five years, and
(ii) in the case of a second or subsequent offence, seven years;
(a.1) in any other case where a firearm is used in the commission of the offence, to imprisonment for life and to a minimum punishment of imprisonment for a term of four years; and
(b) in any other case, to imprisonment for life.

Subsequent offences
(2) In determining, for the purpose of paragraph (1)(a), whether a convicted person has committed a second or subsequent offence, if the person was earlier convicted of any of the following offences, that offence is to be considered as an earlier offence:

(a) an offence under this section;
(b) an offence under subsection 85(1) or (2) or section 244; or
(c) an offence under section 220, 236, 272 or 273, subsection 279(1) or section 279.1, 344 or 346 if a firearm was used in the commission of the offence.

However, an earlier offence shall not be taken into account if 10 years have elapsed between the day on which the person was convicted of the earlier offence and the day on which the person was convicted of the offence for which sentence is being imposed, not taking into account any time in custody.
Sequence of convictions only
(3) For the purposes of subsection (2), the only question to be considered is the sequence of convictions and no consideration shall be given to the sequence of commission of offences or whether any offence occurred before or after any conviction.
R.S., 1985, c. C-46, s. 239; 1995, c. 39, s. 143; 2008, c. 6, s. 16.


– CCC

Prior to July 2, 2008 amendments:

Attempt to commit murder
239. Every person who attempts by any means to commit murder is guilty of an indictable offence and liable

(a) where a firearm is used in the commission of the offence, to imprisonment for life and to a minimum punishment of imprisonment for a term of four years; and
(b) in any other case, to imprisonment for life.

R.S., 1985, c. C-46, s. 239; 1995, c. 39, s. 143.


– CCC

See Also

v • e
 
Violent Offences
Offences
v • e
 
Homicide
Offences / Sentencing
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