Attempted Murder (Offence)

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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

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 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));

Fingeprints and Photos

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

Offence(s)	Wiretap Eligible s. 183	Dangerous Offender Designated Offence s. 752	Serious Personal Injury Offence s. 752	AG Consent Required	Serious Criminality Offence s. 36 IRPA
s. 239 [attempted murder]		(Primary)

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

Interpretation of the Offence

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.

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.

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.

Mens Rea: Intent to Kill

The crown must prove a specific intent to kill at the time of the actions. Anything less 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.

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. 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".

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.

Included Offences

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

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

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". It is often ranked higher than the offence of manslaughter.

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

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". 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".

Objectives

The primary consideration is denunciation and deterrence.

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.

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

Hired Killings

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

Factors

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

Ranges

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.

Constitutionality

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

Order	Conviction	Description
DNA Orders	s. 239	For convictions under s. 239, as listed under s. 487.04(a), a DNA Order is mandatory as a primary designated offence under s. 487.051(1) regardless of Crown election.
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

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

• UK Sentencing Guidelines on Attempted Murder