Attempted Murder Charges in Canada Explained

May 31, 2021

Attempted murder is among the most serious offences in the Criminal Code. In this post, we’ll discuss how attempted murder is proven in court and the sentencing and mitigating or aggravating circumstances of a charge. 

The Legal Definition of Attempted Murder in Canada

Essentially, attempted murder is the failed attempt to commit murder. Like 1st and 2nd degree murder, the Crown must prove that there was a specific intention to harm another person as well as the means and direct action taken to do it. 

Attempted murder is an indictable offence where the accused must begin at least one of a series of acts intended to result in death. According to Criminal Code in Canada, it includes:  

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

Examples of Attempted Murder

You do not need to intend to commit the murder of a specific person to be charged with attempted murder, but instead, the charge is based on if you intended to commit the actions of the offence. Firing a loaded gun into a crowd of people can be considered attempted murder even if you are not aiming at a specific person. In some cases, depending on the circumstances, pointing a firearm at someone could be enough to charge you with attempted murder.

To be found guilty of attempted murder, the Crown must prove that there was a specific intent to commit murder and at least one step taken in the attempt beyond preparation. It can be challenging for the Crown to prove that someone intended to kill another person. 

Aggravating and Mitigating Factors and Sentencing Guidelines in Attempted Murder

Attempted murder is a serious indictable offence and comes with severe consequences. If a firearm is used in committing the crime or the accused is involved with a criminal organization, there are harsher penalties for sentencing in attempted murder. 

The maximum punishment for attempted murder is life imprisonment. 

There are mandatory minimum sentences of: 

  • five years for the first offence of attempted murder with a restricted firearm
  • seven years for a second offence
  • a five-year minimum if you are involved with a criminal organization using a firearm 
  • four years minimum for an offence using any other type of firearm. 

Legal Defences and Considerations

  • Intent to Kill: To be convicted of attempted murder, the Crown must prove that the accused had the specific intent to kill. It is not enough to show that the accused committed bodily harm that was likely to cause another person’s death or was reckless, as in a murder trial. 
  • Provocation: Provocation only applies to murder offences, but if the provocation caused the accused to have a mental state where they were unaware or unable to have the specific intent to kill, it could be used to defend an attempted murder charge.
  • Self-Defence: self-defence is also a legal defence in cases of attempted murder. According to the criminal code
  • 34 (1) A person is not guilty of an offence if
    • (a) they believe on reasonable grounds that force is being used against them or another person or that a threat of force is being made against them or another person;
    • (b) the act that constitutes the offence is committed for the purpose of defending or protecting themselves or the other person from that use or threat of force; and
    • (c) the act committed is reasonable in the circumstances.

Challenge of the Investigation Leading to Arrest

A charge of attempted murder is a very serious charge in Canada, and it will also involve a thorough police investigation. This investigation could include witness statements, documenting the scene, surveillance videos, cellular phone records and gathering DNA and weapons evidence. 

If they have enough evidence, the Crown will make a charge against the perpetrator. An experienced legal team can help during this initial investigation and help review the Crown’s case to determine the best legal defence. 

If you are facing charges of attempted murder, you need the help of an experienced criminal lawyer. William Jaksa is a criminal lawyer with over a decade of experience defending clients in Toronto. Contact Willam Jaksa today for a consultation on your case.

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