Attempted Murder Laws in Canada: Charges, Penalties, and Defences

In Canadian criminal law, few charges carry the weight and severity of attempted murder. This grave offence, rooted in the intent to take a life, comes with life-altering consequences for those convicted. Understanding the nuances of the law, the potential penalties, and the available defences is crucial for anyone facing such a serious accusation.

An experienced criminal defence lawyer can help navigate the intricacies of the law, protect your rights, and strive for the best possible outcome.

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What is Attempted Murder in Canada?

Under Section 239(1) of the Criminal Code of Canada, anyone who attempts by any means to commit murder is guilty of an indictable offence. Unlike other offences, attempted murder is always prosecuted as a straight indictable offence, reflecting its severity and the substantial penalties that can follow a conviction.

The concept of attempted murder hinges on the intention to kill.  For an attempted murder conviction, it is not enough that the accused engaged in dangerous behaviour or merely intended to cause bodily harm that could lead to death. There must be a demonstrable intent to end a life. This principle was underscored in the case of R v Henderson, which illustrated that for a conviction of attempted murder, the Crown must prove beyond a reasonable doubt that the accused intended to cause death.

Examples of Attempted Murder:

• Firing a gun at someone with the intention of killing them.
• Driving a vehicle into a crowd with the aim of causing fatalities.
• Stabbing someone in a manner that demonstrates an intent to cause death, e.g. repeatedly in the chest.
• Poisoning someone with a lethal amount of poison, but the victim survives. 

Preparation vs Actual Attempt

It’s crucial to differentiate between mere preparation and an actual attempt. This distinction is important for legal liability. The criminal charge of attempted murder begins once the preparation is complete, and the accused starts taking the action(s) intended to cause death. 

This distinction is essential because the legal threshold for what constitutes an attempt is higher than for preparatory acts. For example, researching different poisons or creating a detailed plan to harm someone would generally fall under the category of preparation. However, actively administering the poison to the intended victim, or lying in wait to ambush them with a weapon, crosses the line into an attempted murder.

What Are The Sentences and Penalties for Attempted Murder?

The penalties for attempted murder in Canada are severe, with sentences varying based on several factors, including the use of a firearm, whether it is a first or subsequent offence and other specific circumstances outlined in Section 239(1) of the Criminal Code.

The maximum sentence for attempted murder is life imprisonment. Minimum sentences range from four to seven years. However, for individuals with prior convictions for certain serious offences within the past ten years, the minimum sentence can rise to seven years.

These penalties highlight the importance of securing experienced legal representation when facing such charges.

Aggravating Factors and Prior Convictions

When determining the sentence for attempted murder, the presence of aggravating factors can significantly influence the severity of the penalties imposed.

Use of a Firearm

One of the primary aggravating factors is the use of a firearm. If a firearm is involved in the commission of the offence, the mandatory minimum sentence increases to four years. The situation becomes even more severe if a restricted or prohibited firearm is used, particularly in connection with organised crime, raising the mandatory minimum sentence to five years.

Impact of Prior Convictions 

The accused’s criminal history also affects the sentencing for attempted murder. Specifically, if the accused has a prior conviction for certain serious offences as listed in subsection 239(2) within the past ten years, the minimum sentence for attempted murder increases to seven years. These offences include:

• Previous attempted murder
• Various firearm-related crimes
• Causing death through criminal negligence
• Aggravated sexual assault
• Kidnapping
• Trafficking in persons
• Robbery
• Extortion

These factors underscore the stringent approach taken by Canadian courts towards repeated serious offences, reflecting a heightened need for deterrence and public protection.

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What Must the Crown Prove for an Attempted Murder Conviction?

To secure a conviction for attempted murder, the Crown must prove both the actus reus (the guilty act) and the mens rea (the guilty mind). The burden of proving these elements rests solely on the Crown.

Actus Reus (The Guilty Act)

The actus reus for attempted murder involves the actions you took to carry out that intent. The Crown needs to prove you went beyond mere thoughts or planning and took a substantial step towards committing the murder.

It’s important to note that simply buying a weapon or researching murder methods might not be enough to constitute actus reus for attempted murder. The actions have to be close enough to the intended crime to show you were seriously trying to commit it. For example, actions such as firing a gun at someone, stabbing them with intent to kill, or setting a deadly trap move into the realm of an attempt.

Mens Rea (The Guilty Mind)

The mens rea for attempted murder requires the Crown to prove that the accused had a specific intent to kill. The prosecution must show that the defendant either had a direct intention to kill or performed an act knowing it would almost certainly result in death. For example, aiming a gun at someone’s head and pulling the trigger, or deliberately stabbing someone in the chest, would typically demonstrate the necessary intent to kill.

How to Defend Against Attempted Murder Charges?

Successfully defending against a charge of attempted murder in Toronto requires a robust and well-strategized approach, grounded in the particulars of the case and the applicable legal principles. Several common defences can be considered, namely:

Lack of Intent (mens rea) to Kill

One of the primary defences against an attempted murder charge is demonstrating a lack of intent to kill. To secure a conviction, the Crown must prove beyond a reasonable doubt that the accused had the specific intent to cause death. 

If the defence can successfully argue that the accused’s actions, even if dangerous or harmful, lacked a clear intention to kill, the attempted murder charge may not be sustained. For example, inflicting bodily harm without aiming to cause death could be a key factor in undermining the Crown’s case.

Lack of Actus Reus

For an attempted murder charge, the accused’s actions must go beyond mere preparation and constitute a substantial step towards committing the crime. A defence could argue that the actions taken did not meet this threshold.

For example, if the accused acquired a weapon but did not use it or take any overt steps to commit the murder, the defence could argue that the actions were preparatory rather than an attempt.

Self-Defence

Self-defence is a significant and potentially exculpatory defence against charges of attempted murder. To successfully claim self-defence, the accused must demonstrate the following criteria under Section 34(1):

1. Reasonable Belief of Threat: The accused believed, on reasonable grounds, that force was being used or threatened against them or another person.
2. Purpose of Defence: The act was committed with the purpose of defending or protecting themselves or another person from the use or threat of force.
3. Reasonableness of the Act: The act was reasonable under the circumstances.

When evaluating a self-defence claim, courts consider several factors as outlined in Section 34(2):

• Nature of the Threat: The extent and immediacy of the threat faced by the accused.
• Proportionality of the Response: Whether the accused’s response was proportionate to the threat. Excessive force that exceeds what is necessary for protection may weaken a self-defence claim.
• Use of Weapons: Whether weapons were used and if their use was justified given the circumstances.
• Physical Capabilities: The relative physical capabilities of the accused and the assailant.
• Previous Interactions: Any prior interactions or history between the parties involved.

By proving that their actions were justified as self-defence, the accused can argue that they did not intend to commit murder but were instead acting to protect themselves or others from harm. 

Provocation

Provocation can serve as a defence to reduce the severity of charges by demonstrating that the accused was provoked to a degree that caused them to temporarily lose self-control. While provocation is not a complete defence that can lead to an outright acquittal of attempted murder charges, if successfully argued, it can potentially reduce the charge to a lesser offence, such as manslaughter.

This defence hinges on demonstrating that the provocation was significant enough to overwhelm the accused’s ability to maintain self-control, leading them to commit acts they otherwise would not have committed.

Violation of Charter Rights

A violation of Charter rights can be a powerful defence against attempted murder charges. The Canadian Charter of Rights and Freedoms protects individuals’ rights before and after arrest, and any breach of these rights by law enforcement can impact the admissibility of evidence and the overall strength of the Crown’s case.

Key Charter rights relevant to criminal defence include:

• Right to Legal Counsel: Under Section 10(b) of the Charter, an individual has the right to retain and instruct counsel without delay upon arrest or detention. If the accused was denied access to legal counsel or was not informed of this right, it could constitute a violation.
• Right to be Informed of the Reasons for Arrest: Section 10(a) ensures that individuals are promptly informed of the reasons for their arrest or detention. Failure to do so can impact the legality of the arrest.
• Right to Silence: Section 7 of the Charter protects the right to silence. Any evidence obtained through coercion or without proper legal warnings (similar to the Miranda warning in the U.S.) may be inadmissible.
• Protection Against Unreasonable Search and Seizure: Section 8 protects against unreasonable search and seizure. Evidence obtained through an illegal search may be excluded from trial.

If the defence can demonstrate that any of these Charter rights were violated, the accused’s legal team can file a motion under Section 24(2) of the Charter to exclude the evidence obtained as a result of these violations. This section states that evidence obtained in a manner that infringes on Charter rights should be excluded if admitting it would bring the administration of justice into disrepute.

At Pyzer, we meticulously examine both factual and legal elements when defending against attempted murder charges. We challenge the prosecution’s evidence on intent and action, present alternative explanations, and use available legal defences. This approach combined with our thorough investigation, strategic use of expert testimony, and application of relevant legal precedents ensures that we can fight for the best possible outcome for our clients.

How to Secure Bail for Attempted Murder Charges?

Sections 515 and 516 of the Criminal Code of Canada guide the bail process and outline the procedures and considerations for bail hearings. Moreover, in Canada, everyone has a constitutional right to reasonable bail and cannot be denied bail without just cause. However, due to the serious nature of attempted murder charges, the Crown will likely contest the accused’s release, arguing that detention is necessary to ensure public safety, prevent flight risk, or maintain confidence in the administration of justice.

At the bail hearing, the defence lawyer will address the prosecution’s arguments and present evidence to demonstrate that detention is not justified. Factors the court will consider when determining bail include:

• The Severity of the Charges: The serious nature of attempted murder necessitates careful consideration of the risks associated with releasing the accused.
• Criminal History: The accused’s prior criminal record, especially any history of violent offences, will impact the bail decision.
• Community Ties: Strong ties to the community, such as stable employment, family connections, and residence, can support a bail application.
• Sureties: Individuals who are willing to supervise the accused and ensure compliance with bail conditions can play a pivotal role in securing bail. The court will assess the reliability and financial stability of proposed sureties.
• Bail Conditions: The defence may propose stringent bail conditions to mitigate perceived risks. Potential conditions include house arrest, electronic monitoring, mandatory counselling, no-contact orders with the victim, and regular reporting to authorities.

Obtaining bail for attempted murder charges is undoubtedly challenging, but with a well-prepared defence and the presentation of compelling evidence, it is possible to secure release under reasonable conditions. Engaging an experienced criminal defence lawyer early in the process is critical to navigating the complexities of bail hearings and maximising the chances of securing bail.

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Contact an Experienced Criminal Lawyer

Attempted murder is an extremely serious criminal offence with potentially life-altering consequences. If you or someone you know is facing attempted murder charges, it is imperative to seek the advice of an experienced criminal defence lawyer as soon as possible.

Pyzer Criminal Lawyers is dedicated to providing the highest-quality legal representation. Our team of skilled defence lawyers has extensive experience handling complex and serious criminal cases, including attempted murder. We understand the gravity of such charges and are committed to vigorously defending our client’s rights and achieving the best possible outcome, given the particulars of each case.