Attempted Murder (s. 239) Laws in Canada

What is “Attempted Murder” in Canada

Attempted murder is criminalized under section 239 of the Criminal Code of Canada. Attempted murder is a very serious offence and is, therefore, automatically prosecuted as a straight indictable offence (the more serious category of the two types of criminal offences in Canada). Attempted murder involves an intention to kill which is either interrupted or not followed through on. In other words, it is the incomplete or unsuccessful act of killing someone. As a principle adopted in a case called R v Henderson, 1947 CanLII 370 (BCCA), “… if the actual transaction has commenced which would have ended in the crime if not interrupted, there is clearly an attempt to commit the crime.”

Examples

Some examples of attempted murder could include:

• Shooting someone with a firearm yet the victim survives
• Pointing a loaded firearm at someone
• Showing up at a residence with a plan in place to kill someone
• Stabbing someone continuously yet the victim survives
• Relentlessly beating someone or attacking someone physically yet the victim survives
• Poisoning someone with an amount of poison understood to normally be lethal and yet the victim survives

There are many ways in which an attempted murder could be carried out and this is not an exhaustive list.

Defences  

A strong defence to a charge of attempted murder will depend on the circumstances of one’s case.

However, some defences which are commonly asked about or referred to include:

• Lack of intent to kill (lack of mens rea)
• Self-Defence
• Applicable Charter Defences

These are all discussed in more detail under our “Attempted Murder Defences” heading here.

Punishment  

The maximum punishment for attempted murder is life imprisonment. If no weapon or a weapon besides a firearm is used there is no minimum penalty. In other words, the court may use its discretion in structuring an appropriate sentence. Where a restricted or prohibited firearm is used or the attempted murder is carried out in affiliation with a criminal organization, the minimum term of imprisonment is 5 years. This is unless this is a second offence of its kind for the offender, then the minimum penalty is 7 years imprisonment.

If a type of firearm is used which is neither restricted nor prohibited, the minimum sentence is 4 years imprisonment. This is all sanctioned under section 239(1) of the Criminal Code.

Overview of the Offence

According to section 239 of the Criminal Code:

For the Crown to prove attempted murder, the mens rea (the mental element or intent to commit the crime) must be proven alongside the actus reus (the actual act or attempt). Because without a clear intent and only an act, attempted murder is almost impossible to prove, the intent element is the most important aspect of the crime for which the Crown must demonstrate (see: R v Cline, ). While both the mens rea and the actus reus must be shown for a conviction, the mens rea demands ample attention and consideration in attempted murder cases. Both elements of the crime are discussed immediately below.

The Guilty Act (Actus Reus)

The actus reus of attempted murder need not be a crime itself or even a tort (an act for which civil liability could be assigned) [see: R v Cline, ]. The act itself must be more than mere preparation, but the act can be as simple as taking only one step further than preparation. If the actual act which is being identified as the ‘attempt’ is in and of itself ‘innocent’, evidence of similar acts being done before or after are admissible. Furthermore, the act does not need to cause any actual harm to constitute an attempt (see: R v Gordon, 2009 ONCA 170 (CanLII)).

As per R v Mantley, 2013 NSCA 16 (CanLII): “it is not necessary to be in a position to commit the murder to be convicted of attempted murder.” For example, in R v Goldberg, 2014 BCCA 313 (CanLII), both of the accused formed an intention to kill a woman. Each of the accused obtained a firearm and confronted her, pointing the firearm at her, but neither pulled the trigger at that time. Nevertheless, each was found guilty of attempted murder for having taken steps beyond mere preparation, to kill the intended target.

Where the evidence of intention is sufficiently clear, the court may find that going to the place of an intended offence suffices to prove an attempt (see: R v Byers, 2017 ONCA 639 (CanLII)). In a case called United States of America v Dynar, 1997 CanLII 359 (SCC), [1997] 2 SCR 462 (a Canadian case) it was noted that “a person may be convicted of attempt, even when completion of the criminal act was impossible at the time”. In accordance with section 229 of the Criminal Code, which defines murder, the attempt must be to “cause the death of a human being” or “cause him bodily harm which he knows is likely to cause his death”.

The Guilty Mind (Mens Rea)

The most important element for the Crown to prove in attempted murder cases is an “intent” to murder. This is not always a straightforward task for the Crown. The intent to murder on its own is not sufficient for an attempted murder conviction (see: R v Cline, ). Here, the Crown is tasked with proving a specific intent to kill. As discussed in The Queen v Ancio, 1984 CanLII 69 (SCC); [1984] 1 SCR 225, “a basic element of the offence of attempt is the attempt to commit the desired offence. Since the completed offence of murder involves a killing, the intention to commit the completed offence of murder must include an intention to kill”.

The prosecution need not prove that the purpose of the act was murder but must prove that the defendant either specifically intended to kill, or intended to do an act that he knew would virtually certainly wind up killing the victim. For example, in R v Boone, 2019 ONCA 652 (CanLII), the defendant contracted HIV. For sexual gratification, he sought to infect his sexual partners with the disease. His purpose — sexual gratification — did not negate an intention to kill. Despite transmitting the disease with the purpose of sexual gratification, sufficient intention to kill could be established because the defendant would have to have known that his acts would possibly or probably kill his sexual partners.

The Crown can draw inferences of an attempt based on certain facts. Although the prosecution must prove intent to kill beyond a reasonable doubt, a court may infer the accused’s intention to kill from the circumstances and the inference that a person intends the natural consequences of his or her actions. For example, the use of a firearm at close range implies an attempt to kill (see: R v Bains, 1985 CarswellOnt 1590, 7 OAC 67 (Ont CA)). The Crown must never confuse an inference for a presumption (see: R v Giannotti, 1956 CarswellOnt 11, 115 CCC 203, 23 CR 259 (ONCA)). To infer an intention does not assign automatic guilt and a strong defence attorney will hold the Crown accountable to this distinction.

Attempted Murder Defences 

The availability and strength of any defence depends entirely on the specific facts of one’s case. However, the following are some frequently referenced or frequently asked-about defences that may be used when fighting an attempted murder charge:

Lack of intent to kill (lack of mens rea)

As discussed above (see discussion here), the Crown must prove a specific intent to kill. Without evidence to support this contention beyond a reasonable doubt, there is no crime of attempted murder. It is not enough to show that the accused committed bodily harm that was likely to cause another person’s death or was reckless. Note: in cases where intent cannot be proven, but there is evidence supporting the fact an assault did occur, you could face more relevant criminal charges such as assault causing bodily harm (see our article on assault here).

Self-Defence

Self-defence is an available defence to an attempted murder charge.

The defence is statutorily embedded in the Criminal Code under section 34. Section 34(1) says that:

Parliament requires under section 34(2) of the Criminal Code, that the court consider an array of factors when adjudicating the plausibility of self-defence including but not limited to:

• the nature of the force or threat;
• the extent to which the use of force was imminent and whether there were other means available to respond to the potential use of force;
• whether any party to the incident used or threatened to use a weapon;
• the size, age, gender and physical capabilities of the parties to the incident;
• the nature and proportionality of the person’s response to the use or threat of force, etc.

As established in the case of R v Cuhna, 2016 ONCA 491 (CanLII), the section 34 test requires three elements:

1. Reasonable Belief: “the accused must reasonably believe that force or threat of force is being used against him or someone else”;
2. Defensive Purpose: “the subjective purpose for responding to the threat must be to protect oneself or others; and”
3. Reasonable Response: “the act committed must be objectively reasonable in the circumstances”.

Self-defence is a full justification for murder. It is to be considered in situations of “last resort” where a jury would accept that “the accused believed, on reasonable grounds, that his own safety and survival depended on killing the victim at that moment” (see: R v Cinous, 2002 SCC 29, [2002] 2 SCR 3).

Applicable Charter Defences

The Canadian Charter sets out your rights and freedoms before and after your arrest. If the police fail to abide by these rights, either deliberately or inadvertently, it could aid in your defence. If any of your Charter rights have been violated before or after your arrest, you may be able to have some or all of the evidence that the Crown is relying on to secure a conviction excluded under s.24(2) of the Charter. 

Attempted Murder Punishments

The maximum jail term for attempted murder is life. However, as per section 239 of the Criminal Code, different minimums apply depending on the weapon, the offence and the offender’s history.

Attempted murder with the use of a restricted or prohibited firearm, or in affiliation with a criminal organization

• 5 years minimum
• 7 years minimum if the second offence of this type

Attempted murder with a firearm

• 4 years minimum

Another type of weapon or no weapon

• No minimum

Sanctions for attempted murder convictions are not isolated to a term of imprisonment and can carry other potential dispositions in addition to a prison sentence or as an alternative.

Some of the other potential sentences for an attempted murder conviction might include:

• Fines including Victim Fine Surcharge (see: sections 734 and 737 of the Criminal Code).
• Firearms prohibition (see: section 109 of the Criminal Code). Note: The Crown, in instances where this is an offender’s second attempted murder offence, can deliver a notice to seek greater punishment as per section 727 of the Criminal Code before a plea of “guilty” or “not guilty” is entered. After conviction, the court must prohibit the offender “from possessing any firearm, cross-bow, restricted weapon, ammunition and explosive substance for life.
• Probation (see: section 731 of the Criminal Code).
• Victim Protection (see: sections 1(3)(a.1), 732.1(3)(h), 742.3(2)(a.3), 742.3(2)(f) and 743.21 of the Criminal Code). Note: When imposing a probation order or conditional sentence, the court may impose bans on communication with the complainant or other witnesses or persons, and prohibit the offender from attending to their residence(s), places of work, or worship. A court may also prohibit the offender from communicating with a victim, witness or other person during the custodial portion of the sentence.
• Taking of DNA Samples for the federal DNA databank (see: sections 04 and 487.051(1)). Note: because attempted murder is a primary designated offence under section 487.04 of the Criminal Code, after a conviction, the court must make an order for the taking of samples from the offender for the DNA databank.
• Weapons forfeiture (see: section 491 of the Criminal Code). Note: Weapons used in the commission of the offence should be ordered to be forfeited to the Crown unless the lawful owner satisfies the court of his or her innocence, and of lawful title.
• Restitution (see: sections 738 and 740 of the Criminal Code). Note: restitution may be ordered for damage to property during the commission of the offence, for medical treatment costs and other personal costs incidental to the attempted murder and evidence must establish the precise amount of the loss, or it must be easily ascertainable. The court should give restitution to victims priority over payment of fines.

Note that a person convicted of an attempted murder committed after December 1, 2007, is not eligible for a conditional sentence (see: section 742.1(c) of the Criminal Code).

Sentences for attempted murder are far-ranging and are imposed with regard for all of the mitigating and aggravating circumstances of the offence and the offender, as well as consideration for statutorily constructed mandatory minimums.

Frequently Asked Questions

Published Decisions