Attempted Murder

Attempted murder covers instances when someone actively tries to carry out a plan to commit a murder. It doesn't matter if the person escaped injury in the attack; your intention to take their life is enough for this charge to be laid under s.239 (1) of the Criminal Code. You do not have to harm someone to be convicted of attempted murder. If you fire a gun at someone with the intention of killing them and miss you can still be charged.

To win a conviction for attempted murder, the Crown must prove that you had the specific intent to kill. It is not enough to prove that you caused bodily harm that was likely to cause death, or that you acted recklessly. The evidence must show an actual intent to kill.

One example is the Supreme Court of Canada case R. v. Ancio. Ancio went to the apartment where his estranged wife was living with another man. He had a loaded shotgun. A struggle followed and the gun discharged, but the shot missed. Ancio was convicted of attempted murder at trial. The Ontario Court of Appeal set aside the conviction and ordered a new trial. The Supreme Court of Canada dismissed the Crown's appeal and confirmed that attempted murder requires proof of a specific intent to kill.

Several legal issues can matter in an attempted murder case.

self-defenceA defence involving force used to protect against force or threat. may be relevant under s.34 of the Criminal Code if the accused acted to protect themselves or another person from force, and the response was reasonable in the circumstances.

Intent is often central. If the Crown cannot prove beyond a reasonable doubtThe high standard the Crown must meet to prove guilt. that the accused meant to kill, attempted murder is not made out.

Mental disorder may also be relevant under s.16 of the Criminal Code if, because of a mental disorder, the accused could not appreciate the nature and quality of the act or could not know that it was wrong.

Charter issues may also matter if the arrest or police investigation violated the accused's rights and affected the evidence.

Provocation is not a defence to attempted murder. Under s.232 of the Criminal Code, provocation applies only to culpable homicide that would otherwise be murder. It can reduce murder to manslaughter, but it does not apply to attempted murder.

Attempted murder under s.239 is an indictable offenceA more serious type of Canadian criminal offence. by law. There is no summary convictionLess-serious criminal offences option. Indictable offences are the most serious category of criminal charge, and you can be imprisoned if convicted.

The maximum penalty for attempted murder is life in prison. This is the same maximum as for a murder conviction. However, the two offences are not treated identically at sentencing. A murder conviction always results in a sentence of life imprisonment, with no possibility of parole for 25 years (first degree) or 10 to 25 years (second degree). Attempted murder carries no such automatic life sentence. Outside the firearm rules described below, the length of the sentence is left to the judge's discretion, up to the life maximum.

Mandatory minimum sentences for attempted murder:

Five years for a first offence where a restricted or prohibited firearm is used, or where any firearm is used in connection with a criminal organization. Seven years for a second or subsequent offence in those same circumstances. Four years for a first or subsequent offence using any other type of firearm.

Where no firearm is involved, there is no mandatory minimum sentence, though life imprisonment remains the maximum.

A conviction will stay on your criminal record for life, which could have a significant impact on your future.

Attempted murder is charged directly under s. 239. It is a stand-alone offence provision with its own punishment ladder. The general attempt-punishment rule in s. 463 does not apply because s. 239 expressly provides the punishment.