Canadian Criminal Law/Offences/Attempted Murder
|s. 239 of the Crim. Code|
|Election / Plea|
SC Judge + PI (I)
SC Jury + PI (I) (536(2))
|Minimum||0, 4, 5, or 7 years jail|
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.
(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.
Proof of the Offence
In addition to the essential elements of time, location, and identity, the prosecution should prove:
- 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
The mens rea required for attempted murder is that there must be a specific "intent to kill", not simply 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. There must be subjective foresight of the consequences of the accused's conduct.
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.
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".
- R. v. Ancio,  1 S.C.R. 225
R. v. Logan, Logan and Johnson,  2 S.C.R. 731
R. v. Reeves, 2012 BCCA 98 (CanLII) at para. 10 ("The Crown must prove the accused acted with subjective foresight of the consequences of his conduct. Objective foresight of the consequences will not suffice.")
- R. v. Roberts, 2006 SKQB 441 at para. 8
R. v. Ross, 2003 MBCA 70 conviction overturned
- R. v. J.M. (1995), 134 Nfld. & P.E.I.R. 161 (NFPC) acquitted because accused changed her mind
- R. v. Ancio,  1 S.C.R. 225 (SCC)
R. v. Logan,  S.C.J. No. 89 (SCC)
- for example:
R. v. A.D.Y. (1992), 11 B.C.A.C. 154 (CA)
- R. v. Walle, 2012 SCC 41 (CanLII) at para. 64 per Moldaver J.
Typical Motions and Orders