Canadian Criminal Sentencing/Offences/Attempted Murder
|s. 239 of the Crim. Code|
|Election / Plea|
|Jurisdiction||Prov. Court |
SC Judge + PI (I)
SC Jury + PI (I) (536(2))
|Minimum||10-30 years jail|
|Offence Elements |
Legislation[edit | edit source]
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.
R.S., 1985, c. C-46, s. 239; 1995, c. 39, s. 143; 2008, c. 6, s. 16; 2009, c. 22, s. 6.
Application[edit | edit source]
The primary consideration is denunciation and deterrence.
Where the attempted murder, in particular a shooting, occurred in a public place is an aggravating factor.
A serious gun offence where a person is wounded by a gun shot will range from 7 to 11 years. However, attempted murder with a firearm is in the range of 10 years to life regardless of the role played.
R. v. T.H.,  O.J. No. 5849 (S.C.J.), para. 24;
R. v. Situ,  O.J. No. 1990 (C.J.), para. 12;
R. v. Thompson,  O.J. No. 1109, (C.A.), paragraph 26);
R. v. Johnston,  N.S.J. No. 349 (S.C.), paragraph 46);
R. v. Clarke,  O.J. No. 325 (S.C.J.), 16 para.63
- R. v. Chanda,  O.J. No.
6315 (Ont. C. J.) at para. 6,7;
R. v. Melanson,  N.B. J. No. 140 (C.A.), para. 11;
R. v. Currie,  O.J. No. 2191 (C.A.), para. 83;
R. v. T.H.,  O.J. No. 5849 (Ont. C.J.), para. 31;
R. v. Gordon,  O.J. No. 724 (C.A.), para. 86;
R. v. Thompson,  O.J. No. 1109(C.A.), Para. 26;
R. v. Guedez-Infante,  O.J. No. 4351(C.A.), para. 5;
R. v. Clarke,  O.J. No. 325 (S.C.J.), para. 29;
R. v. Kipp,  B.C.J. No. 762 (S.C.), para. 81;
R. v. LeBlanc,  N.S.J. No. 490 (S.C.), para. 5, 24
- R. v. Bellissimo,  O.J. No. 179 (C.A.)
- R. v. Smith, 2011 NSSC 413 at 28