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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.
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:
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.
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.
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:
These factors underscore the stringent approach taken by Canadian courts towards repeated serious offences, reflecting a heightened need for deterrence and public protection.
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.
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.
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.
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:
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.
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 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):
When evaluating a self-defence claim, courts consider several factors as outlined in Section 34(2):
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 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.
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:
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.
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:
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.
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.
