- Understanding Attempted Murder Charges in Ontario
- Role of Firearms in Legal Enhancements
- Penalties and Sentencing
- Challenges in Prosecution and Defence
In Canadian criminal law, attempted murder with a firearm is considered as one of the most serious offences. While the offender is viewed by courts as a “lucky murderer” because their actions did not result in killing someone due to chance, the offence carries the same stigma as it is for the murder. Given this interpretation of attempted murder in Canada, it comes as no surprise that the penalties for this offence can be the most severe, especially when aggravated by the use of a firearm.
Recognizing the role of firearms in escalating crime, the government is taking additional steps to prevent gun crime and implementing a comprehensive plan to stop gun violence in Canada before it starts. Meanwhile, when a firearm is used with the intent to kill someone, the police and the Crown pursue enhanced charges, including minimum sentences. Below, we go into more detail about attempted murder with a weapon crime in Brampton, Ontario, applicable penalties and sentences, and discuss the challenges for prosecution and defence of this type of crime.
Understanding Attempted Murder Charges in Ontario
For someone to be accused of attempted murder in Ontario, there must be at least one step beyond mere preparation. For example, pointing a firearm with the hand in the trigger area can give rise to criminal charges. In addition, there must be a specific intent to kill, corroborated by evidence, for example, by the fact of discharging a firearm directed at someone’ vital area or the character of the wounds.
The offence of attempted murder is defined by Section 239 (1) of the Criminal Code. The Code defines specific consequences for various cases of attempted murder, including situations where a firearm is used in the commission of the offence.
Role of Firearms in Legal Enhancements
In Canada, using a firearm or its imitation when committing an offence is a separate charge, whether or not the perpetrator causes or means to cause bodily harm to anyone as a result. In such situations, the Criminal Code sets a separate penalty of up to 14 years of imprisonment according to Section 85. The sentence under Section 85 is to be served consecutively to any other punishment arising out of the same criminal situation.
At the same time, the offence of attempted murder is one of several crimes defined by the Criminal Code where using a firearm already attracts a minimum punishment. Additionally, the criminal law holds that the inclusion of the phrase “while using a firearm” in the description of attempted murder does not lead to the particularization of the offence. Based on these conditions, the position of the courts is that the use of a firearm for the commission of an offence is generally not an included offence in attempted murder cases and does not give rise to new or additional charges for firearms.
Penalties and Sentencing
The maximum penalty for attempted murder in Brampton, Ontario, is life in prison. Meanwhile, the Criminal Code also sets minimum sentences depending on the circumstances of the offence:
- four years in cases where a non-restricted firearm was used,
- five years for the first offence involving a restricted or prohibited firearm or any firearms in connection with a criminal organization,
- seven years for second and subsequent offences involving restricted or prohibited firearms or any firearms used in connection with a criminal organization.
A sentence for attempted murder with a firearm is followed by a mandatory weapon prohibition order and DNA order, where the offender’s DNA should be lodged with the National DNA Data Bank. Additionally, the conviction for attempted murder with a gun results in a criminal record, which can be considered for a record suspension 10 years after completion of the sentence.
Challenges in Prosecution and Defence
When the prosecution brings the charges for attempted murder involving a firearm, the Crown attorneys need to prove, among others, the following elements of the offence:
- identity of the accused, date and time of the incident,
- place of the offence,
- the firearm used in the commission of the offence,
- injuries sustained by the victim,
- presence of intent to kill.
The presence of intent to kill someone is central to proving attempted murder. Meanwhile, for the charges under Section 239 of the Criminal Code to result in a conviction, it is not enough to prove intent to harm the victim with the consequences that could lead to death. Similarly, knowing about possible death consequences or being reckless about them is also not sufficient to prove intent. Instead, the prosecution needs to prove that the accused intended the natural and obvious consequences of their actions, which is to kill the victim.
In this context, the defence has several paths to challenge the charges. In the first place, a criminal defence lawyer can challenge the admissibility of a firearm and other evidence and check whether the accused’s Charter rights were observed during the investigation and arrest. The defence can raise doubt on the presence of intent to kill someone with the potential of reducing the charges to a lesser offence. Finally, a criminal lawyer may raise the defenсe of acting in self-defence depending on the individual circumstances of attempted murder cases.
Conclusion
In Canada, the offence of attempted murder with a firearm is considered more serious than manslaughter due to the presence of intent to kill someone and can result in harsh penalties. With a 4-year minimum attempted murder sentence for cases involving a firearm and a maximum of life in prison, these charges call for the early involvement of criminal lawyers and a personalized legal defence strategy.
Vilkhov Law’s criminal defence lawyer in Brampton advocates for clients facing all types of gun charges in Ontario and the Greater Toronto Area, including cases involving attempted murder with a firearm and assault with a weapon. For more information, please do not hesitate to contact Vilkhov Law criminal defence team to schedule a free initial consultation.
