Attempted Murder Lawyer In Toronto

Mississauga, Brampton and Newmarket Attempted Murder Lawyer

Commonly Asked Questions

What is attempted murder?
What is the sentence for attempted murder?
Are there mandatory minimum sentences that apply?
What aggravating factors affect the sentence?
If the sentence is imprisonment for life, what is the parole ineligibility period?
What is a firearm?
What is a criminal organization?
What is the defence for attempted murder?
What are my Charter rights?
Can the Charter help my defence?
Can I get assistance from Legal Aid Ontario for my case?

If you are facing a charge of attempted murder, you need the best defence possible. A conviction for attempted murder will be completely life-altering. If you are under investigation for attempted murder, or believe that you may be charged in connection with an attempted murder, you should call my office immediately.

I have more than 38 years of experience defending clients in high-stakes attempted murder cases. My approach in these matters is proactive and thorough. I fully investigate the events, with the help of experts in forensics, ballistics and other fields if necessary. My practice is built on defending against serious charges and there are few more serious than attempted murder. I prepare every case as if it is going to trial. I am ready to meet with you and begin building your defence.

If your case requires a jury trial, I have the necessary experience, advocacy skill and confidence to convincingly argue your case to the jury.

Call Defence Lawyer Anthony De Marco For A Free Consultation

Contact my Toronto, Ontario, office today to discuss your attempted murder case. I offer a free 30-minute consultation. For your convenience, I offer reasonable payment plans. I also accept Legal Aid in most cases. You can reach me by phone at our office or toll free at 1-888-399-3164 or by e-mail.

What Is Attempted Murder?

The offence of attempted murder is set out in Section 239 of the Criminal Code of Canada which reads as follows:

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.

(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.

What Is The Sentence For Attempted Murder?

A conviction for attempted murder carries a maximum possible sentence of imprisonment for life, and, if committed with a restricted or prohibited firearm in connection with organized crime, a minimum mandatory sentence of 5 years in prison, or, if committed with any type of firearm, a minimum sentence of 4 years in prison.

If the sentence is imprisonment for life, the accused will be eligible to apply for parole after 7 years imprisonment.

What Aggravating Factors Will Affect The Sentence?

The use of a firearm will result in a mandatory minimum sentence of 4 years in prison. If the firearm is a prohibited or restricted firearm and if the offence is committed for the benefit of, at the direction of, or in association with, a criminal organization, the mandatory minimum sentence will be 5 years in prison.

If an accused is convicted of attempted murder and has a prior conviction for any of the offences listed in subsection 239(2), the accused will be subject to a mandatory minimum sentence of 7 years provided that 10 years have not elapsed between the day on which the accused was convicted of the earlier offence and the day on which the accused is convicted of the subsequent offence.

What Is The Defence For Attempted Murder?

The offence of attempted murder requires the prosecution to prove that the accused had the specific intent to kill. Unlike the offence of murder, the intent to cause another person bodily harm that the accused knows is likely to cause that other person’s death, and is reckless whether death ensues or not, will not be sufficient to sustain a conviction for attempted murder. This principle was established by the Supreme Court of Canada in R. v. Ancio, [1984] S.C.J. No. 12 (S.C.C.).

Also, what is known as the doctrine of transferred intent, which is set out in subsection 229(b) with respect to murder, does not apply to attempted murder. Accordingly, if an accused intended to kill a certain person and, by accident or mistake, injured but did not kill a by-stander, the accused will not be guilty of attempted murder although it would have been murder under subsection 229(b) if the by-stander had died.

Although provocation is not a defence to attempted murder, since the defence of provocation only applies to the offence of murder, provocation may result in the accused having a mental state not sufficient to constitute the specific intent to kill which is required for attempted murder.

Self-Defence

Self-defence may be a defence to attempted murder. Section 34 of the Criminal Code of Canada provides as follows:

34 (1) A person is not guilty of an offence if
- (a) they believe on reasonable grounds that force is being used against them or another person or that a threat of force is being made against them or another person;
- (b) the act that constitutes the offence is committed for the purpose of defending or protecting themselves or the other person from that use or threat of force; and
- (c) the act committed is reasonable in the circumstances.
(2) In determining whether the act committed is reasonable in the circumstances, the court shall consider the relevant circumstances of the person, the other parties and the act, including, but not limited to, the following factors:
- (a) the nature of the force or threat;
- (b) the extent to which the use of force was imminent and whether there were other means available to respond to the potential use of force;
- (c) the person’s role in the incident;
- (d) whether any party to the incident used or threatened to use a weapon;
- (e) the size, age, gender and physical capabilities of the parties to the incident;
- (f) the nature, duration and history of any relationship between the parties to the incident, including any prior use or threat of force and the nature of that force or threat;
  - (f.1) any history of interaction or communication between the parties to the incident;
- (g) the nature and proportionality of the person’s response to the use or threat of force; and
- (h) whether the act committed was in response to a use or threat of force that the person knew was lawful.

(3) Subsection (1) does not apply if the force is used or threatened by another person for the purpose of doing something that they are required or authorized by law to do in the administration or enforcement of the law, unless the person who commits the act that constitutes the offence believes on reasonable grounds that the other person is acting unlawfully.

What Is A Firearm?

A firearm is defined as follows in Section 2 of the Criminal Code of Canada:

Firearm means

A barrelled weapon from which any shot, bullet or other projectile can be discharged and that is capable of causing serious bodily injury or death to a person, and includes any frame or receiver of such a barrelled weapon and anything that can be adapted for use as a firearm.

An air pistol may be found to be a firearm if the air pistol is able to fire a projectile at a high feet per second velocity, provided that the projectile is capable of causing serious bodily injury to or death of a person.

What Is A Prohibited Firearm?

A prohibited firearm is defined as follows in Section 84(1) of the Criminal Code of Canada:

Prohibited Firearm means

(a) a handgun that
- (i) has a barrel equal to or less than 105 mm in length, or
- (ii) is designed or adapted to discharge a 25 or 32 calibre cartridge,but does not include any such handgun that is prescribed, where the handgun is for use in international sporting competitions governed by the rules of the International Shooting Union,
(b) a firearm that is adapted from a rifle or shotgun, whether by sawing, cutting or any other alteration, and that, as so adapted,
- (i) is less than 660 mm in length, or
- (ii) is 660 mm or greater in length and has a barrel less than 457 mm in length,
(c) an automatic firearm, whether or not it has been altered to discharge only one projectile with one pressure of the trigger, or
(d) any firearm that is prescribed to be a prohibited firearm.

What Is A Restricted Firearm?

A restricted firearm is defined as follows in Section 84(1) of the Criminal Code of Canada:

Restricted Firearm means

(a) a handgun that is not a prohibited firearm,
(b) a firearm that
- (i) is not a prohibited firearm,
- (ii) has a barrel less than 470 mm in length, and
- (iii) is capable of discharging centre-fire ammunition in a semi-automatic manner,
(c) a firearm that is designed or adapted to be fired when reduced to a length of less than 660 mm by folding, telescoping or otherwise, or
(d) a firearm of any other kind that is prescribed to be a restricted firearm.

What Is A Criminal Organization?

Section 467.1 of the Criminal Code of Canada provides as follows:

467.1 (1) The following definitions apply in this Act.
- Criminal organization means a group, however organized, that
- (a) is composed of three or more persons in or outside Canada; and
- (b) has as one of its main purposes or main activities the facilitation or commission of one or more serious offences that, if committed, would likely result in the direct or indirect receipt of a material benefit, including a financial benefit, by the group or by any of the persons who constitute the group.
- It does not include a group of persons that forms randomly for the immediate commission of a single offence.
- Serious offence means an indictable offence under this or any other Act of Parliament for which the maximum punishment is imprisonment for five years or more, or another offence that is prescribed by regulation.
(2) For the purposes of this section, section 467.11 and 467.111, facilitation of an offence does not require knowledge of a particular offence the commission of which is facilitated, or that an offence actually be committed.
(3) In this section and in sections 467.11 to 467.13, committing an offence means being a party to it or counselling any person to be a party to it.
(4) The Governor in Council may make regulations prescribing offences that are included in the definition serious offence in subsection (1).

DNA And Other Forensic Evidence

Forensic evidence, such as DNA evidence, is just one type of evidence that the Crown can try to introduce against a person accused of a crime. The defence can challenge the admissibility of forensic evidence on the basis of relevance, prejudice or that there is a lack of a sufficient scientific foundation to make the evidence reliable and worthy of being admitted, in other words, the forensic evidence is inadmissible because it is based on “junk science”.

Over the years, there have been several types of forensic evidence that have been rejected by the courts in the United States and, to a lesser extent, Canada, including voice print identification, comparative bullet lead analysis and several indicators of arson dependent on visual cues.

Likewise, there are various other types of forensic evidence which are possibly unreliable, such as microscopic hair comparison, and “pattern comparison” evidence such as bite marks, tire marks and handwriting.

Even in cases where the forensic evidence is ruled admissible, the defence can still try to weaken the impact of the evidence by arguing, for example, that the results of the forensic testing were the subject of “motivated perception”. In other words, the scientist who did the testing interpreted the results so as to support his or her expectations or the expectations of the police or Crown prosecutors. The defence can argue, or call evidence to show, that the forensic examiner should have first tested the evidence blindly without knowing anything about the case in order to avoid a subconscious bias. Studies have shown that even the opinion of fingerprint analysts can be affected by the analysts’ preconceived notions about the case. Also, there is always a risk of a false positive. Moreover, if the laboratory that completed the testing, such as the Centre of Forensic Sciences, is known to have made errors on occasion in the past, the defence can argue that the error rates should also be entered in evidence.

In appropriate cases, and where funds permit, the evidence can be re-tested by an independent laboratory for verification.

A good defence lawyer should know the weaknesses of specific scientific techniques or seek out an appropriate defence consulting expert to learn about and present evidence regarding those weaknesses.

**Pre-Trial Charter Applications**

Often, the best defence to a criminal charge involves a challenge to the investigation that resulted in the arrest of the accused or the collection of evidence against the accused. The police are not allowed to breach the rights that are guaranteed to the accused by the Canadian Charter of Rights and Freedoms.

I will investigate any possible Charter breaches by carefully reviewing the Crown disclosure documents, including the documents used by the police to obtain search warrants for the home, car or other property of the accused, and the documents used by the police to obtain production orders, such as for cell phone records and wiretap authorizations.

If I detect any violation of the Charter rights of the accused or violation of acceptable investigative procedures established by the courts, I will proceed with an application asking for the exclusion of evidence from the trial of the accused obtained illegally by the police, including the statements of the accused and other evidence seized during the investigation.

I have an established reputation for success in pre-trial applications. Winning a Charter application will result in the exclusion of evidence if the court determines that not excluding the evidence will bring the administration of justice into disrepute. The exclusion of evidence often results in a finding of not guilty if the Crown’s remaining evidence is insufficient to prove that the accused committed the offence beyond a reasonable doubt.

I have the necessary experience, research skills, writing skills, and advocacy skills to prepare and effectively argue pre-trial Charter applications. The value of legal writing skills cannot be overstated since proceeding with pre-trial Charter applications will require the preparation of several documents including a Notice of Application, an Affidavit, and a Factum setting out the relevant facts and summarizing the relevant case law.

Proceeding With A Preliminary Inquiry

In cases in which a Defendant is exposed to a possible period of 14 years or more in jail, the Defendant will have the right to proceed with a preliminary inquiry in the Ontario Court of Justice and then a trial in the Superior Court of Justice before a court composed of a Judge sitting with a jury or without a jury. In the past, this level of court was referred to as “High Court”.

At a preliminary inquiry, the Crown is required to call some evidence upon which a properly instructed jury, acting reasonably, may return a verdict of guilt. This is an easy test for the Crown to meet in the vast majority of cases. Accordingly, it is relatively rare for someone who proceeds with a preliminary inquiry to be discharged with respect to all of the charges which he or she is facing. The real value in having a preliminary inquiry is not in the hope of being entirely discharged, thereby bringing the entire criminal proceedings to an end, but in being able to better prepare the case for trial. The defence lawyer will have an opportunity to cross-examine and test the evidence of the primary Crown witnesses. An experienced and skilled defence lawyer can discover the strengths and weaknesses of the Crown witnesses and commence building an effective defence strategy. A preliminary inquiry is especially valuable for the defence in cases involving young, infirm, unreliable or unsavory Crown witnesses.

Representing Clients Through Legal Aid

Legal Aid Ontario maintains an Extremely Serious Criminal Matters (ESCM) panel to which I have been admitted. ESCM lawyers must meet strict and demanding experience requirements before they are admitted to the panel.

If you or a friend or family member is charged with murder, manslaughter or attempted murder, the case will most likely qualify for Big Case Management, which means that I can negotiate with Legal Aid for a budget that will ensure an effective defence. More information on representing clients through Legal Aid is available here.

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