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Criminal - Sentencing - Attempted Murder

. R. v. Cunningham

In R. v. Cunningham (Ont CA, 2023) the Court of Appeal considered factors relevant to sentencing for attempted murder:
Primary sentencing objectives

[23] The primary sentencing objectives of attempted murder are denunciation and deterrence. These objectives address the moral blameworthiness inherent in the conviction.

[24] The moral blameworthiness for attempted murder is the same as for murder, because a conviction of either requires the same mens rea. The fact that the victim did not die was not due to any action on the part of the perpetrator who intended her death. As Doherty J.A. stated in R. v. McArthur (2004), 2004 CanLII 8759 (ON CA), 182 C.C.C. (3d) 230 (Ont. C.A.), at para. 47:
The moral culpability of the attempted murderer is at least equal to that of a murderer. He or she avoids a murder conviction and the automatic sentence of life imprisonment not because of any mitigating factor, but because through good fortune, the victim was not killed.
[25] The sentence must reflect this gravity. Even though there is no automatic life sentence for attempted murder, “the offence is punishable by life and the usual penalty is severe”: R. v. Logan, 1990 CanLII 84 (SCC), [1990] 2 S.C.R. 731, at p. 743.

[26] In a domestic context, the objectives of denunciation and deterrence gain added significance and require heightened attention to the moral blameworthiness of the offender. The sentence must reflect the individual harm to the victim and the court’s response to the heinous effects of domestic violence.

[27] With respect to victims, courts have recognized that victims of intimate partner violence are in a position of trust and vulnerability with the perpetrator.[3] In R. v. Boucher (2004), 2004 CanLII 17719 (ON CA), 186 C.C.C. (3d) 479 (Ont. C.A.), at para. 27, Simmons J.A., speaking for the court, said:
… this court has repeatedly emphasized that the principles of denunciation and deterrence are of paramount importance in cases involving domestic violence … the sentences imposed in cases involving domestic violence must be such that they will foster an environment in which individuals can feel free to leave romantic relationships without fear of harassment or harm, and without fear of violence aimed at forcing a return to a no longer wanted relationship …

It follows that the principles of general and specific deterrence must be the overriding considerations in the determination of the sentence in this case. Those principles demand a very heavy sentence… [Emphasis added.]
[28] More recently, in R. v. Kormendy, 2019 ONCA 676, 147 O.R. (3d) 701, Feldman J.A. spoke of the importance of the principles of denunciation and deterrence in cases of attempted murder in a domestic context. At para. 28, she noted that “[w]hile every attempted murder is a most serious crime, attempted murders in the domestic context are particularly heinous”.

[29] This court has continually emphasized that denunciation and deterrence are the paramount sentencing objectives for attempted murder in the domestic context: see R. v. Huff, 2012 ONCA 86, 99 W.C.B. (2d) 608, at para. 18; R. v. Vienneau, 2015 ONCA 898, 126 W.C.B. (2d) 524, at para. 14.


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