Attempts. -an attempt can be charged separately or be found as an included offence.

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1 Attempts Crim law: week 10 Section 24(1) of the Criminal Code Every one who, having an intent to commit an offence, does or omits to do anything for the purpose of carrying out the intention is guilty of an attempt to commit the offence whether or not it was possible under the circumstances to commit the offence. -an attempt can be charged separately or be found as an included offence. Analytical framework for attempts a. Identify the predicate offence (what was A allegedly trying to do?). b. Consider whether A had the requisite intention (Ancio, Sorrell & Bondett) c. Consider whether A s acts were more than merely preparatory (s. 24(2), Sorrell & Bondett) d. In Canada, there is no defence of legal or factual impossibility (Dynar). Predicate offence Section 24(1) refers to an offence and the offence. In Dynar 1997 SCC, the Court held unanimously that A cannot be convicted if s/he believes s/he is committing an offence, but that offence is not known to Canadian law (for example, importing sugar into Canada). Therefore, the first analytical task is to identify that A was trying to commit an offence that is known to Canadian law. Intention to complete the actus reus: R. v. Ancio 1984 SCC Issue: whether A can be convicted of attempted murder if the predicate offence is constructive murder. 1 (Remember that constructive murder has now been more broadly ruled unconstitutional: Martineau.) A broke into V s home, where A s estranged wife was living. V walked down the stairs to find A holding a shotgun. V threw a chair at A, the shotgun discharged and shot hit the jacket on the chair but did not hit V. A was charged with attempted murder, and the predicate offence was s [Remember that s. 230 does not require intention to kill or cause grievous bodily harm, knowing death is likely to ensue.] 1 See note on Constructive Murder at end of handout. 1

2 The issue more specifically: If death had occurred here, it would have been a constructive murder under the older version of s But from the standpoint of an attempt, can there be an intention to attempt an unintentional act without more? (14-3) Court of Appeal: the offence of attempted murder requires an intent to cause death or to cause bodily harm knowing it is likely to cause death, and being reckless as to whether it ensues. In this case, there was no specific finding to this effect. At the SCC: McIntyre J. (+6) Attempt is a separate and distinct offence from the predicate crime. Section 24 requires that A have an intent. The intention that A must possess to be convicted of an attempt is the specific intention to complete the actus reus of the predicate crime. Therefore, although the accused was charged here under the older version of 230, the predicate crime is attempted murder (not constructive murder: i.e., break and enter, causing bodily harm in the process, which may or may not ensue in death) [14-6]. Where an accused is charged with attempted murder (under the current 229 or 230), A must specifically intend to kill V. Recklessness or a lesser mens rea is not enough. Points to Glean: -an attempt is a complete and distinct offence from the predicate offence. -the requisite intent for attempt is an intention to commit the actus reus of a predicate offence. -the requisite intent for attempted murder is a specific (subjective) intent to kill. More than mere preparation to commit the actus reus: R v. Sorrell and Bondet 1978 OCA A(x2)(?) banged on the door of a chicken store. When the employee indicated they were closed, As gestured to one another in surprise, and walked away. One had a gun in his hand, both wore balaclavas and ski jackets, and one was wearing sunglasses. Police arrested Ax2 who had a gun and bullets, they were charged with attempted robbery. Issues: did the accused possess the requisite mens rea for attempt robbery, and did their actions satisfy the requisite actus reus for the offence of attempt robbery? Per curiam: TJ was not satisfied BRD that As possessed intention to commit robbery, and appeal court is bound by this finding of fact. Whether the accused had requisite intent for attempt is a question of fact; whether steps taken amount to more than mere preparation is a question of law. Re actus reus, the acts done by them clearly had advanced beyond mere preparation and were 2

3 sufficiently proximate to constitute an attempt. If TJ had concluded otherwise, he would have erred in law. Citing R. v. Cline, the court provides a clear test for actus reus of attempt: when the preparation to commit a crime is in fact fully complete and ended, the next step done by the accused for the purpose and with the intention of commiting a specific crime constitutes an actus reus sufficient in law to establish a criminal attempt to commit that crime. (14-8) (Thus without finding BRD that the accused possessed requisite intent, the TJ s error as to whether this went beyond mere preparation would not have affected the verdict of acquittal.) Questions raised and answered by this case: Q. If an accused has gone beyond mere preparation, is just about to commit an offence, but aborts mission at the very last minute, has she committed the requisite actus reus? A. Yes. Q. If an accused has gone beyond mere preparation, is just about to commit an offence, but aborts mission at the very last minute, can we infer that she lacked the mens rea for attempt? A. not necessarily. (Not what the OCA found here.) Defence of impossibility: USA v. Dynar 1997 SCC A agreed to launder money for US federal agents, who sought to extradite A on this charge. To extradite A, it was necessary to establish that the offence A is alleged to have committed in the US would also be an offence in Canada. Under Canadian law at the time, the offence of laundering money required knowing that it is the proceeds of crime; but in this case it was not. A argued that it was correspondingly not possible to attempt to commit the offence. Cory and Iacobucci JJ (+4) The elements of s. 24 are an intent to commit the completed offence plus an act that is more than merely preparatory in furtherance of the attempt. The question here is not whether the accused attempted to commit a crime that was factually impossible as opposed to legally impossible (i.e., one of the elements were missing), but whether he intended to commit a crime that was factually impossible as opposed to imaginary (e.g., importing sugar). Dynar attempted to do what was factually impossible (i.e., knowingly launder proceeds of crime), which is distinct from attempting to commit an imaginary crime (e.g., importing sugar) [ 59]. The 3

4 actus reus of attempt requires only the intent to complete what would be a crime and take sufficient steps towards its completion. The fact that in any given case, by chance, it would have been practically impossible to complete it in the circumstances is irrelevant for attempt. Major JJ (+2) On policy grounds and as a matter of statutory interpretation, it is not a criminal attempt to do an act which, if completed, would not form an offence in Canada. (In other words, the act in question here was not only factually but legally impossible; Dynar did not knowingly launder proceeds of crime; therefore it cannot be an attempt). Courts elsewhere have adopted the distinction between factual and legal impossibility on good grounds there is no victim of a nonoffence. If there is no offence there can be no attempt. [ 165] Parliament is bound by its choice of wording in the predicate offence and it is a matter for legislative amendment if parliament wishes to extend the reach of the laundering provision. Questions raised and answered by this case: Q. If you attempt to carry out an act, intentionally, which you mistakenly assume would satisfy the actus reus for an offence (importing sugar), are you guilty of attempt? A. No. (Imaginary offence.) Q. If you attempt to carry out an act, intentionally, which would constitute an offence (i.e., murder) but the complete offence could not be committed (i.e., the person was already dead), could you be convicted of attempt? A. Yes. (Because, regardless of whether it is legally impossible, the accused should not benefit from the fact that it is factually impossible; the offence lies in the intent to commit what would otherwise have been an offence.) 4

5 Note on Constructive Murder : Constructive murder is a term to describe to a form of homicide in which a death occurs where bodily harm is intentionally caused in the process of committing certain offences. What would otherwise be manslaughter is thus deemed murder if it occurs in the course of certain situations: 230. Culpable homicide is murder where a person causes the death of a human being while committing or attempting to commit high treason or treason or an offence mentioned in section 52 (sabotage), 76 (piratical acts), 76.1 (hijacking an aircraft), 132 or subsection 133(1) or sections 134 to 136 (escape or rescue from prison or lawful custody), section 246 (assaulting a police officer), section (sexual assault), (sexual assault with a weapon, threats to a third party or causing bodily harm), (aggravated sexual assault), 247 (kidnapping and forcible confinement), 302 (robbery), 306 (breaking and entering) or 389 or 390 (arson), whether or not the person means to cause death to any human being and whether or not he knows that death is likely to be caused to any human being, if (a) he means to cause bodily harm for the purpose of (i) facilitating the commission of the offence, or (ii) facilitating his flight after committing or attempting to commit the offence, and the death ensues from the bodily harm; The SCC in Martineau, 1990, found that this section violated section 7 and 11(d) of the Charter (without justification) because a conviction for murder requires nothing less than proof beyond a reasonable doubt of subjective foresight of death. Lamer J. in Martineau also addressed section 229(c): [at the time 212(c)]. That section read: Culpable homicide is murder where a person, for an unlawful object, does anything that he knows or ought to know is likely to cause death The fact that I have based my reasons on the principle of subjective foresight casts serious if not fatal doubt on the constitutionality of part of s. 212(c) of the Code, specifically the words "ought to know is likely to cause death". The validity of s. 212(c) of the Code has not been directly attacked in this appeal, but the Court has had the benefit of hearing argument from the Attorney General of Canada and from the Attorneys General for Alberta, British Columbia, Ontario, Quebec, and Manitoba, who chose to intervene, on the issue of whether subjective foresight or objective foreseeability of death is the constitutionally required minimum mens rea for murder. In my view, subjective foresight of death must be proven beyond a reasonable doubt before a conviction for murder can be sustained, and as a result, it is obvious the part of s. 212(c) of the Code allowing for a conviction upon proof that the accused ought to have known that death was likely to result violates ss. 7 and 11(d) of the Charter. 5