Table of Contents. Table of Cases...

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1 Table of Contents Table of Cases... xiii Chapter 1 INTRODUCTION Prefatory Remarks An Attempt to Commit an Offence is an Offence in its Own Right Definitional Elements Introductory Comments on the General Attempt Provision in the Canadian Criminal Code Importance and Difficulty... 7 Chapter 2 HISTORICAL ASPECTS Introduction Roman Law Scandinavia Continental Europe The Common Law and Scotland Conclusion Chapter 3 WHY PUNISH ATTEMPT? Introduction Objective and Subjective The Two Major Approaches (a) Objective Social Danger, Functional (b) Subjective Personal Intent, Conceptual... 24

2 viii THE LAW OF CRIMINAL ATTEMPT 3. The Conventional Criteria of Punishment as Applied to Attempts (a) Deterrence (b) Retribution (c) Rehabilitation (d) Law Enforcement and Intervention (e) Harm (f) Policy Conclusion Chapter 4 THE MENTAL REQUIREMENT MENS REA Introduction (a) Terminology (b) Mens Rea Per Se is not Criminal (c) An Exception to the Mens Rea Per Se is not Criminal Principle: Treason The Mens Rea of Attempt: Only a Direct Intent will Suffice An Exception for the Mens Rea of Attempt Recklessness as the Mens Rea for Attempt (a) No Substantial Doubt (b) A Virtual Certainty (c) Trends toward Objective Mens Rea in Canada Intent as to Consequences; Recklessness as to Circumstances? Negligence as Mens Rea for Attempt? Strict Liability? Conditional Intent Transferred Intent Conclusion Chapter 5 THE FACTUAL REQUIREMENT ACTUS REUS Introduction (a) Prefatory Remarks (b) Functions of the Judge and Jury vis-à-vis the Actus Reus (c) It Depends on the Particular Facts (d) Attempt Committed by Omission Proximity Test First Stage Theories Commencement of the Execution Test Final Stage Theories (a) Last Act Test (b) Penultimate Act Test (c) Possibility of Intervention Theory (d) Probability of Desistance Theory

3 TABLE OF CONTENTS ix 6. Dangerousness Test Equivocality Test Substantial Step Test Control Approach and Indispensable Element Approach Causation Theory Culpability Otherwise Required for the Commission of the Crime Attempted Test The Common Sense Test Discretion of the Courts Test Likely to End in Consummation Test Commitment Test Abnormal Step (Probability of Desistance) Theory The Commission of Another Crime Constitutes by itself an Attempt Theory Professor Stuart: A Subjective Test, being Alternatively the Proximity Test or Probability of Desistance Theory Indeterminate Tests Guidelines Conclusion Chapter 6 IMPOSSIBILITY Introduction (a) Preface (b) Impossibility or Statutory Interpretation? (c) The Legal Impossibility and Factual Impossibility Distinction Categories of Impossibility (a) Non-existence of Something in the External World (i) The Empty Pocket (ii) The Vacuous Womb (iii) The Absent Ambush Victim (iv) The Trying Tree Stump (v) The Ubiquitous Umbrella (vi) The Non-Existent Narcotics (b) Lack of an Essential Quality (i) The Poisoning Posers (ii) The Bungled Bullet (iii) Attempted Fraud and False Pretences, Extortion, and Corruption (iv) Lady Eldon s Lace (v) Magical Mysteries (c) Personal Incapacity (i) Age

4 x THE LAW OF CRIMINAL ATTEMPT (ii) Incapable Rapist (d) The Receiver, the Launderer, the Fence Three Bags Full Are there any Offences which cannot be Attempted? (a) Attempt Contemplated in Substantive Offences (b) Attempting Omission Crimes (c) Substantive Offences of Recklessness and other Lesser Mens Rea (d) Attempts to Extort, Purger, Riot, and Libel (e) Attempting Attempt, Conspiracy, and Other Inchoate Offences Conspiracy to do the Impossible Three Possible Solutions to Impossibility (a) Reasonable Person (b) The English Law Commission, the Criminal Attempts Act 1981, the House of Lords, and the Supreme Court of Canada (c) The American Model Penal Code Conclusion Chapter 7 ABANDONMENT OF THE ATTEMPT Introduction Anglo-Canadian Position Australia South Africa United States Considerations for and against the Defence of Abandonment (a) For the Defence (b) Against the Defence Conclusion Chapter 8 SUCCESSFUL ATTEMPTS AND MERGER Chapter 9 EVIDENTIAL AND PROCEDURAL CONSIDERATIONS Introduction Drafting the Information and Indictment Accomplices and Attempt (a) Aiding and Abetting; Accomplices (Section 21) (b) Counselling (Section 22) (c) Accessory After the Fact (Section 23) Provocation

5 TABLE OF CONTENTS xi 5. Self Defence Attempting Indictable Offences Attempting Summary Offences Attempting Hybrid Offences Similar Fact Evidence Verdict Attempted Offences by Corporations Chapter 10 SENTENCING Chapter 11 GENERAL ATTEMPT PROVISIONS Chapter 12 SPECIFIC ATTEMPT PROVISIONS Specific Attempt in Federal Legislation Specific Attempt, or Preliminary Offences, as an Answer to the Inadequacies of General Attempt Provisions? Chapter 13 RECOMMENDATIONS FOR LEGISLATIVE REFORM Introduction The Mental Requirement Mens Rea The Factual Requirement Actus Reus Impossibility Abandonment of the Attempt Successful Attempts and Merger Evidential and Procedural Considerations Sentencing Conclusion Index