The Law On Attempted Crimes (Incomplete Crimes) - An Introduction
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In R v. Cline, the court stated that “… The consummation of a crime usually comprises a series of acts which have their genesis in and idea to do a criminal act; the idea develops to a decision to do that act; a plan may be made for putting that decision into effect; the next step may be preparation only for carrying out the intention and plan; but when that preparation is in fact fully completed, the next stop in the series of acts done by the accused for the purpose and with the intention of committing the crime as planned cannot, in my opinion, be regarded as remote in its connection with that crime. The connection is in fact proximate.” – Laidlaw J.A.
In R v. Ancio, the appellant was acquitted by the Court of Appeal for attempted murder, and the Crown appealed his acquittal to the Supreme Court. The appellant took a sawed-off shotgun to the residence of a man whom his wife was living with. In a struggle that ensued, the gun was accidentally discharged, not striking the man. The appellant contends that he had no intention to kill. The Crown seeks to overturn the Court of Appeals decision that the necessary Mens Rea required for attempted murder is “an intention to cause death, or an intention to cause bodily harm knowing it to be likely to cause death and being reckless whether death ensues.” The Crown relies squarely on the idea that sec. 24 and 231 of the CC should be interpreted in conjunction with one another to give rise to a lower Mens Rea threshold. They argue that the intention for attempted murder should extend to an intention to do that which constitutes the commission of the offence of murder as defined in sec. 230 and 231 – certain unlawful acts which, if committed and death ensues, which be considered murder regardless of intention. The Supreme Court, in affirming, yet modifying the Court of Appeal’s decision began by:
- First identifying the fundamental differences between inchoate and complete crimes: They stated that while it is the Actus Reus which is the most important aspect in complete crimes and the aspect sought to be most deterred, it is the Mens Rea in inchoate crimes which is of primary importance. Thus, special attention must be paid to the Mens Rea in assessing the requirements for inchoate crimes.
- Second, without invoking Charter considerations, they stated that they “find it impossible to conclude that a person may intend to commit the unintentional killings described in sec. 230 and 231” which the Crown relies on to advance their argument. They specifically cite academic critique which states that “it is illogical to insist upon a higher degree of Mens Rea for attempted murder, while accepting a lower degree amount to recklessness for murder.” They rebut this by stating that “if there is any illogic in this matter, it is the statutory characterization of unintentional killings as murder” – citing obviously sec. 230 and 231.
Thus, they concluded that the Mens Rea for attempted murder is the specific intent to kill.
In R v. Sorrell and Bondett, the appellants were charged and acquitted for attempted robbery. The facts of the case are that both accused showed up at a pizza store around closing time, but were rejected entry because the store had closed early. The cashier witnessed one of the men holding a gun in their hand, and both men were wearing ski masks. They were apprehended a short while later down the street. The Crown appealed the trial judge’s acquittal on the grounds that he erred in law in applying evidence, which he had accepted as reliable, which should have amounted to a guilty verdict. It is to be remembered that “whether an act by a person who has intent to commit an offence is or is not mere preparation to commit the offence is a question of law”. The Ontario Court of Appeal was of this opinion: first, in order to establish the commission of attempted robbery, it is necessary for the Crown to prove that the respondents:
- Intended to do that which would in law amount to robbery (Mens Rea)
- Took steps in carrying out that intent which amount to more than mere preparation
The Court of Appeal was adamant that it is not logical or appropriate to make a determination whether the acts of the respondents went beyond mere preparation until you first find the intent with which those acts were done. In this case, there was no evidence of intent to rob other than that furnished by the acts relied on as constituting the Actus Reus. Therefore, they concluded, that in the absence of extrinsic evidence (such as statements of intention or admissions by the respondents showing what their intention was) acts of the accused, which on their face are equivocal, may be insufficient to show that the acts were done with the intent to commit the crime, and hence insufficient to establish the offence of attempt.
In R v. Deutsch, the appellant was charged, acquitted, and convicted on appeal on the charge of attempting to procure a person to have illicit sexual intercourse with another person, contrary to sec. 195(1)(a) of the CC. The appellant is an employer who advertized an employment opportunity for a secretary/sales assistant in local newspapers. While attending the interview, an undercover police officer was told by the appellant that a job requirement would be to potentially have sexual intercourse with clients in order to finalize business deals.At first instance, the trial judge found that the necessary Mens Rea was present, in that he intended that a person hired for the position should have sexual relations with clients, but he held, as a matter of law, that the acts or statements of the appellant did not, in the absence of an offer of employment, constitute the Actus Reus of an attempt to procure. Therefore, the question before the Supreme Court was “when do the acts of the appellant amount to more than mere preparation”. Their Justiceships cited with approval a statement made by Laidlaw J.A. in R v. Cline, where he said
“The Actus Reus must be more than mere preparation. But 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 committing a specific crime constitutes an Actus Reus sufficient in law to establish a criminal attempt to commit that crime.”
In adding to that statement, their Justiceships stated that “relative proximity may give an act which might otherwise appear to be mere preparation the quality of attempt.” Additionally, they said that “an act which on its face is an act of commission does not lose its quality as the Actus Reus of attempt because further acts were required or because a significant period of time may have elapsed before the completion of the offence.” For the case at bar, the Supreme Court held that the act which broke the barrier between mere preparation and “next step” was the holding out of the large financial rewards the secretary would have made during the course of the interviews. They came to this conclusion because they felt that there would be little else that the appellant would be required to do towards the completion of the offence other than to make the formal offer of employment.
In United States v. Dynar, the respondent was part of a failed undercover sting conducted by the FBI where his role was to launder money, which he believed to be the proceeds of crime, but that, in fact, were not – the money was never laundered because of the FBI’s failure. The Canadian law, as it stood at the time, required that money actually be the proceeds of a crime in order to find guilt for a charge of laundering. Because of this discrepancy between national laws, the respondent contends that his alleged conduct amounts to a legal impossibility – that being, that even if he believed his conduct was illegal in that he agreed to launder money, it was in fact not illegal under Canadian law to do so unless the money was from the proceeds of a crime – which it was not, since it was US Government money used for the sting. He further contends that with regards to attempted crimes, sec. 24(1)’s reference to the impossibility of crimes – “…whether or not it was possible under the circumstances to commit the offence – relates only to what he calls factual impossibilities and not legal possibilities. The Supreme Court, in disagreeing with the respondent’s legal contentions, seeks to:
- Clarify the meaning of sec. 24(1) with respect to impossibility, and
- Clarify the long standing distinction between factual and legal impossibility.
In Canadian law, they stated, there is no such concept as that of legal impossibility – rather there is something known as imaginary crimes – discussed below. In assessing whether or not the respondent committed an illegal act, the Supreme Court drew up a number of scenarios which all led to the impossibility of the crime occurring. First, they drew the picture of the criminal who attempts to pickpocket someone only to find an empty pocket, and the man who intends to steal someone else’s umbrella, only to steal his own. They are both guilty of attempted crimes. Their Justiceships stated that “each takes some steps in the direction of consummating their design (criminal design that is). And each is thwarted by a defect in the attendant circumstances, by an objective reality over which he has no control.” They go on to say that “just because a man’s design is premised on a mistaken understanding of the facts (the fact that the umbrella stolen belonged to him) does not make it any less his design. A mistaken belief cannot be eliminated from the description of a person’s mental state simply because it is mistaken. If it were otherwise, the effect would be to eliminate from our criminal law the defense of mistaken belief.” Therefore, if a person takes active steps in the pursuit of conduct which he knows to be illegal, but because of some factual circumstance, his conduct is not illegal in its result, he is still guilty of an attempt to commit that crime since he had the requisite Mens Rea required and took steps to fulfill his design that are more than merely preparatory. This type of scenario falls within the ambit of factual impossibility. The Supreme Court, however, sought to draw the distinction of the above scenario from one in which a person brings sugar into Canada, believing its importation to be an offence. In the former scenario, the would-be thief has the Mens Rea associated with thievery. However, in the latter scenario, the would-be smuggler has no Mens Rea known to law, since it is not illegal to do what he did. This is known as the imaginary crime. Applying these principles to the case at bar, one can say the following: the respondent necessarily falls into the former scenario (that being one of factual impossibility). While it might be a necessity of Canadian law that the money need be from the proceeds of a crime in order to justify a laundering conviction, the appellant did not know this. He was, admittedly, under the impression that it was from the proceeds of crime. Therefore, he possessed the necessary Mens Rea for laundering – a Mens Rea which is recognized by law – and took steps that amounted to more than mere preparation to furnish the commission of the crime. As such, his appeal not to be extradited was dismissed.