R. v. Ladue (1965) Man charged with indecently interfering with a dead body can’t argue he didn’t know she was dead because then he’d have been raping her.
45 C.R. 287 (Y.T. C.A.)
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FACTS
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Ladue either copulated or attempted to copulate with a dead woman and was convicted under what is now s. 182(b). The trial judge did not allow Ladue to contend that he was not guilty because he was drunk and therefore did not know the woman was dead.
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ISSUES
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Was the trial judge right in not allowing Ladue to contend he was not guilty because he was drunk?
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HELD
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Yes. Appeal dismissed.
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RATIO
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The appellant cannot show that he was acting lawfully and innocently in this case because if the woman was alive he was raping her.
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NOTES
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Although s. 182(b) does not exclude the principle that that a person doing an act is not guilty of a crime if his mind be innocent, in attempting to defend himself in that way the appellant runs into an insuperable difficulty:
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The appellant could not have failed, even in his drunken state, to perceive that the woman was unconscious, and incapable of giving her consent to copulation. Indeed the appellant does not suggest that he thought he had her consent to the act.
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An intention to commit a crime, although not the precise crime charged, will provide the necessary mens rea under a statute in the form of s. 182(b) …because in those circumstances an accused cannot contend he was acting lawfully or innocently.
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It would have made more sense if the charge here would have been attempted rape since the actus reus and mens rea did not coincide for interference with a dead body (he did not know she was dead). The mens rea, however, was there for rape although raping a corpse is legally impossible… so attempted rape would have been appropriate.
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United States v. Dynar [1997] Can find guilt for attempting the impossible.
2 S.C.R. 462
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FACTS
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The U.S. government wanted Dynar, a Canadian citizen, extradited. D. had placed a phone call from Canada to a former associate in Neveda who had become an FBI informant. Dynar thought he was laundering drug money but in fact he was dealing with money supplied to the undercover agent by the FBI.
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ISSUES
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Should courts acquit in some cases of attempting the impossible?
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HELD
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No. Dynar to be extradited.
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RATIO
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Section 24 is clear; it is indifferent about whether or not the attempt might possibly have succeeded.
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NOTES
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Majority in Dynar: The conventional distinction between factual and legal impossibility is untenable. There is no legally relevant difference between the pickpocket who reaches into an empty pocket [factual impossibility] and the man who takes his own umbrella from a stand believing it to be some other person's umbrella [legal impossibility]. Both have the mens rea of a thief.
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There was a dissenting opinion in Dynar that would have upheld the distinction between legal and factual impossibility.
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Consider the New York Jaffe case said there is a distinction between legal and factual impossibility. The Court of Appeal in NY said that legally it is impossible to convict Jaffe of the crime so you cannot convict of an attempt. The NYCA did not buy the policy consideration and only want to convict for attempt in a case of factual impossibility.
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Third category: if the crime is only a crime in the mind of the accused but is not actually a crime, this is called an “imaginary crime” and does not give rise to a charge of attempt.
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R. v. Severight (1993) Foetus killer charged with attempt murder.
31 C.R. (4th) 45
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FACTS
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The Crown requested that the Court lay a charge of attempted murder on Severight. Severight stabbed his 8½-month-pregnant girlfriend in the abdomen. The girlfriend’s wound was not life-threatening but the knife wounded the foetus, which subsequently died and was stillborn. All evidence shows that the foetus would have been a viable baby girl. All evidence also shows that Severight intended to kill the “child” as he grew increasingly violent with his girlfriend as her pregnancy progressed and before the preliminary hearing he called her swearing and repeating, “I’m glad the little bitch is dead.” The law does not recognize personhood unless foetus is “born alive” (s. 223).
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ISSUES
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Given that it is legally impossible for Severight to have killed one whom the law does not consider a person, can we charge Severight with attempt?
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HELD
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Yes. Severight charged with attempt murder for killing the foetus.
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RATIO
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If the accused’s intent is to cause the death of a human being but he fails because the object of his intent is not considered, at law, to be a human being, it is my judgment that he may still be found guilty of attempt murder.
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NOTES
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Having regard to the separate development of the law of attempt and the law of murder, it would appear to be specious and circular reasoning to argue that since you cannot murder a nothing at law, you cannot attempt to murder a nothing at law. Just because the target is a corpse (or legally a non-person) when the accused stabs does not mean that the elements of criminal attempt have not been satisfied.
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Attempted murder is separately spelled out in the criminal code and the only attempt crime that is singled out in the Criminal Code. (All other attempts are based on the completed crime plus s. 24(1).)
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Discussion in class has raised the issue that this belongs to the category of “imaginary crime” instead of legal impossibility. It can be argued both ways, but imaginary crime is most tenable given that the law does not recognize the personhood of a foetus.
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| R. v. Williams [2003] HIV-infected accused guilty of attempted aggravated assault because he had probably infected his partner before he knew he was a carrier but continued having sex with her after he found out.
2 S.C.R. 134
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FACTS
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The complainant and W had an 18-month relationship. Five months in, W learned that he had recently tested positive for HIV. The complainant tested negative shortly thereafter. W kept the complainant in the dark about his HIV condition as well as the fact that he had been tested. Although W was given counselling on at least three different occasions about safe sex and disclosing his HIV status to sex partners, he continued to practise unprotected sex with the complainant. The complainant would never knowingly have had sex with an HIV-positive person. The relationship ended and she soon tested positive for HIV. W has conceded that he infected the complainant with HIV. Similarly, the Crown has conceded that it is quite possible that W infected the complainant before learning of his positive status. At trial, W was convicted of aggravated assault and common nuisance. The Court of Appeal upheld the conviction for common nuisance but allowed the appeal against the conviction for aggravated assault, substituting therefor a conviction for attempted aggravated assault. Crown appealed.
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ISSUES
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Is the accused guilty of attempted aggravated assault?
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HELD
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Yes. Crown’s appeal dismissed.
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RATIO
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An accused who fails to disclose his HIV-positive status cannot be convicted of an aggravated assault endangering life in circumstances where the complainant could already have been HIV-positive. In such circumstances, however, W was properly convicted of attempted aggravated assault.
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NOTES
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Where, as here, the Crown alleges an offence predicated on an aggravating consequence, it must prove the consequence beyond a reasonable doubt.
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To constitute a crime, the actus reus and the mens rea or intent must, at some point, coincide. Here, however, before the accused knew of his status, there was an endangerment but no intent; after he knew, there was an intent but at the very least a reasonable doubt about the existence of any endangerment (as she was probably already infected).
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Parties to Offences: Aiding and Abetting Criminal Code: S. 21(1)
Parties to offence
21. (1) Every one is a party to an offence who
(a) actually commits it;
(b) does or omits to do anything for the purpose of aiding any person to commit it; or
(c) abets any person in committing it.
R. v. Kulbacki (1966) Accused had authority to tell girl to drive safely.
1 C.C.C. 167 (Man. C.A.)
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FACTS
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Appellant was convicted of dangerous driving. He allowed a 16-year-old girl to drive his vehicle dangerously without doing anything to stop her. He was in the passenger seat at the time and was charged with the substantive offence. The Crown argued that the accused had aided and abetted the girl. The defence was one of law, stating that he had no duty to do anything and under no liability as long as he did not encourage the commission of the offence.
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ISSUES
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Is the appellant liable?
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HELD
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Yes. Appeal dismissed; conviction affirmed.
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RATIO
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The failure to even protest is equivalent to encouragement and is fatal to the appellant’s defence.
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NOTES
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Not every passenger in an unlawfully driven motor vehicle is necessarily subject to conviction as an aider and abetter. Some passengers may not have the same authority over the car or any right to control the driver. In this situation, the passenger did have the authority.
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Dunlop and Sylvester v. R. [1979] Evidence doesn’t point to rape participation.
2 S.C.R. 881
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FACTS
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Gang rape of a 16-year-old girl at the hands of 18 members of a motorcycle gang. The accused were members of the gang but the evidence shows they had gone to get beer and were sitting nearby when the rape was going on, which they thought was consensual sex with one member as the others stood around.
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ISSUES
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Was there enough evidence to permit the jury to draw an inference that the accused were more than merely present at a crime and had done nothing to prevent it? Will a man’s presence at the scene of a crime without trying to prevent it suffice to render him liable as an aider and abetter?
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HELD
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No and no. Appeals allowed; acquittals entered.
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RATIO
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A person cannot properly be convicted pf aiding or abetting in the commission of acts which he does not know may be or are intended. If there is no evidence of encouragement by him, a man’s presence at the scene of a crime will not suffice to render him liable as an aider and abetter.
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NOTES
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The evidence in this case only went to presence and not complicity.
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