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Attempt links to the basic criminal law course because we are once again concerned with the actus reus and mens rea elements.
The Mens Rea Element Criminal Code: S. 24
Attempts
24. (1) 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.
Question of law
(2) The question whether an act or omission by a person who has an intent to commit an offence is or is not mere preparation to commit the offence, and too remote to constitute an attempt to commit the offence, is a question of law.
R.S., c. C-34, s. 24.
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Subsection (2) of s. 24 attempts to define the actus reus.
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“As with any other crime, the Crown must prove a mens rea … and an actus reus.” p. 1100 (9th ed.)
R. v. Ancio [1984] Attempted murder mens rea = nothing less than specific intent to kill.
1 S.C.R. 225
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FACTS
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Ancio's wife had left him and was living with one Kurely. Ancio called his wife on false pretences wanting to meet with her but she refused. Ancio then broke into a friend's house and stole three shotguns, sawing off the barrel of one, loading it, and taking it along with some extra ammo to Kurely's apartment building. Ancio broke the glass of the front door to enter the building. Kurely, upstairs, saw Ancio coming and threw a chair at him. The gun went off missing Kurely then they wrestled around until the cops arrived.
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ISSUES
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What is the mental element required for proof of the crime of attempted murder?
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HELD
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Crown's appeal dismissed; C.A.'s order for a new trial confirmed.
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RATIO
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Mens rea for attempted murder cannot be anything less than the specific intent to kill.
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NOTES
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The mens rea for murder is intent to kill or causing bodily harm knowing the likely result would be death or (constructive murder, remember Vaillancourt) committing robbery or deed during which one is armed and a death occurs.
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Whereas mens rea for murder is not limited to specific intent to kill, the mens rea for attempted murder is.
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This case overturns Lajoie, which implied that any attempt for murder would be good for attempted murder.
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R. v. Sorrell and Bondett (1978) Equivocal act may not be enough to prove attempt.
41 C.C.C. (2d) 9 (Ont. C.A.)
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FACTS
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Two bozos set out to rob a fried chicken restaurant, going so far as to procure guns and ski masks. The restaurant closed 15 minutes early that night so when the would-be crooks showed up, the door was locked. They knocked on the door but the manager didn't let them in so they took off. Police picked them up a short while later.
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ISSUES
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Did going to the restaurant and knocking on the door constitute an act of attempted robbery by going beyond mere preparation?
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HELD
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No. Crown's appeal dismissed.
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RATIO
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Equivocal acts of the accused, where there is no extrinsic evidence of the intent with which the said acts were done, may be insufficient to show that there was the intent to commit a crime, and hence insufficient to establish the offence of attempt.
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NOTES
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Attempt requires proof beyond reasonable doubt as to the intent to commit the crime.
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The Actus Reus Element R. v. Cline (1956) Each case of whether acts may constitute the actus reus for attempt must be determined on its own facts. Six principles.
115 C.C.C. 18 (Ont. C.A.)
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FACTS
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The appellant was convicted of indecent assault on a boy aged 12 and was sentenced to 10 years for the crime plus a sentence of preventive detention. Faithful to his usual modus operandi, Cline asked the boy if he’d be interested in making a couple of dollars by helping Cline carry some suitcases (which were nowhere in sight). The boy refused and ran off; Cline chased him and caught up to him. He told the boy that he didn’t have to carry the suitcases and not to tell anyone. The appellant then left the scene.
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ISSUES
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Was a conviction on the charge of assault appropriate here?
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HELD
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No. Conviction for attempt substituted.
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RATIO
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Laidlaw J.A.—The appellant’s preparation to commit the intended crime was fully complete.
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NOTES
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This is a leading case. Laidlaw J.A. is highly respected and one of the reasons why Cline is often cited.
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“Each case must be determined on its own facts.” (On the sufficiency of an act to constitute an actus reus for the crime of attempt.)
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“…in a criminal attempt, the mens rea is of primary importance and the actus reus is the necessary element.”
Six Guiding Principles Applied to Facts of the Case
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There must be mens rea and also an actus reus to constitute a criminal attempt, but the criminality of misconduct lies mainly in the intention of the accused.
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Evidence of similar acts done by the accused before the offence with which he is charged, and also afterwards if such acts are not too remote in time, is admissible to establish a pattern of conduct from which the Court may properly find mens rea.
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Such evidence may be advanced in the case for the prosecution without waiting for the defence to raise a specific issue.
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It is not essential that the actus reus be a crime or a tort or even a moral wrong or social mischief.
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The actus reus must be more than mere preparation to commit a crime.
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But when the preparation to commit a clime 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.
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This case is the law in Canada. Relative proximity is measured according to the nature and quality of the crime—such is the test in Canada.
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R. v. James (1971) Any act going beyond mere preparation can constitute attempt. It doesn’t have to be the last act in the attempt.
1 O.R. 661
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FACTS
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The accused broke into a car at 3:00 am and was rifling through the glove box. A cop caught him in the act and arrested him. When questioned, the accused volunteered that he was searching for the keys in order to steal the car and drive home. The trial judge acquitted the accused on the basis that his conduct was in preparation for the attempt to steal the car and not an attempt in itself.
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ISSUES
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Did the accused’s act constitute mere preparation or an actual attempt?
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HELD
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An attempt. Appeal allowed. The acquittal quashed.
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RATIO
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Gale C.J.O.—An accused can be found guilty of an attempt if he does any act in furtherance of the commission of an offence beyond mere preparation, regardless of whether it is the last act in his attempt to commit the offence.
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NOTES
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This case denies the “last act test” as a requirement for attempt because the suspect removed equivocality by admitting that he wanted to steal the car.
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Glanville Williams, “Wrong Turnings on the Law of Attempt” [1991] Crim. L. Rev. 417 -
Williams would want steps held as attempts to be pushed further back in time. He cites the Kenneth Jones case and argues that perhaps lying in wait was enough for mere preparation and that which came after constituted an attempt.
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He advocates the “substantial step test”.
R. v. Deutsch [1986] LeDain J.’s distinction between attempt and mere preparation.
2 S.C.R. 2
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FACTS
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The appellant put out an ad looking for a secretary/sales assistant. The position entailed possibly having sex with clients to close deals. One interview was with a cop posing as an applicant. When the cop said she was interested, the appellant told her to think it over and let him know. He was charged with attempting to procure a person to have illicit sexual intercourse with another person.
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ISSUES
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How do we distinguish between attempt and mere preparation?
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HELD
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Appeal dismissed. C.A.'s order for a new trial confirmed.
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RATIO
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The trial judge did not make a finding as to whether or not there was the necessary intent to procure.
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NOTES
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Le Dain J. - "...the distinction between preparation and intent...involv[es] the relationship between the nature and quality of the act in question and the nature of the complete offence, although... [we must consider] the relative proximity of the act in question to what would have been the completed offence, in terms of time, location and acts under the control of the accused remaining to be accomplished."
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