PARTICIPATORY LIMITS: ATTEMPTS & PARTIES -
Inchoate offences
RYAN was also an example of this - a way of attaching criminal liability to offenders who do not complete a criminal offence, by: (1) aiding/abetting; (2) counseling; (3) attempting; (4) conspiracy or (5) being an accessory after the fact.
The attempt is always included in the charge for the completed offence. The punishment for an attempt is lower than for complete offence, and said punishments can be found in s 463 of the Criminal Code. Unless there is a specific section stating otherwise, an attempt of an offence where the penalty is life carries a maximum penalty of 14 years and for other indictable offences is one half of the full offence's penalty. It is possible for offences to have attempts with their own sentencing regime (one example is attempted murder, which has a maximum penalty of life imprisonment with parole eligibility in seven years).
In s 24, the Code sets out the definition of attempts:
-
Everyone 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.
-
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.
-
ACTUS REUS
|
MENS REA
|
Do something toward carrying out that
intention beyond mere preparation
|
Intent to commit
the offence
|
What exceeds "mere preparation"? Because it is a question of law, this is much easier to appeal as it is reviewed on a standard of correctness rather than reasonableness.
Q: What is the mens rea of an attempt?
R v ANCIO [1984] SCC
FACTS
|
A is charged with an attempt to commit constructed murder. The question is whether recklessness is sufficient to substitute for intent, or whether intent is required at all. The Crown is attempted to rely on the intent to break and enter to substitute for the intent to murder.
|
RULING
|
In a case ten years earlier, LAJOIE, the court had held that either an intent to kill or recklessness was required. Not only can you not have an attempted constructed murder, but recklessness should not be sufficient either. Attempts are almost entirely crimes of mens rea, and so an actual intention to commit the completed offence should be required. Produces the somewhat odd result that the mens rea for attempted murder is higher than that for murder (where recklessness is sufficient).
|
RATIO
|
Full intention is required for the MR of attempted murder. Recklessness is not sufficient.
|
Q: At what point does behaviour exceed “mere preparation” and become an attempt? On the one hand, there is a policy concern that a high standard makes enforcement difficult. On the other hand, a low standard could be unfair and possibly unconstitutional.
R V SORRELL AND BONDETT [1978] ONT CA
FACTS
|
Two men attempt to rob a fried chicken store. It’s closed, so they bang on the door to be let in, while wearing balaclavas and one has a gun. Manager tells them they are closed, A leave and are picked up by the police shortly after. TJ acquits, but unclear whether it was because the Crown failed to prove MR BARD, or because their acts were “mere preparation” – question of fact v law.
|
RULING
|
CA says difficult to determine basis of TJ’s decision because MR & AR are linked. On the issue of mere preparation, the court makes it clear that these facts exceed mere preparation given the proximity to the completed offence. Because MR & AR are linked, one can infer intent from the behaviour of the A.
|
RATIO
|
AR & MR are linked – one can offer evidence of the other.
Example of acts exceeding mere preparation.
|
This approach means that stealing a free sample, trying to murder a corpse, or kill via a voodoo doll all qualify as attempts. The underlying issue is the difficulty of proving intent BARD – given perfect information, the majority’s view is workable, but in reality it will be difficult to prove sufficient MR when there is little to no AR.
USA v DYNAR [1997] SCC
FACTS
|
Facts arise on extradition proceedings to the USA. Extradition can be challenged on a number of grounds, one of which is the principle of double criminality (extradition should be restricted to offences which are crimes in both countries). Dynar invokes this principle, as he is wanted in the USA for money laundering based on a sting. Attempted laundering is a crime in Canada too, but the money used in the sting is not actually the proceeds of crime, and so Dynar argues his conduct is not a crime because it was an impossible attempt.
|
RULING
|
Held for the Crown. Dynar argues that he doesn’t fall under the possibility provision of s 24(1) because it only means factually impossible, not legally impossible, and his conduct falls under the latter category. Court splits, but the majority rejects this distinction. What matters is Dynar’s intention – this is different than an attempt to commit an imaginary crime, because on these facts Dynar attempted to launder what he believed to be drug money.
DISSENT
If there’s no offence, then there’s no attempt. Otherwise you wouldn’t even need to prove goods were stolen to prove possession of stolen goods, just use attempts. But the law acknowledges attempts are easier to prove with the use of different penalties.
|
RATIO
|
Rejects legal/factual impossibility distinction, thereby creating broad ambit for the definition of attempts.
|
Maximum penalties are significantly less for attempts than for completed offences. Parties work somewhat differently…
Share with your friends: |
