Mr review 6 ignorance of law 6
Common Intention (21)(2): ONLY way to convict PARTY for UNFORESEEN EVENTS
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- R v Kirkness SCC 1990 p 553 [Minority: Show that he knew death was probable consequence after sexual assault]
- R v Logan SCC 1990 p 561 [Someone can be charged under s21(2) for murder, but strike out words “ought to have known”, must have subjective intention]
- Counselling as a Form of Participation (S 22)
- Attempts Introduction
- R v Cline ONTCA 1956 p 572 [Preparation vs. Attempt]
- Six Principles of Attempts from Cline
- Deutsch v The Queen SCC 1986 p 573 [Preparation vs. attempt left to common sense judgement; Look at the relationship btw the nature and quality of the act nature of complete offence]
- R v Ancio SCC 1984 p 574 [MR for attempted murder is not less than specific intent to kill]
- Ancio: Why is Intent to cause result important
- R v Logan SCC 1990 p 576 [Change Ancio: MR for Attempted murder is Subjective foresight of death ]
- US v Dynar SCC 1997 p 579 [Factually impossible attempts, as opposed to imaginary impossibility, should be convicted of attempt]
- Abandonment
Common Intention (21)(2): ONLY way to convict PARTY for UNFORESEEN EVENTSWhere 2+ person form intention to carry out unlawful purpose…and any one commits offence, each of them who knew or ought to have known commission of offence would be probably consequences are parties to offence What it means: First: 2 people agree to carry out unlawful purpose (ie. we are going to rob the store) But: don’t agree to what happens next One guy punches someone Both are guilty of assault because he OUGHT TO HAVE KNOWN that could happen Once you are engaged in an unlawful purpose, you are GUILTY for everything your partner does (Except for Murder: logan), if it was reasonable event R v Kirkness SCC 1990 p 553 [Minority: Show that he knew death was probable consequence after sexual assault]Facts: A and his friend snowbird break into Ms. Johnsons house after night of partying, at suggestion of A. One entered through window, then opened backdoor for snowbird. Snowbird went into her bedroom and sexually assault the 80 yr old woman. A remained in hallway and stole stuff. Then snowbird begin to choke woman and put her in bath tub with hot water running. Jury acquitted A. Decision: Acquitted Reasons:
A is not guilty because he removed himself from any joint enterprise with snowbird that involved killing of Ms. J after he told snowbird to stop Dissent (Wilson) To establish liability under s 21(2) 1) Show that A formed an intention in common with others to carry out unlawful purpose and assist them in achieving that purpose Common intention can arise right before, need not be pre-planned A share common intention with Snowbird to rob house 2) A knew or ought to have known of the probable commission of acts which constituted offence A) Commission of ultimate offence has to be probable B) A must know or ought to have known of this probability Abandonment (Once you have a common intention, what are you in for??) A absolve himself of liability for acts of the principal if he can show that he abandoned his purpose to assist in commission of criminal offence A will be held to different standard depending on his involvement in the crime Issue is: the quality of the withdrawal Liability under s 21(2) does not require A to assist directly in act causing death. Sufficient that manslaughter was probable consequence of offence which A aided or abetted Should have put to jury: whether A aided Snowbird in crime which was of type that could have caused bodily harm R v Logan SCC 1990 p 561 [Someone can be charged under s21(2) for murder, but strike out words “ought to have known”, must have subjective intention]Facts: A’s commit armed robbery and are convicted with murder pursuant to 21(2) Issue: Do A’s have requisite MR? Decision: Reasons: Guilt will be worked out in sentencing Armed robbery is serious enough sentence It is not unconstitutional to use “ought to have known” under 21(2) to charge criminals with MOST offences Only a select list, ie. Attempted murder, will require subjective intention. In that case, cross out works “ought to have known” Counselling as a Form of Participation (S 22)Counselling is a form of participation R v O’Brien 2007 p 564 [If you push someone to do this, you can be guilty. Requires heavy level of encouragement]Facts: A convicted of counseling Brandy to rob a convenience store. Brandy was drug addict who bought drugs from A. She was robbing store to get more money for drugs. Section 464: Counseling of a crime that is never committed is still a crime. AttemptsIntroductionCriminal liability for incomplete offences Described as form of inchoate liability because the full offence is not completed Require proof of the prohibited act and fault Developed and established by common law (Cline) Big Questions Boundary btw innocent behavior and criminal conduct? At what stage does planning to commit a robbery become a crime? The OffenceA person who tries to commit a criminal offence but does not succeed can nevertheless be found guilty of attempting the offence if his conduct falls within the terms of s 24: 24(1) Attempts Everyone who, having an intent to commit and offence, does or omits to do anything for the purpose of carrying out his intention is guilty of an attempt to commit the offence whether or not it was possible under the circumstances to commit the offence. 24(2) Question of Law 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. Fundamental PointsAttempt law alters the standard AR & MR required to commit ANY offence! Must comply with s 24 to convict Different sentencing regime! Section 463 of Code Summary conviction the same! If Crime is punishable by life: Max Life = Max 14 years For Crimes with Max Life 14 or less = ½ of available Max Attempt Murder – Special s 239 (no min. unless firearm used) Actus ReusLaw does not have to wait for complete AR BUT: Accused must have gone beyond preparation for the offence? Note: Ideas alone are not punishable, no matter how sinister Is an Act or omission mere preparation and TOO remote? R v Cline ONTCA 1956 p 572 [Preparation vs. Attempt]Issue: whether or not an act is sufficient in law to constitute an AR Each case must be determined on its own facts, with due regard to The nature of the offence and Particular acts in question IS an act, an act of preparation only? Or an attempt? Consummation of a crime comprises a series of acts which originate in idea to do criminal act
AR Examples:Joe plans to murder Bob. Buys a knife and lies in wait. Arrested while waiting. Cannot be charged with attempted murder. TH: Evidence showed he was hanging around on a street corner wearing dark glasses, with intent to find young boys he could lure down an alleyway. What would be the MINIMUM to show a culpable AR of attempted sexual assault? Just standing on corner = not enough (but could... Since question states he has intent) Just standing on Corner + had done it before = ENOUGH! Evidence he approached a young boy and was talking to him = ENOUGH! Evidence he approached a boy and asked him to go down alley = Can get him before this! Six Principles of Attempts from ClineMust be MR and AR to constitute crim. Attempt, but criminality of misconduct lies mainly in intention of the accused Evidence of similar acts done by A before he was charged, and also afterwards (if such acts are not too remote in time), are admissible to establish a pattern of conduct which Court can infer MR Such evidence can be advanced in the case for prosecution Not essential that AR be a crime or tort or moral wrong or social mischief The AR must be more than mere preparation (Factual Issue) BUT, when preparation is fully complete and ended, next step constitutes AR sufficient in law to establish a criminal attempt to commit the crime Deutsch v The Queen SCC 1986 p 573 [Preparation vs. attempt left to common sense judgement; Look at the relationship btw the nature and quality of the act & nature of complete offence]Facts: A charged with attempting to procure female persons to have illicit sex w/ another person contrary to s 212(1)(a) (as it is now). The A placed ad in paper for secretary, 3 women apply + policewoman, state during job interview A indicated as part of job woman were req. to have sex with client where it was necessary to conclude contract. Women could earn up to 100k per year. TJ acquitted bc acts not gone beyond preparation bc he did not OFFER the job to women. CA switch. SCC uphold CA. Issue:
Decision: New trial bc TJ did not make finding as to whether there was the necessary intent to procure Reasons (Le Dain J + unanimous) TEST:
Look at the relationship btw the nature and quality of the act & nature of complete offence Law does not provide good distinction btw preparation and attempt must be left to common sense judgement IF the A had the necessary intent to induce the women to seek employment that requires sex, and holding large financial rewards, could constitute AR of an attempt to procure Examine proximity of act taken to final act Little else that A would be required to do to complete offence other than to make formal offer of employment Before offer of employment made, Applicant would have to seek the position. Holding out financial reward in course of interview = a step in the commission of the offence = AR of attempt
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