I. The Inchoate Crime of Attempt 3
A. The Mens Rea Requirement 3
s. 24 CC 3
R v. Ancio [1984 SCC] 3
R. v. Sorrell and Bondett [1978 ON CA] 4
B. the Actus Reus Requirement 4
R. v. Cline [ON CA 1956] 4
R. v. James [1970 ON CA] 5
Wrong Turnings on the Law of Attempt—G. Williams, 1991 6
R. v. Deutsch [1986 SCC] 6
C. The Doctrine of Impossible attempts 7
R. v. Ladue [1965 YT CA] 7
United States of America and Minister of Justice v. Dynar [1997 SCC] 8
R v. Severight [1993 Alta P.C.] 10
R. v. Willaims [2001 Nfld CA] 10
D. Parties to Offences: Aiding and Abetting 11
s. 21(1) C.C. 11
R. v. Kulbacki [1966 Man CA] 11
Dunlop and Sylvester v. R. [1979 SCC] 12
R. v. Simmonds [2002 BCCA] 13
II. The Crime of Sexual Assault 14
A. The Consent (“Actus Reus”) Issue 14
s. 271-273.1 C.C. 14
R v. Barron [1984 ON HC] 15
R. v. Ewanchuk [1999 SCC] 15
R. v. Hogg [2000 ON CA] 17
R. v. Orpin [2002 ON CA] 17
B. The “Mens Rea” Issue 18
1. Honest but mistaken belief in consent 18
Pappajohn v. R. [1980 SCC] 18
Sansregret v. R. [1985 SCC] 20
s. 273.2 CC 21
R. v. Malcolm [2000 Man CA] 21
R. v. Darrach [1998 ON CA—Affirmed SCC 2000] 22
2. “Air of Reality” Requirement 23
R. v. Bulmer [1987 SCC] 23
R. v. Davis [1999 SCC] 24
C. Admissibility of the Sexual Histroy of the Complainant (The “Rape Shield” Provision) 24
Teaching Rape Law—Susan Estrich, 1992 24
R. v. Seaboyer [1991 SCC] 25
s. 276 C.C.—Post-Seaboyer 28
R. v. Darrach [2000 SCC] 29
R. v. Nelson [2001 BCCA] 29
R. v. Anstey [2002 NFLD & Lab CA] 30
D. Admissibility of Confidential Records Pertaining to the Complainant 31
R. v. O’Connor [1995 SCC] 32
s. 278.1-278.9 C.C. 33
R. v. Mills [1999 SCC] 36
R. v. Batte [2000 ON CA] 38
R. v. B.(E.) [2002 ON CA] 38
III. Defences to Criminal Liability 39
A. Intoxication 39
The Intoxicated Offender: A Problem of Responsibility—S.M. Beck & G.E. Parker (1966) 39
R. v. Bernard [1988 SCC] 40
R. v. Daviault [1994 SCC] 42
s. 33.1 C.C. 43
R. v. Robinson [1996 SCC] 44
B. Lack of Criminal Responsibility on Account of Mental Disorder (“Legal Insanity) 45
1. In General 45
s. 16 C.C. 45
2. The “First Branch” 45
Cooper v. R. [1979 SCC] 45
Kjeldson v. R. [1981 SCC] 47
R. v. Abbey [1982 SCC] 47
3. The “Second Branch” 47
Schwartz v. R. [1977 SCC] 48
R. v. Chaulk [1990 SCC] 48
R. v. Oommen [1994 SCC] 50
R. v. W. (J.M) [1998 BCCA] 51
C. “Sane” and “Insane” Automatism 52
R. v. Rabey [1980 SCC] 52
R. v. Parks [1992 SCC] 54
R. v. Stone [1999 SCC] 56
D. Necessity 58
R. v. Dudley and Stephens [1884 UK QB] 59
R. v. Perka [1984 SCC] 59
R. v. Morgantaler, Smoling and Scott [1985 ON CA] 61
R. v. Latimer [2001 SCC] 61
I. The Inchoate Crime of Attempt
A. The Mens Rea Requirement
s. 24 CC
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.
(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 v. Ancio [1984 SCC]
Facts: Ancio took a shotgun to his estranged wife’s boyfriend’s apartment, where she was staying. He broke a window to get in and the bf confronted him on the stairs and threw a chair at him. The gun was fired. A struggle ensured. The police came and arrested A. He told them that the gun went off accidentally, but that it was a good thing they got there when they did, as he would have strangled the bf. He was charged and convicted of attempted murder under s. 24. The CA quashed the conviction and ordered a new trial.
Issue: What is the mens rea for attempted murder?
Holding: Specific intent to kill.
Reasoning: McIntyre
-The crown argues that, based on Lajoie [1974 SCC], s. 24 can be combined with both s. 229 and s. 230 [then 212 and 213] to convict for attempted murder, whereas the accused argues that Lajoie does not extend the doctrine of constructive intent in the manner alleged by the crown.
-Murder and attempt emerged as separate crimes. In murder, the main ingredient is the A/R of killing, and the M/R is the necessary concomitant. In attempt, the main ingredient is the M/R, the intent, and the A/R is the necessary concomitant.
-There can be no murder without a killing, and s. 24 defines attempt as “having intent to commit an offence”, so the intent to commit the offence must include the intent to kill. It’s impossible to intend to commit an unintentional killing.
-Lajoie should no longer be followed to the extent it supports the view that s. 24 can be combined with s. 230 or s. 229(a)(ii). The completed offence must be intended. For murder, there must be intent to kill.
-The addition of the sentencing provision for attempted murder was read as changing the definition of attempt, but it merely provided a sentence. The fact that the sentencing provision used the terms ‘by any means’ was taken to support coupling s. 24 and 230, but in fact, it just refers to the physical means of causing death.
-Thus, only specific intent to kill can constitute the M/R for attempted murder. If there is any illogic in the fact that you may need a higher M/R for attempt than for some forms of murder, it flows not from this interpretation of attempt, but from classifying unintentional killings as murder.
Dissent: Ritchie
-Lajoie, a unanimous judgment, is indistinguishable and therefore controlling.
Ratio: Attempted murder requires specific intent to kill. So s. 24 cannot be coupled with s. 229(a)(ii) or s. 230.
Comment: Neither wing of the court looks beyond the language of the statute, i.e. neither looks to the policy and organizing principles.
-This seems inconsistent with Nygaard, where intent to cause bodily harm [s. 129(a)(ii)] was equivalent to intent to kill for the purposes of M1 vs. M2. Nygaard came later. Nygaard would not go so far as to allow attempted murder under s. 230.
R. v. Sorrell and Bondett [1978 ON CA]
Facts: S & B were acquitted of attempted robbery. They put on ski masks and, with loaded guns, went at 10:50 to a fast-food restaurant, which was supposed to be open until 11:00. It had closed early. They banged on the glass, but the manager told them it was closed. They left, and the manager called the cops. They had ditched their ski masks while walking away. The appeal alleges that the TJ erred in finding that they had not gone beyond preparation.
Issue: Did the TJ make a reversible error?
Holding: No, his decision was based on his finding a lack of intent alone—a question of fact.
Reasoning: Court (Martin, Blair and Dubin):
-The M/R of attempt is a question of fact, and the A/R is a question of law.
-It’s not entirely clear upon which basis the TJ acquitted, but an analysis of his argument indicates that he was not convinced beyond a reasonable doubt that they had the intent to commit robbery. If this was an error, it was an error of fact.
-If they intended to rob the store, their acts clearly went beyond mere preparation. I.e. had he found the requisite intent, a finding that the acts did not go beyond preparation would have been an error of law.
-The trial judge’s self-misdirection on the issue of preparation did not lead him into error regarding intent. The finding on intent is logically prior to the question of law.
-Intent can be proved by extrinsic evidence where the acts are equivocal, and equivocal acts may be insufficient to prove intent if there is no extrinsic evidence.
-The fact that the judge may have erred in this regard is not relevant to the appeal.
Ratio: Intent in attempt is a question of fact, and the question of whether the acts went beyond mere preparation is a question of law.
Comment: The TJ ruled that their actions were as consistent with B&E as with an intent to rob—i.e. there is RD as to the intent to rob. Thus, the M/R has, it seems, to be for the crime in question according to the TJ, which means that the possibility that the M/R was for another crime is enough or raise RD.
-In Canada, if you go beyond mere preparation, abandonment is not defence.
B. the Actus Reus Requirement
Two questions: (1) At what point does the law fix the beginning of the attempt? (2) At what point should the law fix the beginning of the attempt?
R. v. Cline [ON CA 1956]
Facts: C, partially on the basis of testimony by other boys about similar behavior, was convicted of indecent assault against a 12 yr old boy. He presented no evidence of his own. During his argument, the TJ intimated that he could be guilty of attempt even if there wasn’t enough evidence for the assault charge. The rest of C’s argument proceeded as if he had already been convicted of attempt. The crown admitted that the evidence was insufficient for assault, but asked the court to substitute a conviction of attempt.
Issue: What is the proper charge upon which to convict?
Holding: Attempt
Reasoning: Laidlaw
-Counsel for C argued for the unequivocal theory, the idea that for attempt, there must be an “act of such a nature that it is itself evidence of the criminal intent.” This theory has been, rightfully, rejected by G. Williams. It arises partially from confusion over the nature of attempt.
-Each case must be determined on its own facts.
-In attempt, the A/R is ancillary to the M/R. It’s very hard to define the A/R, but the M/R is simply the intent to commit the offence—and it can be proved in various ways.
(1) Attempt requires both A/R and M/R, but the criminality lies mainly in the intent
(2) Similar fact evidence is admissible to establish intent for attempt
(3) The A/R need not be a crime, tort or even a social wrong.
(4) The A/R must be more than mere preparation.
(5) When all preparation is complete, the next act done by the accused with the intent and for the purpose of committing a specific crime constitutes an actus reus.
-Cline began his attempt once his disguise was on and he began to approach the boy (i.e. not when he went to that corner to wait).
Ratio: Intent is the primary element of attempt, but it need not be proved only be means of proof of an unequivocal act. The A/R is the first act beyond mere preparation done for the purpose of and with the intent of committing a specific crime, such an act “is in fact proximate”. The criminality of attempt lies in the M/R.
Comment: This remains a leading case.
-Policy behind attempt: moral culpability and social danger. Also, from a law enforcement point of view, don’t want to have to wait for the crime to be committed.
R. v. James [1970 ON CA]
Facts: J was caught by a cop rummaging through the glove compartment of a car. He said he was looking for the keys so he could steal the car. He was charged with attempting to steal the car. The TJ acquitted, on the grounds that his acts were merely preparatory.
Issue: Did the TJ err in law?
Holding: Yes
Reasoning: Gale
-His acts were in furtherance of his intention to steal the car, not merely in preparation to steal it.
-Analogy to pickpocket cases, where sticking hand in empty pocket is still attempt.
-In Courtemanche and Bazinet, a NS court said that the act must be the last to be carried out by the accused before the commission of the offence, and must be unequivocally done with the relevant criminal intent. This is not a correct statement of law. Any act done in the furtherance of the commission of an offence is sufficient, provided that it is beyond mere preparation.
Ratio: Any act, beyond preparation, done in the furtherance of the commission of a crime is sufficient to constitute the A/R of attempt, regardless of whether it was to be the last act before the commission of the crime.
Wrong Turnings on the Law of Attempt—G. Williams, 1991
Williams is criticizing the English Criminal Attempts Act for its failure to get rid of the retrospective “more than merely preparatory to the commission of the offence” test. He argues that we should all follow the US MPC lead, and adopt a prospective “substantial step” that is “strongly corroborative of the actor’s criminal purpose” test. The latter, he argues, would widen the scope of the criminal law, but he thinks it need be so widened in order to capture criminals who now go free under the common law test. The Model Penal Code in the U.S. lists a series of acts that, for clarification, are to be taken as substantial steps (see pp. 27 CB).
-This may distort the ordinary meaning of attempt, but there are many instances in criminal law where the ordinary meaning is enlarged (e.g. murder).
-Jones case: found guilty of attempt for pointing the gun.
-Robinson: acquitted of attempted fraud because he never sent the insurance claim.
R. v. Deutsch [1986 SCC]
Facts: D placed ads and conducted 4 interviews for a ‘secretary’ position—3 with applicants and 1 with a cop posing as an applicant. The first three said they weren’t interested once he informed them that they’d be expected to have sex with clients. The cop said she was interested, and he told her get back to him. He was acquitted of attempting to procure for illicit sex and attempting to procure to become common prostitutes. The TJ found that his acts were merely preparatory because he did not make an employment offer, citing Sorrell and Bondett. The CA dismissed the appeal on the common prostitutes charge, ordering a new trial on the attempting to procure for illicit sex charge, holding that there was enough evidence to establish the A/R of attempt. [CA assumed that procuring requires sex]