A. Attempts

Author:Kent Roach
Profession:Faculty of Law and Centre of Criminology. University of Toronto

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Section 24 of the Criminal Code provides:

(1) Every one who, having an intent to commit an 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.

(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.

Section 463 sets out the punishment for attempted crimes. A person guilty of an attempted crime is generally subject to one-half of the longest term to which a person guilty of the completed offence is liable.9

A few substantive offences, including bribery and obstructing justice, include attempts as part of the completed offence and, as such, punish them in the same fashion as the completed offence.10A broadly defined offence may also be a substitute for charging a person with an attempted crime. For example, many acts that may have been attempted rapes before 1983 could now constitute sexual assaults. Similarly, some

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unsuccessful thefts could still qualify as thefts if the accused, with the intent to steal, begins to move the object to be stolen.11The crime of assault is also defined broadly by Parliament to include not only the striking of another person, but also attempts or threats, by act or gesture, to apply force. Thus, there would be no need to charge a person with attempted assault if he or she threatened a person in a manner that made that person reasonably believe that he or she could be assaulted.12

1) Mens Rea for Attempts

The mens rea, or fault element, is the most important element of attempted crimes because the actus reus will, by definition, not include the completed crime. As the Ontario Court of Appeal has observed, "whereas in most crimes it is the actus reus which the law endeavours to prevent, and the mens rea is only a necessary element of the offence, in a criminal attempt, the mens rea is of primary importance and the actus reus is the necessary element."13Similarly, the Supreme Court has recognized that "the criminal element of the offence of attempt may lie solely in the intent."14After having initially interpreted "the intent to commit an offence" in section 24(1) to include any intent provided in the Criminal Code to commit the completed offence,15the Supreme Court now interprets the intent to commit an offence as the specific intent to commit the completed offence. In the context of murder, MCINTYRE J. reasoned as follows:

The completed offence of murder involves a killing. The intention to commit the complete offence must therefore include an intention to kill . . . . I am then of the view that the mens rea for an attempted murder cannot be less than the specific intent to kill . . . .

. . . Section 24 defines an attempt as "having an intent to commit an offence." Because s. 24 is a general section it is necessary to "read in" the offence in question. The offence of attempted murder then is defined as "having an intent to commit murder." . . .

. . . The fact that certain mental elements, other than an intent to kill, may lead to a conviction for murder where there has been a kill-

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ing does not mean that anything less than an intent to kill will suffice for an attempt at murder.16The intent that is "read in" for attempted murder is the intent to kill in section 229(a)(i), even though it is constitutionally permissible to convict a person of the completed offence of murder on the basis of a lesser intent.17It should be noted that Ancio was a decision made without any reference to the Charter.

a) Constitutional Fault Element for Attempted Murder

In R. v. Logan,18the Supreme Court considered the fault element required under section 7 of the Charter for a conviction of attempted murder. Lamer C.J. held that the minimal fault element for attempted murder should be the same as for the commission of murder, on the grounds that the stigma of being convicted of the two offences was the same. He reasoned:

The stigma associated with a conviction for attempted murder is the same as it is for murder. Such a conviction reveals that, although no death ensued from the actions of the accused, the intent to kill was still present in his or her mind. The attempted murderer is no less a killer than a murderer: he may be lucky - the ambulance arrived early, or some other fortuitous circumstance - but he still has the same killer instinct.19In determining whether subjective foresight of death was constitutionally required, "the crucial consideration is whether there is a continuing serious social stigma which will be imposed on the accused upon conviction"20and not the existence of sentencing discretion that is available for attempted murder but not murder.21Logan suggests that the minimum fault requirement for attempted murder is the knowledge that death will result and that Parliament could lower the mens rea of attempted murder to that point but not below. Nevertheless, it does not overtake the higher standard of an intent to kill that is required by Ancio. It is an error to instruct the jury that knowledge that the victim

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is likely to die is a sufficient mens rea for attempted murder: the Crown must rather prove the Ancio standard of an intent to kill.22The Charter provides minimum standards of fairness towards the accused, not maximum standards.

b) Mens Rea for Other Attempted Offences

On the basis of Ancio, in principle, nothing less than the specific intent to obtain the prohibited result will suffice, even if a conviction for the completed offence could be based on some lesser form of intent. In R. v. Colburne,23the Quebec Court of Appeal stated that an attempt requires a specific intent to carry out the crime, even if the completed offence requires a lesser intent. On this basis, it could be argued that an attempted sexual assault must be based on the subjective intent to engage in non-consensual sexual activity, even though a person could now be convicted of the completed offence of sexual assault on the basis of recklessness, wilful blindness, or a failure to "take reasonable steps, in the circumstances known to the accused at the time, to ascertain that the complainant was consenting."24A discussion of the requirements of the crime of attempted sexual assault may, in many cases, be academic, given the wide definition of the actus reus of the completed crime of sexual assault.25That said, Canadian courts should not follow other jurisdictions that allow attempts to be punished on the basis of recklessness or knowledge with respect to the completed offence.26The essence of an attempt crime is the accused’s clear intent to commit the completed offence. This is particularly the case when it is considered that the actus reus of the attempt may not in itself be a crime or even a social mischief. It is unclear whether courts will accept crimes such

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as attempted manslaughter or an attempt to commit a strict liability of-fence as offences because of the difficulties of reconciling such crimes with the idea that attempts require a specific intent to carry out the complete crime.

In R. v. Williams,27the Supreme Court recognized the relevance of the high-intent standard contemplated in Ancio outside the context of attempted murder. In this case, the Court convicted a man of attempted aggravated assault for having unprotected sex when he knew he was HIV-positive. As discussed in chapter 3, an attempt conviction was entered because there was at least a reasonable doubt that the accused’s partner was already infected with HIV when the accused had sex with her, knowing that he was infected. This actus reus of aggravated...

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