Attempts refers to the category of offences that amount to an unfulfilled (or "inchoate") substantive offence. Section 24 defines the meaning of "attempt" within the Criminal Code:
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.
Certain offences have their own circumscribed meaning of attempt, such as bribery, obstruct justice, and attempt murder.
Both legal and factual impossibility is not a defence to an allegation of attempt.
The defence of abandonment is generally not to be considered and instead is treated as failure to form the full intent for attempt.
Reconciling Offence Charged
Full offence charged, attempt proved
660 Where the complete commission of an offence charged is not proved but the evidence establishes an attempt to commit the offence, the accused may be convicted of the attempt.
R.S., c. C-34, s. 587.
Attempt charged, full offence proved
661 (1) Where an attempt to commit an offence is charged but the evidence establishes the commission of the complete offence, the accused is not entitled to be acquitted, but the jury may convict him of the attempt unless the judge presiding at the trial, in his discretion, discharges the jury from giving a verdict and directs that the accused be indicted for the complete offence.
Conviction a bar
(2) An accused who is convicted under this section is not liable to be tried again for the offence that he was charged with attempting to commit.
R.S., c. C-34, s. 588.
Attempting vs Preparing
A person attempting to commit an offence can be criminally liable for the attempt. For any attempt to be made out, the person's actions must be more than "mere preparation".
It is understood that a crime begins with an idea, then a decision to do the act, a plan to commit the act, then steps of preparation begin to carry out the plan. The criminal attempt begins only once the preparation is complete. The accused will then perform a series of acts with the intention of committing the offence.
There is however a "qualitative" distinction that can be made:
- "...the distinction between preparation and attempt is essentially a qualitative one, involving the relationship between the nature and quality of the act in question and the nature of the complete offence, although consideration must necessarily be given, in making that qualitative distinction, to 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. I find that view to be compatible with what has been said about the actus reus of attempt in this Court and in other Canadian decisions that should be treated as authoritative on this question."
The trial judge should consider the "relative proximity of that conduct to the conduct required to amount to the completed substantive offence. Relevant factors would include time, location and acts under the control of the accused yet to be accomplished.”
The issue is one of factual proximity to the offence. An act that would otherwise be mere preparation can become an attempt where it is sufficiently proximate to the completion of the full actus reus. However, a lack of temporal proximity will not prevent it from being an attempt. Nor would the fact that there are several intermediate acts prevent the act from being an attempt.
The act will be sufficient where the accused actions have "progressed a sufficient distance (beyond mere preparation) down the intended path".
The act does not have to be a crime, a civil wrong or even a moral wrong.
Standard of Appellate Review
The issue of whether an act is an attempt as opposed to preparation is a question of law and reviewable on a standard of correctness.
See s. 660, 662
R v Webber  BCJ No 2178 (BCCA)
- R v Sarrazin, 2010 ONCA 577 (CanLII),  O.J. No. 3748 (C.A.), at para 54
R v Cline (1956) 4 DLR (2d) 480, OJ No. 454 (ONCA) at para 34 per Laidlaw J.A.
R v Root 2008 ONCA 869 (CanLII), (2008), 241 CCC (3d) 125 at para 96 (“authorities have yet to develop a satisfactory general criterion to assist trial judges in making the crucial distinction between mere preparation, on the one hand, and an attempt on the other.”)
R v Deutsch, 1986 CanLII 21 (SCC) per Le Dain J. ("the application of this distinction to the facts of a particular case must be left to common sense judgment.")
- Root at para 96
- R v Deutsch, at para 27
- R v Root at para 98
- Cline at para 34
- Root at para 99
- Root at para 99
- Root at paras 99, 100
- Root at para 100
- R v Root, 2008 ONCA 869 (CanLII) at para 95
- s. 24(2) states "(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.)
There must be a specific intent to commit the act making up the offence.
The mens rea for an attempt is the same as the mens rea as the offence itself. The only difference is that there is an incomplete actus reus.
An accused who has gone through security at an airport with a ticket has attempted to breach his conditions to stay in the province.
An accused who goes through the glove box of a car looking for keys to the car that he wishes to steal has attempted to commit theft.
The act of making a plasticine impression of car keys with a view to stealing the car is mere preparation.
An accused who ships fish, shows a sample and then solicits interest without any discussion of terms is attempting to sell.
Pointing a loaded firearm at a person while making threats without touching the trigger can be an attempt murder.