Attempts

From Criminal Law Notebook
This page was last substantively updated or reviewed January 2015. (Rev. # 95228)

General Principles

Attempts refer 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:

Attempts

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.

– CCC (CanLII), (DOJ)

Note up: 24(1) and (2)

Certain offences have their own circumscribed meaning of attempt, such as bribery, obstructing justice, and attempt murder.[1]

Unavailable Defences

Both legal and factual impossibility is not a defence to an allegation of attempt.[2]

The defence of abandonment is generally not to be considered and instead is treated as failure to form the full intent for attempt.[3]

  1. ↑ e.g. see attempted murder, Obstructing justice
  2. ↑ United States of America v Dynar, 1997 CanLII 359 (SCC), [1997] 2 SCR 462, per Cory and Iacobucci JJ
    R v Bear, 2013 MBCA 96 (CanLII), 299 Man R (2d) 175, per Steel JA
  3. ↑ See R v Sorrell and Bondett, 1978 CanLII 2388 (ON CA), 41 CCC (2d) 9, per curiam
    R v Frankland, 1985 CanLII 3561, 23 CCC (3d) 385, per Dubin JA

Reconciling Offence Charged

An attempt is an included offence to most substantive offences.[1]

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.

– CCC (CanLII), (DOJ)

Note up: 660

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.

– CCC (CanLII), (DOJ)

Note up: 661(1) and (2)

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."[2]

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.[3]

There is no general criterion to distinguish between mere preparation and actual attempt.[4] It largely going to be left to the "common sense" of the judge.[5]

There is, however, a "qualitative" distinction that can be made:[6]

"...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.”[7]

The issue is one of factual proximity to the offence.[8] 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.[9] However, a lack of temporal proximity will not prevent it from being an attempt.[10] Nor would the fact that there are several intermediate acts prevent the act from being an attempt.[11]

The act will be sufficient where the accused actions have "progressed a sufficient distance (beyond mere preparation) down the intended path."[12]

The act does not have to be a crime, a civil wrong or even a moral wrong.[13]

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.[14]

  1. ↑ See s. 660, 662
    R v Webber, 1995 CanLII 333 (BC CA), [1995] BCJ No 2178 (BCCA), per Legg J
  2. ↑ R v Sarrazin, 2010 ONCA 577 (CanLII), [2010] OJ No 3748 (CA), per Doherty JA, at para 54
  3. ↑ R v Cline, 1956 CanLII 150 (ON CA), (1956) 4 DLR (2d) 480, OJ No 454 (ONCA), per Laidlaw JA, at para 34
  4. ↑ R v Root, 2008 ONCA 869 (CanLII), 241 CCC (3d) 125, per Watt JA, 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), 27 CCC (3d) 386, per Le Dain J ("the application of this distinction to the facts of a particular case must be left to common sense judgment.")
  5. ↑ Root, supra, at para 96
  6. ↑ Deutsch, supra, at para 27
  7. ↑ Root, supra, at para 98
  8. ↑ Cline, supra, at para 34
  9. ↑ Root, supra, at para 99
  10. ↑ Root, supra, at para 99
  11. ↑ Root, supra, at paras 99, 100
  12. ↑ Root, supra, at para 100
  13. ↑ Root, supra, at para 95
  14. ↑ 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.)

Mens Rea

There must be a specific intent to commit the act making up the offence.[1]

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.[2]

  1. ↑ R v Ancio, 1984 CanLII 69 (SCC), [1984] 1 SCR 225, per McIntyre J - attempt murder requires an "intention to commit the complete offence"
  2. ↑ R v Root, 2008 ONCA 869 (CanLII), 241 CCC (3d) 125, per Watt JA, at para 94

Specific Examples

An accused who has gone through security at an airport with a ticket has attempted to breach his conditions to stay in the province.[1]

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.[2]

The act of making a plasticine impression of car keys with a view to stealing the car is mere preparation.[3]

An accused who ships fish, shows a sample and then solicits interest without any discussion of terms is attempting to sell.[4]

Pointing a loaded firearm at a person while making threats without touching the trigger can be an attempt murder.[5]

  1. ↑ R v Heafey, 2013 ABPC 133 (CanLII), per Fradsham J
  2. ↑ R v James, 1970 CanLII 1073 (ON CA), (1971) 2 CCC (2d) 141 (ONCA), per Gale CJ
  3. ↑ R v Lobreau, 1988 ABCA 304 (CanLII), (1988) 67 CR (3d) 74, per Irving JA
  4. ↑ R v Gladstone, 1996 CanLII 160 (SCC), [1996] 2 SCR 723, per Lamer CJ
  5. ↑ R v Boudreau, 2005 NSCA 40 (CanLII), 193 CCC (3d) 449, per MacDonald CJ

See Also

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