Canadian law recognizes certain circumstances where individuals can be charged with a criminal offence, even if they were otherwise unsuccessful at committing any actual crime. In other words, a person can be charged with attempting to commit a crime. This article discusses when a person can be charged with an attempt to commit an office offence and what the Crown is required to prove at trial. Keep in mind: the law in this area can be very challenging. If have been charged with attempting to commit an offence, you should contact a lawyer for advice on what you should do. The lawyers at Pringle Chivers Sparks Teskey are available for a free consultation to discuss your case.
WHEN CAN I BE CHARGED WITH ATTEMPTING TO COMMIT A CRIME?
Section 24 of the Criminal Code makes it a crime where anyone does, or deliberately does not, do something for the purpose of carrying out a crime, whether or not they were successful and whether or not it was even possible under the circumstances to commit the offence. The person’s actions must be something more than mere preparation. They must have actually taken steps towards attempting to commit some type of crime.
There are three basic elements to an attempted offence:
- The intention to commit the offence;
- Some act or omission towards committing the offence; and
- Non-commission of the offence.
This three-part test is the foundation for any attempt charge and is broken down in detail below. There are several examples that you can imagine: A tries to kill B by administering too small a dose of poison, or A tries to kill B by shooting him in bed when in fact he has already died of natural causes. Perhaps A tries to steal money from a safe which is empty or A tries to get B to invest in a company that does not in fact exist, but B declines. In each of these examples, A’s efforts are somehow thwarted by a defect in the circumstances. The fact that A is ultimately unsuccessful is irrelevant. In Canadian law, a person is guilty of an attempt if he intends to commit a crime and takes sufficient steps towards committing that crime.
PART ONE – INTENTION TO COMMIT AN OFFENCE
The law of attempts is concerned with a person’s intention. It is meant to deter people from committing crimes, even where they are unsuccessful. The Crown must prove that the accused had a particular state of mind that was required to commit the crime at the time. For example, A learns the password to his wealthy friend, B’s, family safe. He knows from B that all of the family valuables are stored in the safe. When A inputs the password to the safe, he is disappointed to learn that all of the valuables have been removed and the safe is empty. A turns around to see B’s mother behind him who reports him to the police.
In this example, the Crown prosecutor is responsible for proving, beyond a reasonable doubt, that A was accessing the safe to steal its contents. They must establish that the accused was trying to steal. To determine what was in the accused’s mind at the time, the judge or jury will consider the following things:
- What the accused did or did not do;
- How the accused acted; and
- What the accused said or did not say.
Here, the Judge or jury considers what the accused did before, after, and during the alleged attempt. Even if there is no direct evidence of what was in the accused’s mind at the time, intention can be inferred from the other facts proven by the Crown prosecutor. Returning to the previous example, let’s say that A did not give a statement to the police. There is no confession that the reason he was accessing the safe was to steal the contents. However, the Crown is able to prove through B and his family
- That A had been repeatedly asking about what was inside the safe for several weeks leading up to the offence;
- That A was struggling financially and had just lost his job;
- That A had not been given permission to access the safe; and
- That A immediately said “I’m sorry!” when he saw B’s Mom standing behind him.
Based on these pieces of evidence, the judge (or jury) is entitled to infer that the reason A was accessing the safe was in fact to steal the contents from inside even though he was ultimately unsuccessful in doing so.
On a charge of attempted theft, the prosecution does not need to prove what the accused intended to steal, nor are they required to prove whether it would have even been possible to commit the theft. Although the example above is clear, real scenarios may not be.
PART TWO – STEPS TAKEN TO COMMIT THE CRIME
The prosecution must prove that the accused did some act or omission towards committing the offence. These need to be real steps taken by someone that go beyond mere preparation. The challenge, however, is to determine whether the acts of the accused have progressed beyond mere preparation to actuals steps taken to commit the offence. This is a factual determination that depends on the unique circumstances of each individual case. The judge is entitled to make a common-sense judgement.
In determining the distinction between mere preparation and an attempt, the judge will consider the proximity of the accused’s actions with what would actually be required for the completion of the offence. The Accused’s act does not need to be the last act in a chain of events leading to the crime for his actions to nonetheless constitute an attempt.
For example, let’s modify the earlier example of A unlocking B’s family safe, witnessed by B’s mother. This time let’s say that while A and B are doing homework, B’s mother overhears them talking about the code to the family safe. She overhears A asking B about what his family stores in the safe. A week later, she finds a piece of paper sticking out of A’s backpack with the password to the family safe written on it. The paper also details the parent’s upcoming schedule as to when they will be out of the home. The paper has tomorrow’s date circled with other notes as to how A plans to access the safe. The following day, B’s Mother stays home and sees A enter the room where the safe is located. B’s mother contacts the police.
Here, the example is not as clear as before. The prosecution will need to convince the judge, beyond a reasonable doubt, that A’s actions extend beyond mere preparation and cross the line into an attempted theft of the contents of the family safe.
PART THREE – NON-COMMISSION OF OFFENCE
The last component of the law of attempts is the simplest – the accused must have been unsuccessful in actually committing the offence. Afterall, had they been successful, they would be charged with the completion of the offence instead. In both of the examples above, A is ultimately unsuccessful in stealing anything from B’s family safe.
Motive is not relevant to evaluating someone’s intention. It is no consolation to someone whose valuables have been stolen that the thief intended to donate all items to a local charity. The purpose of the law of attempts is to deter someone from committing a criminal offence. Our law takes the view that a person who intended to commit a crime, and actually took steps towards completing that crime, should be prevented from trying again in the future, even if they failed to actually complete the crime.
Assault is one particular offence that has “attempt” built directly into the language in the Criminal Code. You can be charged with assault even if you did not actually make contact with the other person’s body. It is not unusual for people to be charged with assault even though no actual physical contact occurred.
One of the ways the Criminal Code defines assault is where a person “attempts or threatens, by an act or gesture, to apply force to another person, if he has, or causes that other person to believe on reasonable grounds that he has, a present ability to effect his purpose.” This offence involves an intention to apply force, not the actual application of force.
Let’s say for example, A and B are in a heated argument. The argument escalates and A becomes increasingly aggressive towards B. B tries to leave, but A backs him into a corner. A then retrieves a knife from his pocket and holds it out in front of B’s throat. At no point does A actually touch B with any part of his body, or with the knife. In this example, A could be found guilty of an assault despite never making contact with B’s body. What is important in this example is A’s intent and actions.
It is not uncommon for individuals to be charged with assault or uttering threats in these types of situations. If you find yourself in this situation, please contact us to discuss your case.
HIRING A LAWYER
The law of attempted crimes can be legally complex. This is especially true as the seriousness of the underlying offence increases. The crime of attempt can be connected to many offences under the Criminal Code. These are all very serious crimes that require a detailed review of the particular circumstances of your case and thorough legal advice as to what your options are moving forward. Being charged with attempting to commit a crime can be confusing and overwhelming. The lawyers at Pringle Chivers Sparks Teskey are available to assist. Please contact us for a free a consultation.