- 24(1) of the Criminal Code indicates that “everyone who, having an intent to commit on 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”.
Additionally, s.24(2) of the Criminal Code further states that “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.”
These two sections provide the elements that the Crown must prove, beyond a reasonable doubt, in order for an accused to be convicted of an attempt in Canada.
It is important to note that the impossibility of committing a crime will not preclude a conviction for an attempt of a crime. This was seen in the case of R v Bear (2013), 304 CCC 3d 185 (Man. C.A.) (‘Bear’) in which the accused, who was HIV positive, was convicted of attempted aggravated assault after he tried spitting on a police officer although there was no evidence that the disease could be transmitted.
In order to be convicted of an attempt, you must intend to commit the offence. For circumstances in which you may be convicted of attempted murder, the Crown will have to prove an actual subjective intent to cause death which was discussed in the case of R v Ancio (1984) 10 C.C.C 3d 385 (SCC).
Additionally, your acts must be more than mere preparation of the alleged offence, as indicated by the case of R v Dery (2006) 213 C.C.C 3d 289 (S.C.C), simply talking about a crime is not sufficient. The court in R v Deutsh  2 S.C.R 2, provided various factors that the Court will take into account when determining if your acts are more than mere preparation. These factors include the time, location, and proximity of the acts that would have completed the offence and how close the accused was to complete the offence.
If the Crown is able to satisfy these elements beyond a reasonable doubt, the accused will be convicted of an attempt.
Leave a Reply