5. Inchoate, impossible and imaginary offences

All criminal justice systems need to deal with the question of inchoate offences. Inchoate offences are non-realized offences. Where normally we start with the actus reus and only subsequently look at the mens rea, inchoate offences often involve an emphasis on the mens rea, followed by a truncated or substituted actus reus requirement (ie: per hypothesis not the commission of the entire actus reus, but typically something distinguishable from the mere mens rea). As always there are both policy issues (what should Parliament do? How do we discourage attempts?), constitutional issues (how do we not punish the innocent?) and practical issues (how do we distinguish between an attempt and a mere plan?).

How does one deal, first, with attempts? On the one hand, a person who launches on a criminal path and is merely unsuccessful in achieving her criminal design is as morally guilty as someone who "gets lucky" and achieves her aim. Although when it comes to negligence based offences there is a big difference between, for example, provoking death (manslaughter) and not provoking death (some underlying negligent behaviour offence) in terms of society's punishment based on whether the actus reus is proven, that difference is not so significant for subjective mens rea based offences. What matters is that you had a certain foresight of the result, and the law ought to punish you for it, for deterrence and retributive purposes. It should not really make a difference that in stabbing someone with intent to kill them you missed and the person survived. Moreover, the person who has started to realize his criminal design (for example the person who is driving to the bank with the intention of robbing it and a shotgun in the trunk) is someone who is already objectively dangerous. We would not want the police to only be able to intervene by the time that person had started the robbery. This is even more true with terrorism offences where it often seems as if society cannot wait for too much realization to have taken place.

By the same token, we want to make sure that, in our effort to "nip crime in the bud", we do not end up criminalizing mere thought crimes. Partly this is because we think that people who have not embarked on a criminal path can still change their mind. Maybe contemplating the commission of a criminal offence is part of the moral process by which many of us decide against it. If the state could read our minds and convict us merely on the basis of having had an intention to commit a crime our liberties would be eroded. Moreover, the fact that the attempt may not actually have caused any harm to anyone (it has just created a sort of "social alarm") may militate for taking that in consideration.

Canadian criminal law thus requires that there be a beginning of realization. If only for evidentiary purposes this may of course help in inferring mens rea (he who drives with a shotgun to the bank was probably intent on robbing it). Determining whether such realization is underway can be tricky and there is no single formula to do given the infinite variety of ways in which one may embark on a crime. The Criminal Code (section 24 (2) insists 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", signalling that, as with causality, there is a fundamental issue of justice involved. Many tests have been devised historically and by different systems to determine what is sufficient realization from a legal point of view. In practice, though, it is difficult to avoid the reality that the determination of whether there has actually been more than mere preparation will also be a fact-intensive endeavour and the courts have tended to emphasize the case-by-case nature of that determination.

In Deutsch, for example, the Court said that the distinction is 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." Try to think about how close the person is to committing the completed offence, how irreversible their path of action is, and how many acts still need to be realized to finish the job. Moreover note that given the relaxation of the actus reus requirement there tends to be an upgrading of the mens rea requirement, and you are typically required to intend to commit the offence (ie: you could not attempt on the basis of wilful blindness).

It may be helpful in this respect to distinguish between the early stages of committing a crime and failed crime. In the first case, someone has packed a knife with the intent of going to see someone to kill them; in the second case, the same person has stabbed his intended victim but failed. The latter case is an easy one from the point of view of attempts; the former may be more complicated. However, note that there is no defence of "abandonment" if the attempt is constituted, even though there might be a public interest in encouraging that possibility (but perhaps the issue can be dealt with at sentencing).

Conspiracy is somewhat different because as soon as there has been an agreement between persons to commit a criminal offence one can argue that there is an element of actus reus there. The actus reus lies in the agreement. Society has a clear interest in criminalizing the behaviour of people who get together to plan criminal designs. Unlike attempts, there is no requirement that of a beginning of realization; put differently, the agreement is itself a beginning of realization. You cannot fight an accusation of conspiracy by merely alleging that all the details of the crime were not known to you; it suffices that "the general nature of the common design and be an adherent to it." It may be tricky however to draw the line between negotiating a possible criminal common design, and actually agreeing to it. The former may be problematic but it is not illegal, probably on the same grounds that we find that individually (merely) deliberating whether to commit a crime should not be punishable. Note also that the Courts have been wary of convicting individuals on the basis of an "attempted conspiracy", this simply stretches too far from actual criminal behaviour (Derry).

One of the arguments that defendants have sought to make in the context of attempt or even conspiracy is that they could not possibly attempt to commit a crime that was impossible. Impossible crimes include, for example, stabbing someone who is already dead thinking they are alive; or selling sugar thinking it is cocaine; or engaging in criminal behaviour with an undercover agent who has no intention of allowing the criminal behaviour to happen. The law has little sympathy for the authors of impossible offences. The key point is they still intended to commit the offence (or had knowledge that they were committing it). The fact that factors beyond their control made the commission impossible is irrelevant. The Criminal Code is very clear that " 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." Just as we are careful not to convict those who are blameless, society is careful not to let go those who are clearly blameworthy.

Note however that the law does not go as far as to prosecute "imaginary" crimes. Imaginary crimes involve a mistake not as to fact but as to law. Imagine that you are under a delusion for example that selling sugar is a criminal offence (or anything you can think of that is slightly more plausible). From a strict defence-of-society point of view, one might think there is an interest in deterring people from breaking laws that exist only in their imagination (for example the argument might be that people who break imaginary laws are more likely to break real ones). However, in that case the complete lack of an actus reus or indeed of an offence means that convicting you of the simple attempt to break an imaginary law would go too far.

Further readings:

• • Fletcher, George P. Rethinking Criminal Law (Oxford University Press, 2000), pp. 131-148

  • Barkase, Kayla, and David MacAlister. “Impossibility in the Law of Criminal Attempt: A Comparison of Canada, Australia and New Zealand.” Oxford University Commonwealth Law Journal 14, no. 2 (2014): 153–194.

  • Ben-Shahar, Omri, and Alon Harel. “The Economics of the Law of Criminal Attempts: A Victim-Centered Perspective.” University of Pennsylvania Law Review 145, no. 2 (1996): 299–351.

  • Burgman, Dierdre A. “Unilateral Conspiracy: Three Critical Perspectives.” DePaul L. Rev. 29 (1979): 75.

  • Chesney, Robert M. “Beyond Conspiracy-Anticipatory Prosecution and the Challenge of Unaffiliated Terrorism.” S. Cal. l. Rev. 80 (2006): 425.

  • Christie, Sarah A. “The Relevance of Harm as the Criterion for the Punishment of Impossible Attempts.” The Journal of Criminal Law 73, no. 2 (2009): 153–164.

  • David, Kenneth A. “The Movement Toward Statute-Based Conspiracy Law in the United Kingdom and the United States.” Vand. J. Transnat’l L. 25 (1992): 951.

  • Enker, Arnold N. “Mens Rea and Criminal Attempt.” Law & Social Inquiry 2, no. 4 (1977): 845–879.

  • Freedman, David. “The New Law of Criminal Organizations in Canada.” Can. B. Rev. 85 (2006): 171.

  • Gillies, Peter. The Law of Criminal Conspiracy. Federation Press, 1990.

  • Gold, Alan D. “To Dream an Impossible Dream: A Problem in Criminal Attempts (and Conspiracy) Revisited.” Crim. LQ 21 (1978): 218.

  • Harno, Albert J. “Intent in Criminal Conspiracy.” University of Pennsylvania Law Review and American Law Register 89, no. 5 (1941): 624–647.

  • Hoeber, Paul R. “The Abandonment Defense to Criminal Attempt and Other Problems of Temporal Individuation.” California Law Review 74, no. 2 (1986): 377–427.

  • Johnson, Phillip E. “The Unnecessary Crime of Conspiracy.” California Law Review 61, no. 5 (1973): 1137–1188.

  • McCormack, Wayne. “Inchoate Terrorism: Liberalism Clashes with Fundamentalism,” 2005.

  • Ohana, Daniel. “Desert and Punishment for Acts Preparatory to the Commission of a Crime.” Canadian Journal of Law & Jurisprudence 20, no. 1 (2007): 113–142.

  • ———. “Desert and Punishment for Acts Preparatory to the Commission of a Crime.” Canadian Journal of Law & Jurisprudence 20, no. 1 (2007): 113–142.

  • Peiris, G. L. “Liability for Inchoate Crime in Commonwealth Law.” Legal Studies 4, no. 1 (1984): 30–66.

  • Rikhof, Joseph. “Hate Speech and International Criminal Law: The Mugesera Decision by the Supreme Court of Canada.” Journal of International Criminal Justice 3, no. 5 (2005): 1121–1133.

  • Schulhofer, Stephen J. “Harm and Punishment: A Critique of Emphasis on the Results of Conduct in the Criminal Law.” University of Pennsylvania Law Review 122, no. 6 (1974): 1497–1607.

  • Stewart, Hamish. “The Centrality of the Act Requirement for Criminal Attempts.” The University of Toronto Law Journal 51, no. 4 (2001): 399–424.

  • Wechsler, Herbert, William Kenneth Jones, and Harold L. Korn. “The Treatment of Inchoate Crimes in the Model Penal Code of the American Law Institute: Attempt, Solicitation, and Conspiracy.” Columbia Law Review 61, no. 6 (1961): 957–1030.

• R v. Shivpuri, [1986] UKHL 2, [1987] AC 1