Detering v. R., [1982] 2 SCR 583

Supreme Court of Canada

Detering v. R., [1982] 2 S.C.R. 583

Date: 1982-11-02

Peter H. Detering, carrying on business as Astro Engine and Transmission Rebuilders (Plaintiff) Appellant;

and

Her Majesty The Queen (Defendant) Respondent.

File No.: 16167.

1982: October 14; 1982: November 2.

Present: Laskin C.J. and Ritchie, Beetz, Estey, McIntyre, Chouinard and Wilson JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO.

Criminal law—Attempts—Fraud—Concurrence between actus reus and mens rea—Proof of intent—Whether accused went beyond mere preparation—Criminal Code, R.S.C 1970, c. C‑34, s. 24.

The Ontario Court of Appeal set aside appellant’s conviction of fraud and substituted a conviction of attempted fraud since the subject of the alleged fraud was not in fact deceived. The complainant was assisting the Ontario Ministry of Consumer and Commercial Relations in monitoring the practices of car repairs business and knew that the transmission of the car brought to the appellant’s garage had been tampered with. The Court found that the evidence adduced was only consistent with the appellant renewing his original representation after he became aware that that was untrue.

Held: The appeal should be dismissed.

There is no discernible distinction between intent as it goes to the substantive offence and as it goes to a mere attempt. In either case the actus reus is essential to the particular charge. Section 24 of the Criminal Code merely required proof of intent and of accused going beyond mere preparation. Here, the external facts found in the evidence carried the acts beyond mere intention and amounted to a continuance of the accused’s objective manifestation. This established the elements of the attempt.

APPEAL from a judgment of the Ontario Court of Appeal setting aside appellant’s conviction of fraud and substituting a conviction of attempted fraud. Appeal dismissed.

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Alan D. Gold, for the appellant.

David H. Doherty, for the respondent.

The judgment of the Court was delivered by

THE CHIEF JUSTICE—This case arose out of a charge of fraud laid against the appellant under Criminal Code, s. 338(1)(b). His conviction at trial was set aside by the Ontario Court of Appeal which substituted a conviction of attempted fraud, it being conceded that the subject of the alleged fraud, one Sheila Harris, an employee of the Ontario Ministry of Consumer and Commercial Relations, was not in fact deceived. She had been assisting the Ministry in monitoring the practices of persons operating garage repair businesses. She had brought a well used car to the appellant’s repair shop, knowing that the transmission had been slightly tampered with and could be rectified with a few minutes work. She told the appellant that she had transmission trouble, and after he took the car for a test drive he told her that the transmission would have to be rebuilt and that the repair would cost $189 plus $3.50 sales tax.

When Sheila Harris reclaimed the car she paid the previously mentioned charge for the work. Without going into detail, it is enough to say that the bill she received noted that the transmission had been rebuilt but this was not in fact so. The Ontario Court of Appeal, speaking through MacKinnon A.C.J.O. held that there was an attempt to commit the offence specified in the indictment. In his view, “the evidence is consistent only with the appellant renewing or continuing his original representation that the transmission required overhauling after he became aware that that was untrue”.

In this Court, counsel for the appellant advanced three propositions, of which the third was that there must be a concurrence between the actus reus (the representation) and the mens rea that there was no mens rea at the time the statement or representation to the Crown witness was

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made, and that if mens rea, did arise later, the actus reus had been long completed. I need say as to this submission only that it is covered by the finding above-quoted by MacKinnon A.C.J.O. Concurrence was therefore present.

The other two propositions advanced by Mr. Gold for the appellant were not as such reflected in the Court of Appeal’s reasons. Counsel dwelt on two points. First, he said that Criminal Code, s. 24(1) dealing with attempts contains an inherent contradiction when it requires proof of an intent to commit the substantive offence. Moreover, it involves, on his submission, proof of all the ingredients essential to the full offence, and if no crime has been committed (when the complainant has not been deceived) the accused cannot be charged with the required intent. Moreover, in the counsel’s view, an attempt envisages failure not success, and if the planned deception has been achieved there can be no liability for attempt.

Second, it was his submission that proximity was an essential requirement in the sense, to put it generally, that the actions of the accused must go beyond mere preparation and close (a question of degree) to the realization of his purpose. Putting these matters another way, if the acts of the accused go beyond mere preparation, they could amount to an attempt; however, if they are thereafter carried out and result in success and if, as in this case they do not amount to a crime, there could be a conviction of attempt. Counsel for the accused contends that the provisions of Criminal Code, s. 24(1) which define attempts do not affect the cogency of his propositions.

Criminal Code, s. 24(1) and (2) read as follows:

24. (1) Every one who, having an intent to commit an offence, does or omits to do anything for the purpose of carrying out his intention is guilty of an attempt to commit the offence whether or not it was possible under the circumstances to commit the offence.

(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

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remote to constitute an attempt to commit the offence, is a question of law.

There are answers to these propositions under this statutory provision. In the first place, there is no discernible distinction between intent as it goes to the substantive offence and as it goes to a mere attempt. In either case, the actus reus is essential to the particular charge. In this case the question whether the accused’s intent remained only subjective is answered by what was said by the Ontario Court of Appeal. The external facts found in the evidence carried the acts beyond mere intention and amounted to a reaffirmation or a continuance of the accused’s objective manifestation. This established the elements of the attempt.

This leaves for consideration the so-called proximity principle. It may well be that this is envisaged by the reference to remoteness in s. 24(2), but I do not see that it advances the essential issue in attempt which requires going beyond mere preparation. Nor do I find cogency in the appellant’s submission that if there is impossibility this does not bring any act of the accused closer to realization so as to establish proximity. I read s. 24(1) as making a different distinction, one merely requiring proof of intent and of accused going beyond mere preparation by making, as in this case, a false representation even though not resulting in full realization of his objective.

I would dismiss the appeal.

Appeal dismissed.

Solicitor for the appellant: Alan D. Gold, Toronto.

Solicitor for the respondent: The Attorney General for Ontario, Toronto.