The Queen v. Ancio, [1984] 1 SCR 225

SUPREME COURT OF CANADA

The Queen v. Ancio, [1984] 1 S.C.R. 225

Date: 1984-04-02

Her Majesty The Queen Appellant; and

Sam Joseph Ancio Respondent.

File No.: 16832.

1983: November 8; 1984: April 2.

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

ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO

Criminal Law — Attempted murder — Mens rea — Whether requisite mens rea restricted to intent to kill or recklessly cause bodily harm known to likely cause death — Whether s. 24 in combination with construc­tive murder sections can form basis for attempted murder — Criminal Code, R.S.C. 1970, c. C-34, ss. 24(1), 212 (a)(i),(ii), 213(d).

Respondent, who wanted to speak with his estranged wife, broke into an apartment building with a loaded sawed-off shotgun. Kurely, the man with whom his wife had been living, went to investigate the sound of break­ing glass and threw the chair he was carrying at respondent when he saw him climbing the stairs. The gun discharged, missing Kurely, and a struggle followed. Shortly after his arrest, respondent stated to police that he "had him [Kurely] by the throat and I would have killed him." The trial judge found respondent had broken into the apartment building with the intent to use the shotgun to force his wife to leave and convicted him of attempted murder. The Court of Appeal over-turned that conviction and ordered a new trial. At issue here is whether the mens rea in attempted murder is limited to an intention to cause death or to cause bodily harm knowing it to be likely to cause death, or whether the mens rea required extended to the intention to do some action constituting murder as defined by ss. 212 or 213 of the Code.

Held (Ritchie J. dissenting): The appeal should be dismissed.

* The Chief Justice took no part in the judgment.

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Per Dickson, Beetz, Estey, McIntyre, Chouinard, Lamer and Wilson JJ.: The mens rea for attempted murder is the specific intent to kill and a mental state falling short of that level, while it might lead to convic­tion for other offences, cannot lead to a conviction for an attempt. The completed offence of murder involves kill­ing and any intention to complete that offence must include the intention to kill. An attempt to murder should have no lesser intent. Nothing illogical arises from the fact that in certain circumstances a lesser intent will suffice for a conviction for murder. A person cannot intend to commit the unintentional killings described in ss. 212 and 213 of the Code. Any illogic lies in the statutory characterization of unintentional killing as murder.

The crime of attempt developed as, and remains, an offence separate and distinct from murder. While the Crown must still prove both mens rea and actus reus, the mens rea is the more important element. The intent to commit the desired offence is a basic element of the offence of attempt, and indeed, may be the sole criminal element in the offence given that an attempt may be complete without completion of the offence intended.

[Lajoie v. The Queen, [1974] S.C.R. 399, overruled; R. v. Flannery, [1923] 3 W.W.R. 97, 40 C.C.C. 263; R. v. Walker, [1963] Que. Q.B. 578n, [1964] 2 C.C.C. 217; R. v. Ritchie, [1970] 5 C.C.C. 336; R. v. Scofield (1784), Cald. Mag. Rep. 397, considered; R. v. Trin­neer, [1970] S.C.R. 638; R. v. Whybrow (1951), 35 Cr. App. R. 141; R. v. Ménard, [1960] Que. Q.B. 398n, 130 C.C.C. 242; Tousignant v. The Queen, [1960] Que. Q.B. 767n, 130 C.C.C. 285; R. v. Owens, [1970] 2 C.C.C. 38; R. v. Loughlin, [1959] Crim. L.R. 518; The Case of Duels (1615), 2 St. Tr. 1033; R. v. Higgins (1801), 2 East 5, 102 E.R. 269; R. v. Cline (1956), 115 C.C.C. 18; R. v. Quinton, [1947] S.C.R. 234, referred to.]

APPEAL from a judgment of the Ontario Court of Appeal (1981), 63 C.C.C. (2d) 309, 34 O.R. (2d) 437, quashing a conviction of attempted murder pronounced by Anjo P.C.J. and ordering a new trial. Appeal dismissed, Ritchie J. dissenting.

Lucy Cecchetto, for the appellant.

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Clayton C. Ruby and Michael Code, for the respondent.

The following are the reasons delivered by

RITCHIE J. (dissenting)—I am unable to distin­guish this case from that of Lajoie v. The Queen, [1974] S.C.R. 399, which is a unanimous judg­ment of this Court and by which I feel bound.

I would therefore allow this appeal.

The judgment of Dickson, Beetz, Estey, McIn­tyre, Chouinard, Lamer and Wilson JJ. was deliv­ered by

MCINTYRE J.—This appeal involves consider­ation of the mental element required for proof of the crime of attempted murder, the subject of this Court's earlier judgment in Lajoie v. The Queen, [1974] S.C.R. 399.

At the date of the events which give rise to this appeal the respondent had been married some twenty-five years. His wife had left the matrimoni­al home and was living with one Kurely. The respondent was depressed and had been drinking to excess on the date in question. He telephoned his wife at Kurely's residence and told her he was afraid that their twenty-three year old son was about to commit suicide and asked her to meet him. She refused to cooperate. Later the same evening the respondent broke into a friend's home while its owners were absent and took away three shotguns. He sawed off the barrel of one, loaded it, and taking some extra ammunition with him went to Kurely's apartment building and gained entry by breaking the glass in the front door. On hearing the noise caused by the breaking glass, Kurely came from his bedroom to investigate, carrying a chair with a jacket hanging on it. He saw the respondent, carrying the shotgun, ascending the stairs to the second floor. He threw the chair and jacket, hitting the respondent. The gun went off. The blast missed Kurely by some three feet but put a hole in the jacket which had been on the chair. A struggle followed in which Kurely appears to have wrested the gun from the respondent. When the police arrived, having been called during

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the course of the fight between the two men, Kurely was on the floor with his head partly under a bed and with the respondent upon him striking him weakly.

Shortly after his arrest the respondent stated to the police:

I just went over to see my wife. I had phoned her earlier. I broke the window and went in. Then I heard what sounded like a gun go off. You are lucky you got there when you did. I had him by the throat and I would have killed him.

According to the respondent's account of events, the gun was discharged accidentally, although under tests conducted by the police the weapon was not found to be prone to accidental discharge.

The respondent was charged with a number of offences arising out of this affair but only one, that of attempted murder, is involved in this appeal. It was contained in the first count of the information and was in these terms:

... did attempt to murder Michael KURELY by discharging a sawed-off shotgun at him contrary to s. 222 of the Criminal Code of Canada.

He elected trial by judge alone and was convicted. The conviction was quashed in the Court of Appeal and a new trial directed. This appeal is taken by leave of this Court.

The trial judge disposed of the other charges against the respondent and made a finding that he had broken into Kurely's apartment building with intent to use the shotgun to force his wife to leave. He said:

I turn now to the very real point of the charge of attempted murder, and having made the finding I have of the break and enter at the house at 108 6th Street, with intent to commit an indictable offence, wither [sic] forceable confinement or worse. Forceable confinement if you accept the evidence of the Accused, I feel prob­ably worse than that.

He then referred to s. 213(d) of the Criminal Code which is in these terms:

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213. Culpable homicide is murder where a person causes the death of a human being while committing or attempting to commit ... kidnapping and forcible confinement ... breaking and entering ... whether or not the person means to cause death to any human being and whether or not he knows that death is likely to be caused to any human being, if

(d) he uses a weapon or has it upon his person

(i) during or at the time he commits or attempts to commit the offence, or

(ii) during or at the time of his flight after committing or attempting to commit the offence,

and the death ensues as a consequence.

Noting that breaking and entering with intent to commit an indictable offence is one of the offences named in the section, he convicted the respondent of attempted murder on the basis that the respond­ent had carried and used a weapon in the course of a breaking and entry with intent to effect forceable confinement of his wife.

The judgment of the Court of Appeal (MacKin­non A.C.J.O., Dubin and Lacourcière JJ.A.) was written by MacKinnon A.C.J.O. He accepted the submission by counsel for Ancio that the findings of fact which formed the basis of the conviction were that the respondent committed the offence of breaking and entering Kurely's residence and that he had in his possession a weapon during the commission of the offence. He then considered whether these findings of fact in the absence of any finding of an intent to kill or cause bodily harm were sufficient to support a conviction for attempted murder by the interaction of ss. 24(1) and 213(d) of the Criminal Code, and said:

There is no question in the instant appeal that the trial judge was satisfied beyond a reasonable doubt that the appellant intended to break and enter the Kurrelli [sic] premises and intended to have in his possession the sawed-off shotgun. The appellant was charged with the offence of attempted murder and the "offence" referred to in s. 24(1) is the offence of "attempted murder" and not the offence of break and enter while carrying a weapon on his person. If death had ensued in the instant case it would have been constructive murder, but from

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the standpoint of an attempt, can there be an intention to attempt an unintentional act without more?

and further:

In the law of attempts it is the mens rea which is fundamental and in the circumstances of this case there must be the intention either to mean to cause death or in the case of attempted murder, as now established by R. v. Lajoie, meaning to cause the victim bodily harm knowing it is likely to cause his death, and reckless whether death ensues or not. The trial judge, according­ly in this case, had to be satisfied beyond a reasonable doubt (or a jury if one is present) that the Crown has established the required intent under s. 212(a)(i) or 212(a)(ii).

He then went on to hold that while there was evidence before the trial judge from which he could have drawn the necessary inferences regard­ing the intent to kill or cause bodily harm likely to cause death, he had not done so, and as a result had not made the findings necessary to support the conviction. Accordingly, the conviction was quashed and a new trial was ordered.

The Crown contended in this Court that the Court of Appeal was in error in holding that the mens rea in attempted murder was limited to an intention to cause death (s. 212(a)(i)), or an inten­tion to cause bodily harm knowing it to be likely to cause death and being reckless whether death ensues (s. 212(a)(ii)). The Crown's position was stated in its factum in these words:

... the intention for attempted murder is not restricted to an actual intention to kill or an intention to cause grievous bodily harm that one knows is likely to cause death and is reckless whether death ensues or not, but extends to an intention to do that which constitutes the commission of the offence of murder as defined in sections 212 and 213 of the Criminal Code. It is the Crown's position that Section 24 and Section 213(d) in combination can form the basis for a conviction of attempted murder. [Emphasis is mine.]

The respondent supported the judgment of the Court of Appeal which followed the judgment of

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this Court in R. v. Lajoie, supra. In that case it was held that a conviction for attempted murder could be sustained where the Crown had shown on the part of the accused either an intent to kill the potential victim or an intent to cause bodily harm which he knows is likely to cause death and is reckless whether death ensues or not. Although reference was made in Lajoie to the possibility of committing attempted murder as defined in s. 213 (see concluding sentence on page 408), the respondent and the Court of Appeal in the case at bar adopted the view that this was merely obiter and MacKinnon A.C.J.O. disposed of the matter in these words:

To interpret the quoted statement broadly is not necessary to the decision in R. v. Lajoie. I do not read the judgment of the Court to require us to give it the consequences I have recited. The essential issue determined by R. v. Lajoie was that there can be a finding of an attempt to murder when it is proven beyond a reasonable doubt that the accused meant to cause the victim bodily harm which he knew was likely to cause death and was reckless whether death ensued or not.

The respondent submitted that the Crown's posi­tion, that s. 213(d) coupled with s. 24(1) described a further intent sufficient to warrant a conviction for attempted murder, should not be accepted because there was no authority to extend the con­cept of a constructive intent further than Lajoie had taken it. While contending on the facts of this case that he was not obliged to go further, he argued that in reason and logic a specific intent to kill should be the only intent sufficient to ground a conviction for attempted murder. It was said that the effect of the Crown's argument in extending the concept of an attempt to s. 213(d) of the Criminal Code would be to justify a conviction for attempted murder in the absence of any mental element with respect to the causing of death which would be to ignore the words of s. 24(1) specifical­ly requiring an intent to commit the offence in question.

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Lying at the heart of the controversy which arises in this case is the judgment of this Court in Lajoie, supra. In that case the appellant shot a taxi-driver while attempting a robbery. The victim was struck by a bullet while fleeing the scene but did not die. The appellant was charged with vari­ous offences, one of which was attempted murder. At trial the judge instructed the jury that in order to convict the appellant upon the attempted murder charge they had to be satisfied beyond a reasonable doubt that in shooting at the victim the accused had the intent to kill him. He declined to act on the Crown's request to charge the jury to the effect that, if they were not satisfied on the question of the intent to kill, a conviction of attempted murder could also rest upon proof of an intent to cause the appellant bodily harm, knowing it to be likely to cause death and being reckless whether death ensued or not. The appellant was found guilty of the lesser offence of discharging a firearm with intent to endanger life.

On appeal the Crown succeeded and a new trial was ordered. The majority, Branca J.A. and Nemetz J.A. (as he then was) were of the view that the mental element or intent required for an attempted murder was not limited to the intent to kill but included as well those mental elements described in s. 212(a)(i) and (ii). Branca J.A. said, at pp. 394-95 ([1971] 5 W.W.R. 385):

I am of opinion that in a charge of attempted murder, when the evidence discloses an intent to commit murder as defined in the Code and the accused does or omits to do an act for the purpose of carrying out that intention, he is guilty of an attempt to commit that crime whether or not it was possible in the circumstances to commit it. If the evidence discloses any of the intentions referred to in ss. 201(a) (i) or 201(a)(ii) or 201(c) or 202(a)(i)(ii) or 202(d)(i)(ii) the accused person may be found guilty of attempted murder.

Nemetz J.A. expressed agreement with the reasons of Branca J.A. and after referring to certain of the

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authorities which have dealt with this question concluded his reasons by saying, at p. 399:

It was ably argued by Mr. Lecovin, counsel for the respondent, that the word "attempt" relates, in the first place, to an endeavour to commit a crime, and accord­ingly there cannot be an attempt unless the respondent was trying to commit the crime — in this case, to kill. I cannot accept this submission. I do not go so far as to suggest that a trial judge must, in every case of attempted murder, charge on the indirect intent found in s. 201(a)(ii). In some special set of circumstances it may be inappropriate to charge on the indirect intent found in this subsection. (I do not find it necessary, in this case, to consider subss. (b) and (c) of s. 201.)

However, upon the facts in this case I have no doubt that the indirect intent described in s. 201(a)(ii) should have been drawn to the jury's attention in order that the jurymen could consider whether, in the circumstances, the accused meant to cause the victim bodily harm that he, the accused, knew was likely to cause death and was reckless whether death ensued or not.

Taggart J.A. dissented. He recognized that there was authority which would support the positions taken by both parties to the appeal, and he dealt with the leading cases and reached the conclusion that to obtain a conviction for attempted murder the Crown must prove that the accused intended to kill the victim.

In the Supreme Court of Canada the appeal was dismissed. Martland J. wrote the judgment of the Court and after a brief statement of the facts stated the question in issue, at p. 401, in these words:

The question of law, which is in issue in this appeal, as a result of the dissent of Taggart J.A. in the Court of Appeal, is as to whether the learned trial judge should have directed the jury that the intent, which must be established to support a charge of attempted murder, is proven if the jury is satisfied, beyond a reasonable doubt, that the appellant meant to cause bodily harm that he knew was likely to cause death and was reckless whether death ensued or not. Branca J.A. and Nemetz J.A. were of the opinion that the learned trial judge erred in failing to direct the jury in this way. Taggart J.A. took the opposite view.

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He recognized that there was conflicting authority upon the question, but he expressed agreement with the majority of the Court of Appeal and he said, at p. 405:

Section 210 of the Code provides that every one who attempts by any means to commit murder is guilty of an indictable offence and is liable to imprisonment for life. Murder may be committed if the accused means to cause death, but it may also be committed if he means to cause bodily harm knowing that it is likely to cause death and is reckless whether death ensues or not. If it can be established that the accused tried to cause bodily harm to another of a kind which he knew was likely to cause death, and that he was reckless as to whether or not death would ensue, then, under the wording of s. 210, if death did not ensue an attempt to commit murder has been proved.

He supported this conclusion by referring to the difference between s. 264 of the Criminal Code of 1927, which was in these terms:

264. Every one is guilty of an indictable offence and liable to imprisonment for life, who, with intent to commit murder,

(a) administers any poison or other destructive thing to any person, or causes any poison or destructive thing to be so administered or taken, or attempts to administer it, or attempts to cause it to be so administered or taken; or

(b) by any means whatever wounds or causes any griev­ous bodily harm to any person; or

(c) shoots at any person, or, by drawing a trigger or in any other manner, attempts to discharge at any person any kind of loaded arms; or

(d) attempts to drown, suffocate, or strangle any person; or

(e) destroys or damages any building by the explosion of any explosive substance; or

(f) sets fire to any ship or vessel or any part thereof, or any part of the tackle, apparel or furniture thereof, or to any goods or chattels being therein; or

(g) casts away or destroys any vessel; or

(f) by any other means attempts to commit murder.

and s. 210 of the 1953-54 Code, now s. 222:

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210. Every one who attempts by any means to commit murder is guilty of an indictable offence and is liable to imprisonment for life.

He observed that s. 264 of the Criminal Code in its opening sentence included the words "who, with intent to commit murder" and that these words were omitted and replaced with "who attempts … to commit murder" in the revision which resulted in the enactment of s. 210. He concluded that it was the presence of the words "with intent to commit murder" in the former section 264 that led the court to conclude in R. v. Flannery, [1923] 3 W.W.R. 97, 40 C.C.C. 263, that only a specific intent to kill would suffice to found a conviction for attempted murder and that it was that intent which was considered to be essential by Lord Goddard in Whybrow cited infra. In his view the omission of those words in the enactment of s. 210 justified a construction of s. 24 which would admit of a conviction for attempted murder without a specific intent to kill.

He then referred to the decision of this Court in R. v. Trinneer, [1970] S.C.R. 638, which con­cerned the application of s. 21(2) of the Criminal Code and which involved consideration of the words "the commission of the offence" as they appear in s. 21(2). The relevance of the Trinneer case was explained on the basis that the Court had there decided that the words "the commission of the offence" meant commission in any of the ways contemplated by the Code and not merely its commission in the form of an intentional killing. He said, at p. 408:

Similarly, in my opinion, when s. 24(1) refers to "an intent to commit an offence", in relation to murder it means an intention to commit that offence in any of the ways provided for in the Code whether under s. 201 (now 212) or under s. 202 (now 213).

There is no doubt that prior to this Court's judgment in Lajoie there was much uncertainty on this issue caused by the differing views expressed by the courts on the matter. In his dissenting reasons in Lajoie in the British Columbia Court of Appeal, Taggart J.A. illustrated this point by referring to many of the cases, including R. v.

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Flannery, supra; R. v. Whybrow (1951), 35 Cr. App. R. 141; R. v. Ménard, [1960] Que. Q.B. 398n, 130 C.C.C. 242; Tousignant v. The Queen, [1960] Que. Q.B. 767n, 130 C.C.C. 285, all of which supported his dissenting conclusion that the specific intent to kill was required in order to justify a conviction on a charge of attempted murder. He referred as well to R. v. Walker, [1963] Que. Q.B. 578n, [1964] 2 C.C.C. 217; and R. v. Ritchie, [1970] 5 C.C.C. 336, which adopted the other view and would support a conviction for attempted murder upon proof of any of the intents specified in s. 212 of the Criminal Code.

In R. v. Flannery Stuart J.A., speaking for the Alberta Court of Appeal (Clarke J.A. dissented in part, but on another point), held in a case involv­ing a charge of attempted murder that the intent to kill must be shown to ground a conviction. The Crown had argued that if the accused meant to cause bodily injury which he knew to be likely to cause death, and was reckless whether it did or not, the necessary intent for a conviction was present. This proposition was rejected and, at pp. 265-66, Stuart J. said:

The contention was that the accused evidently did intend to cause Mary Steele a bodily injury which was known to him to be likely to cause death and was reckless whether death ensued or not, and that, therefore, there was evidence of an intent to murder, the act described in the section amounting to murder. But the fallacy of this reasoning is this, that it is simply because the actual intent to kill may be absent that sub-sec. (b) is thought necessary at all. If that intent exists then clause (a) covers the case. Parliament evidently thought that even though the actual intent to kill might not be shown, yet if the offender intends to cause and does cause an injury which be knows to be likely to cause death and doesn't care whether it does or not and death actually results, the offence should be treated as murder. But where death has not in fact resulted and the charge is of an intention to murder coupled with acts apparently done for the purpose of carrying out that intention, i.e., of an "attempt" to murder, as is indicated in the marginal words of the Cr. Code R.S.C. 1906, ch.

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146, then we are of opinion that the actual intent to kill must be shown. In other words the accused is deprived of the benefit of an absence of actual intent to kill only where he has actually killed and has intended to do an injury which he knows is likely to kill and is reckless whether it does so or not. Where, luckily for him, the injured person does not die then we thought and so decided that the actual intent to kill must be shown. The obscurity or difficulty probably arises from the use in sec. 264 of the words "intent to commit murder" instead of the words "intent to cause death." The word "murder" being used, which, by virtue of sec. 259 covers a number of different sets of facts and is, therefore, pregnant with legal significance, one is in danger of being led to include in the meaning of the word as used in sec. 264 everything that is to be found in the defini­tion of murder given in all the clauses of sec. 259. But if this method of interpretation were followed then reading 259 and 264 together we would have the expression "with the intention to mean to cause to a person (not killed in fact) an injury which, &c."

This was obviously not intended by Parliament and I think the expression "with intention to commit murder" must refer to that simple ordinary type of murder which is covered by clause (a) of sec. 259, namely, where "the offender means to cause the death of the person killed."

In Whybrow Lord Goddard, speaking for the Court of Criminal Appeal, in a case where the trial judge had instructed the jury that:

If you are satisfied beyond all reasonable doubt that on that evening of the 30th April he did connect up this wire in such a way that it would pass the domestic supply in the skirting of the bedroom along the wire to the socket in the cupboard, which in turn was connected with the soap dish, and if you are further satisfied that in doing that he intended to kill his wife or to do her grievous bodily harm, then he would be guilty of attempted murder.

said, at p. 148:

There is no question that that was a misdirection, and the jury should have been told that the essence of the offence was the intent to murder as it was presented by the prosecution and as it had been dealt with throughout the case.

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This case has frequently been cited as a concise statement of the law of England on this point.

In Tousignant the Quebec Court of Appeal followed their earlier judgment in Ménard and approved of the Whybrow decision. There were three separate judgments written but all supported the proposition that an intent to kill was a neces­sary element which must be shown by the Crown to procure a conviction for attempted murder. The position taken by the court on this point is summa­rized in the words of Hyde J., at p. 287:

All murder involves homicide and there can be no attempt to murder without an attempt to kill. Basically, murder is committed when a person "means to cause death" and does so (s. 201). By para. (c) of s. 201 the intent to cause death is replaced by the commission of an act, for an unlawful object, "that he knows or ought to know is likely to cause death" so that when death occurs the assailant is presumed to have intended it even though he may have desired "to effect his object without causing death or bodily harm to any human being". Without such express provision such a homicide, although culpable, would not amount to murder.

R. v. Owens, [1970] 2 C.C.C. 38 (B.C.C.A.), supports the proposition that the specific intent to kill must be shown in attempted murder, as does the English case of R. v. Loughlin, [1959] Crim. L.R. 518 (C.C.A.)

The opposing view to that expressed in the cases cited above finds expression in R. v. Walker in the Quebec Court of Appeal, R. v. Ritchie in the Ontario Court of Appeal and, particularly, in Lajoie in this Court. In R. v. Walker the accused was charged with attempted murder. He had been the driver of the car in which his companions arrived at the scene of the crime and attempted to make their escape after the commission of the robbery. In the pursuit which followed one of the accused's companions fired several shots from the moving car and wounded one of the pursuing officers. The appellant Walker was charged with attempted murder. His guilt depended upon proof of a common unlawful purpose under s. 21(2) of the Criminal Code. The trial judge directed the

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jury that to convict they would have to find that the unlawful purpose which was shared by the accused was to shoot some person. The court held (Rinfret J.A. dissenting) that if the accused and his companions formed an intention in common to commit armed robbery and to drive away with the proceeds they were all guilty as parties to any offence, such as attempted murder committed by one of them, if he knew or should have known that it would be a probable consequence of carrying out the intention. It was therefore possible upon such a direction that a conviction for attempted murder could be recorded without a specific intent to kill. Rinfret J.A. in a dissenting opinion adopted the view expressed in Ménard and Tousignant and concluded that the appeal should have been allowed, because the specific intent to kill had not been demonstrated and accordingly a conviction for attempted murder could not be made.

In R. v. Ritchie the Ontario Court of Appeal (Schroeder, McGillivray and Evans JJ.A.) held that a conviction of attempted murder would prop­erly be made if the jury were satisfied beyond a reasonable doubt that the accused meant to cause death and was reckless whether death ensued or not. Schroeder J.A., who wrote the judgment of the court, chose between the opposing lines of authority with these words, at p. 343:

The trend in modern criminal law is towards the expansion of the concept of mens rea to include reckless­ness as well as intention, and that is clearly exemplified in ss. 201 and 202 of the Criminal Code. It is not easy to discern the logic which underlies the view that the mental element required for an attempt is that of a direct intention to bring about the actus reus of the crime intended. I adopt the opinion expressed in R. v. Walker, cited supra, and R. v. McLennan, cited supra, in preference to the opinions expressed in the other cases which have been cited. I am free to do so since I am unaware of any Ontario decision in which the principle relied upon by appellant's counsel was adopted and applied.

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A great deal of the confusion surrounding the nature of the intent required to found a conviction for attempted murder may well stem from an assumption that murder and attempted murder are related offences which must share the same mental elements. A brief review of the historical development of the law relating to the two offences demonstrates that the crime of attempt developed as a separate and distinct offence from the offence of murder.

In very early times murder was simply the kill­ing of a human being. The law was concerned with the injury done to the family of the deceased and the compensation which should follow. The conse­quence of the killing was the important feature and the intent or mens rea was of little if any significance. Special mental elements were recog­nized in statutes as early as the thirteenth century, and by the fourteenth century the concept of malice aforethought had developed (see 13 Rich­ard 2, Stat. 2, c. 1). Thus two elements came to be recognized in murder: the killing, and the malice aforethought, which in modern times has come to mean the necessary intent or intents.

As the common law developed, the mental ele­ment required for the commission of murder expanded to include both constructive intent and knowledge of the likelihood of death as a result of a person's acts, with recklessness as to whether death ensued or not. Murder was thus defined in the Criminal Code when it was enacted in 1892 in ss. 227 and 228 in these words:

227. Culpable homicide is murder in each of the following cases:

(a) If the offender means to cause the death of the person killed;

(b) If the offender means to cause to the person killed any bodily injury which is known to the offender to be likely to cause death, and is reckless whether death ensues or not;

(c) If the offender means to cause death or, being so reckless as aforesaid, means to cause such bodily injury as aforesaid to one person, and by accident or mistake kills another person, though he does not mean to hurt the person killed;

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(d) If the offender, for any unlawful object, does an act which he knows or ought to have known to be likely to cause death, and thereby kills any person, though he may have desired that his object should be effected without hurting any one.

228. Culpable homicide is also murder in each of the following cases, whether the offender means or not death to ensue, or knows or not that death is likely to ensue:

(a) If he means to inflict grievous bodily injury for the purpose of facilitating the commission of any of the offences in this section mentioned, or the flight of the offender upon the commission or attempted commission thereof, and death ensues from such injury; or

(b) If he administers any stupefying or overpowering thing for either of the purposes aforesaid, and death ensues from the effects thereof; or

(c) If he by any means wilfully stops the breath of any person for either of the purposes aforesaid, and death ensues from such stopping of the breath.

2. The following are the offences in this section referred to: —Treason and the other offences mentioned in Part IV. of this Act, piracy and offences deemed to be piracy, escape or rescue from prison or lawful custody, resisting lawful apprehension, murder, rape, forcible abduction, robbery, burglary, arson.

In s. 228 as originally enacted there was no provi­sion equivalent to s. 213(d) of the present Code. The `use of weapon' provision was enacted in 1947 in s. 7 of an Act to Amend the Criminal Code, 1947 (Can.), c. 55. Section 260 of the 1927 Code was amended by adding subs. (d):

(d) If he uses or has upon his person any weapon during or at the time of the commission or attempted commission by him of any of the offences in this section mentioned or the flight of the offender upon the com­mission or attempted commission thereof, and death ensues as a consequence of its use.

which provision appears as s. 213(d) in the present Code in this form:

(d) he uses a weapon or has it upon his person

(i) during or at the time he commits or attempts to commit the offence, or

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(ii) during or at the time of his flight after committing or attempting to commit the offence.

I would first observe that ss. 212 and 213 of the present Criminal Code prescribe the various mental elements which, if accompanied by a kill­ing, may amount to murder. It is trite to say then that murder may be a killing with intent to kill and it may also be a killing with a variety of other intents which involve no intent to kill.

The offence of attempts developed much later than the offence of murder. In early times an attempt to commit an offence was not itself a crime. It was considered that in the absence of a guilty act intention alone was not punishable. The modern offence of attempting the commission of a crime is said to have its origins in the Court of Star Chamber. An early venture into this field is found in The Case of Duels (1615), 2 St. Tr. 1033, which involved proceedings against one William Priest for sending a written challenge to duel and one Richard Wright for carrying it and a stick that was to be the measure of the length of the weapons to be employed. It was asserted by Sir Francis Bacon, then Attorney General, at p. 1041, that:

For the Capacity of this Court, I take this to be a ground infallible: that wheresoever an offence is capital, or matter of felony, though it be not acted, there the combination or practice tending to that offence is pun­ishable in this court as a high misdemeanor. So practice to impoison, though it took no effect; waylaying to murder, though it took no effect; and the like; have been adjudged heinous misdemeanors punishable in this court. Nay, inceptions and preparations in inferior crimes, that are not capital, as suborning and preparing of witnesses that were never deposed, or deposed nothing material, have likewise been censured in this court, as appeareth by the decree in Garnon's Case.

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The court in its decree gave effect to the Attorney General's submission saying, in part, at p. 1046:

And the court with one consent did declare their opin­ions: That by the ancient law of the land, all inceptions, preparations, and combinations to execute unlawful acts, though they never be performed, as they be not to be punished capitally, except it be in case of treason, and some other particular cases of statute law, so yet they are punishable as misdemeanors and contemps: and that this court was proper for offences of such nature.

The practice of the Court of Star Chamber in this respect became firmly established in that court (see Hall, General Principles of Criminal Law (2nd ed., 1960), p. 565 et seq., and was in time adopted in the Court of King's Bench. It has been said that the origin of the doctrine of crimi­nal attempt as it is known in the common law was Lord Mansfield's judgment in R. v. Scofield (1784), Cald. Mag. Rep. 397. Scofield was charged in an indictment with "wickedly, unlaw­fully and maliciously intending devising and con­triving to feloniously set fire to, burn and consume a certain house". Lord Mansfield said, at p. 402-03:

The next question is, Whether an act done in pursu­ance of an intent to commit an act, which, if compleat­ed, would be a misdemeanor only, can itself be a misdemeanor? It was objected, that an attempt to commit a misdeameanor was no offence: but no authority for this is cited; and there are many on the other side: as the case cited; of The King v. Johnson, the King v. Sutton, which was an indictment for having in custody and possession stamps with intent to impress septres on sixpences, etc. And there the court say "lading wool is lawful, but, if it be with an intent to transport it, that makes it an offence. Here the intent is the offence; and the having in his custody, an act that is the evidence of that intent." But in the case of the wool, the transport­ing of it was only a misdemeanor, yet an act done to that end was held indictable. In the King v. Taylor, the Court granted an information as for a nuisance for keeping great quantities of gunpowder to the endanger­ing of the church and houses where the defendant lived. There is also the case cited of the King v. Samuel Vaughan, which is founded upon the same principle as that of the King v. Plympton; where it was holden that to bribe a corporator by money or promises to vote at

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corporation elections is an offence, for which an infor­mation will lie: the case of Vaughan was that of offering a bribe for an office, and if received, and the office procured, neither party would have been guilty of more than a misdemeanor: and it is laid down by the Court in the case of the King v. Langley that words directly tending to a breach of the peace, are indictable.

There was a distinction made at the bar between an act done with an intent to commit a felony and an act done with an intent to commit a misdemeanor. In the degrees of guilt there is great difference in the eye of the law, but not in the description of the offence. So long as an act rests in bare intention, it is not punishable by our laws: but immediately when an act is done, the law judges, not only of the act done, but of the intent with which it is done; and, if it is coupled with an unlawful and malicious intent, though the act itself would otherwise have been innocent, the intent being criminal, the act becomes criminal and punishable. The case cited of the King v. Sutton is an express authority. We are therefore of opinion that the indictment is good.

Whether Scofield was the starting point for the common law doctrine is doubted by Hall (op. cit., pp. 569-70) but the question seems to have been settled in R. v. Higgins (1801), 2 East 5, 102 E.R. 269, where it was said, at E.R. 274, by Grose J.:

First, as to the offence itself, it must be admitted that an attempt to commit a felony is in many cases at least a misdemeanor;

Any doubt remaining regarding the existence of the offence of attempted murder in England was set to rest by the enactment in 1861 of 24 and 25 Victoria, c. 100, ss. 11-15. These sections made it a felony to attempt the commission of murder in the various ways described.

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In Canada the common law offence of attempt was codified in the 1892 Criminal Code as s. 64 which appeared in these terms:

64. Every one who, having an intent to commit an offence, does or omits an act for the purpose of accom­plishing his object is guilty of an attempt to commit the offence intended whether under the circumstances it was possible to commit such offence or not.

2. The question whether an act done or omitted with intent to commit an offence is or is not only preparation for the commission of that offence, and too remote to constitute an attempt to commit it, is a question of law.

A minor amendment in 1953-54 (Can.), c. 51, changed the section to its present form in s. 24:

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

The section has therefore covered the law of attempt in general since the codification of the law in 1892. In addition, particular provision has been made in the Criminal Code for the offence of attempted murder. In the 1892 Code, s. 232 provided:

232. Every one is guilty of an indictable offence and liable to imprisonment for life, who does any of the following things with intent to commit murder; that is to say—

(a.) administers any poison or other destructive thing to any person, or causes any such poison or destructive thing to be so administered or taken, or attempts to administer it, or attempts to cause it to be so adminis­tered or taken; or

(b.) by any means whatever wounds or causes any grievous bodily harm to any person; or

(c.) shoots at any person, or, by drawing a trigger or in any other manner, attempts to discharge at any person any kind of loaded arms; or

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(d.) attempts to drown, suffocate, or strangle any person; or

(e.) destroys or damages any building by the explosion of any explosive substance; or

(f.) sets fire to any ship or vessel or any part thereof, or any part of the tackle, apparel or furniture thereof, or to any goods or chattels being therein; or

(g.) casts away or destroys any vessel; or

(h.) by any other means attempts to commit murder. In the 1906 and 1927 Codes s. 264 provided :

264. Every one is guilty of an indictable offence and liable to imprisonment for life, who, with intent to commit murder,

(a) administers any poison or other destructive thing to any person, or causes any poison or destructive thing to be so administered or taken, or attempts to administer it, or attempts to cause it to be so administered or taken; or

(b) by any means whatever wounds or causes any grievous bodily harm to any person; or

(c) shoots at any person, or, by drawing a trigger or in any other manner, attempts to discharge at any person any kind of loaded arms; or

(d) attempts to drown, suffocate, or strangle any person; or

(e) destroys or damages any building by the explo­sion of any explosive substance; or

(f) sets fire to any ship or vessel or any part of the tackle, apparel or furniture thereof, or to any goods or chattels being therein; or

(g) casts away or destroys any vessel; or

(h) by any other means attempts to commit murder.

And in the 1953-54 Code, s. 210 dealt with the matter in these words:

210. Everyone who attempts by any means to commit murder is guilty of an indictable offence and is liable to imprisonment for life.

This section appears as s. 222 in the present Code. (I have been greatly assisted in this review by the very helpful summary of the subject written by

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Laidlaw J.A. in R. v. Cline (1956), 115 C.C.C. 18.)

It is clear from the foregoing that in common law and under the criminal law of Canada crimi­nal attempt is itself an offence separate and dis­tinct from the crime alleged to be attempted. As with any other crime, the Crown must prove a mens rea, that is, the intent to commit the offence in question and the actus reus, that is, some step towards the commission of the offence attempted going beyond mere acts of preparation. Of the two elements the more significant is the mens rea. In R. v. Cline, supra, Laidlaw J.A., speaking for the Ontario Court of Appeal, said, at p. 27:

Criminal intention alone is insufficient to establish a criminal attempt. There must be mens rea and also an act us reus. But it is to be observed that whereas in most crimes it is the actus reus which the law endeavours to prevent, and the mens rea is only a necessary element of the offence, in a criminal attempt the mens rea is of primary importance and the actus reus is the necessary element.

and in Russell on Crime (12th ed.), vol. 1, p. 175, it is said:

Since the mischief contained in an attempt depends upon the nature of the crime intended, the criminality lies much more in the intention than in the acts done.

This proposition was accepted by Lord Goddard in Whybrow, supra, at p. 147, where he stated that "the intent becomes the principal ingredient of the crime".

The common law recognition of the fundamen­tal importance of intent in the crime of attempt is carried forward into the Criminal Code. A reading of s. 24 of the Code and all its predecessors since the enactment of the first Code in 1892 confirms that the intent to commit the desired offence is a basic element of the offence of attempt. Indeed, because the crime of attempt may be complete without the actual commission of any other offence and even without the performance of any act unlawful in itself, it is abundantly clear that

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the criminal element of the offence of attempt may lie solely in the intent. As noted by Glanville Williams, Criminal Law; The General Part (2nd ed., 1961), part 207, p. 642, in discussing attempts:

An actus reus ... need not be a crime apart from the state of mind. It need not even be a tort or a moral wrong, or a social mischief.

The question now arises: What is the intent required for an attempt to commit murder? As has been indicated earlier, the Crown's position is that the intent required for a conviction on a charge of attempt to murder is the intent to do that which will, if death is caused, constitute the commission of murder as defined in ss. 212 and 213 of the Code, so that a combination of ss. 24 and 213(d) can form the basis for a conviction of attempted murder. The respondent, on the other hand, argues that although the authorities presently limit the intent to that which would constitute murder as defined in s. 212 of the Code, logic and principle dictate that the intent should be limited to the specific intent to kill described in s. 212(a)(i).

While it is clear from ss. 212 and 213 of the Criminal Code that an unintentional killing can be murder, it is equally clear that whatever mental elements may be involved and whatever means may be employed there cannot be a murder without a killing. Section 24 of the Code defines, in part, the offence of attempt as "having an intent to commit an offence". As Estey J. observed in R. v. Quinton, [1947] S.C.R. 234, at pp. 235-36, in referring to the then s. 72 (now s. 24):

This section requires that one to be guilty of an attempt must intend to commit the completed offence and to have done some act toward the accomplishment of that objective.

The completed offence of murder involves a kill­ing. The intention to commit the complete offence

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of murder must therefore include an intention to kill. I find it impossible to conclude that a person may intend to commit the unintentional killings described in ss. 212 and 213 of the Code. I am then of the view that the mens rea for an attempted murder cannot be less than the specific intent to kill.

As I have said earlier, there is a division of opinion upon this point and strong arguments have been raised in favour of the Crown's position that a "lesser intent", such as that provided in s. 212(a)(ii) or even no intent at all relating to the causing of death as provided in s. 213(d), may suffice to found a conviction for attempted murder. This view is supported in Lajoie. In my view, with the utmost respect for those who differ, the sections of the Criminal Code relied on in that case do not support that position.

As noted above, Martland J.'s analysis of the intent required to found a conviction for attempted murder is based primarily on the change in word­ing of s. 222. In my opinion, emphasis on the amendment of this section is unwarranted for two reasons. Firstly, s. 222 does not define or create the offence of attempted murder. The scheme of the Criminal Code in relation to attempts has been the same from its inception. One section defines the offence of attempts generally (s. 72, now s. 24). Another sets out the penalties for attempts (s. 57, now s. 421), and a third creates a separate penalty for attempted murder (s. 264, s. 210 in Lajoie, now s. 222). Rather than defining or creat­ing an offence, s. 222 merely fixes a penalty for a specific attempt. Despite the categorization of the various means of committing murder set out in the old s. 264, there is no essential difference between the old and the new sections in this respect.

Secondly, the elimination of the words "with intent to commit murder" from s. 264 is not

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significant, Section 24 defines an attempt as "hav­ing an intent to commit an offence". Because s. 24 is a general section it is necessary to `read in' the offence in question. The offence of attempted murder then is defined as "having an intent to commit murder". This does not differ from the old s. 264 reference to "with intent to commit murder", which Martland J. acknowledged was inter­preted, in R. v. Flannery, to require the specific intent to kill.

Martland J. placed further emphasis on s. 222 of the Criminal Code by relying on the words "attempts by any means" to support his conclusion that murder may be attempted in any of the "ways" set out in ss. 212 and 213. In my view, the reference to "any means" in s. 222 refers to ways in which a murder could be accomplished, such as by poisoning, shooting, or stabbing. The earlier version of s. 222 (s. 232 in 1892, s. 264 in 1906) listed the various methods by which a killing could be effected, but the illustrations were replaced in the 1953-54 revision with a general reference to murder "by any means". In any event, ss. 212 and 213 have nothing to do with the means of killing. They are concerned solely with describing the mental elements which will suffice to make a completed killing murder. The fact that certain mental elements, other than an intent to kill, may lead to a conviction for murder where there has been a killing does not mean that anything less than an intent to kill will suffice for an attempt at murder.

It was argued, and it has been suggested in some of the cases and academic writings on the question, that it is illogical to insist upon a higher degree of mens rea for attempted murder, while accepting a lower degree amounting to recklessness for murder. I see no merit in this argument. The intent to kill is the highest intent in murder and

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there is no reason in logic why an attempt to murder, aimed at the completion of the full crime of murder, should have any lesser intent. If there is any illogic in this matter, it is in the statutory characterization of unintentional killing as murder. The mens rea for attempted murder is, in my view, the specific intent to kill. A mental state falling short of that level may well lead to convic­tion for other offences, for example, one or other of the various aggravated assaults, but not to a conviction for an attempt at murder. For these reasons, it is my view that Lajoie should no longer be followed.

I would accordingly dismiss the Crown's appeal and confirm the Court of Appeal's order for a new trial.

Appeal dismissed, RITCHIE J. dissenting.

Solicitor for the appellant: Lucy Cecchetto, Toronto.

Solicitor for the respondent: Clayton C. Ruby, Toronto.