United States of America v. Dynar, [1997] 2 SCR 462

United States of America  v. Dynar, [1997] 2 S.C.R. 462

United States of America and the Honourable

Allan Rock, Minister of Justice for Canada                                    Appellants

v.

Arye Dynar                                                                                        Respondent

Indexed as:  United States of America v. Dynar

File No.:  24997.

1997:  January 28; 1997:  June 26.

Present:  Lamer C.J. and La Forest, L’Heureux‑Dubé, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major JJ.

on appeal from the court of appeal for ontario

Extradition ‑‑ Offences ‑‑ Money laundering ‑‑ Attempt ‑‑ Conspiracy ‑‑ Fugitive charged in U.S. with attempting to launder money and conspiracy to launder money ‑‑ Whether fugitive’s conduct would have amounted to offence under Canadian law if it had occurred in Canada ‑‑ Whether conduct would have amounted to criminal attempt or criminal conspiracy under Canadian law ‑‑ Criminal Code, R.S.C., 1985, c. C‑46, ss. 24(1) , 462.31(1) , 465(1) (c) ‑‑ Narcotic Control Act, R.S.C., 1985, c. N‑1, s. 19.2(1).

Criminal law ‑‑ Attempt ‑‑ Conspiracy ‑‑ Whether impossibility constitutes defence to charge of attempt or conspiracy under Canadian law ‑‑ Criminal Code, R.S.C., 1985, c. C‑46, ss. 24(1) , 465(1) (c).

Extradition ‑‑ Hearing ‑‑ Right to a fair hearing ‑‑ Disclosure ‑‑ Applicable procedural safeguards at extradition hearing.

The U.S. government requested the extradition of D, a Canadian citizen who had been the subject of a failed “sting” operation by the FBI.  D had placed a telephone call from Canada to a former associate who was living in Nevada and who had become a confidential informant working for an FBI agent.  D had been the subject of investigations in the U.S. into the laundering of substantial amounts of money originating in Nevada.  The FBI agent had the informant introduce to D a second confidential informant, who was instructed to ask if D would be willing to launder large sums obtained as a result of illegal trafficking.  When asked, D agreed with alacrity.   Numerous conversations between the two men were recorded over the course of some months.  It was eventually arranged that an associate of D would go to the U.S. to pick up some money to be laundered, but the FBI aborted the operation just prior to the transfer.  D was charged in the U.S. with attempting to launder money and conspiracy to launder money.  Following a hearing under the Extradition Act, he was committed for extradition.  He complained to the Minister of Justice of the lack of disclosure of the Canadian involvement in the investigation, but the Minister refused D’s request to re‑open the extradition hearing, and ordered his surrender for prosecution in the U.S.   The Court of Appeal allowed D’s appeal from the committal decision and granted his application for judicial review of the Minister’s decision to order his surrender.  The major issue raised in this appeal is whether D’s conduct would have amounted to an offence under Canadian law if it had occurred in Canada.  The issue presented on D’s cross‑appeal is whether the Canadian authorities violated D’s constitutionally guaranteed right to a fair hearing by failing to disclose details of official Canadian involvement in the U.S. investigation of him.

Held:  The appeal should be allowed and the cross‑appeal dismissed.

(1) Issue on Appeal

Per Lamer C.J. and La Forest, L’Heureux‑Dubé, Gonthier, Cory and Iacobucci JJ.:  If D had successfully consummated in Canada a scheme like the one he embarked on in the U.S., he would not have been guilty of any completed offence known to the law of Canada, since the conversion of monies that are believed to be but are not in fact the proceeds of crime was not an offence in Canada at the relevant time.  There were two statutory provisions under which Canadian authorities might have prosecuted money‑laundering schemes like the one that D attempted to consummate, but both required that an accused, if he was to be convicted, should have known that the money he converted was the proceeds of crime.  Since the money that the U.S. undercover agents asked D to launder was not in fact the proceeds of crime, D could not possibly have known that it was the proceeds of crime.

However, the steps D took toward the realization of his plan to launder money would have amounted to a criminal attempt under Canadian law if the conduct in question had taken place entirely within Canada.  The crime of attempt under s. 24(1)  of the Criminal Code  consists of an intent to commit the completed offence together with some act more than merely preparatory taken in furtherance of the attempt.  D’s argument that Parliament did not intend by s. 24(1) to criminalize all attempts to do the impossible, but only those attempts that the common law has classified as “factually impossible”, does not help him, because the conventional distinction between factual and legal impossibility is not tenable.  The only relevant distinction for purposes of s. 24(1) is between imaginary crimes and attempts to do the factually impossible.  Only attempts to commit imaginary crimes fall outside the scope of the provision.  Because what D attempted to do falls squarely into the category of the factually impossible ‑‑ he attempted to commit crimes known to law and was thwarted only by chance ‑‑ it was a criminal attempt within the meaning of s. 24(1).

Even though D did not “know” that the money he attempted to convert was the proceeds of crime, he nevertheless had the requisite mens rea for a crime.   Knowledge is not the mens rea of the money‑laundering offences.  Knowledge has two components ‑‑ truth and belief ‑‑ and of these, only belief is mental or subjective.  Belief is the mens rea of the money‑laundering offences.  That the belief be true is one of the attendant circumstances that is required if the actus reus is to be completed.  The absence of an attendant circumstance is irrelevant from the point of view of the law of attempt.

D’s conduct could also justify his surrender on the conspiracy charge.  The issue is not whether D’s conduct can support a conviction for conspiracy, but only whether a prima facie case has been demonstrated that would justify his committal for trial if his conduct had taken place in Canada.  For there to be a criminal conspiracy, there must be an intention to agree, the completion of an agreement, and a common design to do something unlawful.  Conspiracy is a more “preliminary” crime than attempt, since the offence is considered to be complete before any acts are taken that go beyond mere preparation to put the common design into effect.  Impossibility is not a defence to conspiracy.  Conspirators should not escape liability because, owing to matters entirely outside their control, they are mistaken with regard to an attendant circumstance that must exist for their plan to be successful.  From a purely conceptual perspective, the distinction between factual and legal impossibility is as unsound in the law of conspiracy as it is in the law of attempt.  Cases of so‑called “legal” impossibility turn out to be cases of factual impossibility and the distinction collapses, except in cases of “imaginary crimes”.  Furthermore, like attempt, conspiracy is a crime of intention.   Since the offence of conspiracy only requires an intention to commit the substantive offence, and not the commission of the offence itself, it does not matter that, from an objective point of view, commission of the offence may be impossible.

Per Sopinka, McLachlin and Major JJ.:  The intention to do an act coupled with some activity thought to be criminal is not sufficient to find the accused guilty of an attempt when that which was attempted was not an offence under the Criminal Code .  There must be an underlying offence capable of being committed before the elements of the attempt offence can be considered.  The substantive offence of money laundering as it stands cannot be committed without the actual proceeds of crime being present.  The accused cannot “know” that what he is laundering is the proceeds of crime unless the proceeds are in fact the proceeds of crime.  Since D did not have knowledge, the mens rea of the offence, he cannot be said to have attempted it.  Moreover, it does not make sense to say that D attempted to launder the proceeds of crime, when he only attempted to launder what the FBI provided.  There was no offence that could be committed; the laundering of legal proceeds is an imaginary crime.

The offence of conspiracy to launder money can be made out on these facts.  The gravamen of the offence is the agreement to commit a crime, and it was open to the extradition judge to conclude that there was sufficient evidence of an agreement between D and his associate to commit the offence of money laundering.  The conspiracy charge was based on the agreement to commit the general offence of money laundering, whereas the attempt charge was restricted to the attempted laundering of the money that was to have been provided by the authorities in the sting operation.

(2) Issue on Cross‑Appeal

A new hearing is not warranted here.  The role of the extradition judge is a modest one, limited to the determination of whether or not the evidence is sufficient to justify committing the fugitive for surrender.  The extradition hearing is intended to be an expedited process, designed to keep expenses to a minimum and ensure prompt compliance with Canada’s international obligations.  Even though the hearing must be conducted in accordance with the principles of fundamental justice, this does not automatically entitle the fugitive to the highest possible level of disclosure.  The principles of fundamental justice guaranteed under s. 7  of the Canadian Charter of Rights and Freedoms  vary according to the context of the proceedings in which they are raised.  Procedures at the extradition hearing are of necessity less complex and extensive than those in domestic preliminary inquiries or trials.  Since D received adequate disclosure of the materials that were being relied upon to establish the prima facie case against him, no additional disclosure was required.  No justiciable Charter  issue arises since the evidence provided by the requesting state contains sufficient information to conclude that the evidence was gathered entirely in the U.S., by American officials, for an American trial.

Cases Cited

By Cory and Iacobucci JJ.

Not followed:  Director of Public Prosecutions v. Nock, [1978] 2 All E.R. 654; referred to:  McVey (Re); McVey v. United States of America, [1992] 3 S.C.R. 475; R. v. Zundel, [1992] 2 S.C.R. 731; R. v. Vogelle and Reid, [1970] 3 C.C.C. 171; R. v. Stevens (1995), 96 C.C.C. (3d) 238; Irwin v. The Queen, [1968] S.C.R. 462, aff’g [1968] 2 C.C.C. 50; Gravel v. City of St-Léonard, [1978] 1 S.C.R. 660; R. v. Cline (1956), 115 C.C.C. 18; R. v. Ancio, [1984] 1 S.C.R. 225; R. v. Deutsch, [1986] 2 S.C.R. 2; R. v. Gladstone, [1996] 2 S.C.R. 723; R. v. Donnelly, [1970] N.Z.L.R. 980; R. v. McIntosh, [1995] 1 S.C.R. 686; R. v. O’Brien, [1954] S.C.R. 666; Mulcahy v. The Queen (1868), L.R. 3 H.L. 306; Papalia v. The Queen, [1979] 2 S.C.R. 256; Guimond v. The Queen, [1979] 1 S.C.R. 960; Haughton v. Smith, [1973] 3 All E.R. 1109; R. v. Shivpuri, [1986] 2 All E.R. 334; R. v. Atkinson, [1987] O.J. No. 1930 (QL); R. v. Sew Hoy, [1994] 1 N.Z.L.R. 257; R. v. Chow Sik Wah, [1964] 1 C.C.C. 313; Howard Smith Paper Mills Ltd. v. The Queen, [1957] S.C.R. 403; R. v. Whitchurch (1890), 24 Q.B.D. 420; Argentina v. Mellino, [1987] 1 S.C.R. 536; United States of America v. Lépine, [1994] 1 S.C.R. 286; Commonwealth of Puerto Rico v. Hernandez, [1975] 1 S.C.R. 228; Canada v. Schmidt, [1987] 1 S.C.R. 500; United States v. Allard, [1987] 1 S.C.R. 564; R. v. Stinchcombe, [1991] 3 S.C.R. 326; R. v. O’Connor, [1995] 4 S.C.R. 411; R. v. Chaplin, [1995] 1 S.C.R. 727; R. v. Lyons, [1987] 2 S.C.R. 309; Chiarelli v. Canada (Minister of Employment and Immigration), [1992] 1 S.C.R. 711; Idziak v. Canada (Minister of Justice), [1992] 3 S.C.R. 631; Kindler v. Canada (Minister of Justice), [1991] 2 S.C.R. 779; Philippines (Republic) v. Pacificador (1993), 14 O.R. (3d) 321; United States of America v. Whitley (1994), 94 C.C.C. (3d) 99, aff’d [1996] 1 S.C.R. 467; R. v. Terry, [1996] 2 S.C.R. 207; R. v. Harrer, [1995] 3 S.C.R. 562.

By Major J.

Referred to:  R. v. Donnelly, [1970] N.Z.L.R. 980; Haughton v. Smith, [1973] 3 All E.R. 1109; People v. Jaffe, 78 N.E. 169 (1906); R. v. Zundel, [1992] 2 S.C.R. 731; R. v. Zundel (1987), 31 C.C.C. (3d) 97; R. v. Streu, [1989] 1 S.C.R. 1521; R. v. Vogelle and Reid, [1970] 3 C.C.C. 171; R. v. Collins (1864), 9 Cox C.C. 497.

Statutes and Regulations Cited

Bill C‑17, Criminal Law Improvement Act, 1996, 2nd Sess., 35th Parl., 1996.

Canadian Charter of Rights and Freedoms , ss. 7 , 8 , 24 , 32 .

Criminal Attempts Act 1981 (U.K.), 1981, c. 47, ss. 1, 5.

Criminal Code , R.S.C., 1985, c. C‑46 , ss. 24 , 27 , 163(2) (a), 181 , 196(4) (a) [rep. & sub. 1993, c. 40, s. 14(3)], 300, 354(1), 462.31(1) [ad. c. 42 (4th Supp.), s. 2], 465(1), 495(1)(a).

Extradition Act, R.S.C., 1985, c. E‑23, ss. 3, 9(3) [ad. 1992, c. 13, s. 2], 13, 14, 15, 16, 18(1)(b), (2), 19(b).

Interpretation Act , R.S.C., 1985, c. I‑21 , s. 45(3) .

Narcotic Control Act, R.S.C., 1985, c. N‑1, ss. 4(1), 19.2(1) [ad. c. 42 (4th Supp.), s. 12].

N.Y. Penal Law § 110.10 (Consol. 1984).

United States Code, Title 18, §§ 371, 1956(a)(3).

Authors Cited

Brown, Barry.  “‘Th’ attempt, and not the deed, Confounds us’:  Section 24 and Impossible Attempts” (1981), 19 U.W.O. L. Rev. 225.

Canada.  Law Reform Commission.  Working Paper 45. Secondary Liability:  Participation in Crime and Inchoate Offences.  Ottawa:  The Commission, 1985.

Colvin, Eric.  Principles of Criminal Law, 2nd ed.  Scarborough, Ont.:  Thomson Professional Publishing Canada, 1991.

Fletcher, George P.  Rethinking Criminal Law.  Boston:  Little, Brown, 1978.

La Forest, Anne Warner.  La Forest’s Extradition to and from Canada, 3rd ed.  Aurora, Ont.:  Canada Law Book, 1991.

Meehan, Eugene M. A.  “Attempt ‑‑ Some Rational Thoughts on its Rationale” (1976‑77), 19 Crim. L.Q. 215.

Mewett, Alan W., and Morris Manning.  Mewett & Manning on Criminal Law, 3rd ed.  Toronto:  Butterworths, 1994.

Rainville, Pierre.  “La gradation de la culpabilité morale et des formes de risque de préjudice dans le cadre de la répression de la tentative” (1996), 37 C. de D. 909.

Stuart, Don.  Canadian Criminal Law:  A Treatise, 3rd ed.  Scarborough, Ont.:  Carswell, 1995.

Williams, Glanville.  “Attempting the Impossible ‑‑ A Reply” (1979‑80), 22 Crim. L.Q. 49.

Williams, Glanville.  Criminal Law ‑‑ The General Part, 2nd ed.  London:  Stevens & Sons, 1961.

Williams, Glanville.  Textbook of Criminal Law, 2nd ed.  London:  Stevens & Sons, 1983.

Williams, Glanville.  “The Lords and Impossible Attempts, or Quis Custodiet Ipsos Custodes?”, [1986] Cambridge L.J. 33.

APPEAL and CROSS‑APPEAL from a judgment of the Ontario Court of Appeal (1995), 25 O.R. (3d) 559, 85 O.A.C. 9, 101 C.C.C. (3d) 271, allowing the respondent’s appeal from a decision of the Ontario Court (General Division), [1994] O.J. No. 3940 (QL), committing him for extradition and his application for judicial review of the Minister of Justice’s decision to order his surrender.  Appeal allowed and cross‑appeal dismissed.

Robert W. Hubbard and Croft Michaelson, for the appellants.

Frank Addario, for the respondent.

The judgment of Lamer C.J. and La Forest, L’Heureux-Dubé, Gonthier, Cory and Iacobucci JJ. was delivered by

1                                   Cory and Iacobucci JJ. -- The issue in this appeal is whether the respondent’s conduct in the United States would constitute a crime if carried out in this country, thereby meeting the requirement of “double criminality” which is the precondition for the surrender of a Canadian fugitive for trial in a foreign jurisdiction. This issue requires the Court to consider the scope of the liability for attempted offences and conspiracy under Canadian criminal law, specifically, whether impossibility constitutes a defence to a charge of attempt or conspiracy in Canada.

2                                   The issue to be determined on the respondent’s cross‑appeal is whether, in order to receive a fair committal hearing, he was entitled to full disclosure of all materials gathered in the course of the investigation which are in the possession of the Requesting State or the Canadian authorities. Specifically, the Court is asked to decide if he was entitled to receive disclosure of information regarding the involvement of the Canadian authorities in the investigation with a view to establishing a violation of his rights under the Canadian Charter of Rights and Freedoms .

I.  Facts

3                                   Arye Dynar, a Canadian citizen, was the subject of a failed “sting” operation attempted by the Federal Bureau of Investigation in the United States. Mr. Dynar was indicted together with Maurice Cohen, who is also a Canadian citizen, in the United States District Court of Nevada. The United States indictment charged both Mr. Dynar and Mr. Cohen with one count of attempting to launder money in violation of Title 18, United States Code, § 1956(a)(3), and one count of conspiracy to violate Title 18, United States Code, § 1956(a)(3), contrary to Title 18, United States Code, § 371. The Government of the United States requested their extradition by Diplomatic Note dated November 30, 1992. This appeal relates to the request for the extradition of Mr. Dynar.

4                                   The events that formed the basis of the indictment began with a telephone call placed on January 2, 1990, from Canada, by Mr. Dynar to a former associate, Lucky Simone, who was living in Nevada.  The call was apparently made to seek investors for a business operation in the United States.  Lucky Simone had, unbeknownst to Mr. Dynar, become a confidential informant working for FBI agent William Matthews.  He informed Agent Matthews of Mr. Dynar’s call, and Agent Matthews requested that Mr. Simone return the call.  Mr. Simone gave his consent for Agent Matthews to record the conversation.

5                                   Affidavit evidence filed by the Requesting State indicates that, during the 1980s, Mr. Dynar was the subject of investigations in the United States pertaining to the laundering of substantial amounts of money originating in the State of Nevada.  Agent Matthews’ involvement in the investigation of Mr. Dynar’s activities began in 1988.  When Mr. Dynar made contact with Lucky Simone in 1990, Agent Matthews deposed that he decided to determine whether or not Mr. Dynar was still involved in laundering money which was the proceeds of crime.  He had Mr. Simone introduce a second confidential informant, known as “Anthony”, to Mr. Dynar.  Anthony was instructed to ask if Mr. Dynar would be willing to launder large sums obtained as a result of illegal trafficking.  When asked, Mr. Dynar agreed with alacrity to launder money for Anthony.

6                                   A great many conversations between the two men were recorded over the course of some months.  On all of these occasions, Anthony was in Las Vegas, Nevada and Mr. Dynar was in Canada.  Eventually, Mr. Dynar and Anthony arranged an initial meeting.  The meeting was purportedly to allow Anthony to give money to Mr. Dynar for laundering as a first step towards developing a relationship in which Mr. Dynar would regularly launder money for him.  During several of the conversations, it was made clear that the money to be laundered was “drug money”.  Mr. Dynar insisted more than once that the amounts had to be large in order to make his efforts worthwhile.  The conversations also disclosed that Mr. Dynar had an associate named “Moe”, who was subsequently identified as Maurice Cohen.  Agent Matthews recorded all of the conversations in Las Vegas pursuant to the applicable law of the United States, which only requires the consent of one party for the lawful interception of the conversation.  Special Agent Charles Pine of the Internal Revenue Service (IRS) was able to identify the voice of Maurice Cohen in the background of several of the conversations.

7                                   The initial plan of the American authorities was to set up the transfer of funds to Mr. Dynar in the United States.  However, Mr. Dynar believed that he was the subject of a sealed indictment in the United States charging him with laundering very large sums of money and that if he travelled to that country, he would be arrested.  It was accordingly agreed that Mr. Dynar’s associate, Maurice Cohen, would meet Anthony’s associate in Buffalo.  Mr. Cohen was to take the money to Toronto where it would be laundered by Mr. Dynar.  It would then be taken back to Buffalo by Mr. Cohen on the following day, after a commission for Mr. Dynar had been deducted.

8                                   In Buffalo, Mr. Cohen met with Special Agent Dennis McCarthy of the IRS, who was posing as Anthony’s associate.  The conversations that took place between them in preparation for the transfer of funds were recorded by Agent McCarthy.  They contain several statements to the effect that Mr. Cohen was working for Mr. Dynar, as well as some explanations of the logistics of the laundering scheme.  In the end, however, the money was not transferred to Mr. Cohen.  The FBI aborted the operation by pretending to arrest Agent McCarthy just prior to the transfer of the money.  Mr. Cohen was allowed to return to Canada.

9                                   A committal hearing under s. 13 of the Extradition Act, R.S.C., 1985, c. E‑23, was held before Keenan J. of the Ontario Court (General Division).  In support of the request for extradition of Mr. Dynar and Mr. Cohen, the United States as the Requesting State relied upon affidavits from the investigating officers and transcripts of the recorded telephone conversations.  This evidence formed the basis for the decision to commit Mr. Dynar for extradition.

10                               Keenan J. proceeded on the assumption that there was no involvement by Canadian authorities in the investigation and he was therefore highly critical of the conduct of the United States authorities in carrying out the investigation.  It subsequently became clear that the Canadian authorities had indeed been consulted and informed regarding the various stages of the investigation.  A memo from a U.S. federal government lawyer received by the Canadian Department of Justice in response to Keenan J.’s decision indicated that a formal cooperative arrangement was in place in which information was exchanged between United States and Canadian authorities regarding Mr. Dynar’s activities.

11                               Mr. Dynar’s counsel complained of the lack of disclosure of the Canadian involvement in the investigation to the Minister of Justice in written submissions that were made prior to the Minister’s decision to surrender Mr. Dynar.  Mr. Dynar’s counsel also attempted on two occasions to obtain full disclosure from the Minister of materials showing the course of dealings between the Canadian and American authorities.  This disclosure was refused on both occasions on the basis that the Department of Justice did not possess the requested information, and in any event, that such disclosure was not appropriate in the extradition context.  In his submissions to the Minister, Mr. Dynar’s counsel also invoked compassionate grounds related to some of Mr. Dynar’s health problems, and argued that Mr. Dynar should be prosecuted in Canada.  All of these submissions were rejected by the Minister, who refused Mr. Dynar’s request to re‑open the extradition hearing, and ordered his surrender for prosecution in the United States.

12                               Mr. Dynar appealed to the Ontario Court of Appeal from Keenan J.’s committal decision, and sought judicial review of the Minister’s decision to order his surrender.  Galligan J.A., for a unanimous court, allowed the appeal and the application for judicial review on the basis that the activities of Mr. Dynar would not constitute a criminal offence in Canada, even though they did constitute an offence under the applicable United States law: (1995), 25 O.R. (3d) 559, 85 O.A.C. 9, 101 C.C.C. (3d) 271.  Mr. Dynar was therefore discharged.

13                               The Minister of Justice and the United States have appealed Mr. Dynar’s discharge and Mr. Dynar has brought a cross‑appeal.

II.  Applicable Legislation

14                               The relevant statutory provisions are not the United States provisions under which Mr. Dynar has been indicted, but the provisions of the Canadian Criminal Code, R.S.C., 1985, c. C‑46, and the Narcotic Control Act, R.S.C., 1985, c. N‑1.  It is these enactments which will determine whether the conduct of Mr. Dynar in the United States would constitute offences in this country.  See McVey (Re); McVey v. United States of America, [1992] 3 S.C.R. 475.

15                               The Criminal Code  provision that establishes the substantive “money laundering” offence is:

462.31 (1)  Every one commits an offence who uses, transfers the possession of, sends or delivers to any person or place, transports, transmits, alters, disposes of or otherwise deals with, in any manner and by any means, any property or any proceeds of any property with intent to conceal or convert that property or those proceeds and knowing that all or a part of that property or of those proceeds was obtained or derived directly or indirectly as a result of

(a)  the commission in Canada of an enterprise crime offence or a designated drug offence; or

(b)  an act or omission anywhere that, if it had occurred in Canada, would have constituted an enterprise crime offence or a designated drug offence.

16                               A similar offence is contained in the Narcotic Control Act:

19.2 (1)  No person shall use, transfer the possession of, send or deliver to any person or place, transport, transmit, alter, dispose of or otherwise deal with, in any manner and by any means, any property or any proceeds of any property with intent to conceal or convert that property or those proceeds and knowing that all or a part of that property or of those proceeds was obtained or derived directly or indirectly as a result of

(a)  the commission in Canada of an offence under section 4, 5 or 6; or

(b)  an act or omission anywhere that, if it had occurred in Canada, would have constituted an offence under section 4, 5, or 6.

17                               The relevant provisions of the Criminal   Code  which provide criminal liability for attempt and conspiracy are:

24. (1)  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.

(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.

465. (1)  Except where otherwise expressly provided by law, the following provisions apply in respect of conspiracy:

                                                                   . . .

(c)  every one who conspires with any one to commit an indictable offence not provided for in paragraph (a) or (b) is guilty of an indictable offence and liable to the same punishment as that to which an accused who is guilty of that offence would, on conviction, be liable;

18                               Finally, the role of the extradition judge in a committal hearing is provided for under the Extradition Act, as amended by S.C. 1992, c. 13.  In particular, the following provisions are relevant to this appeal:

9.  . . .

(3)  For the purposes of the Constitution Act, 1982 , a judge who is a superior court judge or a county court judge has, with respect to the functions that that judge is required to perform in applying this Act, the same competence that that judge possesses by virtue of being a superior court judge or a county court judge.

13.  The fugitive referred to in section 12 shall be brought before a judge, who shall, subject to this Part, hear the case, in the same manner, as nearly as may be, as if the fugitive was brought before a justice of the peace, charged with an indictable offence committed in Canada.

18. (1)  The judge shall issue a warrant for the committal of the fugitive to the nearest convenient prison, there to remain until surrendered to the foreign state, or discharged according to law,

                                                                   . . .

(b)  in the case of a fugitive accused of an extradition crime, if such evidence is produced as would, according to the law of Canada, subject to this Part, justify the committal of the fugitive for trial, if the crime had been committed in Canada.

III.  Judgments Below

A.  Ontario Court of Justice (General Division), [1994] O.J. No. 3940 (QL)

19                               Keenan J. held that the wiretap evidence “if legally admissible, is sufficient evidence upon which a properly instructed jury could find that Dynar and Cohen had agreed to engage in a scheme to launder illicit funds and that Cohen’s meeting with McCarthy in Buffalo was an act in furtherance of that conspiracy” (para. 3).  He was also of the view that the conduct of Dynar and Cohen could constitute the offence of attempt to launder proceeds of crime.

20                               Keenan J. noted that the wiretap interceptions were made “without reasonable and probable grounds to believe that an offence had been committed” (para. 5).  The interceptions were part of a “sting” operation and the money laundering scheme did not exist.  He noted that, if the judicial authorization for the wiretap had been sought in Canada, it would have been refused.  However, Charter  relief was not available because the infringement was not the result of Canadian state action, and did not involve the cooperation of the Canadian authorities.  He held that the mere fact that the evidence was used in Canadian extradition proceedings did not engage the Charter .

21                               Keenan J. stated that the 1992 amendments to the Extradition Act were intended to overcome problems of delays and multiplicity of proceedings in extradition matters.  Section 9(3) of the Extradition Act removes the necessity for a fugitive in an extradition proceeding to seek Charter  relief by way of an application for habeas corpus.  The extradition judge, as a superior court judge, is a “court of competent jurisdiction” for the purposes of s. 24  of the Charter .  But the provision restricts the power of the extradition judge to grant any such relief to the functions the judge performs under the Act.  As a result, Keenan J. was of the view that the availability of Charter  relief in a committal proceeding is limited to infringements that directly affect the hearing and the procedures set out in the Act, and may also include questions of unreasonable delay.  However since no Charter  violation had been committed by a Canadian government actor, it was not necessary to explore the scope of available Charter  relief under s. 9(3).

22                               Keenan J. acknowledged that the role of the extradition judge under the Extradition Act is a modest one.  It is limited to examining the evidence submitted to ensure that it complies with the Act, and that it is sufficient to disclose conduct which would constitute an offence if it had been carried out in Canada.  Although the evidence in the case at bar did meet this test, Keenan J. felt it necessary to comment on the method by which the evidence had been gathered by the Requesting State as part of his reporting function under s. 19(b) of the Extradition Act.

23                               In his report to the Minister of Justice, Keenan J. was critical of the conduct of the American authorities.  He characterized their actions in investigating Mr. Dynar as a cross‑border “fishing expedition” that showed lack of respect for Canadian sovereignty.  He condemned the FBI for failing to make use of mutual legal assistance treaties to request Canadian assistance in gathering evidence in Canada, and concluded that “[w]hether deliberately or inadvertently, the F.B.I. agents ignored the principles of international comity and treated Canada as a part of their own jurisdiction for gathering evidence” (para. 30).  He expressed the opinion that Agent Matthews did not have reasonable grounds for believing that an offence was being or would be committed.

24                               Nonetheless, Keenan J. thought that all requirements for Mr. Dynar’s extradition had been properly fulfilled and issued a warrant of committal for him.

B.  Minister of Justice

25                               The Minister of Justice wrote to counsel for Mr. Dynar, indicating that although the extent of the involvement of Canadian law enforcement officials in the investigation had not been disclosed prior to the committal hearing, he was not persuaded that the hearing should be re‑opened.  Although Keenan J. commented on the lack of Canadian involvement in his reasons for committal, “this did not form the basis for his decision that the Charter  did not apply to the evidence gathering process of the American authorities in this case”.

26                               The Minister stressed the fact that the investigations were conducted in the United States, and that Mr. Dynar’s conversations were intercepted there.  As a result, he was of the view that s. 24(2)  of the Charter  could not be applied to exclude the evidence gathered in the United States.  Although he recognized that his decision to surrender Mr. Dynar must comply with the Charter , and that extradition in certain circumstances may violate the principles of fundamental justice, he concluded that there was nothing about Mr. Dynar’s case that would render his surrender unacceptable or oppressive.

27                               The Minister rejected Mr. Dynar’s counsel’s submissions that Mr. Dynar’s age and health justified a refusal of surrender.  Nothing indicated that Mr. Dynar was unfit for trial, and there was no evidence that extradition would aggravate his medical condition.  Furthermore, if treatment was required it would be available in the United States.

28                               The Minister signed the warrants of surrender for Mr. Dynar.

C.  Ontario Court of Appeal (1995), 25 O.R. (3d) 559

29                               Galligan J.A. set out the issue presented by this case.  United States law allows conviction of persons caught in money‑laundering “sting” operations, but Canadian law does not.  In particular, the Canadian offence of money‑laundering requires not only that the money must be the actual proceeds of crime, but also that the accused have knowledge of that fact.  The American offence is complete if the person acts on a representation that the property is the proceeds of crime.  The money does not have to be the proceeds of crime, and no actual knowledge is required.

30                               Galligan J.A. recognized that the test for establishing an extradition crime is conduct‑based.  However since actual knowledge is required for the substantive offences of money laundering under the Criminal Code  and the Narcotic Control Act, he was of the view that “it would be manifestly unjust to use the law relating to attempts and conspiracy to elevate conduct which does not amount to an extradition crime into conduct which does” (p. 567).

31                               Galligan J.A. did not find it necessary to consider the theory of impossible attempts, characterizing the real issue as whether a different mental element can be the basis for the offence of attempt or conspiracy than is required for the substantive offence.  In his view, knowledge and belief are discrete states of mind that are not the same for legal purposes.  The intention for the offence of attempt must mirror the intention for the corresponding substantive offence.  Since knowledge is essential for the substantive offence of money laundering, the offence of attempt to launder money is only made out if the accused intends to deal with money knowing that it is derived from crime.

32                               Furthermore, Galligan J.A. indicated that the essence of a conspiracy under the Criminal Code  is an agreement to commit an indictable offence. The agreement between Dynar and Cohen was an agreement to deal with money believed to be the proceeds of crime, which is not an offence in Canada.  He could not justify the substitution of the mental element of belief for knowledge when the charge is conspiracy to launder money.  In the absence of knowledge, the agreement between Dynar and Cohen was not a conspiracy to launder money either under the Criminal Code  or the Narcotic Control Act.

33                               In the result, Galligan J.A. was of the view that the conduct of Mr. Dynar did not constitute an offence in Canada, and therefore he was not extraditable.  Furthermore, since Mr. Dynar should have been discharged under s. 18(2) of the Extradition Act, the Minister was not entitled to order his surrender.  The appeal from the committal and the application for judicial review of the Minister’s surrender decision were therefore allowed, both decisions were set aside and Mr. Dynar was discharged.

34                               Finally, Galligan J.A. disagreed with Keenan J.’s opinion that the American authorities had entrapped Mr. Dynar.  He was of the view that there was a basis for reasonable suspicion that an offence was being committed after Mr. Dynar made his first attempt to contact his Las Vegas associate.  Furthermore, the American officer did not go beyond providing Mr. Dynar with an opportunity to commit the offence.  No improper inducement was offered.  Finally, Galligan J.A. found no basis in the evidence for criticizing the conduct of the American investigators.  The additional evidence disclosed after the hearing also revealed appropriate respect for Canadian sovereignty and adequate consultation between American and Canadian law enforcement officials.

IV.  Issues

35                               The major issue which arises on the appeal is whether Mr. Dynar’s conduct would have amounted to an offence under Canadian law if it had occurred in Canada.  This question in turn has two parts:  whether an accused who attempts to do the “impossible” may be guilty of attempt and whether an accused who conspires with another to do the impossible may be guilty of conspiracy.

36                               On the cross‑appeal the issue presented is whether the Canadian authorities violated Mr. Dynar’s constitutionally guaranteed right to a fair hearing by failing to disclose to Mr. Dynar details of official Canadian involvement in the U.S. investigation of him.

V.  Analysis

A.  The Criminality of Mr. Dynar’s Conduct Under Canadian Law

(1)  Introduction

37                               In our view, Mr. Dynar’s conduct would have amounted to a criminal attempt and a criminal conspiracy under Canadian law.

38                               An accused may not be extradited from Canada unless it appears that his conduct, if it had taken place in Canada, would have amounted to a crime under the laws of this country.  See Extradition Act, s. 18(1)(b).  Mr. Dynar resists extradition on the ground that he did nothing that the criminal law of Canada proscribes.  The appellants answer that, if Mr. Dynar had done in Canada what he did (telephonically) in the United States, he would have been guilty of the crimes of attempt and conspiracy.

39                               It is clear that, if Mr. Dynar had successfully consummated in Canada a scheme like the one that he embarked upon in the United States, he would not have been guilty of any completed offence known to the law of Canada.  The conversion of monies that are believed to be the proceeds of crime but that are not in fact the proceeds of crime was, at the relevant time in the history of this proceeding, not an offence in Canada.

40                               There were two statutory provisions (s. 462.31(1)  of the Criminal Code  and s. 19.2(1) of the Narcotic Control Act) under which Canadian authorities might have prosecuted money‑laundering schemes like the one that Mr. Dynar attempted to consummate.  However, both required that an accused, if he was to be convicted, should have known that the money he converted was the proceeds of crime:

462.31 (1)  Every one commits an offence who uses, transfers the possession of, sends or delivers to any person or place, transports, transmits, alters, disposes of or otherwise deals with, in any manner and by any means, any property or any proceeds of any property with intent to conceal or convert that property or those proceeds and knowing that all or a part of that property or of those proceeds was obtained or derived directly or indirectly as a result of [the commission of a designated offence].

19.2 (1)  No person shall use, transfer the possession of, send or deliver to any person or place, transport, transmit, alter, dispose of or otherwise deal with, in any manner and by any means, any property or any proceeds of any property with intent to conceal or convert that property or those proceeds and knowing that all or a part of that property or of those proceeds was obtained or derived directly or indirectly as a result of [the commission of a designated offence].  [Emphasis added.]

41                               Because it is not possible to know what is false, no one who converts money that is not in fact the proceeds of crime commits these offences.  This is clear from the meaning of the word “know”.  In the Western legal tradition, knowledge is defined as true belief:  “The word ‘know’ refers exclusively to true knowledge; we are not said to ‘know’ something that is not so” (Glanville Williams, Textbook of Criminal Law (2nd ed. 1983), at p. 160).

42                               Consistently with Professor Williams’ definition of “knowledge”, this Court has said previously that proof of knowledge requires proof of truth.  For example, in R. v. Zundel, [1992] 2 S.C.R. 731, the Court had to consider the validity of a provision that criminalized the wilful publication of a statement that the publisher knows to be false.  The Court interpreted this provision to require a showing by the Crown that the accused published a statement that was in fact false (at p. 747).

43                               Other decisions are to a similar effect.  In R. v. Vogelle and Reid, [1970] 3 C.C.C. 171, at p. 177, the Manitoba Court of Appeal declared that “[i]n order for an accused to be found guilty of the offence of receiving . . . goods [knowing them to have been stolen] it is essential the Crown prove beyond reasonable doubt . . . [t]hat the goods are stolen goods”.  Twenty‑five years later, the same court held, in R. v. Stevens (1995), 96 C.C.C. (3d) 238, at p. 307, that the offence of “publishing a defamatory libel known to be false” will be established only upon a showing that the libel actually is false.

44                               The one apparently discordant note was sounded in a decision called R. v. Irwin, [1968] 2 C.C.C. 50 (Alta. S.C.A.D.), in which it was held that an accused who sold drugs to an undercover police officer for the stated purpose of helping to procure the miscarriage of a woman was guilty of the offence of “suppl[ying] . . . a . . . noxious thing . . . knowing that it is intended to be used or employed to procure the miscarriage of a female person”.  The Appellate Division reached this conclusion even though the undercover police officer did not intend to procure a miscarriage.  On appeal, this Court affirmed the decision of the Appellate Division, but on the ground that the words “knowing that it is intended  to be used or employed to procure the miscarriage of a female person” referred to the intention of the one selling the noxious thing, not to the intention of the one purchasing it.  Because the accused certainly knew his own intention, which was to sell noxious things for the purpose of assisting in the procurement of a miscarriage, the Court held that the knowledge requirement had been satisfied.  See Irwin v. The Queen, [1968] S.C.R. 462, at p. 465.  Thus, Irwin is ultimately consistent with the other cases on the meaning of the word “knowing”.  The Court did not hold in Irwin that it is possible to know something that is not the case.  It held rather that the accused did know what the statute required him to know, which was his own intention.

45                               As further support for the view that knowledge implies truth, the respondent points to a bill (Bill C-17) that Parliament has introduced to amend the money‑laundering provisions to replace the word “knowing” with the words “knowing or believing”.  This might be taken to suggest that, in the judgment of Parliament, the present money‑laundering provisions do not contemplate punishment of one who merely believes that he is converting the proceeds of crime.  But in our view this argument is misconceived.  What legal commentators call “subsequent legislative history” can cast no light on the intention of the enacting Parliament or Legislature.  At most, subsequent enactments reveal the interpretation that the present Parliament places upon the work of a predecessor.  And, in matters of legal interpretation, it is the judgment of the courts and not the lawmakers that matters.  It is for judges to determine what the intention of the enacting Parliament was.

46                               Parliament itself recognized as much, when, in the Interpretation Act , R.S.C., 1985, c. I‑21, s. 45(3) , it declared:

The repeal or amendment of an enactment in whole or in part shall not be deemed to be or to involve any declaration as to the previous state of the law.

Moreover, to consult “subsequent legislative history” as an aid to the interpretation of prior enactments would be to give the subsequent enactments retroactive effect; and, as this Court has often observed, statutes are not to be given retroactive effect except in the clearest of cases:

The situation is completely different with respect to a statute subsequent in time to the facts which gave rise to the action.  The construction of prior legislation is then exclusively a matter for the courts.  In refraining from giving the new enactment retroactive or declaratory effect, the legislator avoids expressing an opinion on the previous state of the law, leaving it to the courts.

(Gravel v. City of St-Léonard, [1978] 1 S.C.R. 660, at p. 667.)

47                               Because the money that the U.S. undercover agents asked Mr. Dynar to launder was not in fact the proceeds of crime, Mr. Dynar could not possibly have known that it was the proceeds of crime.  Therefore, even if he had brought his plan to fruition, he would not have been guilty of any completed offence known to Canadian law.  But this is not the end of the story.

48                               We conclude that the steps that Mr. Dynar took towards the realization of his plan to launder money would have amounted to a criminal attempt and a criminal conspiracy under Canadian law if  the conduct in question had taken place entirely within Canada.  We reach our conclusion on the basis of the wording in the applicable provisions of the Criminal Code  interpreted in the light of the underlying theory of impossible attempts and conspiracies.

(2)  The Law of Attempt

49                               The Criminal Code  creates the crime of attempt to commit an offence:

24. (1)  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.  [Emphasis added.]

On its face, the statute is indifferent about whether or not the attempt might possibly have succeeded.  Therefore it would seem, at first blush, not to matter that Mr. Dynar could not possibly have succeeded in laundering money known to be the proceeds of crime.  So long as he attempted to do so, he is guilty of a crime.

50                               In our view, s. 24(1) is clear: the crime of attempt consists of an intent to commit the completed offence together with some act more than merely preparatory taken in furtherance of the attempt.  This proposition finds support in a long line of authority.  See, e.g., R. v. Cline (1956), 115 C.C.C. 18 (Ont. C.A.), at p. 29; R. v. Ancio, [1984] 1 S.C.R. 225, at p. 247; R. v. Deutsch, [1986] 2 S.C.R. 2, at pp. 19‑26; R. v. Gladstone, [1996] 2 S.C.R. 723, at para. 19.  In this case, sufficient evidence was produced to show that Mr. Dynar intended to commit the money‑laundering offences, and that he took steps more than merely preparatory in order to realize his intention.  That is enough to establish that he attempted to launder money contrary to s. 24(1)  of the Criminal Code .

51                               However, the respondent argues that Parliament did not intend by s. 24(1) to criminalize all attempts to do the impossible, but only those attempts that the common law has classified as “factually impossible”.  An attempt to do the factually impossible, according to the respondent, is an attempt that runs up against some intervening obstacle and for that reason cannot be completed.  The classic example involves a pickpocket who puts his hand into a man’s pocket intending to remove the wallet, only to find that there is no wallet to remove.

52                               Traditionally, this sort of impossibility has been contrasted with “legal impossibility”.  An attempt to do the legally impossible is, according to those who draw the distinction, an attempt that must fail because, even if it were completed, no crime would have been committed.  See Eric Colvin, Principles of Criminal Law (2nd ed. 1991), at pp. 355‑56.

53                               According to the respondent, the Criminal Code  criminalizes only attempts to do the factually impossible.  An attempt to do the legally impossible, in the absence of an express legislative reference to that variety of impossibility, is not a crime.

54                               As support for this interpretation, the respondent offers two arguments.  The first is that Parliament based s. 24(1) on an English provision whose purpose was to overrule a decision of the House of Lords that had made factual impossibility a defence.  See Barry Brown, “‘Th’ attempt, and not the deed, Confounds us’:  Section 24 and Impossible Attempts” (1981), 19 U.W.O. L. Rev. 225, at pp. 228‑29.  On the strength of this argument, the New Zealand Court of Appeal accepted that New Zealand’s equivalent to s. 24(1) criminalizes attempts whose completion is factually impossible but not those whose completion is legally impossible.  See R. v. Donnelly, [1970] N.Z.L.R. 980 (C.A.), at pp. 984 and 988.

55                               The respondent’s second argument is that Parliament, had it intended to criminalize attempts to do the legally impossible, would have used the words “whether or not it was factually or legally impossible” in s. 24(1).  As examples of statutes that were intended to criminalize attempts to do the legally impossible, the respondent cites provisions of statutes from the United Kingdom and from the United States:

1.  ‑‑ (1) If, with intent to commit an offence to which this section applies, a person does an act which is more than merely preparatory to the commission of the offence, he is guilty of attempting to commit the offence.

(2)  A person may be guilty of attempting to commit an offence to which this section applies even though the facts are such that the commission of the offence is impossible.

(3)  In any case where ‑‑

(a)   apart from this subsection a person’s intention would not be regarded as having amounted to an intent to commit an offence; but

(b)   if the facts of the case had been as he believed them to be, his intention would be so regarded,

then, for the purposes of subsection (1) above, he shall be regarded as having had an intent to commit that offence.

(Criminal Attempts Act 1981 (U.K.), 1981, c. 47.)

If the conduct in which a person engages otherwise constitutes an attempt to commit a crime pursuant to section 110.00, it is no defense to a prosecution for such attempt that the crime charged to have been attempted was, under the attendant circumstances, factually or legally impossible of commission, if such crime could have been committed had the attendant circumstances been as such person believed them to be.

(N.Y. Penal Law § 110.10 (Consol. 1984).)

56                               A third argument, which the respondent does not advance, is that the words “under the circumstances” restrict the scope of s. 24(1) to attempts to do the factually impossible.  An attempt that is not possible “under the circumstances”, according to this argument, is by implication possible under some other set of circumstances.  Otherwise, there would be no need to mention circumstances ‑‑ the mere mention of impossibility would suffice.  President North of the New Zealand Court of Appeal made this very argument in Donnelly, supra, at p. 988:

In my opinion the significant words in s. 72 (1) [New Zealand’s equivalent to s. 24(1)  of the Criminal Code ] are “in the circumstances”, which seem to me to imply that in other circumstances it might be possible to commit the offence.  This I think points to the conclusion that s. 72 (1) went no further than to ensure that a person who had the necessary criminal intent and did an act for the purpose of accomplishing his object was guilty of an attempt even although it so happened that it was not possible to commit the full offence.

57                               In addition there is another way of turning the same language to the respondent’s advantage.  “Circumstances”, in ordinary parlance, are facts.  Laws, by contrast, are not circumstances.  Accordingly, applying the rule that expressio unius est exclusio alterius, the mention in s. 24(1) of attempts that are circumstantially or factually impossible may be taken to exclude attempts that are legally impossible.  The question, as one Canadian writer has framed it, is whether “‘the circumstances’ referred to in [s. 24(1)] include the legal status of the actor’s conduct”: Brown, supra, at p. 229.

58                               Still another argument in favour of the respondent’s position, though one that reflects judicial policy rather than the strict ascertainment of legislative intent, is that penal statutes, if ambiguous, should be construed narrowly, in favour of the rights of the accused.  “[T]he overriding principle governing the interpretation of penal provisions is that ambiguity should be resolved in a manner most favourable to accused persons”:  R. v. McIntosh, [1995] 1 S.C.R. 686, at para. 38.

59                               Although some of these arguments have a certain force, what force they have is greatly attenuated when it is realized that the conventional distinction between factual and legal impossibility is not tenable.  The only relevant distinction for purposes of s. 24(1)  of the Criminal Code  is between imaginary crimes and attempts to do the factually impossible.  The criminal law of Canada recognizes no middle category called “legal impossibility”.  Because Mr. Dynar attempted to do the impossible but did not attempt to commit an imaginary crime, he can only have attempted to do the “factually impossible”.  For this reason, Mr. Dynar’s proposal that s. 24(1) criminalizes only attempts to do the factually impossible does not help him.

60                               As we have already indicated, an attempt to do the factually impossible is considered to be one whose completion is thwarted by mere happenstance.  In theory at least, an accused who attempts to do the factually impossible could succeed but for the intervention of some fortuity.  A legally impossible attempt, by contrast, is considered to be one which, even if it were completed, still would not be a crime.  One scholar has described impossible attempts in these terms:

Three main forms of impossibility have set the framework for contemporary debate.  First, there is impossibility due to inadequate means (Type I).  For example, A tries to kill B by shooting at him from too great a distance or by administering too small a dose of poison; C tries to break into a house without the equipment which would be necessary to force the windows or doors. . . .

The second form of impossibility arises where an actor is prevented from completing the offence because some element of its actus reus cannot be brought within the criminal design (Type II).  For example, A tries to kill B by shooting him when he is asleep in bed, but in fact B has already died of natural causes; C tries to steal money from a safe which is empty. . . .

The third form of impossibility arises where the actor’s design is completed but the offence is still not committed because some element of the actus reus is missing (Type III).  For example, A may take possession of property believing it to have been stolen when it has not been; B may smuggle a substance for reward believing it to be a narcotic when it is sugar. . . .

(Colvin, supra, at pp. 355‑56.)

61                               According to Professor Colvin, factually impossible attempts are those that fall into either of the first two categories.  Legally impossible attempts are those that fall into the third category.

62                               Colvin’s schema appears attractive.  But in fact it draws distinctions that do not stand up on closer inspection.  There is no legally relevant difference between the pickpocket who reaches into the empty pocket and the man who takes his own umbrella from a stand believing it to be some other person’s umbrella.  Both have the mens rea of a thief.  The first intends to take a wallet that he believes is not his own.  The second intends to take an umbrella that he believes is not his own.  Each takes some steps in the direction of consummating his design.  And each is thwarted by a defect in the attendant circumstances, by an objective reality over which he has no control: the first by the absence of a wallet, the second by the accident of owning the thing that he seeks to steal.  It is true that the latter seems to consummate his design and still not to complete an offence; but the semblance is misleading.  The truth is that the second man does not consummate his design, because his intention is not simply to take the particular umbrella that he takes, but to take an umbrella that is not his own.  That this man’s design is premised on a mistaken understanding of the facts does not make it any less his design.  A mistaken belief cannot be eliminated from the description of a person’s mental state simply because it is mistaken.

63                               If it were otherwise, the effect would be to eliminate from our criminal law the defence of mistaken belief.  If mistaken beliefs did not form part of an actor’s intent ‑‑ if an actor’s intent were merely to do what he in fact does ‑‑ then a man who honestly but mistakenly believed that a woman had consented to have sexual relations with him and who on that basis actually had sexual relations with that woman, would have no defence to the crime of sexual assault.  His intention, on this limited understanding of intention, would have been to sleep with the particular woman with whom he slept; and that particular woman, by hypothesis, is one who did not consent to sleep with him.  Substituting the one description (“a woman who did not consent to sleep with him”) for the other (“the particular woman with whom he slept”), it would follow that his intention was to sleep with a woman who had not consented to sleep with him.  But of course, and as we have already strenuously urged, intention is one thing and the truth is another.  Intention has to do with how one sees the world and not necessarily with the reality of the world.

64                               Accordingly, there is no difference between an act thwarted by a “physical impossibility” and one thwarted “following completion”.  Both are thwarted by an attendant circumstance, by a fact: for example, by the fact of there being no wallet to steal or by the fact of there being no umbrella to steal.  The distinction between them is a distinction without a difference.  Professor Colvin himself agrees that “[t]he better view is that impossibility of execution is never a defence to inchoate liability in Canada” (p. 358).

65                               There is, however, a relevant difference between a failed attempt to do something that is a crime and an imaginary crime.  See Pierre Rainville, “La gradation de la culpabilité morale et des formes de risque de préjudice dans le cadre de la répression de la tentative” (1996), 37 C. de D. 909, at pp. 954‑55.  It is one thing to attempt to steal a wallet, believing such thievery to be a crime, and quite another thing to bring sugar into Canada, believing the importation of sugar to be a crime.  In the former case, the would‑be thief has the mens rea associated with thievery.  In the latter case, the would‑be smuggler has no mens rea known to law.  Because s. 24(1) clearly provides that it is an element of the offence of attempt to have “an intent to commit an offence”, the latter sort of attempt is not a crime.

66                               Nor should it be.  A major purpose of the law of attempt is to discourage the commission of subsequent offences.  See Williams’ Textbook of Criminal Law, supra, at pp. 404‑5.  See also Brown, supra, at p. 232; Eugene Meehan, “Attempt ‑‑ Some Rational Thoughts on its Rationale” (1976‑77), 19 Crim. L.Q. 215, at p. 238; Don Stuart, Canadian Criminal Law (3rd ed. 1995), at p. 594.  But one who attempts to do something that is not a crime or even one who actually does something that is not a crime, believing that what he has done or has attempted to do is a crime, has not displayed any propensity to commit crimes in the future, unless perhaps he has betrayed a vague willingness to break the law.  Probably all he has shown is that he might be inclined to do the same sort of thing in the future; and from a societal point of view, that is not a very worrisome prospect, because by hypothesis what he attempted to do is perfectly legal.

67                               Therefore, we conclude that s. 24(1) draws no distinction between attempts to do the possible but by inadequate means, attempts to do the physically impossible, and attempts to do something that turns out to be impossible “following completion”.  All are varieties of attempts to do the “factually impossible” and all are crimes.  Only attempts to commit imaginary crimes fall outside the scope of the provision.  Because what Mr. Dynar attempted to do falls squarely into the category of the factually impossible ‑‑ he attempted to commit crimes known to law and was thwarted only by chance ‑‑ it was a criminal attempt within the meaning of s. 24(1).  The evidence suggests that Mr. Dynar is a criminal within the contemplation of the Canadian law and so the double criminality rule should be no bar to his extradition to the United States.

68                               Notwithstanding the difficulties associated with the conventional distinction between factual and legal impossibility, a certain reluctance to embrace our conclusion persists in some quarters.  It seems to us that this is in part due to a misunderstanding of the elements of the money‑laundering offences.  Both s. 462.31(1)  of the Criminal Code  and s. 19.2(1) of the Narcotic Control Act require knowledge that the property being laundered is the proceeds of crime.  It is tempting to think that knowledge is therefore the mens rea of these offences.  But “mens rea” denotes a mental state.  Mens rea is the subjective element of a crime.  See Williams’ Textbook of Criminal Law, supra, at p. 71.  Knowledge is not subjective, or, more accurately, it is not entirely subjective.

69                               As we have already said, knowledge, for legal purposes, is true belief.  Knowledge therefore has two components ‑‑  truth and belief ‑‑ and of these, only belief is mental or subjective.  Truth is objective, or at least consists in the correspondence of a proposition or mental state to objective reality.  Accordingly, truth, which is a state of affairs in the external world that does not vary with the intention of the accused, cannot be a part of mens rea.  As one Canadian academic has said, [translation] “[t]he truth of the accused’s belief is not part of the mens rea of s. 24(1)  Cr.C .”.  See Rainville, supra, at p. 963.  Knowledge as such is not then the mens rea of the money‑laundering offences.  Belief is.

70                               The truth of an actor’s belief that certain monies are the proceeds of crime is something different from the belief itself.  That the belief be true is one of the attendant circumstances that is required if the actus reus is to be completed.  In other words, the act of converting the proceeds of crime presupposes the existence of some money that is in truth the proceeds of crime.

71                               In this, the money‑laundering offences are no different from other offences.  Murder is the intentional killing of a person.  Because a person cannot be killed who is not alive, and because a killing, if is to be murder, must be intentional, it follows that a successful murderer must believe that his victim is alive.  An insane man who kills another believing that the one he kills is a manikin does not have the mens rea needed for murder.  Thus, the successful commission of the offence of murder presupposes both a belief that the victim is alive just before the deadly act occurs and the actual vitality of the victim at that moment.  Both truth and belief are required.  Therefore, knowledge is required.  But this does not mean that the vitality of the victim is part of the mens rea of the offence of murder.  Instead, it is an attendant circumstance that makes possible the completion of the actus reus, which is the killing of a person.

72                               In general, the successful commission of any offence presupposes a certain coincidence of circumstances.  But these circumstances do not enter into the mens rea of the offence.  As one author observes, it is important “to keep separate the intention of the accused and the circumstances as they really were” (Brown, supra, at p. 232).

73                               The absence of an attendant circumstance is irrelevant from the point of view of the law of attempt.  An accused is guilty of an attempt if he intends to commit a crime and takes legally sufficient steps towards its commission.  Because an attempt is in its very nature an incomplete substantive offence, it will always be the case that the actus reus of the completed offence will be deficient, and sometimes this will be because an attendant circumstance is lacking.  In Ancio, supra, at pp. 247‑48, McIntyre J. said:

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. . . .

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 the criminal element of the offence of attempt may lie solely in the intent.

74                               So it should not be troubling that what Mr. Dynar did does not constitute the actus reus of the money‑laundering offences.  If his actions did constitute the actus reus, then he would be guilty of the completed offences described in s. 462.31  of the Criminal Code  and s. 19.2 of the Narcotic Control Act.  There would be no need even to consider the law of attempt.  The law of attempt is engaged only when, as in this case, the mens rea of the completed offence is present entirely and the actus reus of it is present in an incomplete but more‑than‑merely‑preparatory way.

75                               The respondent argues that, even accepting that the truth of a belief is not a part of the mens rea, nevertheless he did not have the requisite mens rea.  In particular, the respondent suggests that, in determining whether an accused has the requisite mens rea for attempt, a court should consider only those mental states that supply the accused’s motivation to act.

76                               This proposal is a way of overlooking an accused’s mistaken beliefs.  Thus, the respondent argues that he did not have the requisite mens rea because he desired only to make money by doing a service to Anthony, the undercover agent.  It did not matter to Mr. Dynar whether the money was the proceeds of crime or not.  He would have been just as happy to convert funds for the United States Government as for some drug kingpin.  Mr. Dynar’s only concern was that he should receive a commission for his services.

77                               The theoretical basis for this thinking appears in Professor George Fletcher’s attempted defence of the distinction between factual impossibility and legal impossibility (in Rethinking Criminal Law (1978)).  Fletcher, on whom the respondent relies, says that an accused’s legally relevant intention comprises only those mental states that move the accused to act as he does (at p. 161):

[M]istaken beliefs are relevant to what the actor is trying to do if they affect his incentive in acting.  They affect his incentive if knowing of the mistake would give him a good reason for changing his course of conduct.

Because most facts are, from the accused’s point of view, of no consequence, what the accused thinks about most facts is legally irrelevant.

78                               Thus, to take one of Fletcher’s examples, it does not matter what day a criminal thought it was when he committed a crime, because whatever he might have thought the day was, he would still have acted as he did.  In Fletcher’s view, similar reasoning explains why it is not a crime to deal with “legitimate” property thinking that one is dealing with the proceeds of crime (at p. 162):

[I]t seems fairly clear that the fact that the [goods were] stolen does not affect the actor’s incentive in paying the price at which [they were] offered to him by the police.  If he were told that the goods were not stolen, that would not have provided him with a reason for turning down the offer.  If they were not stolen, so much the better.  It follows, therefore, that it is inappropriate to describe his conduct as attempting to receive stolen [goods].

79                               But this view confounds motivation and intention.  If attention were paid only to the former, then the number of crimes would be greatly, if not very satisfactorily, reduced, because what moves many criminals to crime is some desire relatively more benign than the desire to commit a crime.  We suspect that only the most hardened criminals commit crimes just for the sake of breaking the law.  To at least many malefactors, it must be a matter of indifference whether their actions constitute crimes.  Probably most thieves would not turn up their noses at the opportunity to loot a house simply because it has been abandoned and so is the property of no one.  The goal is the making of a quick dollar, not the flouting of the law.  In this, we again agree completely with Glanville Williams, who said:

Normally, motivation is irrelevant for intention.  Every receiver of stolen goods would prefer to have non‑stolen goods at the same price, if given the choice; but if he knows or believes the goods are stolen, he intends to receive stolen goods.  We have to say that a person intends his act in the circumstances that he knows or believes to exist.  This being the rule for consummated crimes, no good reason can be suggested why it should differ for attempts.

(“The Lords and Impossible Attempts, or Quis Custodiet Ipsos Custodes?”, [1986] Cambridge L.J. 33, at p. 78.)

80                               In this case, it is almost certainly true that Mr. Dynar would have been content to convert the United States Government’s money even if he had known that it had nothing to do with the sale of drugs.  Presumably his only concern was to collect his percentage.  The provenance of the money must have been, for him, largely irrelevant.  But, from the point of view of the criminal law, what is important is not what moved Mr. Dynar, but what Mr. Dynar believed he was doing.  “We have to say that a person intends his act in the circumstances that he knows or believes to exist.”  And the evidence is clear that Mr. Dynar believed that he was embarked upon a scheme to convert “drug money” from New York City.

81                               Looking to intent rather than motive accords with the purpose of the criminal law in general and of the law of attempt in particular.  Society imposes criminal sanctions in order to punish and deter undesirable conduct.  It does not matter to society, in its efforts to secure social peace and order, what an accused’s motive was, but only what the accused intended to do.  It is no consolation to one whose car has been stolen that the thief stole the car intending to sell it to purchase food for a food bank.  Similarly, the purpose of the law of attempt is universally acknowledged to be the deterrence of subsequent attempts.  A person who has intended to do something that the law forbids and who has actually taken steps towards the completion of an offence is apt to try the same sort of thing in the future; and there is no assurance that next time his attempt will fail.

82                               Applying this rationale to impossible attempts, we conclude that such attempts are no less menacing than are other attempts.  After all, the only difference between an attempt to do the possible and an attempt to do the impossible is chance.  A person who enters a bedroom and stabs a corpse thinking that he is stabbing a living person has the same intention as a person who enters a bedroom and stabs someone who is alive.  In the former instance, by some chance, the intended victim expired in his sleep perhaps only moments before the would‑be assassin acted.  It is difficult to see why this circumstance, of which the tardy killer has no knowledge and over which he has no control, should in any way mitigate his culpability.  Next time, the intended victim might be alive.  Similarly, even if Mr. Dynar could not actually have laundered the proceeds of crime this time around, there is hardly any guarantee that his next customer might not be someone other than an agent of the United States Government.

83                               The import of all of this is that Mr. Dynar committed the crime of attempt; and for having done so he should be extradited to the United States.  The facts disclose an intent to launder money and acts taken in furtherance of that design.  Section 24(1)  of the Criminal Code  requires no more.

(3)   Could Mr. Dynar’s Conduct Justify His Surrender on the Conspiracy Charge?

84                               Mr. Dynar’s extradition has also been requested on a charge of conspiracy.  The warrant of committal issued by Keenan J. listed the two charges against Mr. Dynar that are the subject of the American indictment, and indicated that the conduct underlying both charges would constitute crimes in Canada.  As a result, Mr. Dynar was extraditable on both.  The conduct which would establish a prima facie case for the conspiracy charge is somewhat different from that which would establish the prima facie case for the attempt charge.  Thus it is necessary to determine whether Mr. Dynar’s conduct in combination with Mr. Cohen’s could also constitute the crime of conspiracy in this country.  The applicability of the defence of “impossibility” under Canadian criminal law is as much an issue with respect to the conspiracy charge as it is with regard to the attempt charge.

85                               The issue is not whether Mr. Dynar’s conduct can support a conviction for conspiracy (or for that matter for attempt), but only whether a prima facie case has been demonstrated that would justify his committal for trial if his conduct had taken place in Canada.  Section 465(1) (c) of the Criminal Code  makes it an offence to conspire with another person to commit any indictable offence, other than murder or false prosecution, which are governed by paragraphs (a) and (b) of the same subsection.  There is no doubt that laundering proceeds of crime is an indictable offence in Canada.  The question that must be decided, however, is whether a conspiracy can exist even where all the elements of the full indictable offence are not present because the circumstances are not as the accused believed them to be.

(a)  What is a Criminal Conspiracy?

86                               In R. v. O’Brien, [1954] S.C.R. 666, at pp. 668‑69, this Court adopted the definition of conspiracy from the English case of Mulcahy v. The Queen (1868), L.R. 3 H.L. 306, at p. 317:

A conspiracy consists not merely in the intention of two or more, but in the agreement of two or more to do an unlawful act, or to do a lawful act by unlawful means.  So long as such a design rests in intention only, it is not indictable.  When two agree to carry it into effect, the very plot is an act in itself, and the act of each of the parties . . . punishable if for a criminal object. . . .

There must be an intention to agree, the completion of an agreement, and a common design.  Taschereau J., in O’Brien, supra, at p. 668, added that:

Although it is not necessary that there should be an overt act in furtherance of the conspiracy, to complete the crime, I have no doubt that there must exist an intention to put the common design into effect.  A common design necessarily involves an intention.  Both are synonymous.  The intention cannot be anything else but the will to attain the object of the agreement.  [Emphasis in original.]

87                               In Papalia v. The Queen, [1979] 2 S.C.R. 256, at p. 276, Dickson J. (as he then was) described the offence of conspiracy as “an inchoate or preliminary crime”.  In setting out the necessary elements of the offence, he noted at pp. 276‑77 that:

The word “conspire” derives from two Latin words, “con” and “spirare”, meaning “to breathe together”.  To conspire is to agree.  The essence of criminal conspiracy is proof of agreement.  On a charge of conspiracy the agreement itself is the gist of the offence:  Paradis v. R., at p. 168.  The actus reus is the fact of agreement: D.P.P. v. Nock, at p. 66.  The agreement reached by the co‑conspirators may contemplate a number of acts or offences.  Any number of persons may be privy to it.  Additional persons may join the ongoing scheme while others may drop out.  So long as there is a continuing overall, dominant plan there may be changes in methods of operation, personnel, or victims, without bringing the conspiracy to an end.  The important inquiry is not as to the acts done in pursuance of the agreement, but whether there was, in fact, a common agreement to which the acts are referable and to which all of the alleged offenders were privy. [Emphasis added.]

Conspiracy is in fact a more “preliminary” crime than attempt, since the offence is considered to be complete before any acts are taken that go beyond mere preparation to put the common design into effect.  The Crown is simply required to prove a meeting of the minds with regard to a common design to do something unlawful, specifically the commission of an indictable offence.  See s. 465(1) (c) of the Criminal Code .

88                               A conspiracy must involve more than one person, even though all the conspirators may not either be identified, or be capable of being convicted.  See for example O’Brien, supra; Guimond v. The Queen, [1979] 1 S.C.R. 960. Further, each of the conspirators must have a genuine intention to participate in the agreement.  A person cannot be a conspirator if he or she merely pretends to agree.  In O’Brien, Rand J. held at p. 670 that

a conspiracy requires an actual intention in both parties at the moment of exchanging the words of agreement to participate in the act proposed; mere words purporting agreement without an assenting mind to the act proposed are not sufficient.

Where one member of a so‑called conspiracy is a police informant who never intends to carry out the common design, there can be no conspiracy involving that person.  Nonetheless, a conspiracy can still exist between other parties to the same agreement. It is for this reason that the conspiracy in this case is alleged to involve Mr. Dynar and Mr. Cohen, and not the confidential informant “Anthony”.

89                               There can be no doubt that a criminal conspiracy constitutes a serious offence that is properly extraditable. Indeed, it was so recognized in the 1976 treaty between Canada and the U.S. in force at the time of the sting operation.  The crime has a long and malevolent history.  Conspirators have plotted to overthrow monarchs from biblical times through the time of the Plantaganets and Tudors.  Guy Fawkes conspired with others to blow up the parliament buildings.  Today conspirators plot to carry out terrorist acts, to commit murders or to import forbidden drugs.  Society is properly concerned with conspiracies since two or more persons working together can achieve evil results that would be impossible for an individual working alone.  For example, it usually takes two or more conspirators to manufacture and secrete explosives or to arrange for the purchase, importation and sale of heroin.  The very fact that several persons in combination agree to do something has for many years been considered to constitute “a menace to society”:  O’Brien, supra, at p. 669.  In fact, the scale of injury that might be caused to the fabric of society can be far greater when two or more persons conspire to commit a crime than when an individual sets out alone to do an unlawful act.

90                               As a result, it is obvious that the reason for punishing conspiracy before any steps are taken towards attaining the object of the agreement is to prevent the unlawful object from being attained, and therefore to prevent this serious harm from occurring.  See Glanville Williams, Criminal Law -- The General Part (2nd ed. 1961), at p. 710.  It is also desirable to deter similar conduct in the future.  Those who conspire to do something that turns out to be impossible betray by their actions a propensity and aptitude to commit criminal acts; and there is no reason to believe that schemers who are thwarted on one occasion will not be successful on the next.  Thus, the rationale for punishing conspirators coincides with the rationale for punishing persons for attempted crimes.  Not only is the offence itself seen to be harmful to society, but it is clearly in society’s best interests to make it possible for law enforcement officials to intervene before the harm occurs that would be occasioned by a successful conspiracy or, if the conspiracy is incapable of completion, by a subsequent and more successful conspiracy to commit a similar offence.

(b)  Is Impossibility a Defence to Conspiracy?

91                               By virtue of the “preliminary” nature of the offence of criminal conspiracy, the mere fact that money was not transferred to Mr. Cohen for laundering by Mr. Dynar would not preclude a finding that a conspiracy existed between them. Criminal liability will still ensue, as long as the agreement and the common intention can be proved.  Does it make any difference to the potential liability of the conspirators that they could not have committed the substantive offence even if they had done everything that they set out to do?  Put another way, should conspirators escape liability because, owing to matters entirely outside their control, they are mistaken with regard to an attendant circumstance that must exist for their plan to be successful?  Such a result would defy logic and could not be justified.

92                               Impossibility as a defence to a charge of criminal conspiracy has received comparatively little attention by courts or academic writers.  Director of Public Prosecutions v. Nock, [1978] 2 All E.R. 654 (H.L.), is the leading English case which considered the applicability of the defence of impossibility in a charge of conspiracy.  In that case, the conspiracy was found to consist of an agreement to produce cocaine on a particular occasion from a specific substance.  The agreement was impossible to carry out because the substance chosen was incapable of producing cocaine.  The impossibility of carrying out this agreement was the basis for the conclusion that the same distinction between factual and legal impossibility that we have criticized in the law of attempt ought to apply to the law of conspiracy.  The respondent relies upon Nock, and urges the adoption of legal impossibility as a defence to criminal conspiracy in Canada.  This submission cannot be accepted.

93                               In England, Nock has been specifically overtaken by the Criminal Attempts Act 1981, s. 5, which now makes criminal liability for conspiracy possible where the accused are mistaken as to an attendant circumstance that is necessary to prove the full offence.  Effectively, this precludes the defence of legal impossibility as understood in Nock, supra, but preserves the defence for “imaginary crimes”.  As we have seen, the latter term encompasses situations where individuals do something they believe contravenes the law when it does not.  Thus, for example, in England it is not a crime to conspire to purchase Scotch whisky, because the purchase of that whisky is not a crime known to English law.

94                               Section 465(1)(c) of the Canadian Criminal Code does not specifically state that criminal liability for conspiracy can ensue where the substantive offence is impossible to commit.  However, even in the absence of such an explicit legislative direction, the analysis of the House of Lords in Nock should not be accepted.  The case has been rightly subjected to both academic and judicial criticism, and to the extent that it is based on the same distinction between factual and legal impossibility that has been applied in the law of attempt, it too is conceptually untenable.

95                               In England, the acceptance of legal impossibility as a defence to conspiracy in Nock was predicated on the adoption by the House of Lords of the same position regarding the law of attempt:  see Haughton v. Smith, [1973] 3 All E.R. 1109.  The House of Lords has now expressly overruled the Haughton decision in R. v. Shivpuri, [1986] 2 All E.R. 334.  They did so on the basis that quite apart from the provisions of the Criminal Attempts Act 1981, the distinction between factual and legal impossibility is untenable in the law of attempt.  The application of the distinction in Nock must now be questioned as well, even in the absence of legislative amendment.  Accordingly, the desirability of using the Nock principles in Canada has been appropriately doubted by Cadsby Prov. Ct. J. in R. v. Atkinson, [1987] O.J. No. 1930.  The New Zealand Court of Appeal has also rejected Nock, except perhaps in the case of “imaginary crimes”:  R. v. Sew Hoy, [1994] 1 N.Z.L.R. 257.

96                               A number of Canadian academic authorities have also been justly critical of the use of the distinction between factual and legal impossibility in the law of conspiracy, and in particular, have criticized the Nock case for this reason.  Most writers take the position that if the distinction between factual and legal impossibility is rejected in the case of attempt, it should a fortiori be rejected for conspiracy.  Thus, for example, Colvin in Principles of Criminal Law, supra, at p. 358, indicates, in a discussion that deals primarily with the law of attempt, that he prefers the view that “impossibility of execution is never a defence to inchoate liability in Canada”.  Since this position is clear in the Criminal Code  with regard to attempt, “there is no good reason to treat conspiracy and other forms of inchoate liability any differently”.

97                               Professor Stuart in Canadian Criminal Law, supra, at pp. 644‑45, convincingly contends that the same rationale for rejecting the distinction between factual and legal impossibility in the law of attempt should apply to the law of conspiracy.  He puts his position in this way (at p. 644):

If conspiracy is considered, as it has been suggested that it should, as a preventive crime owing its existence to the fact that it is a step, even though a limited one, towards the commission of a full offence, it is difficult to see why the approach to impossibility should differ.

98                               According to Professor Alan Mewett and Morris Manning in Mewett & Manning on Criminal Law (3rd ed. 1994), at p. 341, if it were not for the decision in Nock, the question as to whether impossibility should constitute a defence to the offence of conspiracy ought not to arise at all.  In Nock, the House of Lords held that because the offence can never materialize, “[t]here was no actus reus because there was no act of agreeing to commit an offence”.  Mewett and Manning criticize this reasoning as unsound because “[i]t is wrong to think that there is something that can, in the abstract, be called an actus reus”.  It is the agreement that is the actus, and the intention to do the act that is unlawful (the mens rea) that turns the agreement into an actus reus, or a “guilty act”.  These authors would restrict the availability of the defence of impossibility to situations of “true” legal impossibility (which we have referred to as imaginary crimes), where persons conspire to do something that is not a crime known to law regardless of whether the facts are as the accused believe them to be.

99                               Canadian courts have only rarely considered this issue.  In R. v. Chow Sik Wah, [1964] 1 C.C.C. 313, the Ontario Court of Appeal, in a case involving conspiracy to commit forgery, held at p. 315 that “[i]n a prosecution for conspiracy a conviction may not be registered if the operation for the commission of which the accused allegedly conspired would, if accomplished, not have made the accused guilty of the substantive offence”.  The respondent obviously finds comfort in this case.

100                           Although some of the language in Chow Sik Wah suggests a more general acceptance of the defence of legal impossibility in a case of conspiracy, the case was decided on a much narrower basis.  There the substantive offence was defined as involving the making of a false document, knowing it to be false.  The resolution of the case turned on the definition of “false document”.  Kelly J.A. held that the photograph of the false document was not itself a false document.  Therefore, the crime could not be committed regardless of the intention of the accused.  There was no issue as to mistaken belief regarding particular circumstances.  The accused simply intended to do something which was not prohibited by law.  In addition, Kelly J.A. found that the Crown had not established that the photograph was intended to be used to induce anyone to believe that the reproduced document was genuine.

101                           Chow Sik Wah should only be accepted as authority for the proposition that impossibility can be a defence to a charge of conspiracy where the conspirators intend to commit an “imaginary crime”.  This approach to impossibility and conspiracy has also been taken in older cases dealing with economic conspiracies: see for example Howard Smith Paper Mills Ltd. v. The Queen, [1957] S.C.R. 403, at p. 406, citing R. v. Whitchurch (1890), 24 Q.B.D. 420.

102                           None of these authorities stands in the way of a conclusion that, from a purely conceptual perspective, the distinction between factual and legal impossibility is as unsound in the law of conspiracy as it is in the law of attempt.  As we concluded in discussing impossible attempts, cases of so‑called “legal” impossibility turn out to be cases of factual impossibility and the distinction collapses, except in cases of “imaginary crimes”.  Conspiracy to commit such fanciful offences of course cannot give rise to criminal liability.

103                           Furthermore, like attempt, conspiracy is a crime of intention. The factual element ‑‑ or actus reus ‑‑ of the offence is satisfied by the establishment of the agreement to commit the predicate offence.  This factual element does not have to correspond with the factual elements of the substantive offence.  The goal of the agreement, namely the commission of the substantive offence, is part of the mental element ‑‑ or mens rea ‑‑ of the offence of conspiracy.

104                           The conspiracy alleged in the case at bar involves the commission of an offence that requires knowledge of a circumstance as one of its essential elements.  When a substantive offence requires knowledge of a particular circumstance, the Crown is required to prove a subjective element, which is best described as belief that the particular circumstance exists.  The Crown is also required to prove an objective element, namely the truth of the circumstance.  It is the presence of the objective circumstance that translates the subjective belief into knowledge or “true belief”.

105                           However, since the offence of conspiracy only requires an intention to commit the substantive offence, and not the commission of the offence itself, it does not matter that, from an objective point of view, commission of the offence may be impossible.  It is the subjective point of view that is important, and from a subjective perspective, conspirators who intend to commit an indictable offence intend to do everything necessary to satisfy the conditions of the offence.  The fact that they cannot do so because an objective circumstance is not as they believe it to be does not in any way affect this intention.  The intention of the conspirators remains the same, regardless of the absence of the circumstance that would make the realization of that intention possible.  It is only in retrospect that the impossibility of accomplishing the common design becomes apparent.

106                           If the failure of a conspiracy as a result of some defect in the attendant circumstances were to be considered to constitute “legal” impossibility and as such a defence to a charge of conspiracy, the fact that the conspirators are not culpable becomes a matter of pure luck, divorced from their true intentions.  This result is unacceptable.  Rather it would be consistent with the law of conspiracy to hold that the absence of the attendant circumstance has no bearing on the intention of the parties, and therefore no bearing on their liability.

107                           It has long been accepted that conspirators can be punished for their agreement (actus reus) and their intention to commit the offence (mens rea).  This is true even though the police intervene to prevent the conspirators from committing the substantive offence which was the aim of the conspiracy.  By the same token, it should make no difference to the culpability of the conspirators if the police intervene in a way that makes the offence impossible to commit because, for example, the money to be laundered is not derived from crime.  The conspirators could still be properly convicted on the basis that the agreement to do the unlawful object is considered dangerous to society and reprehensible in itself.

108                           This approach does not substitute a different mental element for the offence of conspiracy from that required for the substantive offence of money laundering.  In those offences that require knowledge, the mental element is belief.  Therefore, the subjective state of mind of a money launderer is the belief that the money is derived from an illicit source.  Similarly, the subjective state of mind of the person who conspires with others to launder money is also the belief that the money is derived from an illicit source.  For the substantive offence to be committed, the objective circumstance ‑‑ the existence of actual proceeds of crime ‑‑ must also exist.  But this is not the objective element of the offence of conspiracy.  The essential element of conspiracy is the existence of the agreement to put the intention of the conspirators into effect.

109                           It follows from all that has been said above that a conspiracy to commit a crime which cannot be carried out because an objective circumstance is not as the conspirators believed it to be is still capable of giving rise to criminal liability in Canada.  Legal impossibility cannot be invoked as a defence to the charge.

(c)  Application of These Principles to this Case

110                           The only reason that the conspiracy alleged to exist between Mr. Dynar and Mr. Cohen was considered “impossible” was because one external circumstance ‑‑ the existence of actual proceeds of crime ‑‑ was absent.  Yet, the absence of this circumstance is not a defence to a charge of conspiracy.

111                           There is evidence that Mr. Dynar was a member of a conspiracy that included Mr. Cohen.  On several occasions in the wiretapped conversations between Anthony and Mr. Dynar, Maurice Cohen was implicated as the intimate associate of Mr. Dynar in his money laundering operations.  In the recorded conversations that took place between Mr. Cohen and Agent McCarthy in Buffalo, Mr. Cohen clearly indicated that he was working for Mr. Dynar and demonstrated a basic knowledge of the exchanges that took place between Mr. Dynar and Anthony.  The very fact that Mr. Cohen showed up in Buffalo as arranged between Mr. Dynar and Anthony supports an inference that he and Mr. Dynar were acting in concert.

112                           At a minimum, the evidence clearly supports the existence of an agreement to launder what the conspirators believed were the proceeds of crime.  Furthermore, there is evidence that the agreement extended beyond the scheme that was being discussed in the “sting” operation.  Mr. Dynar spoke of his operations as well‑established, with worldwide affiliates, and of his ability to launder large sums of illicit money very quickly.  Mr. Cohen demonstrated an intimate knowledge of the logistics of money laundering in Canada, which he indicated was a function of his association with Mr. Dynar.  Finally, the appearance of Mr. Cohen in Buffalo, as arranged between Anthony and Mr. Dynar, was an overt act that suggested that Mr. Dynar’s claims about his abilities, and about his association with Mr. Cohen, were not mere “puff” and exaggeration.  It is reasonable to infer that Dynar’s claims, pursuant to the agreement between Dynar and Cohen, were intended to be translated into action.

113                           An RCMP officer, qualified as an expert in organized crime, testified to the interpretation of various references made by Mr. Dynar to the origin of the money.  In the expert’s opinion, Mr. Dynar was clearly under the impression that he would be laundering money derived from the drug trade.  The evidence discloses that Mr. Cohen was under the same impression.  This is demonstrated by his desire to ensure that he was not detected by the Canadian border officials while transporting the funds into Canada.  It can therefore be said that both alleged conspirators had the requisite intention to commit the substantive offence of laundering money.

114                           It is clear that the evidence presented demonstrated a prima facie case for extradition purposes, since it would warrant committing Mr. Dynar and Mr. Cohen for trial for conspiracy in Canada if their conduct had taken place here.  Keenan J. was therefore correct in holding that Mr. Dynar was extraditable on both the charge of attempt to launder money, and conspiracy to launder money.

B.  Disclosure in the Extradition Hearing:  The Cross‑Appeal

115                           Mr. Dynar cross‑appeals from the decision of the Ontario Court of Appeal on the basis that he was not given a fair hearing.  He argues that he did not receive adequate disclosure of the involvement of the Canadian investigating authorities in the gathering of the evidence that was the basis for the committal order.  This lack of disclosure, he submits, justifies a new hearing at which full disclosure should be given, which in turn may provide him with the basis for arguing that a stay of proceedings is warranted.

116                           Alternatively, it is submitted that he will argue at a new hearing that there was a violation of his right to be free from unreasonable search and seizure under s. 8  of the Charter  because the wiretap evidence was gathered without judicial authorization.  He also contends that there was a violation of his s. 7 rights on the basis of entrapment because the “sting” operation was allegedly set up without reasonable grounds to believe that an offence was being committed.  The respondent conceded in oral argument that the ultimate goal of these endeavours is either the exclusion of the evidence of the sting operation from the extradition proceedings, or a stay of proceedings.  However, the nature of the extradition hearing, and the evidence relied upon by the Requesting State in the committal hearing, demonstrate that a new hearing is not warranted.

(1)  The Nature of the Extradition Hearing

117                           The extradition process in Canada is governed by the Extradition Act, which translates into domestic law Canada’s international obligations to surrender fugitives who have committed crimes in other jurisdictions:  McVey, supra, at p. 508.  The Act establishes a two-step process for determining whether a particular fugitive should be surrendered to a foreign jurisdiction for trial.

118                           The first step, the committal hearing, is the judicial phase of the process in which the fugitive is brought before a judge who determines whether the evidence justifies surrender of the fugitive.  If the Requesting State has made out its case, the fugitive is committed.  If not, the fugitive is discharged.  If the fugitive is committed for surrender, the warrant of committal, as well as any report from the judge presiding over the committal hearing, is forwarded to the Minister of Justice, who then makes the final decision whether the fugitive should be surrendered.  This second phase of the process is political in nature and is not in issue in the cross‑appeal.  Rather, the cross‑appeal puts in issue the level of procedural protection that the fugitive is entitled to receive during the judicial phase of the process ‑‑ the committal hearing.

119                           Under s. 13 of the Extradition Act, the committal proceeding is to be conducted “in the same manner, as nearly as may be, as if the fugitive was brought before a justice of the peace, charged with an indictable offence committed in Canada”.  The purpose of the extradition hearing for a fugitive accused of a crime in another jurisdiction is outlined in s. 18(1)(b), which provides:

18. (1)  The judge shall issue a warrant for the committal of the fugitive to the nearest convenient prison, there to remain until surrendered to the foreign state, or discharged according to law,

                                                                   . . .

(b)  in the case of a fugitive accused of an extradition crime, if such evidence is produced as would, according to the law of Canada, subject to this Part, justify the committal of the fugitive for trial, if the crime had been committed in Canada.

The extradition judge must determine whether the fugitive should be committed for surrender, which is to say whether a prima facie case has been demonstrated that would justify his committal for trial if his conduct had taken place in Canada.

120                           The jurisdiction of the extradition judge is derived entirely from the statute and the relevant treaty.  Pursuant to s. 3 of  the Act, the statute must be interpreted as giving effect to the terms of the applicable treaty. La Forest J., writing for the majority in McVey, supra, at p. 519, stated that courts must find a statutory source for attributing a particular function to the extradition judge, and that “courts should not reach out to bring within their jurisdictional ambit matters that the Act has not assigned to them”.  In particular, it was held in Argentina v. Mellino, [1987] 1 S.C.R. 536, at p. 553, that

absent express statutory or treaty authorization, the sole purpose of an extradition hearing is to ensure that the evidence establishes a prima facie case that the extradition crime has been committed.  [Emphasis added.]

As a result, the role of the extradition judge has been held to be a “modest one”, limited to the determination of whether or not the evidence is sufficient to justify committing the fugitive for surrender:  see, for example, United States of America v. Lépine, [1994] 1 S.C.R. 286, at p. 296; Mellino, supra, at p. 553; McVey, supra, at p. 526.

121                           One of the most important functions of the extradition hearing is the protection of the liberty of the individual. It ensures that an individual will not be surrendered for trial in a foreign jurisdiction unless, as previously mentioned, the Requesting State presents evidence that demonstrates on a prima facie basis that the individual has committed acts in the foreign jurisdiction that would constitute criminal conduct in Canada.  See  McVey, supra, at p. 519; Commonwealth of Puerto Rico v. Hernandez, [1975] 1 S.C.R. 228, at p. 245, per Laskin J. (as he then was); Canada v. Schmidt, [1987] 1 S.C.R. 500, at p. 515.  The extradition judge may also have limited Charter  jurisdiction under s. 9(3) of the amended Extradition Act, although it is not necessary to delineate the scope of that jurisdiction in this appeal.

122                           A judge hearing an application for extradition has an important role to fulfil.  Yet it cannot be forgotten that the hearing is intended to be an expedited process, designed to keep expenses to a minimum and ensure prompt compliance with Canada’s international obligations.  As La Forest J. stated for the majority in McVey, supra, at p. 551, “extradition proceedings are not trials.  They are intended to be expeditious procedures to determine whether a trial should be held”.  In fact, in some contexts, a requirement for more “trial‑like” procedures at the extradition committal stage may “cripple the operation of the extradition proceedings”:  McVey, supra, at p. 528.  See also Schmidt, supra, at p. 516.

(2)  The Application of the Charter  to Extradition Proceedings 

123                           There is no doubt that the Charter  applies to extradition proceedings.  Yet s. 32  of the Charter  provides that it is applicable only to Canadian state actors.  Pursuant to principles of international comity as well, the Charter  generally cannot apply extraterritorially:  see, for example, Schmidt, supra, at pp. 518 and 527; United States v. Allard, [1987] 1 S.C.R. 564, at p. 571; Mellino, supra, at p. 552.

124                           The Charter does therefore guarantee the fairness of the committal hearing.  The Minister’s discretion in deciding to surrender the fugitive may also attract Charter  scrutiny.  In both instances, s. 7  of the Charter , which provides that an individual has a right not to be deprived of life, liberty or security of the person, except in accordance with the principles of fundamental justice, will be most frequently invoked.  It is obvious that the liberty and security of the person of the fugitive are at stake in an extradition proceeding.  The proceedings must therefore be conducted in accordance with the principles of fundamental justice:  see A. W. La Forest, La Forest’s Extradition to and from Canada (3rd ed. 1991), at p. 132; Schmidt, supra, at pp. 520‑21.

125                           Even where there is a sufficient involvement of Canadian authorities in the proceedings to justify applying the Charter , courts must proceed with caution.  It has been observed that “judicial intervention must be limited to cases of real substance”:  Schmidt, supra, at p. 523.  To do otherwise might all too easily place Canada in a position of violating its international obligations:  see La Forest’s Extradition, supra, at p. 25.

126                           Mr. Dynar has not argued that the situation he will face in the United States is in any way oppressive or unacceptable.  Indeed, before such an argument could succeed the fugitive would have to demonstrate that he will be subjected to egregious conduct that would “shock the conscience” or that would be “simply unacceptable”:  Schmidt, supra, at p. 522; Allard, supra, at p. 572.  Rather the focus of Mr. Dynar’s argument is on his entitlement under s. 7  of the Charter  to procedural safeguards in the form of disclosure in connection with the extradition hearing.

(3)  Applicable Procedural Safeguards at the Extradition Hearing

(a)   The Right to Disclosure of Materials in the Hands of the Requesting State

127                           Mr. Dynar’s submission is that he was entitled to a high level of disclosure in the extradition proceeding so that he could make full answer and defence in accordance with his s. 7  Charter  rights.  The essence of Mr. Dynar’s argument is that an attenuated version of the rules set out in R. v. Stinchcombe, [1991] 3 S.C.R. 326, R. v. O’Connor, [1995] 4 S.C.R. 411, and R. v. Chaplin, [1995] 1 S.C.R. 727, should apply.  Although the level of disclosure required in an extradition proceeding does not have to be definitively resolved in this case, some comments pertaining to this issue should be made.

128                           Even though the extradition hearing must be conducted in accordance with the principles of fundamental justice, this does not automatically entitle the fugitive to the highest possible level of disclosure.  The principles of fundamental justice guaranteed under s. 7  of the Charter  vary according to the context of the proceedings in which they are raised.  It is clear that there is no entitlement to the most favourable procedures imaginable:  R. v. Lyons, [1987] 2 S.C.R. 309, at pp. 361‑62.  For example, more attenuated levels of procedural safeguards have been held to be appropriate at immigration hearings than would apply in criminal trials.  See Chiarelli v. Canada (Minister of Employment and Immigration), [1992] 1 S.C.R. 711.  The same approach is equally applicable to an extradition proceeding.  While it was stated in Idziak v. Canada (Minister of Justice), [1992] 3 S.C.R. 631, at p. 658, that the committal hearing in the extradition process is “certainly judicial in its nature and warrants the application of the full panoply of procedural safeguards”, it was held that the extent and nature of procedural protection guaranteed by s. 7  of the Charter  in an extradition proceeding will depend on the context in which it is claimed (at pp. 656‑57).

129                           The context and purpose of the extradition hearing will shape the level of procedural protection that is available to a fugitive.  In Kindler v. Canada (Minister of Justice), [1991] 2 S.C.R. 779, at p. 844, the position was put by the majority in this way:

While the extradition process is an important part of our system of criminal justice, it would be wrong to equate it to the criminal trial process.  It differs from the criminal process in purpose and procedure and, most importantly, in the factors which render it fair.  Extradition procedure, unlike the criminal procedure, is founded on the concepts of reciprocity, comity and respect for differences in other jurisdictions.

See also Mellino, supra, at p. 551.

130                           It follows that it is neither necessary nor appropriate to simply transplant into the extradition process all the disclosure requirements referred to in Stinchcombe, supra, Chaplin, supra, and O’Connor, supra.  Those concepts apply to domestic criminal proceedings, where onerous duties are properly imposed on the Crown to disclose to the defence all relevant material in its possession or control.  This is a function of an accused’s right to full answer and defence in a Canadian trial.  However, the extradition proceeding is governed by treaty and by statute.  The role of the extradition judge is limited and the level of procedural safeguards required, including disclosure, must be considered within this framework.

131                           Procedures at the extradition hearing are of necessity less complex and extensive than those in domestic preliminary inquiries or trials.  Earlier decisions have wisely avoided imposing procedural requirements on the committal hearing that would render it very difficult for Canada to honour its international obligations.  Thus, in Mellino, supra, at p. 548, reservations were expressed about procedures that would permit an extradition hearing to become the forum for lengthy examinations of the reasons for delay in either seeking or undertaking extradition proceedings.  La Forest J., for the majority, held that this would be “wholly out of keeping with extradition proceedings”.

132                           The statutory powers of an extradition judge are limited.  The hearing judge may receive sworn evidence offered to show the truth of the charge or conviction (s. 14), receive evidence to show that the particular crime is not an extradition crime (s. 15), and take into account sworn, duly authenticated depositions or statements taken in a foreign state (s. 16).  The obligation on the Requesting State is simply to establish a prima facie case for the surrender of the fugitive and it is not required to go further than this.  The committal hearing is neither intended nor designed to provide the discovery function of a domestic preliminary inquiry.  See Philippines (Republic) v. Pacificador (1993), 14 O.R. (3d) 321 (C.A.), at pp. 328‑39, leave to appeal refused, [1994] 1 S.C.R. x.  Specifically, disclosure of the relationship between United States and Canadian authorities in an investigation is not a requirement imposed on the Requesting State under either the Act or the treaty.

133                           It was emphasized in Mellino, supra, at p. 555, that one of the practical difficulties with attributing jurisdiction to an extradition judge to adjudicate on matters such as unreasonable delay caused by officials either in Canada or the Requesting State is the “limited information available to an extradition judge and his jurisdictional inability to obtain it”.  Any requirement for disclosure that is read into the Act as a matter of fundamental justice under s. 7  of the Charter  will therefore necessarily be constrained by the limited function of the extradition judge under the Act, and by the need to avoid imposing Canadian notions of procedural fairness on foreign authorities.

134                           The Requesting State concedes that the fugitive is entitled to know the case against him.  See United States of America v. Whitley (1994), 94 C.C.C. (3d) 99 (Ont. C.A.), aff’d [1996] 1 S.C.R. 467.  In light of the purpose of the hearing, however, this would simply entitle him to disclosure of materials on which the Requesting State is relying to establish its prima facie case.

135                           Mr. Dynar does not argue that he did not receive adequate disclosure of the materials that were being relied upon to establish the prima facie case against him.  It follows that, in light of the limited nature of extradition hearing, no additional disclosure was required and there is no foundation to Mr. Dynar’s claim that he was not treated fairly in the hearing before Keenan J.

(b)  No Justiciable Charter Issue Arises in this Case

136                           Quite simply, no justiciable Charter  issue arises in light of the evidence adduced and the nature of an extradition hearing. Mr. Dynar took advantage of telephone facilities to carry out his activities in the United States.  He also sent Mr. Cohen to Buffalo to pick up the money.  It does not matter that he physically did not leave Canada at any point.  The actions of Dynar and Cohen were sufficient to bring them within the jurisdiction of the United States.  The affidavit evidence submitted by the Requesting State discloses that the evidence was gathered by American authorities, on American soil, for an American investigation.  Any attempt to demonstrate involvement of Canadian authorities acting in conjunction with American authorities simply cannot alter this basic fact.

137                           R. v. Terry, [1996] 2 S.C.R. 207, considered an informal cooperative arrangement between Canadian and U.S. law enforcement officials. Canada was seeking the return from the State of California of a Canadian accused of murder.  The fugitive was apprehended by the police in California who, at the request of the Canadian authorities, questioned him.  Although the conduct of the investigation was lawful in the United States, the police failed to advise the fugitive of his rights to counsel in the manner that would be required by the Charter .  The fugitive argued that the statement he made to the California police should accordingly be excluded from his Canadian trial.  McLachlin J., writing for the Court, held that in order to find a violation of the Charter , it would be necessary to hold that the California police were subject to the Charter .  This would “run counter to the settled rule that a state is only competent to enforce its laws within its own territorial boundaries” (p. 215).

138                           McLachlin J. went on to state at p. 216 that  “[t]he practice of cooperation between police of different countries does not make the law of one country applicable in the other country”.  She added at p. 217 that:

Still less can the Charter  govern the conduct of foreign police cooperating with Canadian police on an informal basis.  The personal decision of a foreign officer or agency to assist the Canadian police cannot dilute the exclusivity of the foreign state’s sovereignty within its territory, where its law alone governs the process of enforcement.  The gathering of evidence by these foreign officers or agency is subject to the rules of that country and none other.  Consequently, any cooperative investigation involving law enforcement agencies of Canada and the United States will be governed by the laws of the jurisdiction in which the activity is undertaken. . . .

Finally, she concluded at p. 220 that “[e]ven if one could somehow classify them as ‘agents’ of the Canadian police, so long as they operated in California they would be governed by California law”. The existence of a cooperative arrangement between jurisdictions, whether informal or formal, does not change these principles.

139                           If the foreign police are not governed by the Charter , then the evidence gathered by them cannot be excluded under s. 24(2)  of the Charter .  It is true that there are limited circumstances in which evidence might be excluded without resorting to s. 24(2).  This exception might apply if the evidence is gathered by the foreign authorities in such an abusive manner that its admission would be per se unfair under s. 7  of the Charter .  See R. v. Harrer, [1995] 3 S.C.R. 562, at pp. 571‑72; Terry, supra, at pp. 218‑19.  But both Harrer and Terry involve evidence gathered by foreign authorities for use in a Canadian trial.  This limited exception is of no assistance to Mr. Dynar, who is arguing for the exclusion of evidence in an extradition hearing.

140                           Although a fugitive might be able to argue that the admission of some evidence at an extradition hearing was per se unfair under s. 7  of the Charter , Mr. Dynar could not have successfully made this argument.  The wiretap evidence was gathered in Nevada, in conformity with the law of the United States, but in a manner that would be unacceptable in Canada.  However, the fact that evidence was obtained in the foreign jurisdiction in a way that does not comply with our Charter  is not enough on its own to render the proceeding so unfair that the evidence should be excluded:  Harrer, supra, at p. 573.  Considerations of this nature must always be balanced against the need to ensure that Canada’s international obligations are honoured, to foster cooperation between investigative authorities in different jurisdictions, and to avoid indirectly forcing the foreign authorities to adopt procedural safeguards that resemble our own in order to successfully obtain the surrender of a fugitive.

141                           Mr. Dynar contends that as a result of the Requesting State’s non‑disclosure, there is no evidentiary record on the basis of which he can even attempt to make a Charter  argument.  Yet the evidence presented by the Requesting State does disclose enough information to conclude that there is simply no “air of reality” to the contention that Mr. Dynar could establish a Charter  violation by the Canadian officials in the gathering of the evidence.  The evidence before Keenan J. included the affidavit of Agent Matthews.  It clearly reveals that the FBI had been interested in the activities of Mr. Dynar for some time; that Matthews himself was aware of previous occasions on which Mr. Dynar had admitted to laundering large sums of money in the State of Nevada, and that he initiated the investigation on the basis of his suspicions regarding Mr. Dynar’s telephone call to Lucky Simone.  The affidavit provides a sufficient basis to conclude that the investigation, the evidence and the prosecution were essentially American.  No amount of cooperation by the Canadian authorities could change this.

142                           The facts of the instant appeal illustrate the logical soundness of the Terry decision.  The reason for exercising extreme caution in excluding foreign evidence from consideration in the extradition process on Charter  grounds is that it is difficult to imagine how such evidence could be excluded without indirectly applying the Charter  extraterritorially to the foreign jurisdiction.  If this concern applies where the foreign evidence is being used in a Canadian trial (Terry, supra), it must a fortiori be a very significant if not a governing factor where the foreign evidence is to be used in a foreign trial.

143                           It is true that the fugitive is entitled to be committed only on the basis of evidence that is legally admissible according to the law of the province in which the committal hearing takes place:  see La Forest’s Extradition, supra, at p. 160.  But it has been consistently and properly held that the Charter  generally does not apply extraterritorially.  As a result, Canadian courts cannot impose upon foreign evidence the standards of admissibility that have developed in the jurisprudence dealing with s. 24(2)  of the Charter .

144                           Mr. Dynar was entitled to a fair hearing before the extradition judge, and in our opinion he received one.  He was not entitled to disclosure from the Requesting State beyond the production of the evidence that it was relying upon to establish its prima facie case.  In any event, the evidence provided by the Requesting State did contain sufficient information to conclude that the evidence was gathered entirely in the United States, by American officials, for an American trial.  It follows that no justiciable Charter  issue can arise in this case.  In these circumstances, a new hearing is simply not justified.

(c)  Disclosure of Materials in the Hands of the Canadian Authorities

145                           Mr. Dynar argued that even if he was not entitled to additional disclosure from the American authorities, he was entitled to disclosure of the materials in the hands of the Canadian authorities.  Since no justiciable Charter  issue can arise from the potential involvement of the Canadian authorities in the gathering of evidence in this case, it is not necessary to consider the degree of disclosure that might be required in other circumstances.

146                           Similarly, it is not necessary to resolve the scope of the jurisdiction of the extradition judge under s. 9(3) of the amended Extradition Act in a case where sufficient Canadian state involvement could be demonstrated.  Perhaps it will suffice to observe that as a result of the enactment of the section, the extradition judge is a “court of competent jurisdiction” pursuant to s. 24  of the Charter , provided that the presiding judge normally fulfills that function. Any further analysis of this issue must await a case when it is dispositive of the appeal.

147                           The facts presented in this case preclude any recourse to the Charter  in the committal hearing and the cross‑appeal must be dismissed.

VI.  Conclusion

148                           In the result, therefore, the appeal is allowed, the judgment of the Court of Appeal is set aside, and the cross‑appeal is dismissed.  The order of Keenan J. committing the fugitive for extradition and the Minister of Justice’s decision to surrender the fugitive are reinstated.

The reasons of Sopinka, McLachlin and Major JJ. were delivered by

149                           Major J. -- I agree with Justices Cory and Iacobucci on the disposition of this appeal but disagree with their conclusion that an attempt to commit an offence under s. 24  of the Criminal Code , R.S.C., 1985, c. C-46 , can be found on the present facts.

150                           It should not be a criminal attempt to do acts which, if completed, would not amount to an offence in Canada.  I, like the New Zealand Court of Appeal (R. v. Donnelly, [1970] N.Z.L.R. 980), the House of Lords (Haughton v. Smith, [1973] 3 All E.R. 1109), the New York Court of Appeals (People v. Jaffe, 78 N.E. 169 (1906)) and the Ontario Court of Appeal in the present case ((1995), 25 O.R. (3d) 559), cannot grasp the notion that the intention to do an act coupled with some activity thought to be criminal is sufficient to find the accused guilty of an attempt when that which was attempted was not an offence under the Criminal Code .

151                           My colleagues have carefully described the different elements of mistake of fact and mistake of law and conclude there is no difference between the two when raised as a defence of impossibility to a criminal charge.  To them the only defence of impossibility is when the crime is imaginary.  The debate over the defence of mistake of fact as opposed to mistake of law has engaged judges, academics and legislators for at least 150 years.  The issue in this appeal can be resolved without solving the controversy over the attempt to commit crimes inherently impossible to commit.  This is because in this appeal the elements of the offence are missing.

152                           The problem can best be illustrated by the following hypothetical facts.  A purchases goods from B at a fraction of their acknowledged true value.  A believes that he is getting such a bargain because the goods are stolen, and admits this to the police.  After investigating, the police determine that the goods were not stolen, and that A simply got a good deal.  Has the purchaser nonetheless committed an offence?  My colleagues say yes, that A committed the offence of attempted possession of stolen goods.  I disagree.  Section 24 requires, on its plain meaning as an element of the offence, that that which was intended to be done be an offence.

I.                 Attempt

153                           In order for the extradition judge to commit the respondent Dynar for extradition to the United States the “double criminality” rule must be satisfied.  This requires the judge to consider whether the conduct alleged, if it had occurred in Canada, would be a criminal offence.  The appellant Crown submits that Dynar, on the facts of this appeal, could be convicted of attempting to launder money or of entering into a conspiracy to launder money under Canadian law.  I doubt that the offence of attempt could be made out on the facts of this case as the sum of the activity and intention of Dynar did not amount to an attempt pursuant to s. 24.

154                           An attempt is defined in s. 24(1)  of the Criminal Code :

24. (1) 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.

It is inescapable that there must be an underlying offence capable of being committed before we can consider the elements of the attempt offence.  It is accepted by my colleagues that on the facts here what Dynar did would not amount to a criminal offence in Canada.  This is because he did not “know” that the money sought to be laundered was the proceeds of crime, as it was not.  The money was a prop of the police in the sting operation.  In my view, since Dynar did not knowingly attempt to launder the proceeds of crime, it cannot be said he had the “intent to commit an offence” for purposes of s. 24(1).

155                           Section 462.31  of the Criminal Code  defines the offence of money laundering:

462.31 (1) Every one commits an offence who uses, transfers the possession of, sends or delivers to any person or place, transports, transmits, alters, disposes of or otherwise deals with, in any manner and by any means, any property or any proceeds of any property with intent to conceal or convert that property or those proceeds and knowing that all or a part of that property or of those proceeds was obtained or derived directly or indirectly as a result of

(a) the commission in Canada of an enterprise crime offence or a designated drug offence; or

(b) an act or omission anywhere that, if it had occurred in Canada, would have constituted an enterprise crime offence or a designated drug offence. [Emphasis added.]

To the same effect is s. 19.2 of the Narcotic Control Act, R.S.C., 1985, c. N-1:

19.2 (1) No person shall use, transfer the possession of, send or deliver to any person or place, transport, transmit, alter, dispose of or otherwise deal with, in any manner and by any means, any property or any proceeds of any property with intent to conceal or convert that property or those proceeds and knowing that all or a part of that property or of those proceeds was obtained or derived directly or indirectly as a result of

(a) the commission in Canada of an offence under section 4, 5 or 6; or

(b) an act or omission anywhere that, if it had occurred in Canada, would have constituted an offence under section 4, 5 or 6. [Emphasis added.]

The substantive offence under either the Criminal Code  or the Narcotic Control Act requires that the accused deal with proceeds knowing that all or a part of those proceeds were obtained or derived directly or indirectly as a result of crime.

156                           Knowledge requires truth.  The offence of money laundering could not be committed when the proceeds are not the actual proceeds of crime.

157                           The appellant Crown has submitted, however, that the Court should define the word “knowing” within s. 462.31 to mean “believing” so as to impose a conviction for the substantive offence when an accused believes what he is laundering is the proceeds of crime.  The appellant submits that if Dynar had actually received clean monies from a law enforcement agency and laundered them, he should be convicted of money laundering, despite the fact that he has not laundered the proceeds of crime.  However, the plain meanings of “knowing” and “believing” are different.  The late Prof. Glanville Williams in his Textbook of Criminal Law (2nd ed. 1983) stated at p. 160:

The word “know” refers exclusively to true knowledge; we are not said to “know” something that is not so.  Belief, on the other hand, can include a mistaken belief, a subjective conviction whether right or wrong.

158                           A useful comparison can be drawn to the wording of the substantive offence under which Dynar has been charged in the United States.  United States Code, Title 18, § 1956(a)(3) provides as follows:

§ 1956.  Laundering of monetary instruments

(a) ...

(3) Whoever, with the intent --

(A)  to promote the carrying on of specified unlawful activity;

(B)  to conceal or disguise the nature, location, source, ownership, or control of property believed to be the proceeds of specified unlawful activity; or

(C) to avoid a transaction reporting requirement under State or Federal law,

conducts or attempts to conduct a financial transaction involving property represented to be the proceeds of specified unlawful activity, or property used to conduct or facilitate specified unlawful activity, shall be fined under this title or imprisoned for not more than 20 years, or both.  For purposes of this paragraph and paragraph (2), the term “represented” means any representation made by a law enforcement officer or by another person at the direction of, or with the approval of, a Federal official authorized to investigate or prosecute violations of this section.  [Emphasis added.]

It is apparent that the offence is defined differently in the United States than here in Canada.  The initial requirement is not “knowing” but “believing”.  As well by including “property represented to be the proceeds of specified unlawful activity” within the meaning of the proceeds of crime, the U.S. law specifically makes a money-laundering “sting” a legitimate avenue of criminal investigation and prosecution.  Our substantive money-laundering section is not drafted in that way.

159                           Parliament could easily draft legislation which makes belief the mental element of a crime.  Consider s. 4(1) of the Narcotic Control Act, which reads:

4.  (1) No person shall traffic in a narcotic or any substance represented or held out by the person to be a narcotic.

By this section if a person believes that the substance he or she is trafficking in is a narcotic, the person is guilty whether or not it is a narcotic.  It is evident that Parliament is aware of its options and its choice of “knowing” as a requirement for an offence under s. 462.31  of the Criminal Code  and s. 19.2 of the Narcotic Control Act rather than “believing” should be respected.

160                           There are several sections of the Criminal   Code  where different meanings are implied for the two words.  For the use of “knowing” alone see:

s. 163(2)(a) (selling or possessing obscene materials), which requires that the accused “knowingly, without lawful justification or excuse” sells, displays or possesses obscene material;

s. 181 (spreading false news), which requires that the accused wilfully publish a statement “he knows is false” (note that this section was found to be unconstitutional by this Court in R. v. Zundel, [1992] 2 S.C.R. 731 (“Zundel (No. 2)”);

s. 300 (defamatory libel), which requires that the accused publish “a defamatory libel that he knows is false”;

s. 354(1) (possession of property obtained by crime), which requires that the accused possess a property or thing “knowing” that all or part of the property or thing was obtained by or derived directly or indirectly from crime.

In contrast, see:

s. 495(1)(a) (the standard for warrantless arrest):  a peace officer may arrest without warrant a person who, “on reasonable grounds, he believes has committed ... an indictable offence”.

For the disjunctive use of both knowing and believing see s. 196(4)(a).  Parliament obviously intended these two words to have different meanings.

161                           Canadian courts have authoritatively interpreted “knowing” to require the thing to actually be true before it can be known.  See R. v. Zundel (1987), 31 C.C.C. (3d) 97, where the Ontario Court of Appeal held that s. 181  of the Criminal Code  (spreading news knowing it to be false) requires proof that the statement published was actually false.  The accused could not “know” he was publishing news that was false unless such news actually was false.  In Zundel (No. 2), supra, McLachlin J. summarized the elements of s. 181 at p. 747:

[T]he Crown, to succeed, must establish beyond a reasonable doubt the following propositions:

1.    That the accused published a false statement, tale or news;

2.    That the accused knew the statement was false; and

3.    That the statement causes or is likely to cause injury or mischief to a public interest.  [Emphasis added.]

This decision recognized that s. 181 required the statement that was made to actually be false.

162                           It has long been a staple of Canadian jurisprudence that s. 354(1), possession of goods “knowing” them to be stolen, requires the goods to actually be stolen goods before an accused can “know” they were.  This is made clear in R. v. Streu, [1989] 1 S.C.R. 1521.  The accused’s belief that the goods were stolen was not enough to ground a conviction for possession of goods knowing them to be stolen.  The Court referred with approval to the statement of Dickson J.A. (later C.J.C.) in R. v. Vogelle and Reid, [1970] 3 C.C.C. 171 (Man. C.A.), at p. 177, that, “[i]n order for an accused to be found guilty of the offence of receiving stolen goods it is essential the Crown prove beyond reasonable doubt ... [t]hat the goods are stolen goods ”.  To now equate “knowing” with “believing” would reverse long established authority to the contrary.

163                           In addition, Parliament is in the process of amending s. 462.31 to include the phrase “knowing or believing” with the Criminal Law Improvement Act, 1996 (Bill C-17).  Bill C-17 will amend both statutes in the way that the appellant would have this Court amend them.   Parliament is the proper place to pursue these changes.

164                           The substantive offence of money laundering, as it stands unamended, cannot be committed without the actual proceeds of crime being present.  The accused cannot “know” that what he is laundering is the proceeds of crime unless the proceeds are the proceeds of crime.  We cannot “know” what is not true.  On this point, I agree with my colleagues in their conclusion at para. 47 that

[b]ecause the money that the U.S. undercover agents asked Mr. Dynar to launder was not in fact the proceeds of crime, Mr. Dynar could not possibly have known that it was the proceeds of crime.  Therefore, even if he had brought his plan to fruition, he would not have been guilty of any completed offence known to Canadian law.

165                           My colleagues however, have an alternative position.  They posit that despite the fact that laundered proceeds must be the actual proceeds of crime before an accused can knowingly launder them, the accused can be convicted of attempting to launder proceeds of crime when he has laundered that which he believes to be actual proceeds.  I cannot agree.  There must be an underlying offence before an accused could attempt to commit anything.  If there is no offence there can be no attempt.

166                           My colleagues state that the knowledge requirement of the money laundering offence does not constitute the accused’s mens rea.  For my part, I do not understand the need to divide the “knowledge” of the accused into subjective and objective components, which my colleagues labour at in paras. 68 through 74 of their reasons.  Parliament, perhaps to avoid metaphysics, chose to use a single word to represent the mental element of this offence.  We need go no further than their choice.  Since the accused did not have knowledge, the mens rea of the offence, he cannot be said to have attempted it.

167                           Moreover, it does not logically, on the plain meaning of the word, make sense to say the respondent attempted to launder the proceeds of crime.  The respondent only attempted to launder what the FBI provided.  It presumably made no difference to him whether the money to be laundered was from crime or legal activity.  In fact, what he attempted to do was launder money that was not tainted.  There was no offence that could be committed.  The laundering of legal proceeds is an imaginary crime.

168                           Parliament’s proposed amendments (Bill C-17, noted above) relate to money laundering only.  If my colleagues are correct, the result of their reasons would apply a lower standard of criminal liability to all offences of attempt.

169                           In the absence of a defence of impossibility certain unusual circumstances will result in convictions for criminal offences.  As previously noted, a person who possesses goods believing them to be stolen will be convicted of a crime whether or not the goods are actually stolen.  If the goods are not stolen, the accused will be convicted for his or her state of mind alone.  Criminal law should not patrol people’s thoughts.  The ecclesiastical courts may find the intentions of the accused immoral but the Criminal Code  does not make them criminal.  Other common law courts have agreed that these facts do not give rise to criminal liability.  See Haughton v. Smith, supra; Jaffe, supra; Donnelly, supra (dealing with legislation almost identical to s. 24(1)).

170                           My colleagues’ opinion leads to the conclusion that the long line of cases referred to earlier and culminating in Streu, supra, were cases where the wrong charge was laid.  In Streu, this Court discussed in depth the evidence that could be used to prove that goods in possession of an accused were actually stolen.  However, if my colleagues are correct, that was an unnecessary exercise as the Crown does not need to prove the goods were actually stolen.  The accused in such cases could be charged with attempted possession of stolen goods instead of actual possession of stolen goods.  Then, all that is relevant is the accused’s belief.  A common way of inferring an accused’s intention to possess stolen goods is to show that he or she purchased them at a fraction of their true value.  From this the inference is made that the accused believed the goods to be stolen.  Removing the need for the Crown to show that the goods were actually stolen makes the potential for unjust results simply too great.  The threshold for conviction of possession of stolen property should not be so substantially lowered.

171                           Section 163  of the Criminal Code  makes the knowing distribution of obscene material a crime.  Assume the police arrest the owner of a video store and confiscate his entire inventory of videotapes.  Before viewing any of the videotapes, the police question the owner of the store as to their contents.  The owner states that the videotapes depict all manner of degrading and violent sexual acts.  In short, he admits his belief that the videotapes he was offering to rent contained “indecent or obscene material”, as those words have been defined.  The police view the actual videotapes, and discover that nothing obscene at all is depicted.  The video store owner was simply mistaken as to what was contained in the videos.  Has he nonetheless committed a crime?  If my colleagues are correct the owner is guilty of attempting to distribute obscene material.

172                           An example of the necessary result that follows from my colleagues’ view was adverted to in one of the earliest cases of “impossible attempts”.  Part of Baron Bramwell’s judgment in R. v. Collins (1864), 9 Cox C.C. 497 (C.C.A.), was that he could not accede to a view of the law which allowed an accused to be “convicted of attempting to steal [his own umbrella]”.  The hypothetical he refers to is as follows.  An accused, with intent to steal, takes an umbrella from a rack containing many umbrellas.  It later turns out that the umbrella the accused thought he was stealing was actually his own which he had forgotten was also in the rack.  My colleagues would convict this accused of attempted theft.  I prefer the answer given by Baron Bramwell 130 years ago.

173                           The late Prof. Glanville Williams, an ally of my colleagues, is with them a strong opponent of the position I have adopted in these reasons.  He was compelled, however, to agree that his analysis leads to a conviction in the following circumstance.  A person who sincerely believes in the practice of voodoo sticks a pin into a doll, believing it will cause the death of another.  Professor Williams concludes this is an attempt to murder.  See Criminal Law -- The General Part (2nd ed. 1961) and “Attempting the Impossible -- A Reply” (1979-80), 22 Crim. L.Q. 49, at p. 52, where Professor Williams states that: “The answer to the particular question is that the act of voodoo is proximate to the victim’s death in the voodooist’s mind” (emphasis in original).  I doubt that the framers of the Criminal Code  intended a conviction in this circumstance.

174                           I cannot agree with my colleagues that these results are the intended consequences of the enactment of s. 24(1).  I do not think any of these factual circumstances should result in criminal prosecution.  Section 24(1) requires an offence.  If there is in fact no offence, no matter what the belief, one cannot be a party to the non-existent offence.

175                           Prof. Glanville Williams has also pointed out some of the “absurdity” that can arise from adopting what he calls the “putative fact” approach to attempts.  This appears to be the approach adopted by my colleagues, as it allows a conviction for attempt by simply relying upon what the attempter believed to be true.  In “The Lords and Impossible Attempts, or Quis Custodiet Ipsos Custodes?”, [1986] Cambridge L.J. 33,  Williams points out the most problematic results of this theory (at pp. 81-82):

(1) The putative fact approach would in practice result in setting aside the temporal and spatial limits upon the penal law.  Suppose a penal statute comes into force at midnight.  A man may think he is acting at 12:05 a.m. (after it has come into force), when in fact he was acting at 11:55 p.m. (before it came into force).  Is he guilty of attempting to commit what would be an offence under the Act if his facts were right?  (Observe that this is not a question of mistake of law, a mistake as to what the Act says; the mistake concerns the facts.)  A man may think he is acting within the bounds of territorial jurisdiction, when he is in fact acting just outside those bounds.  Or a person who is not a British citizen but who believes he is a British citizen (as a result of mistaking his birth-place) may assist an enemy abroad.  Is he guilty of attempted treason?  If a person is not subject to the law of treason, how can he be guilty of attempted treason?

...

(2) My second type of problem concerns a particular type of justification.  A statute may make it an offence to pursue some activity without a licence.  A person may act believing he has no licence, when in fact he has one.  For example, a driver stopped by the police may untruthfully assert that his wife was driving; the police question him closely, and it transpires that he was driving, and believed he had been disqualified from driving, but in fact he had not.  Is he guilty of attempting to drive while disqualified?  It needs no demonstration that an affirmative answer would be strange, though it is apparently the answer that was intended to be given (in theory) under the Criminal Attempts Act. [The Act adopted the putative fact theory.]

(3) The third hypothetical is somewhat similar.  In the old case of Dadson [(1850), 2 Den. 5, 169 E.R. 407], the defendant arrested a person for unlawfully cutting and taking wood, and shot him to prevent him escaping.  The person arrested had twice been convicted before, and the arrest (and, at that date, the shooting) would consequently have been lawful if the defendant had known this; but he did not know it, so the arrest (and, consequently, the shooting) was held to be unlawful.  There is a strong argument for saying that the decision was wrong.  Like the putatively disqualified driver, the defendant was in fact licensed by law to do the act he did, although he did not know it.  To all outward seeming his act was lawful, and his ignorance of fact should not have made his otherwise [lawful] [the article actually uses the word “unlawful” here, but it is clear Williams meant “lawful”] act a crime.  The policy of this rule was accepted by Parliament in the Criminal Law Act 1967, s. 2(2), where it is provided that “any person may arrest without warrant anyone who is, or whom he, with reasonable cause, suspects to be, in the act of committing an arrestable offence.” [See our Criminal Code  s. 27 .]  The wording means that a person committing an arrestable offence can be validly arrested even though the arrester lacks a reasonable cause for suspecting him, and even though he does not suspect him.  The state of the arrester’s mind is irrelevant once it is established that the objective facts justifying an arrest were present.  If this is the proper rule, it would seem to follow that the arrester is not only guiltless of assault and false imprisonment in arresting, but is (or should be) guiltless of an attempt to commit these crimes.  Yet on the putative fact theory of attempt, he would be guilty of an attempt if, on the facts as he believed them to be, his act would have been criminal.  A similar problem can arise in cases of self-defence, where a person’s act is in fact necessary in self-defence but he does not realise this.

These are strong reasons to be cautious in accepting the theory adopted by my colleagues.  Prof. Williams suggests that these problems that flow from the elimination of “impossibility” as a defence should be cured by legislation.  The uncertainties noted by Prof. Williams lead me to the conclusion that the entire area of “impossible attempts” is a problem that should be dealt with by Parliament.

176                           My view is similar to that adopted by the Law Reform Commission of Canada in Working Paper 45, Secondary Liability: Participation in Crime and Inchoate Offences (1985), where it discussed the classic hypothetical of the man who intends to steal an umbrella (at p. 33):

Where D tries to “steal” his own property, why should he not be liable for attempted theft?  Like the unsuccessful pickpocket, he has wrongful intent and does an act towards it.  On the other hand, the pickpocket intends to commit a specific offence, while the “self-stealer” only intends wrong in the abstract (to steal).  The former’s act can, if successful, be a theft; the latter’s can be no crime at all.  True, he could be blamed for being prepared to take the property, no matter whose it is, and break the law in general but this is not, as the law now stands, a criminal offence.  Unless our whole approach to criminal law changes, he cannot incur liability.

The Commission recommended that Parliament not amend the Criminal Code  to make “legally impossible attempts” into crimes, stating that “[t]here should be no liability for [attempting] crimes inherently impossible to commit or acts not qualifying in law as criminal” (p. 36).

II.                Conspiracy

177                           I agree with my colleagues that the offence of conspiracy to launder money can be made out on these facts.  The gravamen of the offence of conspiracy is the agreement to commit a crime.  It was open to the extradition judge to conclude that there was sufficient evidence of an agreement between Dynar and Cohen to commit the offence of money laundering.

178                           The charges of attempt and conspiracy in this case can be distinguished as follows.  The charge of conspiracy was based on the agreement to commit the general offence of money laundering, whereas the attempt charge was restricted to the attempted laundering of the money that was to have been provided by the authorities in the sting operation.  No proceeds, of crime or otherwise, need be present to commit the offence of conspiracy.

III.               Conclusion

179                           Since it is only necessary to find probable grounds that any extraditable offence has been committed, Dynar was properly ordered extradited on the conspiracy charge.  In the result I agree with the disposition of Cory and Iacobucci JJ., and would allow the appeal and dismiss the cross-appeal.

Appeal allowed and cross‑appeal dismissed.

Solicitors for the appellants:  Robert Hubbard and Croft Michaelson, Toronto.

Solicitors for the respondent:  Sack, Goldblatt, Mitchell, Toronto.