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RATIO

Equivocal acts of the accused, where there is no extrinsic evidence of the intent with which the said acts were done, may be insufficient to show that there was the intent to commit a crime, and hence insufficient to establish the offence of attempt.

R. v. Deutsch [1986] 2 S.C.R. 2

FACTS

The appellant put out an ad looking for a secretary/sales assistant.  The position entailed possibly having sex with clients to close deals.   One interview was with a cop posing as an applicant.  When the cop said she was interested, the appellant told her to think it over and let him know.  He was charged with attempting to procure a person to have illicit sexual intercourse with another person.  

ISSUE

How do we distinguish between attempt and mere preparation?

HELD

Appeal dismissed.  C.A.'s order for a new trial confirmed.

RATIO

The trial judge did not make a finding as to whether or not there was the necessary intent to procure.

NOTES

Le Dain J. - "...the distinction between preparation and intent...involv[es] the relationship between the nature and quality of the act in question and the nature of the complete offence, although... [we must consider] the relative proximity of the act in question to what would have been the completed offence, in terms of time, location and acts under the control of the accused remaining to be accomplished."

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

FACTS

The U.S. government wanted D., a Cdn citizen, extradited.  D. had placed a phone call from Canada to a former associate in Neveda who had become an FBI informant.

ISSUE

Should courts acquit in some cases of attempting the impossible?

HELD

No.  Dynar to be extradited.

RATIO

Section 24 is clear; it is indifferent about whether or not the attempt might possibly have succeeded.

NOTES

The conventional distinction between factual and legal impossibility is untenable.  There is no legally relevant difference between the pickpocket who reaches into an 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.

R. v. Celebrity Enterprises Ltd. (No. 2) [1977] 42 C.C.C. (2d) 478 (B.C. C.A.)

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