criminal-law
what are some common defences to criminal attempt charges?
<p>Generally factual impossibility isn't a defence but are there other kinds of defences to criminal attempt and criminal preperation other than factual impossibility defence ? Also can factual impossibility defence apply to criminal preperation and conspiracy charges ? Or is it a prohibited defence generally in these cases too ?</p>

<p><a href="/questions/tagged/canada" class="post-tag" title="show questions tagged &#39;canada&#39;" aria-label="show questions tagged &#39;canada&#39;" rel="tag" aria-labelledby="canada-container">canada</a></p>
<p>Attempts are criminalized in Canada by s. 24(1) of the Criminal Code:</p>
<blockquote>
<p>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.</p>
</blockquote>
<p>The <em>mens rea</em> of an attempt requires the accused to have <em>intended</em> to carry out the actual offence. The <em>actus reus</em> of an attempt requires the accused to have taken steps that were more than &quot;mere preparation&quot; (<em>R. v. Cline</em>, <a href="https://www.canlii.org/en/on/onca/doc/1956/1956canlii150/1956canlii150.html" rel="nofollow noreferrer">115 C.C.C. 18</a> (Ont. C.A.)).</p>
<p>All the typical defences are available:</p>
<ul>
<li>denying the <em>mens rea</em> or the <em>actus reus</em> (i.e. that the accused did not actually have the intent to carry out the offence or that their actions did not amount to anything more than mere preparation)</li>
</ul>
<p>And, as long as they would be available for the underlying offence:</p>
<ul>
<li><a href="https://www.canlii.org/en/ca/scc/doc/1995/1995canlii110/1995canlii110.html" rel="nofollow noreferrer">duress</a></li>
<li><a href="https://www.canlii.org/en/ca/scc/doc/2022/2022scc18/2022scc18.html" rel="nofollow noreferrer">automatism</a> (including due to extreme intoxication, but subject to the limitations in <a href="https://laws-lois.justice.gc.ca/eng/acts/c-46/page-5.html#h-115821" rel="nofollow noreferrer">s. 33.1</a>)</li>
<li><a href="https://www.canlii.org/en/ca/scc/doc/1984/1984canlii23/1984canlii23.html" rel="nofollow noreferrer">necessity</a></li>
</ul>
<p>You are correct that <a href="https://law.stackexchange.com/a/88611/46948">factual impossibility is not a defence</a> to an attempt charge: &quot;<a href="https://www.canlii.org/en/on/onsc/doc/2006/2006canlii730/2006canlii730.html" rel="nofollow noreferrer">an attempt to do the factually impossible is still an attempt for the purposes of s. 24(1) of the Code</a>.&quot;</p>

<p>First you can claim that it wasn’t you. If you have an alibi for example, you couldn’t be guilty of an attempted crime. Without an alibi, police would need evidence that it was you and not someone else.</p>
<p>Second you can claim that you didn’t intend to commit the crime. That your failure wasn’t due to incompetence or luck, but deliberately. So if I open the door, you shoot, and the bullet misses me, you can claim that this was your intention.</p>
<p>The police will try to find evidence for your intent. And at best it creates doubt, but it’s up to a jury to decide whether it is reasonable or unreasonable doubt.</p>
<p>Third, you must have done steps that are more than just preparatory. So if you wanted to commit a crime, it would depend on when exactly you were stopped. So you claim that what you did was merely a preparation and not any actual attempt to commit the crime (yet).</p>
<p>“Attempted” crimes all failed for some reason, so if there are facts that made it impossible that’s no excuse. Unless you knew about the impossibility and use this to show that you didn’t want to commit the crime. Say you have a gun, take it to a gun store to make sure it isn’t loaded, then took the gun and pulled the trigger pointing at someone. In this case you can argue successfully that you had no intent to murder anyone. But if you didn’t check the gun was loaded and I removed the bullets because I don’t trust you then it would be attempted murder.</p>
