Quand un accusé pointe une arme chargée en direction de personnes en leur disant qu’elles vont mourir, il a dépassé le stade de la simple préparation en matière de tentative de meurtre

R. v. Goldberg, 2014 BCCA 313

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[40]        As Gaul J. observed in the case at bar, the Court in Ancio endorsed the principle that the actus reus of attempted murder consists of “some step towards the commission of the offence attempted going beyond mere acts of preparation.” This formulation and its predecessors in the jurisprudence have been the subject of much learned comment, and indeed criticism. Learned authors have proposed a number of tests, or approaches, to the question of what constitutes the actus reus of an attempt – the “equivocality” theory; the notion of remoteness or proximity; the “last act”, “first act”, and “indispensable element” approaches; the “probable desistance” test; whether “substantial steps” were taken; whether the act created some danger to the public; and others. (See, e.g., M. Manning & P. Sankoff, eds., Manning, Mewett & Sankoff - Criminal Law (4^th ed., 2009) at 292-299; Kent Roach, Criminal Law (4^th ed., 2009) at 122-5; Don Stuart, Canadian Criminal Law: A Treatise (6^th ed., 2011) at 694-711; Hamish Stewart, “When Does Fraud Vitiate Consent? A Comment on R. v. Williams” (2004) 49 Crim. L.Q. 144 at 159-64; Randal Marlin, “Attempts and the Criminal Law: Three Problems” (1976) 8 Ott. L. Rev. 518; Nola Garton, “The Actus Reus in Criminal Attempts” (1974) 2 Queens L.J. 183; E. Meehan and J.H. Currie, The Law of Criminal Attempt (2^nd ed., 2000) at 105-93; Peter MacKinnon, “Making Sense of Attempts” (1982) 7 Queen’s L.J. 253; Allan Manson, “Recodifying Attempts, Parties and Abandoned Intentions” (1989) 14 Queen’s L.J. 85. On the nature of attempts generally, see also J.H. Beale, “Criminal Attempts” (1903) 16 Harv. L. Rev. 491 and F.B. Sayer, “Criminal Attempts” (1928) 41 Harv. L. Rev. 822 at 843-858.)

[41]        In Canada, however, the Supreme Court has been content to apply the “acts beyond mere preparation” criterion and to leave the question of where to draw the line to the common sense of trial judges. As stated by Le Dain J. for the Court in Deutsch v. The Queen 1986 CanLII 21 (SCC), [1986] 2 S.C.R. 2:

It has been frequently observed that no satisfactory general criterion has been, or can be, formulated for drawing the line between preparation and attempt, and that the application of this distinction to the facts of a particular case must be left to common sense judgment. See, for example, Kelley v. Hart (1934), 1934 CanLII 358 (AB CA), 61 C.C.C. 364, per McGillivray J.A. at p. 370; R. v. Brown, 1947 CanLII 381 (ON CA), [1947] O.W.N. 419, per Laidlaw J.A. at p. 421; R. v. Cline (1956), 1956 CanLII 150 (ON CA), 115 C.C.C. 18, per Laidlaw J.A. at p. 26; and Haughton v. Smith, [1975] A.C. 476, per Lord Reid at p. 499. Despite academic appeals for greater clarity and certainty in this area of the law I find myself in essential agreement with this conclusion.

In my opinion the distinction between preparation and attempt is essentially a qualitative one, involving the relationship between the nature and quality of the act in question and the nature of the complete offence, although consideration must necessarily be given, in making that qualitative distinction, to 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. I find that view to be compatible with what has been said about the actus reus of attempt in this Court and in other Canadian decisions that should be treated as authoritative on this question. [At 22-3; emphasis added.]

Professor Roach (supra, at 124) suggests that “[i]n a practical sense”, mens rea and actus reus do not exist in this context in watertight compartments – i.e., that where the evidence of intent is not strong, the actus reus must be more ‘proximate’ to the act attempted, whereas a more ‘remote’ actus reus may be accepted where there is extremely strong proof of mens rea.

[48]        The parallels between the case at bar and Boudreau are obvious. Here, as in Boudreau, the accused pointed a gun at his victims and told Mr. Walsh to “back up”. According to the testimony accepted by the trial judge, he also said they were going to die that night. Of course, one does not know what would have happened had he not been ‘jumped’ by Mr. Walsh, but the law is clear that attempted murder does not necessarily require an attempt to shoot: see Boudreau at para. 30, citing Cline. It is also trite law that the actus reus need not be the ‘last act’ in the attempt (see, e.g., R. v. James (1971) 1970 CanLII 1073 (ON CA), 2 C.C.C. (2d) 141 (Ont. C.A.) at para. 5; R. v. Burns [1994] 1 S.C.R. 665 at para. 47), nor an ‘unequivocal’ act (see R. v. Sorrell (1978) 1978 CanLII 2388 (ON CA), 41 C.C.C. (2d) 9 (Ont. C.A.) at 23; Cline at 487.) As well, this court has held that once an attempt is established, “it makes no difference whether non-commission was due to interruption, frustration or change of mind”: see R. v. Roberts [1981] B.C.J. No. 1185, citing Regina v. Kosh 1964 CanLII 361 (SK CA), [1965] 1 C.C.C. 230 (Sask. C.A.) at 235.