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Civil and Administrative
Litigation Opinions
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Criminal - Attempt

. R. v. R.M.

In R. v. R.M. (Ont CA, 2023) the Court of Appeal considers the offence of attempt [under CCC 24], here in a child abduction context [CCC 280]:
[4] First, Mr. Greenshields argues that the trial judge erred in relation to the attempted abduction charge by failing to instruct the jury in accordance with s. 24(2) of the Criminal Code, which provides that when an accused is charged with attempting to commit a criminal offence, thereby committing an offence under s. 24(1):
(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.
[5] As Martin J.A. explained in R. v. Breese (1984), 1984 CanLII 3589 (ON CA), 12 C.C.C. (3d) 491, at p. 510 (Ont. C.A.):
Under s. 24 it is for the jury to find what acts were done by the accused and the intent with which they were done. It is for the judge to decide whether the acts, if the jury find them to have been done by the accused, go beyond mere preparation and constitute an attempt. Accordingly, the jury should be instructed that if they find the accused did certain acts (found by the trial judge to go beyond mere preparation) with the intention of committing the offence alleged that constitutes an attempt to commit the offence [the “Breese charge”].

[10] First, Parliament has determined that the question of whether a particular act goes beyond “mere preparation to commit the offence” and is not “too remote to constitute an attempt to commit the offence”, is one of law that must be decided by the trial judge. By instead leaving this issue to be decided by the jurors, the trial judge committed a legal error.

[11] In most situations, the legal correctness of a jury charge must be assessed by considering its functional adequacy: see, e.g., R. v. Goforth, 2022 SCC 25, 415 C.C.C. (3d) 1, at paras. 20-22. However, I am not persuaded that this approach applies when, as here, the impugned charge fails to comply with a mandatory requirement of the Criminal Code. Under s. 24(2) of the Criminal Code, the question of which of the appellant’s alleged acts would, if proved, amount to an attempt to commit the offence of abduction was a question of law that had to be decided by the trial judge. His instructions instead left this to the jurors to decide for themselves. In my view, this was an error of law.


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Last modified: 05-01-24
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