An instruction on attempts must be given if: 1) an attempt is explicitly charged in the indictment; or 2) an attempt is an included offence on the facts in relation to one or more of the accused as a principal or a party.

In ordinary speech, an attempt means trying to accomplish something. However, in criminal law, an attempt “consists of intent to commit the completed offence together with some act more than preparatory taken in furtherance of the attempt”(R v Bear (C.W.), 2013 MBCA 96 at para 69).

Note that under the Criminal Code, an attempt is an included offence for most substantive offences:

660. Where the complete commission of an offence charged is not proved but the evidence establishes an attempt to commit the offence, the accused may be convicted of the attempt.

Note also this special rule that applies when an attempt is charged, but the complete offence is proved:

661. (1) Where an attempt to commit an offence is charged but the evidence establishes the commission of the complete offence, the accused is not entitled to be acquitted, but the jury may convict him of the attempt unless the judge presiding at the trial, in his discretion, discharges the jury from giving a verdict and directs that the accused be indicted for the complete offence.

A helpful summary of the law of attempts is set out in the judgment of Justice David Watt in R v Root, 2008 ONCA 869 at paras 92-102:

The Governing Principles

[92]         Section 24 of the Criminal Code instructs that an attempt to commit an offence consists of two elements:

i. the intent to commit the offence; and

ii. conduct, which is more than merely preparatory acts or omissions, for the purpose of carrying out the intention to commit the offence.

Attempts are preliminary or inchoate crimes. That it is not possible to commit the substantive offence attempted is of no legal moment. Dynar at para. 49; Criminal Code, s. 24(1).

[93]         Under s. 24(2) of the Criminal Code, whether conduct by a person who intends to commit a crime is mere preparation or has progressed beyond it to constitute the actus reus of an attempt is a question of law.  Designation of a judge’s decision to characterize an accused’s conduct as mere preparation or the actus reus of an attempt as a question of law is of particular importance in cases like this where the appellant’s right of appeal is restricted to questions of law alone.

[94]         In every case of an attempt to commit an offence, the mens rea of the substantive offence will be present and complete.  In every attempt, what is incomplete is the actus reus of the substantive offence.  But incompleteness of the actus reus of the substantive offence will not bar a conviction of attempt, provided the actus reus is present in an incomplete, but more  than  preparatory way.  Dynar at paras. 73 and 74.

[95]         The actus reus may be but does not have to be a crime, tort or even a moral wrong.  R. v. Cline, 1956 CanLII 150 (ON CA), [1956] O.R. 539, at p. 550 (C.A.).

[96]         The authorities have yet to develop a satisfactory general criterion to assist trial judges in making the crucial distinction between mere preparation, on the one hand, and an attempt on the other. We leave the determination of where on the continuum the conduct lies to the common sense judgment of trial judges.  R. v. Deutsch, 1986 CanLII 21 (SCC), [1986] 2 S.C.R. 2 at pp. 22-23.

[97]         The distinction between preparation and attempt is a qualitative one involving the relationship between the nature and quality of the act said to constitute the attempt and the nature of the substantive offence attempted in its complete form.  Deutsch at p. 23.

[98]         To determine on which side of the preparation/attempt divide an accused’s conduct falls, a trial judge should consider the relative proximity of that conduct to the conduct required to amount to the completed substantive offence. Relevant factors would include time, location and acts under the control of the accused yet to be accomplished. Deutsch at p. 23.

[99]         Relative proximity may give an act, which might otherwise seem to be mere preparation, the quality of an attempt. Deutsch at p. 26; R. v. Henderson, 1948 CanLII 17 (SCC), [1948] S.C.R. 226 at p. 245.  Further, an act on its face an act of commission does not lose its quality as the actus reus of an attempt simply because further acts are required, or because a significant period of time may elapse before the completion of the substantive offence. Henderson at p. 244; Deutsch at p. 26.

[100]      To constitute the actus reus of an attempt, the act of an accused need not be the last act before the completion of the substantive offence. To constitute the actus reus of an attempt, an act must be sufficiently proximate to the intended crime to amount to more than mere preparation to commit it. This requirement of proximity, expressed in the divide between preparation and attempt, has to do with the sequence of events leading to the crime that an accused has in mind to commit.  To be guilty of an attempt, an accused must have progressed a sufficient distance (beyond mere preparation) down the intended path.  Williams, Criminal Law (The General Part), at p. 625.  An act is proximate if it is the first of a series of similar or related acts intended to result cumulatively in a substantive crime. 

[101]      The legislative decision reflected in s. 24(2) of the Criminal Code, to make the determination whether an act done with intent to commit an offence is or extends beyond mere preparation a question of law, would seem to impose a standard of correctness for appellate review of decisions made at trial on this issue.

The Principles Applied         

[102]      The law of attempts becomes engaged only when the mens rea of the completed offence is present in its entirety and the actus reus of the completed offence is present in an incomplete but more-than-merely preparatory way. An attempt may be complete without the actual commission of any other offence and even without the performance of any act unlawful in itself.

If (NOA) is expressly charged with an attempt, state:

(NOA) is charged with attempted (specify). The formal charge reads:

(Read applicable parts of indictment or count.)

If attempt arises as an included offence, state:

(NOA) is charged with (specify). This charge includes an attempt to commit that offence.

(Read applicable parts of indictment or count.)

Note to Trial Judge:

Section 24(2) of the Criminal Code provides that the issue of whether the accused's acts or omissions are mere preparation or amount to an attempt is a question of law. You must consider this question of law at the pretrial stage. The Crown must state its position on this question at that point, but the trial judge is ultimately responsible for deciding whether the evidence is capable of constituting an attempt and to instruct the jury accordingly.

Remember, the steps taken in attempting to commit an offence need not be criminal themselves, or even immoral.[4] Nor does the accused need to have reached the last step before completion of the offence. The step or steps taken towards the commission of the offence may amount to more than preparation even if further acts are required or because, for example, they were taken a significant period of time before the offence could be completed. A lapse of time between the accused’s last act and the completion of the offence does not necessarily sever the connection between the accused’s acts and the complete offence.

On the other hand, relative proximity in time to the completion of an offence may give an act, which might otherwise appear to be mere preparation, the quality of an attempt. But an act which on its face is an act taken toward commission of the offence does not lose its quality as the actus reus[5] of attempt simply because further acts were required, or because a significant period of time may have elapsed between that act and the potential completion of the offence.

In assessing whether the step or steps taken by the accused go beyond mere preparation, consider what steps have been taken, when they occurred, where they occurred, and whether they are sufficiently connected to the offence to go beyond mere preparation and qualify as an attempt. You must also consider what steps remained to be taken in order to complete the offence.[6]

There are three possibilities for the first element of an attempt, the actus reus:

1. If it is undisputed that the accused's act or acts went beyond mere preparation (e.g., the accused did everything necessary to carry out the offence but was prevented from completing it by chance), give the following instruction:

I direct you as a matter of law that (NOA)'s acts, which you should have no difficulty finding took place,[7] amount to an attempt to commit the offence of (specify). The main issue in this case is whether the accused had the intent to commit the offence of (specify). I will now instruct you on that issue. You should move directly to that question.

2. If there is no dispute about what the accused did, but the Crown and defence do not agree on the question of whether his or her conduct went beyond mere preparation, you must determine that issue after hearing the evidence and before instructing the jury. If you find that the accused's conduct was mere preparation and could not amount to an attempt, you must direct a verdict of acquittal. If you find that the accused's conduct went beyond mere preparation and included steps towards the commission of the offence, give the following instruction:

I direct you as a matter of law that (NOA)'s act or acts amount to an attempt to commit the offence of (specify). The main issue in this case is whether the accused had the intent to commit the offence of (specify). I will now instruct you on that issue. You should move directly to that question.

3. If what the accused did was in dispute (e.g, the Crown's position is that the accused actively participated in an attempt but the accused's position is that he or she merely happened to be in the area when the attempt allegedly occurred), you must determine which steps towards the commission of the offence the Crown must prove beyond a reasonable doubt to establish the actus reus of an attempt. [8] You must identify the specific facts the Crown must prove to establish the actus reus and give the following instruction:

The Crown alleges that (NOA) committed (specify acts on which the Crown relies). (NOA) denies committing those acts.

(Review relevant evidence and relate to issue.)

You must consider the whole of the evidence in determining whether the Crown has proved beyond a reasonable doubt that (NOA) committed these acts. At this stage, you are only considering what (NOA) did or did not do. You are not yet considering what s/he intended.[9]

Unless you are satisfied beyond a reasonable doubt that (NOA) committed the acts of (specify acts found to be sufficient to amount to an attempt), you must find (NOA) not guilty of attempted (specify). Your deliberations would be over. 

If you are satisfied beyond a reasonable doubt that (NOA) committed the acts of (specify acts found to be sufficient to amount to an attempt), then the first element of the offence of attempted (specify) is proved and you must go on to the second question.

[1] For an instruction on attempted murder, see Offence 239: Attempted Murder.

[2]  Where identity is an issue, remember to include any further instructions that may be relevant (e.g., eyewitness identification, alibi, similar fact, etc.). Where date is an issue, the jury must be told that the Crown must prove that the offence occurred within the time frame indicated in the indictment. Where place is an issue, the jury must be told that the Crown must prove that some part of the offence occurred in the place indicated in the indictment.

Generally, the Crown must prove the date and place specified in the indictment. However, where there is a variation between the evidence and the indictment, refer to s. 601(4.1) of the Criminal Code and the jurisprudence following R v B(G), [1990] 2 S.C.R. 3.

[3] The essence of the crime of attempt is the mental element (R v Ancio (1984), 10 CCC (3d) 385 (SCC) at 402, [1984] 1 S.C.R. 225 at 237). Liability for an attempt requires proof of intent, even if the mens rea for the full offence is not as rigorous. For example, to prove an attempted murder, the Crown must prove an intent to kill, even though murder could be proved with a mental element of recklessness: Ancio, above, at 402-403.

[4] R v Root, 2008 ONCA 869 para 95.

[5] It is difficult to define the actus reus for attempts. The Ontario Court of Appeal has stated that “a precise and satisfactory definition of the actus reus is perhaps impossible,” and “each case must be determined on its own facts, having due regard to the nature of the offence and the particular acts in question R v Cline (1956), 115 CCC 18 (ON CA), at paras 26, 28. See also Kent Roach, Criminal Law (Toronto: Irwin Law, 2018) at p 151.

[6] R v Root, above, at para 98.

[7] R v HW, 2022 ONCA 15 at para 98.

[8] See R v Cline (1956), 115 CCC 18 (ON CA) at para 34; R v Déry, 2006 SCC 53, [2006] 2 SCR 669 para 43.

[9] In those rare instances when the evidence is capable of supporting two or more conclusions that are factually incompatible but either of which could result in the accused being guilty of the offence charged, a Thatcher instruction should be given. (See, for example, Offence 231(2): First Degree Murder (Planned and Deliberate) at para 6: “The Crown does not have to prove both. Nor do you all have to agree on the same intent, so long as each of you is satisfied that one or the other has been proven beyond a reasonable doubt” (R v Thatcher, [1987] 1 SCR 652).)

[10] This instruction is a plain-language expression of what in case law is referred to as the “common sense inference” that a person intends the natural and probable consequences of his or her actions.