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For example:

  • Self proclaimed exorcists who claim to put curses and blessings on people. If that person performs a ritual, fully believing it will kill the person they are cursing.
  • Or some guys hanging out with various militias believing they can assist them in their plans to commit acts of terrorism.

Can they be convicted with criminal attempt?

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  • 3
    Criminal laws vary widely across the globe. You may want to edit your question or tag it with geographic information.
    – jwh20
    Jan 27, 2023 at 12:56
  • 2
    There are two questions here. One about magic (where the scientific consensus is it does nothing) and one about militias which can and do kill people. Jan 27, 2023 at 13:48
  • Or some guys hanging out with various militias believing they can assist them in their plans to commit acts of terrorism - What crime do you think they might be guilty of? Befriending somebody because you think they might be a criminal probably isn't a crime, unless you're on probation or have some other legal restriction on who you associate with. You would have to have a specific plan, or conspire to commit a crime, or gain material/information to commit a crime with, or something of that ilk depending on local laws.
    – Stuart F
    Jan 27, 2023 at 14:54

2 Answers 2

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The fact that the chosen means could never have actually killed the target does not preclude an attempt conviction.

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

The only relevant distinction for purposes of s. 24(1) of the Criminal Code is between imaginary crimes and attempts to do the factually impossible. The criminal law of Canada recognizes no middle category called “legal impossibility”. Because Mr. Dynar attempted to do the impossible but did not attempt to commit an imaginary crime, he can only have attempted to do the “factually impossible”. For this reason, Mr. Dynar’s proposal that s. 24(1) criminalizes only attempts to do the factually impossible does not help him.

An example of a "factual impossibility" cited by the court was "impossibility due to inadequate means... For example, A tries to kill B by shooting at him from too great a distance or by administering too small a dose of poison."

That this man’s design is premised on a mistaken understanding of the facts does not make it any less his design. A mistaken belief cannot be eliminated from the description of a person’s mental state simply because it is mistaken.

Example 1: the curse

In your examples, the person who took steps to kill a person via inadequate or factually impossible means could be guilty of an attempt. Of course, this is subject to proof of the required mental state (intention to kill) beyond a reasonable doubt.

Example 2: hanging out

However, the actus reus of attempt in Canada is that the accused must have taken "some step towards the commission of the offence attempted going beyond mere acts of preparation." You haven't described anything about the person who hangs out with a militia that would constitute a step beyond a mere act of preparation.

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In , attempt to commit a crime is normally a crime (§23 StGB). For instance, when a would-be murderer administers a substance that is not actually poisonous to the victim, that would still be a crime. However, when the attempt is not feasible (untauglicher Versuch), the court may reduce the punishment or exempt it completely.

This is distinct from a superstitious attempt (abergläubischer Versuch), where the would-be perpetrator tries to enlist the help of supernatural entities in the attempt. Criminal law does not believe in those supernatural entities.

So your first example, the curse, would not be punished. The second example, the militia, runs into other criminal laws regarding criminal or terrorist gangs.

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  • Unbtauglicher Versuch would be to try to bludgeon someone to death with a pantomimic mallet from a meter away, but that would most likely be charged as threatening but than attempted murder..
    – Trish
    Jan 28, 2023 at 10:39
  • @Trish, assume that the assailant thought that sodium chloride was lethal in small doses, and put a pinch into the victim's soup. If the belief and the action can be proven, this would be attempted murder rather than comedy, no?
    – o.m.
    Jan 28, 2023 at 14:16
  • You’d have to look at the exact wording. Even looking at the translation of a law might subtly change the meaning. Now salt in large doses will kill you. And a dose that is harmless for an adult might kill a baby. Or you take a potent poison but confuse “Milligram” and “microgram” or “millilitre” and “milligram”.
    – gnasher729
    Jan 28, 2023 at 18:44
  • @gnasher729, with the non-feasible attempt, I'm talking about a person who is factually wrong about the the poisonous effects, and fails for that reason alone. Perhaps a better example would have been a would-be murderer who thinks that a gun is loaded when it is not. Aiming an unloaded gun and pulling the trigger, in the mistaken belief that it is loaded, is distinct from doing the same in the correct belief that it is unloaded.
    – o.m.
    Jan 28, 2023 at 19:13

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