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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 ?

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    factual impossibility is a defense? "I was in Taiwan when you allege I shot Bob in New York with a snub nose Saturday night special."
    – Trish
    Jan 29, 2023 at 3:57
  • Trish, that would be a defense against the crime itself, not just the attempt. But “I may have taken a gun and walked to johns home to kill it, but the police arrested me for a burglary that I committed two weeks ago and stopped me”. That may or may not be attempted murder.
    – gnasher729
    Jan 29, 2023 at 8:21

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Attempts are criminalized in Canada by s. 24(1) of the Criminal Code:

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.

The mens rea of an attempt requires the accused to have intended to carry out the actual offence. The actus reus of an attempt requires the accused to have taken steps that were more than "mere preparation" (R. v. Cline, 115 C.C.C. 18 (Ont. C.A.)).

All the typical defences are available:

  • denying the mens rea or the actus reus (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)

And, as long as they would be available for the underlying offence:

You are correct that factual impossibility is not a defence to an attempt charge: "an attempt to do the factually impossible is still an attempt for the purposes of s. 24(1) of the Code."

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  • are there certain cases where this is still permissable as a defence or is this still not a defence ?
    – user49663
    Apr 23, 2023 at 8:43
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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.

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.

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.

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).

“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.

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