[The following post derives from work on my forthcoming book, Legal Fictions & Presumptions, and Constructive, Deemed, Implied, and Imputed Entities: An Encyclopedic Desk Reference on Their Status at Law]
It used to be that our law distinguished between attempts that were impossible in fact and impossible attempts legally. “Factually impossible” meant the intended act was illegal but somehow the “attemptors” were prevented from completing it, even though they thought they could pull it off. These cases include the notorious R. v. Collins, an attempt to pick an empty pocket.
Legal impossibility described a situation where the “criminal” thought he was attempting something illegal but the act was legal. Canadian cases of this variety include R. v. Alicandro, in which the accused was convicted of child-luring over the Internet, when obliviously he had been “luring” a male police officer (in a sting operation) and not a girl under the age of fourteen, and, most importantly, U.S. v. Dynar, in which the accused believed he was helping to launder the proceeds of crime when in fact the money was provided by police in another sting operation.
The distinction between these two “impossibilities,” or confusion about it, led to illogical results – in Collins, that you could not attempt theft from an empty pocket, and in Dynar the dissenting justice’s insistence that, if the money is not in fact proceeds of crime, there is no attempt to launder it. This confounds possibility with execution or the specific actus reus for attempts (as against completed crimes), and confuses attempts with completed crimes. It ignores that if you are unaware that the pocket is empty or the money has no criminal taint, you are still attempting to steal or launder. In either case, insofar as we are considering an inchoate (incomplete) crime, the requisite mens rea (intention) is present; whether the actus reus is possible is irrelevant. Insofar as we might want to require an achievable actus to establish even an attempt (which logically seems unnecessary), we arrive in the realm of legal fiction.
That is, to the extent that we posit that the crime could have been completed, there is a legal fiction – that the pocket could be picked, the girl lured, the money laundered. Indeed, if we insist on preserving the casuistry of the theory of “impossible attempts,” we can posit both a deeming and a fiction: we deem the actus reus possible (we deem the pocket to contain something, the male officer a girl, the money unlawfully obtained) such that we create a legal fiction that the crime could have been completed as attempted.
Wisely, in 1997 the Supreme Court of Canada put paid to the false distinction between factual and legal impossibility, finding it untenable. As Doherty J.A. puts it in Alicandro (at para. 26), “After Dynar, it can safely be said that liability for inchoate offences turns on what the accused believed the material facts to be and not what those facts actually were.” The majority in Dynar holds that the “only relevant distinction for purposes of s. 24(1) of the Criminal Code [attempts] is between imaginary crimes and attempts to do the factually impossible. The criminal law of Canada recognizes no middle category called ‘legal impossibility’.”
 R. v. Collins (1864), Le. and Ca. 471.
 “24 (1) 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.” R.S.C., c. C-34.
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