Ancio, wanting to speak with his estranged wife, broke into an apartment building with a loaded sawed-off shotgun. Kurely, the man with whom his wife had been living, went to investigate the sound of breaking glass and threw the chair he was carrying at Ancio when he saw him climbing the stairs. The gun discharged, missing Kurely, and a struggle followed. Shortly after his arrest, respondent stated to police that he "had him [Kurely] by the throat and I would have killed him." The trial judge found Ancio had broken into the apartment building with the intent to use the shotgun to force his wife to leave and convicted him of attempted murder. The Court of Appeal overturned that conviction and ordered a new trial.
- Is the mens rea in attempted murder limited to an intention to cause death or to cause bodily harm knowing it to be likely to cause death, or is the mens rea required extended to the intention to do some action constituting murder as defined by ss.212 or 213 of the Code (now ss.229 and 230)?
McIntyre, writing for the majority, held that the mens rea for attempted murder is the specific intent to kill and a mental state falling short of that level, while it might lead to conviction for other offences, cannot lead to a conviction for an attempt. The completed offence of murder involves killing and any intention to complete that offence must include the intention to kill. He held that despite the arguments of the Crown, there is nothing illogical which arises from the fact that in certain circumstances a lesser intent will suffice for a conviction for murder. By definition, a person cannot intend to commit the unintentional killings described in ss.212 and 213 of the Code (now ss.229 and 230). Any illogic lies in the statutory characterization of unintentional killing as murder.
The crime of attempt developed as, and remains, an offence separate and distinct from murder. While the Crown must still prove both mens rea and actus reus, the mens rea is the more important element. The intent to commit the desired offence is a basic element of the offence of attempt, and indeed, may be the sole criminal element in the offence given that an attempt may be complete without completion of the offence intended.
For attempted murder, nothing short of intent to kill will suffice for the mens rea of that offence.