Cline approached a young boy and asked him to help carry his suitcase, and told the boy that he would give him money for his help. He was wearing large sunglasses at the time. The boy refused. This happened again a few months later. At trial evidence came out that the accused had done this several times before in the exact same style, and that on some occasions he managed to get the boys to help him and then he performed "indecent acts". He was charged with indecent assault and convicted at trial.
- Can you be charged with attempting to commit an offence if you did not actually get to complete the offence, but were trying to?
Appeal allowed; conviction quashed, new conviction for attempt to commit indecent assault entered.
Laidlaw, writing for the majority, states that Cline cannot be guilty of indecent assault here because he did not actually assault the young boy. However, the evidence shows a definite pattern of conduct that was meant to lead to assault; therefore the evidence establishes that the accused attempted to commit the offence.
He continues to find that criminal intention alone is enough to establish a criminal attempt. Although there must still be both mens rea and actus reus, in attempt it is the mens rea that is of primary importance. The actus reus must be more than a preparation to commit the crime; it must be an actual attempt to commit the crime that has not succeeded for whatever reason.
He then lays out six factors dealing with attempt:
- there must be both mens rea and actus reus, but the misconduct lies primarily in the intention;
- evidence of similar actions leading to a criminal end, if not too remote in time, will help to prove attempt;
- the Crown can raise this evidence without waiting for a specific defence;
- it is not essential that the actus reus is a crime, tort, or even a moral wrong;
- the actus reus must be more than a mere preparation; and
- when the requisite intention has been formed, the next action performed to further the attempt to commit the crime satisfies the actus reus.
In the case at bar it is clear that the accused's actions amounted to intent and not mere preparation.
- You can be found guilty of attempting to commit a crime if you did not actually commit the crime; you must have had the necessary mens rea, and have acted to attempt to commit the crime.
- The actus reus must be more than a mere preparation; however it does not need to be a crime in itself, or even a moral wrongdoing.