Dynar was attempting to launder money. He communicated with people in the United States who were going to bring money across the border for him to launder and return to them. However, the other party that he was dealing with was actually an undercover FBI officer. The money that the officer was offering Dynar to launder was not actually the proceeds of a crime. Therefore, it was technically impossible for Dynar to commit the crime of money laundering because this requires dealing with money that is a benefit of a crime. The US Government wants Dynar extradited to the US to stand trial. The accused was ordered extradited at trial, but this was overturned at appeal.
- Can you be convicted for attempt to commit a crime even if it was factually impossible to commit the crime that you were attempting to commit?
Appeal allowed; extradition ordered.
Dynar can only be extradited if it is determined that his conduct could lead to a conviction in Canadian law. Therefore, the question is if the impossibility defence frees him from liability for his attempt as well. Cory and Iacobucci, writing for the majority, find that his actions would have led to criminal attempt in Canadian law, and therefore he must be extradited. They state that s.24 is clear: you can be convicted for attempt if you have the intent to commit the crime and you have performed some act in furtherance of the attempt that is more than a mere preparation. It is blatantly clear here that the accused had the attempt to commit the crime. He also performed several actions in a further attempt to commit the crime. He was only thwarted by circumstances that were completely out of his control.
There are three kinds of impossibility identified by the court:
- Type I - impossibility due to inadequate means (e.g. trying to shoot a person from beyond the range of a weapon);
- Type II - factual impossibility (e.g. shooting a person who you think is asleep in bed, but they have already died of natural causes);
- Type III - legal impossibility (e.g. smuggling what you believe to be heroin when it is actually sugar).
Dynar argues that the crime he was trying to commit was a "legal impossibility" and not a "factual impossibility", and therefore that he cannot be convicted. Cory and Iacobucci hold that a mistaken belief cannot be eliminated from the description of a person's mental state simply because it is mistaken. A person who believes they are committing a crime has the mens rea of a criminal. They do agree that there would be a difference if the accused thought that what he was attempting to do was a crime when it in fact was not. Therefore, they conclude that only attempts to commit "imaginary crimes", and not impossible crimes, will bar a conviction for attempt.
Major, in the dissent, says that it cannot be a criminal attempt to attempt to do something that, if completed, could not result in a conviction under Canadian law (i.e. a "legal impossibility". He say that this results in some of the elements of the offence not being present. Money laundering cannot be committed without the proceeds of crime being present; the accused cannot know what he is laundering are the proceeds of a crime if they are not the proceeds of a crime! In the result, you cannot be convicted for attempting to commit a crime that was impossible to commit.
One can still be convicted for attempt even if their actions, if carried out, could not possibly have led to a crime; all that is required is the intent to commit the crime and actions attempting to further this intent (i.e. legal impossibility is not a defence).