Transferrable intent in attempt murder

The Criminal Code tells us that a person who intends to kill another person but, by accident or mistake, kills somebody else commits murder.  What the Criminal Code does not tell us, at least not in so many words, is what crime a person commits who intends to kill another person but, by accident or mistake, hurts or injures somebody else. 

Is the person guilty of attempt murder?  – today’s careful decision in R. v. Gordon, 2009 ONCA 170 says not.

The entire decision is worth reading but the most critical passages for analysis are below:

[71]          First, every crime, inchoate or substantive, involves both mens rea and an actus reus. The actus reus of many but not all crimes may include an element of harm, as for example the crimes of unlawful homicide. In most cases, including offences against the person, the mens rea and actus reus relate to the same victim. When transferred intent principles are in play, however, the mens rea relates to an intended victim and the actus reus relates to the actual victim. The principles connect a culpable mental state in relation to one with a result or harm visited upon another.

[72]          The principles underlying transferred intent apply to crimes that require a result as part of the actus reus, for example, death of a human being in cases of unlawful homicide. But inchoate crimes in general, and attempted murder in particular, do not require a result or harm as part of their actus reus. The actus reus is complete upon the first act beyond preparation.

[73]          Second, no modern and reasoned authority is offered to support the claim that transferred intent principles apply to the crime of attempted murder. The decision in R. v. Ménard (1961), 130 C.C.C. 242 (Que. C.A. ), seems to favour the contrary view (that transferred intent principles do not apply to attempted murder), although the decision may be better regarded as one that turns on the specific allegations contained in the indictment.

[74]          In this case, if the appellant intended to kill André Thompson and, by accident or mistake, killed one or more bystanders, the unlawful homicide would be murder under s. 229(b). But it by no means follows that the appellant’s crime is attempted murder where the bystanders were injured but not killed, although it would be murder if they died:  Ancio at p. 250.

[75]          Third, the application of transferred intent principles to the crime of attempted murder may extend liability unduly and foster irrational distinctions. X shoots at Y intending to kill him. In the vicinity of Y are several others. All hear the shot, but none are injured. How far do we extend the scope of liability on the basis of transferred intent?  If someone is injured, a bystander, is X guilty of attempted murder of that person on the basis of transferred intent? And, if so, are we making a distinction on the basis of a consequence that is immaterial to liability for attempted murder – injury or harm?  Recourse to a legal fiction in these circumstances is scarcely necessary to fairly label and punish the crimes committed.

[76]          Fourth, in crimes of attempt, it is not necessary to make a whole crime out of two halves by joining the intent in relation to one victim with the harm caused to another, the purpose that underlies the principle. When the unintended victim suffers no harm, the accused has already committed an inchoate crime in relation to the intended victim, a crime of the same level of gravity as if the intent were to be transferred under the doctrine. Leaving aside principles of concurrent intent, the accused may also be punished in connection with the unintended victim according to his moral culpability and the injury he or she has caused.

[77]          Finally, consummated criminal homicides are, in the last analysis, sui generis. Many of their complexities, of which the transferred intent doctrine (or its statutory surrogate) is one, simply do not travel well to other climes, especially those where harm is not a constituent of the actus reus. Moreover, no necessity exists forcing the transferred intent doctrine to march into territory other than that of actual, consummated criminal homicides. For the remainder, the actuality of the real mens rea, together with its precisely related actus reus, is enough to establish guilt at the appropriate level without any need to resort to an intention – shifting legal fiction:  Harvey v. State, 111 Md. App. 401 at p. 432 (Ct. Spec. App. 1996).