Her Majesty the Queen v. Gordon [Indexed as: R. v. Gordon]

94 O.R. (3d) 1

Court of Appeal for Ontario,

Rosenberg, R.P. Armstrong and Watt JJ.A.

February 24, 2009

Criminal law -- Attempted murder -- Intent -- Transferred intent -- Accused firing at intended victim and hitting three bystanders -- Trial judge erring in instructing jury that accused could be found guilty of attempted murder of bystanders on basis of transferred intent -- Common-law doctrine of transferred intent not applying to attempt murder.

Criminal law -- Sentencing -- Aggravated assault -- Attempted murder -- Accused firing sawed-off shotgun at intended victim and seriously wounding three innocent bystanders -- Intended victim unharmed -- Convictions for attempted murder in relation to bystanders quashed and conditional stays on aggravated assault convictions set aside -- Conviction for attempted murder of intended target affirmed -- Youthful accused on probation for non-violent offences -- Eight years' imprisonment concurrent imposed for aggravated assaults -- Trial judge did not err in imposing a sentence of ten years in addition to pre- trial custody for equivalent of 12 1/2-year sentence.

The accused and his friends were hoping to buy drugs from T. T was annoyed by the price offered and punched the accused and one of his friends. The accused returned a short time later and fired three blasts from a sawed-off shotgun at T, who was standing in a group of people on a sidewalk outside a café. T was unharmed, but three bystanders were seriously injured. In relation to T, the accused was charged with attempted murder, discharging a firearm with intent and pointing a firearm. In relation to each of the injured victims, the accused was charged with attempted murder and aggravated assault. He was found guilty by a jury on all counts. The trial judge entered conditional stays on all counts except those that charged attempted murder. The accused appealed.

Held, the appeal should be allowed in part.

The trial judge erred in instructing the jury that they could find the accused guilty of the attempted murder of the bystanders on the basis of transferred intent. The common-law doctrine of transferred intent does not apply to the inchoate crime of attempt, in particular to attempted murder, and thus cannot be part of our law through the operation of s. 8(2) of the Criminal Code, R.S.C. 1985, c. C-46. The convictions for attempted murder of the injured bystanders should be set aside. The stays on each of the aggravated assault counts should be set aside and convictions should be entered on those counts. The conviction for the attempted murder of T was unaffected by the error, and the appeal against that conviction should be dismissed. [page2 ]

In relation to the aggravated assault convictions, the accused should be sentenced to eight years' imprisonment on each count, to be served concurrently with each other and with the sentence imposed for the attempted murder of T.

The accused was sentenced to ten years' imprisonment for the attempted murder of T, the functional equivalent of a sentence of 12 1/2 years' imprisonment when credit for pre-trial custody was taken into account. He was a youthful, non-violent recidivist who was on probation at the time of the offence. It was foreseeable that there would be pedestrian and vehicular traffic when the accused started firing a sawed-off shotgun outside a café on a summer evening. The three innocent bystanders were seriously injured. Principles of denunciation and deterrence commanded a substantial sentence. The sentence was not unfit.

APPEAL by the accused from convictions for attempted murder entered by a jury presided over by Juriansz J. of the Superior Court of Justice dated October 16, 2002 and from the sentence imposed by Juriansz J. dated December 20, 2002.

Cases referred to People v. Bland, 28 Cal. 4th 313, 48 P.3d 1107, 121 Cal. Rptr. 2d 546 (Sup. Ct. 2002); R. v. Ancio, 1984 69 (SCC), [1984] 1 S.C.R. 225, [1984] S.C.J. No. 12, 6 D.L.R. (4th) 577, 52 N.R. 161, 2 O.A.C. 124, 10 C.C.C. (3d) 385, 39 C.R. (3d) 1, 11 W.C.B. 457, consd Other cases referred to Cockrell v. State of Alabama, 890 So. 2d 174 (Sup. Ct. Ala., 2004); Connecticut v. Tutson, 99 Conn. App. 655, 915 A.2d 344 (2007); Harrison v. Maryland, 382 Md. 477, 855 A.2d 1220 (Ct. App. 2004); Harvey v. Maryland, 111 Md. App. 401, 681 A.2d 628 (Ct. Spec. App. 1996); Maryland v. Brady, 393 Md. 502, 903 A.2d 870 (Ct. App. 2006); People v. Smith, 37 Cal. 4th 733, 124 P.3d 730, 37 Cal. Rptr. 3d 163 (Sup. Ct. 2005); R. v. Brousseau (1917), 1917 628 (SCC), 56 S.C.R. 22, [1917] S.C.J. No. 62, 39 D.L.R. 114, 29 C.C.C. 207; R. v. Cline, 1956 150 (ON CA), [1956] O.R. 539, [1956] O.J. No. 454, 4 D.L.R. (2d) 480, 115 C.C.C. 18, 24 C.R. 58 (C.A.); R. v. Droste, 1984 68 (SCC), [1984] 1 S.C.R. 208, [1984] S.C.J. No. 11, 6 D.L.R. (4th) 607, 52 N.R. 176, 3 O.A.C. 179, 10 C.C.C. (3d) 404, 39 C.R. (3d) 26, 11 W.C.B. 467, affg (1981), 1981 82 (ON CA), 34 O.R. (2d) 588, [1981] O.J. No. 3163, 63 C.C.C. (2d) 418 (C.A.); R. v. Hibbert, 1995 110 (SCC), [1995] 2 S.C.R. 973, [1995] S.C.J. No. 63, 184 N.R. 165, J.E. 95-1510, 84 O.A.C. 161, 99 C.C.C. (3d) 193, 40 C.R. (4th) 141, 27 W.C.B. (2d) 493; R. v. Kienapple, 1974 14 (SCC), [1975] 1 S.C.R. 729, [1974] S.C.J. No. 76, 44 D.L.R. (3d) 351, 1 N.R. 322, 15 C.C.C. (2d) 524, 26 C.R.N.S. 1; R. v. Ménard, 1960 494 (QC CA), [1960] C.C.S. No. 439, 130 C.C.C. 242, 33 C.R. 224 (Que. C.A.); R. v. Ruzic, [2001] 1 S.C.R. 687, [2001] S.C.J. No. 25, 2001 SCC 24, 197 D.L.R. (4th) 577, 268 N.R. 1, J.E. 2001-867, 145 O.A.C. 235, 153 C.C.C. (3d) 1, 41 C.R. (5th) 1, 82 C.R.R. (2d) 1, 49 W.C.B. (2d) 209; R. v. Union Colliery Co. of British Columbia (1900), 1900 31 (SCC), 31 S.C.R. 81, [1900] S.C.J. No. 64, 4 C.C.C. 400 Statutes referred to Criminal Code, 1892, S.C. 1892 [rep.], c. 29, s. 232 Criminal Code, R.S.C. 1906, c. 146 [rep.], s. 264 Criminal Code, R.S.C. 1927, c. 36 [rep.], s. 264 Criminal Code, S.C. 1953-54, c. 51 [rep.], s. 7(1), 210, 216 Criminal Code, R.S.C. 1985, c. C-46, ss. 8(2), (3), 17, 229, (a)(ii), (b), 239 [as am.], (1) [as am.], 244 [as am.], 244.1 [as am.] , 463 [as am.] Authorities referred to LaFave, Wayne R., Substantive Criminal Law, 2nd ed. (Eagan, MN: Thompson West, 1986) Ormerod, David, Smith and Hogan Criminal Law, 11th ed. (New York: Oxford University Press, 2005) Williams, Glanville, Criminal Law: The General Part, 2nd ed. (London: Stevens & Sons, 1961) [page3 ]

Leslie Maunder, for appellant. David Lepofsky, for respondent.

The judgment of the court was delivered by

[1] WATT J.A.: -- The Criminal Code, R.S.C. 1985, c. C-46 tells us that a person who intends to kill another person but, by accident or mistake, kills somebody else commits murder.

[2] 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. It is that issue that we are asked to determine here. The Facts

[3] The circumstances that frame our issue fall within narrow compass and involve a familiar trio: an altercation, retaliation and innocent victims. The altercation

[4] One hot August night, Marquis Arlando Gordon (the appellant or Gordon) wanted to buy some marijuana. As Gordon and two friends walked along St. Clair Avenue West, they approached the intersection of St. Clair and Harvie. A knot of pedestrians was standing on the street near L'Espresso Café and Bar. Among the pedestrians was André Thompson.

[5] One of Gordon's friends thought that André Thompson was a drug dealer, a person who, for a price, could provide Gordon with the marijuana Gordon wanted to buy. Either the friend or Gordon offered Thompson $90 for an ounce of marijuana. Thompson was angered by the offer, which he considered "lowball", and expressed his annoyance by punching both Gordon and his friend.

[6] Gordon and his friends scattered in different directions after the abortive drug purchase.

The shooting

[7] Within minutes of the altercation, a man dressed in black returned to the vicinity of L'Espresso Café. The man was carrying a sawed-off shotgun. Thompson and others were still [page4 ]hanging around the Café, standing on the sidewalk talking among themselves.

[8] A sawed-off shotgun is easier to conceal and to manoeuvre than a weapon with a full-length barrel. Cutting down the barrel of a shotgun also increases the range over which pellets are dispersed when the weapon is fired.

[9] The man in black fired three blasts from the sawed-off shotgun he carried, a 12 gauge, semi-automatic or pump-action model. Each shell contained at least 152 and as many as 253 individual pellets. The shots were fired in the direction of André Thompson and those standing near him on the sidewalk around L'Espresso Café.

[10] The appellant was the person who fired the shotgun.

The victims

[11] When the shooting began, Thompson ran into the bar, through the premises and out the back door. None of the pellets struck Thompson.

[12] Lina Pacheco and Christina Faria were standing on the sidewalk outside L'Espresso talking when the shooting began. Each was struck by several shotgun pellets. Ms. Pacheco was hit in the ear, head and face, chest and arm, and on her hand. Several pellets remain lodged in her body. Ms. Faria was struck by pellets in the face and neck, chest and right shoulder, arm, hand and wrist.

[13] Antero Valentim was standing in an alcove talking on his cellphone four storefronts west of L'Espresso Café when he heard a shot. He stuck his head out of the alcove and was struck by pellets from a second shotgun blast. The pellets caused Valentim to lose his sight in one eye and most of his sight in the other eye. Several pellets remain embedded in his face. The Basis of Liability

The indictment

[14] The indictment on which the appellant was tried contained nine counts. For each victim struck by shotgun pellets, the appellant was charged with counts of attempted murder and aggravated assault. In relation to André Thompson, the appellant was charged with attempted murder, discharging a firearm with intent and pointing a firearm.

[15] The jury found the appellant guilty of all counts. The trial judge invoked the principles articulated in R. v. Kienapple, 1974 14 (SCC), [1975] 1 S.C.R. 729, [1974] S.C.J. No. 76 and entered conditional stays on all counts except those that charged attempted murder. [page5 ]

The position of the prosecutor

[16] At trial, the prosecutor contended that the appellant was the shooter and that the offence he committed in relation to each named victim was attempted murder. To establish the mens rea of attempted murder, the prosecutor advanced the following bases of liability: (i) in relation to André Thompson, an intention to kill him; (ii) in relation to the injured victims, an intention to kill André Thompson and the application of the common-law doctrine of transferred intent; and (iii) in relation to André Thompson and the injured victims, an intention to kill anyone who was standing outside L'Espresso Café when the shots were fired. The principal basis advanced in connection with the injured victims was transferred intent.

The defence position at trial

[17] The primary position of the appellant at trial was that he was not the shooter. The appellant's experienced trial counsel sought a directed verdict of acquittal on all counts on the basis that the evidence identifying the appellant as the shooter was insufficient to warrant submission of the case to the jury. The motion was dismissed.

[18] The appellant's trial counsel brought a separate application for directed verdicts of acquittal on the attempted murder counts in relation to the three injured victims. On this motion, trial counsel advanced two arguments: (i) that there was no evidence that the appellant intended to kill any injured victim, either as an individual or a member of a group of persons standing outside the Café; and (ii) that, in the absence of legislation expressly permitting it, the principles of transferred intent cannot found liability for attempted murder.

The ruling of the trial judge

[19] The trial judge concluded that the appellant's liability for attempted murder in connection with the injured victims could be established through the application of the common-law doctrine of transferred intent. In dismissing the application for a [page6 ]directed verdict on the attempted murder counts for the original victims, the trial judge said:

But the ordinary and grammatical meaning of the phrases that I quoted are that an intention to kill at large is required, and that a specific intention to kill a particular person is not stated as a requirement of the offence of attempt murder.

The jury instructions

[20] The trial judge opened his discussion of transferred intent with some general comments about the subject and some examples:

There is a legal doctrine known as, "transferred intent". In the example that counsel gave you: If I tried to punch you and you ducked and I hit the person next to you I am still guilty of assault. The intent that the criminal law requires is transferred from the intended victim to the actual victim. . . . . .

Now, quite apart from the issue of transferred intent on these counts you may also consider whether on all the evidence you are satisfied beyond a reasonable doubt that the shooter intended to cause harm, bodily harm, to all of the persons standing in front of the bar.

[21] After concluding his instructions on the counts of aggravated assault, the trial judge focused the jurors' attention on the manner in which the mens rea of attempted murder could be proven. He instructed the jurors in these terms:

For you to find Mr. Gordon guilty of attempted murder on counts 1, 3 and 5 you have to be satisfied that, firstly, that he was the shooter, satisfied beyond a reasonable doubt that he is the shooter. Secondly, that his conduct was an attempt. And, thirdly, that he had the specific intent to kill a person using a firearm.

I, again, instruct you, as a matter of law, that the conduct, if you are satisfied beyond a reasonable doubt that it occurred, the conduct of firing a shotgun at a person who need not be the bystander would constitute an attempt on these charges.

You also have to consider whether Mr. Gordon had the specific intent to kill a person. The evidence, in this case, does not support a finding that Mr. Gordon knew the three bystanders who are in the charges, but you should consider the doctrine of transferred intent. If you are satisfied beyond a reasonable doubt that the shooter had the specific intent to kill a person, including any person other than the bystander, and his attempt to do so was effected upon the bystander, then as a matter of law the actual intent to kill the intended victim is transferred to the actual victim.

And, again, apart from the legal doctrine of transferred intent you should consider whether on the whole of the evidence you are satisfied that the shooter had the intention to kill all the persons standing in front of the bar. [page7 ]

I stress, though, that these charges are attempt murder. The Crown must satisfied beyond a reasonable doubt that he had the specific intent to kill a person. Nothing less will do. . . . . .

On each of counts 1, 3 and 5 if you are satisfied beyond a reasonable doubt that Mr. Gordon had the specific intent to kill, and made an attempt then you must find him guilty of attempted murder on the count that you're considering, 1, 3 or 5, on each of these counts. If you are not satisfied beyond a reasonable doubt that Mr. Gordon had the specific intent to kill and made an attempt then you must find him not guilty of attempted murder on that count. The Appeal from Conviction

The alleged error

[22] Ms. Maunder for the appellant submits that the trial judge was wrong to instruct the jury that they could find the appellant guilty of the attempted murder of the injured victims in accordance with the doctrine of transferred intent, if they were satisfied that the appellant intended to kill André Thompson.

[23] Ms. Maunder begins with a reminder about the text of s. 239 of the Criminal Code. The section does not define or create an offence, but rather confines its work to establishing a punishment for a specific inchoate crime, attempted murder. The provision gives off no scent of the availability of the principles of transferred intent to establish liability, either in express terms, as it does in ss. 229(b), 244 and 244.1, or by referential incorporation of the definition of murder. It follows, the argument continues, that s. 239 cannot be the source for transferred intent principles as a foundation for liability for attempted murder.

[24] The appellant similarly rejects the common-law doctrine of transferred intent as a ground upon which liability for attempted murder may be established. No authority supports inclusion of transferred intent principles in determinations of liability for attempted murder. The doctrine, itself an aberration, is confined to crimes of general intent of which attempted murder is not one.

[25] Ms. Maunder acknowledges, of course, that s. 8(2) of the Criminal Code continues the pre-April 1, 1955 criminal law of England in force in this province. She points out, however, that no case extends transferred intent principles, admittedly part of the criminal law incorporated by reference, to attempted murder. And further, the common (criminal) law thus incorporated is circumscribed by the proviso in s. 8(2): "except as altered, varied, modified or affected" by the Code or other federal statute. The Code "altered, varied, modified or affected" transferred intent [page8 ]principles by the device of their specific incorporation in offence-creating provisions. Their absence from s. 239 invokes the principle expressio unius est exclusio alterius and renders them inapplicable to the crime of attempted murder.

[26] The appellant also invokes criminal law policy considerations to buttress his position. In the legitimate application of transferred intent principles, transference of mens rea from the intended victim to the actus reus in connection with the actual victim reflects more closely the moral culpability of the actor who causes the harm, as for example under s. 229(b). But in cases of inchoate homicide charged as attempted murder, of which bodily harm is not an essential ingredient, there is no actus reus to which to transfer mens rea. And besides, the actor is already guilty of attempted murder of the intended victim. Labelling the offence committed in relation to persons injured as "attempted murder" offends fair labelling principles and does not accurately reflect the actor's moral culpability.

[27] For the respondent, Mr. Lepofsky submits that transferred intent principles apply to crimes of inchoate homicide, like attempted murder, and were properly left as a basis for the appellant's liability for attempted murder of the injured victims here.

[28] Mr. Lepofsky characterizes the case for the application of transferred intent principles to the crime of attempted murder as compelling. The principle is deeply rooted in the common law, and thus in the criminal law referentially incorporated by s. 8(2) of the Criminal Code. The rationale underlying the principles is as applicable to attempted murder as it is to any other crime. These principles are not limited to crimes of general intent (witness their application to murder at common law), but extend to all crimes.

[29] The respondent points out that failure to apply transferred intent principles to attempted murder would leave an irrational gap in serious offences against the person. The principles apply to aggravated assault and murder (of either classification), yet not to attempted murder, despite the moral culpabilities associated with it.

[30] Mr. Lepofsky contends that s. 8(2) continues the common law, at least the pre-April 1, 1955 criminal common law of England, despite the enactment of the Criminal Code. And so it is that transferred intent principles apply to crimes created by the Criminal Code, unless those principles are altered, varied, modified or affected by the offence-creating provisions. Section 239 does not oust or limit their application and their codification in ss. 229(b), 244 and 244.1 has no such effect either. Indeed, the mention of "murder" in s. 239 could be said to incorporate the definition of murder in s. 229(b). [page9 ]

[31] The respondent rejects any suggestion that application of transferred intent principles to attempted murder contravenes sound criminal law policy. There is no unfair labelling in characterizing the appellant's crime in relation to the injured victims as attempted murder, because such a label reflects the appellant's moral culpability. Neither is there any unfair or inappropriate multiplying of intent.

[32] Mr. Lepofsky advances an alternative submission if we determine that transferred intent principles do not apply on the attempted murder counts involving the injured victims. The appellant concedes that his conviction for the attempted murder of André Thompson cannot be disturbed, irrespective of any decision about transferred intent. Further, the appellant acknowledges that attempted murder was properly left to the jury on the basis of concurrent intent (the intent to kill those standing in front of L'Espresso Café). In the circumstances, the jury's verdict would necessarily have been the same without the transferred intent instruction, thus the appeal should be dismissed. The Governing Principles

The statutory provisions

[33] A convenient place at which to begin is with a collection of several statutory provisions of influence in shaping the later discussion.

[34] The offence with which we are concerned here is attempted murder. In its material parts, s. 239(1) of the Criminal Code provides:

239(1) Every person who attempts by any means to commit murder is guilty of an indictable offence . . . (Emphasis added) The italicized words entered the Code as s. 210 in the 1953-54 Code revision S.C. 1953-54, c. 51.

[35] Prior to the 1953-54 Code revision, which came into force on April 1, 1955, ss. 264 of the 1906 and 1927 Codes, which duplicated s. 232 of the 1892 Code, defined attempted murder in these terms:

264. Every one is guilty of an indictable offence and liable to imprisonment for life, who, with intent to commit murder, (a) administers any poison or other destructive thing to any person, or causes any such poison or destructive thing to be so administered or taken, or attempts to administer it, or attempts to cause it to be so administered or taken; or (b) by any means whatever wounds or causes any grievous bodily harm to any person; or [page10 ] (c) shoots at any person, or, by drawing a trigger or in any other manner, attempts to discharge at any person any kind of loaded arms; or (d) attempts to drown, suffocate, or strangle any person; or (e) destroys or damages any building by the explosion of any explosive substance; or (f) sets fire to any ship or vessel or any part thereof, or any part of the tackle, apparel or furniture thereof, or to any goods or chattels being therein; or (g) casts away or destroys any vessel; or (h) by any other means attempts to commit murder.

[36] Section 229 of the Criminal Code defines murder and s. 231 classifies murder for sentencing purposes as either first degree murder or second degree murder. Of particular relevance here is the definition of murder contained in s. 229(b):

Murder

229. Culpable homicide is murder . . . . . (b) where a person, meaning to cause death to a human being or meaning to cause him bodily harm that he knows is likely to cause his death, and being reckless whether death ensues or not, by accident or mistake causes death to another human being, notwithstanding that he does not mean to cause death or bodily harm to that human being;

[37] While not directly relevant to the crime of inchoate homicide charged here, s. 244 of the Criminal Code affords a second example of legislative drafting reflective of transferred intent principles. The section, which was part of s. 216 in the 1953-54 Criminal Code, refers to "any person" and adds later a qualifier "whether or not that person is the one at whom the firearm is discharged":

Discharging firearm with intent

244(1) Every person commits an offence who discharges a firearm at a person with intent to wound, maim or disfigure, to endanger the life of or to prevent the arrest or detention of any person -- whether or not that person is the one at whom the firearm is discharged. A similar provision appears in s. 244.1 applicable to air and compressed-gas guns and pistols.

The Criminal Code and the common law

[38] The invocation of the common-law doctrine of transferred intent requires a brief examination of the nature of the [page11 ]relationship between the provisions of the Criminal Code and the common law.

[39] Section 8(2) of the Criminal Code continues the application of English criminal law in force in a province immediately prior to the proclamation of the 1953-54 Criminal Code on April 1, 1955. The criminal common law of England continues to apply in Canadian proceedings, despite the enactment of the Criminal Code, except to the extent that the criminal common law is altered, varied, modified or affected by the Code or other federal enactment. The Code does not contain the whole of the criminal common law of England in force in Canada prior to April 1, 1955: R. v. Union Colliery Co. of British Columbia (1900), 1900 31 (SCC), 31 S.C.R. 81, [1900] S.C.J. No. 64, at p. 87 S.C.R.; R. v. Brousseau (1917), 1917 628 (SCC), 56 S.C.R. 22, [1917] S.C.J. No. 62, at p. 24 S.C.R.

[40] Parliament also enacted s. 8(3) of the Criminal Code to continue in force the common-law rules and principles that render any circumstance a justification or excuse for an act or a defence to a charge. Once again, however, the broad sweep of the referential incorporation is curtailed by words of exception: the common-law rules and principles continue, but only to the extent that they are not altered by or inconsistent with the Code or other federal enactment.

[41] Under the auspices of s. 8(3), the common-law excuse of duress, for example, remains available for parties, despite the enactment of s. 17, which eliminates its operation to excuse the conduct of the principals for certain offences: R. v. Ruzic, 2001 SCC 24, [2001] 1 S.C.R. 687, [2001] S.C.J. No. 25, at para. 56; R. v. Hibbert, 1995 110 (SCC), [1995] 2 S.C.R. 973, [1995] S.C.J. No. 63, at para. 19.

Transferred intent at common law

[42] The doctrine of transferred intent, sometimes described as transferred malice or transferred fault, applies when an injury intended for one falls on another by accident: Glanville Williams, Criminal Law: The General Part, 2nd ed. (London: Stevens & Sons, 1961) at 46, p. 126 ("CLGP"). When an accused, with the mens rea of a crime, does an act that causes the actus reus of the same crime, the doctrine holds that the accused commits the crime: David Ormerod, Smith and Hogan Criminal Law, 11th ed. (New York: Oxford University Press, 2005), at p. 113 ("Smith and Hogan"). The doctrine applies only where the harm that follows is of the same legal kind as that intended. Said differently, malice is transferred only within the limits of the same crime: CLGP, at 47, pp. 128-29; Smith and Hogan, at p. 114. Any defence, justification or excuse available to an accused in relation to the intended victim is likewise transferred to the actual [page12 ]victim: R. v. Droste (No. 2) (1981), 1981 82 (ON CA), 34 O.R. (2d) 588, [1981] O.J. No. 3163 (C.A.), at p. 593 O.R.

[43] The doctrine of transferred intent is said to be of general application (within the limits of the same crime), but it usually arises in the context of offences against the person, especially those offences that include consequences as part of their actus reus.

[44] On the other hand, some have questioned whether the doctrine of transferred intent applies to inchoate crimes (like attempts) generally, and inchoate homicide crimes in particular: CLGP, at 46, p. 128 and 199, p. 620.

[45] In the United States, at least in jurisdictions where no statutory provision expressly permits it, some courts have held that transferred intent does not apply to the crime of attempted murder: Maryland v. Brady, 393 Md. 502, 903 A.2d 870 (Ct. App. 2006); Harrison v. Maryland, 382 Md. 477, 855 A.2d 1220 (Ct. App. 2004); People v. Smith, 37 Cal. 4th 733, 124 P.3d 730 (Sup. Ct. 2005); People v. Bland, 28 Cal. 4th 313, 48 P.3d 1107 (Sup. Ct. 2002); Connecticut v. Tutson, 99 Conn. App. 655, 915 A.2d 344 (2007).

[46] The decision in Bland provides a snapshot of the reasoning that denies recourse to transferred intent principles in prosecutions for attempted murder.

[47] The court in Bland recognized that transferring the mens rea of a specific intent to kill from an intended victim to an unintended victim is far more complex when dealing with inchoate criminal homicides, like attempted murder, than with completed substantive offences of criminal homicide: Bland, at p. 326 Cal. 4th.

[48] In attempted murder cases, the assailant can be punished directly for an attempt on the intended victim. The punishment reflects the assailant's moral culpability. There is no need to invoke the legal fiction of transferred intent in order to fully and appropriately punish the assailant for his or her attempt. For completed homicides charged as murder, it is necessary to transfer the intent from the intended to the actual victim in order to punish the morally culpable mental state that animated the conduct: Bland, at pp. 326-27 Cal. 4th.

[49] The crime of attempt is principally concerned with an accused's mental state, and less so with his or her conduct. In the result, the crime of attempt sanctions what an accused intended to do but failed to accomplish, not an accused's unintended and unaccomplished potential consequences. The unintended consequences can and should be punished according to the culpability that the law assigns to them, but no more: Bland, at p. 327 Cal. 4th. [page13 ]

[50] The crime of attempted murder requires no physical injury to the victim as an essential element. In prosecutions for attempted murder in which an accused shoots at an intended victim and no bystanders are physically harmed, it is nearly impossible to decide to whom we should transfer the accused's original intent. How many? How far? Are there different rules where unintended victims are actually injured than where they suffer no injury, even though injury is not an essential element of this form of inchoate criminal homicide?: Bland, at pp. 328-29 Cal. 4th.

[51] The court in Bland pointed out that the conclusion that transferred intent does not apply to attempted murder still permits a person who shoots (or throws an explosive) at a group of people to be convicted of attempted murder, albeit not on the basis of transferred intent. A person will be convicted of attempted murder of any member of a group of persons whom the person intended to kill on the basis of a concurrent intent to kill: Bland, at pp. 329-30 Cal. 4th.

[52] Another court has held that the most compelling reason to reject the application of the doctrine of transferred intent to the crime of attempted murder is that it is simply unnecessary to make a whole crime out of two halves by joining the intent as to one victim with the harm caused to another victim, the purpose for which the doctrine was conceived. When the unintended victim has not suffered a fatal injury, the accused already has committed a completed crime against the intended victim, and the seriousness of that crime is as great as if the intent were transferred to the unintended victim: Harrison, at p. 508 Md.

"Transferred intent" and the Criminal Code

[53] Leaving to one side the effect of the referential incorporation of the criminal common law by s. 8(2) of the Criminal Code, it is beyond question that Parliament could incorporate the principles of transferred intent by express language in offence-creating or defining sections. Likewise, Parliament, in express terms or by necessary implication, could exclude the application of such principles: CLGP, at 46, pp. 127-28; Wayne LaFave, Substantive Criminal Law, 2nd ed. (Eagan, MN: Thomson West, 1986) 6.4(d), p. 476, fn 49; Cockrell v. State of Alabama, 890 So. 2d 174 (Sup. Ct. Ala., 2004), at pp. 180-81.

[54] By its enactment of the predecessor of the present s. 229(b), which provides a definition of murder, Parliament incorporated transferred intent principles. As a result, liability for the killing of an "unintended victim" in Canada is the result of the explicit terms of s. 229 (b) of the Criminal Code, not the doctrine of [page14 ]transferred intent: R. v. Droste, 1984 68 (SCC), [1984] 1 S.C.R. 208, [1984] S.C.J. No. 11, at p. 217 S.C.R.

[55] In the parallel offences created by ss. 244 and 244.1, Parliament has distinguished between intended and actual victims by use of the indefinite adjective or determiner "any" and the specific terms "whether or not that person is the person mentioned in . . .". The inclusion of the word "any", depending on the context, may permit the introduction of the principles of transferred intent: see CLGP, at 46, p. 128. Like attempted murder, the offences of s. 244 and 244.1 do not require that anyone be injured by the accused's discharge of a firearm or other weapon.

Attempted murder under the Criminal Code

[56] It is fundamental that at common law and under the Criminal Code, an attempt to commit a crime is itself an offence separate and distinct from the crime alleged to have been attempted: R. v. Ancio, 1984 69 (SCC), [1984] 1 S.C.R. 225, [1984] S.C.J. No. 12, at p. 247 S.C.R. As with any substantive offence, to establish the inchoate crime of attempt, the prosecution must prove mens rea, the intent to commit the completed crime, and actus reus, some step towards the commission of the completed crime beyond mere preparation. Of the two critical elements, mens rea and actus reus, the more significant in attempts is mens rea: Ancio, at p. 247 S.C.R.; R. v. Cline, 1956 150 (ON CA), [1956] O.R. 539, [1956] O.J. No. 454, 115 C.C.C. 18 (C.A.), at p. 27 C.C.C. Indeed, the actus reus of an attempt may but need not be a crime or even a tort. Injury to the victim is not an essential element of the crime of attempted murder.

[57] In its current state, s. 239 (like its predecessor, s. 210 of the 1953-54 Code) does not define or create the offence of attempted murder, but rather confines its work to the establishment of a penalty for a specific attempt that constitutes an exception to the general rule of s. 463.

[58] Despite the categorization of the various means of committing attempted murder in the former s. 264, the reference to "any means" in the current s. 239 refers to the ways in which the crime of murder may be accomplished: Ancio, at p. 250 S.C.R.

[59] Section 229 defines murder by describing the states of mind that must accompany an unlawful killing to make that unlawful killing murder. The section has nothing to do with the means of killing. And so it is that, although the completed crime of murder may be committed without proof of an intent to kill, for example under s. 229(a)(ii), the inchoate crime of attempted murder requires proof of an intent to kill: Ancio, at pp. 250-51 S.C.R. [page15 ]

[60] It seems clear from Ancio that, since the mental element in attempted murder is restricted to an intention to kill, the provisions of s. 229, which define the mental element required for the completed crime of murder, cannot be relied upon to establish guilt of attempted murder: Droste, at p. 218 S.C.R. This prohibition would bar access to s. 229(b) for a similar purpose.

[61] Section 239 of the present Code, like s. 210 of the 1953-54 Code, includes the words "attempts by any means to commit murder". The current section omits reference to "any person", a common inclusion in several paragraphs of s. 264 of the 1927 Code that disappeared in the 1953-54 revision, and a phrase sufficiently expansive to permit the introduction of transferred intent: CLGP, at 46, p. 128.

[62] The doctrine of transferred intent was part of the criminal common law of England incorporated in Canadian criminal law by the provisions of s. 7(1) of the 1953-54 Code and continued by current s. 8(2). The referential incorporation is not, however, unqualified: the common law only continues to the extent that it is not modified, altered, varied or affected by the Code or other federal enactment. That said, the common law has frequently been invoked despite statutory provisions dealing with similar subject matter.

The principles applied

[63] The trial judge instructed the jury that if they were satisfied beyond a reasonable doubt that the appellant intended to kill a person, including anyone other than a bystander, they could find the appellant guilty of attempted murder of the bystanders on the basis of transferred intent. No such instruction was given in connection with the count relating to André Thompson, the person who had previously assaulted the appellant.

[64] If transferred intent principles are to apply to the crime of attempted murder, the application must be otherwise than through the express or implied terms of s. 239 of the Criminal Code.

[65] Section 239 does not define or create the offence of attempted murder. The section simply fixes the penalty for the specific inchoate crime of attempted murder: Ancio, at p. 403 S.C.R.

[66] Like any crime, inchoate or completed, attempted murder requires proof of both mens rea and actus reus. The mens rea of attempted murder is the intent to kill. The mere fact that the completed crime, murder, may be established by proof of a mental element (mens rea) less than an intent to kill does not mean that any mens rea less than an intent to kill will be sufficient for attempted murder: Ancio, at p. 250-51 S.C.R. [page16 ]

[67] The definition of murder contained in s. 229(b) of the Criminal Code incorporates transferred intent principles. But the mere fact that the completed crime of murder may be proven on this basis says nothing about the application of the same principles to the inchoate crime of attempted murder. Indeed, it could be said that where Parliament wishes to create an offence by the application of transferred intent principles, it says so in specific language. It did not do so in s. 239.

[68] The common-law doctrine of transferred intent takes the mens rea of an offence in relation to an intended victim and transfers it to the actus reus of the same offence committed upon another victim. Considered separately, each prospective crime lacks an essential part. The mens rea (intended victim) lacks an actus reus. And the actus reus (actual victim) lacks mens rea. In combination, however, they amount to a whole crime through the application of a legal fiction.

[69] In my view, a close examination of the principles that underlie the doctrine of transferred intent compels the conclusion that this common-law doctrine does not apply to the inchoate crime of attempt, in particular to attempted murder, and thus cannot be part of our law through the operation of s. 8(2) of the Criminal Code.

[70] It is at best debatable whether the principles of transferred intent apply to the inchoate crime of attempt: CLGP, at 46, p. 128 and 199, p. 620.

[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, 1960 494 (QC CA), [1960] C.C.S. No. 439, 130 C.C.C. 242 (Que. C.A.) seems to favour the contrary view (that transferred intent principles do not apply to attempted [page17 ]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 S.C.R.

[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. Maryland, 111 Md. App. 401, 681 A.2d 628 (Ct. Spec. App. 1996), at p. 432 Md. App.

[78] In the result, I am satisfied that the trial judge erred in law in instructing the jury that they could find the appellant [page18 ]guilty of attempted murder of the three injured bystanders on the basis of transferred intent.

The effect of the misdirection

[79] On the attempted murder counts relating to the injured victims, the trial judge instructed the jury that they could find the appellant guilty of attempted murder on the basis of transferred intent as well as concurrent intent. As a matter of law, the appellant's liability for attempted murder of the injured victims could not be established through the application of principles of transferred intent.

[80] The jurors also found the appellant guilty of the attempted murder of André Thompson. To reach that conclusion, they must have been satisfied that the appellant intended to kill Thompson, the man who had assaulted him when the appellant sought to purchase some marijuana. And it was the intent to kill Thompson that engaged the principles of transferred intent.

[81] In the circumstances of this case, I am unable to conclude that the jury's verdict on the attempted murder counts in relation to the injured victims would necessarily have been the same without the instructions on transferred intent.

[82] The catalyst in the entire series of events that culminated in the shotgun blasts was Thompson's assault of the appellant. The assault provided a motive for the appellant to retaliate, and thus assisted in his identification as the shooter. The most logical target was Thompson. It seems inconceivable, especially in light of the jury's decision that the appellant attempted to murder Thompson, that transferred intent did not figure prominently in their deliberations in relation to the injured victims.

[83] In my view, the convictions of attempted murder of each of the three injured victims cannot stand. Those convictions should be set aside. The conviction for the attempted murder of André Thompson is unaffected by the error in leaving transferred intent to the jury and the appeal against that conviction should be dismissed.

[84] The jury also found the appellant guilty of three counts of aggravated assault in connection with each injured victim. In light of the convictions for attempted murder, the trial judge entered conditional stays on each of the aggravated assault counts. In the circumstances here, I would set aside those stays, enter convictions of aggravated assault and impose sentences of imprisonment for eight years on each count to be served concurrently with each other and with the sentence imposed on the conviction of attempted murder of André Thompson. [page19 ] The Sentence Appeal

[85] The appellant also appeals his sentence on the conviction of the attempted murder of André Thompson. The trial judge imposed a sentence of imprisonment for ten years, the functional equivalent of a sentence of 12 and one-half years when credit for pre-disposition custody is taken into account.

[86] The appellant fired three shots from a sawed-off shotgun at André Thompson, one of a number of people gathered around the entrance of L'Espresso Café and Bar. The shooting took place on a hot August night with predictable pedestrian and vehicular traffic in the area. The catalyst was an assault that took place in an abortive attempt to purchase drugs. The primary target escaped injury, not so [for] three innocent bystanders whose lives have been shattered as a result.

[87] The appellant is a youthful, non-violent recidivist who was on probation at the time of the shootings. With a generous allowance for his age, his employment record is limited and his educational achievements minimal.

[88] Principles of denunciation and deterrence command a substantial sentence. I am not persuaded that the sentence imposed here reflects error. Although I would grant leave to appeal sentence, I would dismiss the appeal.

Appeal allowed in part.