États-Unis+d’Amérique+c.+Dynar


 * Apology:** I am so sorry this summary is so long. It took me forever to read the 36 pages and everything seemed relevant.

SCC, on appeal from Ontario.

- Lucky Simone (living in Nevada) was a former associate in criminal activities of Arye Dynar (a Canadian citizen). - Lucky became an FBI informant. - The FBI arrange a sting operation in which Lucky, their informant, called up Dynar and asked if he wanted to participate in a money laundering scheme in Nevada involving drug money. The FBI recorded the many phone conversations in which Dynar agreed enthusiastically. - Dynar sent an associate, Maurice Cohen (another Canadian citizen) to the border to collect the money. - The money was never transfered because the FBI pretended to arrest Lucky's associates at the border. Cohen was allowed to return the Canada.
 * Facts:**


 * United States law allows conviction of persons caught in money‑laundering “sting” operations, but Canadian law does not. In particular, the Canadian offence of money‑laundering requires not only that the money must be the __actual__ proceeds of crime, but also that the accused have knowledge of that fact. The American offence is complete if the person acts on a representation that the property is the proceeds of crime. The money does not have to be the proceeds of crime, and no actual knowledge is required.**

- The US requested the extradition of Dynar and Maurice for (a) attempt at money laundering (b) conspiracy to money launder under the //United States Code//.

In order for an extradition to be granted, the accused must have //(////b) in the case of a fugitive accused of an extradition crime, __if such evidence is produced as would, according to the law of Canada, subject to this Part, justify the committal of the fugitive for trial, if the crime had been committed in Canada__.//
 * //Extradition Act//**
 * 18.** (1) //The judge shall issue a warrant for the committal of the fugitive to the nearest convenient prison, there to remain until surrendered to the foreign state, or discharged according to law,//

ie: In order for the extradition judge to commit the respondent Dynar for extradition to the United States the “double criminality” rule must be satisfied. This requires the judge to consider whether the conduct alleged, if it had occurred in Canada, would be a criminal offence.

- An extradition hearing took place in the Ontario Superior Court in which Keenan J. allowed the extradition, committing Dynar to be prosecuted in the USA.

- Dynar appealed to the Ontario C.A. which allowed the appeal on the basis that the activities of Mr. Dynar would not constitute a criminal offence in Canada, even though they did constitute an offence under the applicable United States law. Dynar was discharged from extradition.

- The Minister of Justice and the United States have appealed Mr. Dynar’s discharge and Mr. Dynar has brought a cross‑appeal.


 * Legislation:**

Canadian criminal code on Money Laundering: //(////a) the commission in Canada of an enterprise crime offence or a designated drug offence; or// //(////b) an act or omission anywhere that, if it had occurred in Canada, would have constituted an enterprise crime offence or a designated drug offence.//
 * 462.31** //(1) Every one commits an offence who uses, transfers the possession of, sends or delivers to any person or place, transports, transmits, alters, disposes of or otherwise deals with, in any manner and by any means, any property or any proceeds of any property with intent to conceal or convert that property or those proceeds and __**knowing**__ that all or a part of that property or of those proceeds was obtained or derived directly or indirectly as a result of//

Canadian criminal code on Attempt: (2) The question whether an act or omission by a person who has an intent to commit an offence is or is not mere preparation to commit the offence, and too remote to constitute an attempt to commit the offence, is a question of law.//
 * 24.** //(1) Every one who, having an intent to commit an offence, does or omits to do anything for the purpose of carrying out the intention is guilty of an attempt to commit the offence __whether or not it was possible under the circumstances to commit the offence__.

Canadian criminal code on Conspiracy: //(////c) every one who conspires with any one to commit an indictable offence not provided for in paragraph (////a) or (////b) is guilty of an indictable offence and liable to the same punishment as that to which an accused who is guilty of that offence would, on conviction, be liable;//
 * 465.** //(1) Except where otherwise expressly provided by law, the following provisions apply in respect of conspiracy://

Should Dynar be extradited to the USA? ie: Would Dynar’s conduct have amounted to an offence under Canadian law if it had occurred in Canada? This question in turn has two parts: whether an accused who attempts to do the “impossible” may be __guilty of attempt__ and whether an accused who conspires with another to do the impossible may be __guilty of conspiracy__.
 * Issue:**
 * Held:** Yes, Dynar’s conduct would have amounted to a criminal attempt and a criminal conspiracy under Canadian law.

[This is not relevant to this section of our course - attempts and conspiracy - and the judges' reasons on the cross appeal were cut in our readings by Megret.]
 * Cross appeal:** whether the Canadian authorities violated Mr. Dynar’s constitutionally guaranteed right to a fair hearing by failing to disclose to Mr. Dynar details of official Canadian involvement in the U.S. investigation of him. Dynar wants to argue at a new hearing that there was a violation of his right to be free from unreasonable search and seizure under s. 8 of the //Charter// because the wiretap evidence was gathered without judicial authorization. He also contends that there was a violation of his s. 7 rights on the basis of entrapment because the “sting” operation was allegedly set up without reasonable grounds to believe that an offence was being committed. The respondent conceded in oral argument that the ultimate goal of these endeavours is either the exclusion of the evidence of the sting operation from the extradition proceedings, or a stay of proceedings.
 * Held:** dismissed.


 * Reasoning (Cory & Iacobucci JJ., writing for the majority of 6 judges)**

__**Dynar is not guilty of art. 462.31(1), money laundering:**__ - Art. 462.31 (1) requires that the person money laundering __knows__ that the money is from criminal proceeds, and not simply __believes__ the money to be from criminal proceeds. - Court has said previously that **proof of knowledge requires proof of truth**. - Bill C-17 that Parliament has introduced to amend the money‑laundering provisions to replace the word “knowing” with the words “knowing or believing”. This might be taken to suggest that the present money‑laundering provisions do not contemplate punishment of one who merely believes that he is converting the proceeds of crime. However, “subsequent legislative history” can cast no light on the intention of the enacting Parliament and, in matters of legal interpretation, it is the judgment of the courts and not the lawmakers that matters. - Because the money that the U.S. undercover agents asked Mr. Dynar to launder was not in fact the proceeds of crime, Mr. Dynar could not possibly have known that it was the proceeds of crime. Therefore, even if he had brought his plan to fruition, he would not have been guilty of any completed offence known to Canadian law. But this is not the end of the story.

__**Dynar is guilty of art. 24, attempt:**__ - s. 24(1) is clear: the crime of attempt consists of an intent to commit the completed offence together with some act more than merely preparatory taken in furtherance of the attempt. Sufficient evidence was produced to show that Dynar intended to commit the money‑laundering offences, and that he took steps more than merely preparatory in order to realize his intention. That is enough to establish that he attempted to launder money contrary to s. 24(1).
 * -** s.24 says "//__whether or not it was possible under the circumstances to commit the offence"__//

Respondent argues s. 24(1) does not criminalize all attempts to do the impossible, but only those attempts that are **“factually impossible”**. Example: a pickpocket who puts his hand into a man’s pocket intending to remove the wallet, only to find that there is no wallet to remove. s.24 does not criminalize **“legal impossibility”**: an attempt that must fail because, even if it were completed, no crime would have been committed. Arguments in favour: should be construed narrowly; "under the circumstances" in s.24 implies that in other (factual) circumstances, it must be possible to commit the crime. - Three types of impossibility: - Respondant argues that only types I and II are factual impossibility and that type III is legal impossibility. - This distinction does not stand up. There is no legally relevant difference between the pickpocket who reaches into the empty pocket and the man who takes his own umbrella from a stand believing it to be some other person’s umbrella. Both have the //mens rea// of a thief. Both intend to take a wallet that he believes is not his own. Each takes some steps in the direction of consummating his design. And each is thwarted by a defect in the attendant circumstances It is true that the latter seems to consummate his design and still not to complete an offence; but the semblance is misleading. The truth is that the second man does not consummate his design, because his intention is not simply to take the particular umbrella that he takes, but to take an umbrella that is not his own. That this man’s design is premised on a mistaken understanding of the facts does not make it any less his design. A mistaken belief cannot be eliminated from the description of a person’s mental state simply because it is mistaken. If it were otherwise, the effect would be to eliminate from our criminal law the defence of mistaken belief. - Canada treats factual impossibility (which subsumes legal impossibility) as an attempt. Canada does not treat **'imaginary offenses'** as attemps. Ex: Bring sugar into Canada, believing the importation of sugar to be a crime. The would‑be smuggler has no //mens rea// known to law. s. 24(1) provides that it is an element of the offence of attempt to have “an intent to commit an offence”, the latter sort of attempt is not a crime. - **A major purpose of the law of attempt is to discourage the commission of subsequent offences.** - Knowledge therefore has two components ‑‑ truth and belief ‑‑ and of these, only belief is mental or subjective. Truth is objective, or at least consists in the correspondence of a proposition or mental state to objective reality. Accordingly, truth, which is a state of affairs in the external world that does not vary with the intention of the accused, cannot be a part of //mens rea//.
 * Type I:** impossibility due to inadequate means (ex: C tries to break into a house without the necessary equipment)
 * Type II:** actor is prevented from completing the offence because some element of its //actus reus// cannot be brought within the criminal design (ex: C tries to steal money from a safe which is empty)
 * Type III:** actor’s design is completed but the offence is still not committed because some element of the //actus reus// is missing (ex: A may take possession of property believing it to have been stolen when it has not been)

- What Dynar did does not constitute the //actus reus// of the money‑laundering offences. If his actions did constitute the //actus reus//, then he would be guilty of the completed offences described in s. 462.31. There would be no need even to consider the law of attempt. The law of attempt is engaged only when, as in this case, the //mens rea// of the completed offence is present entirely and the //actus reus// of it is present in an incomplete but more‑than‑merely‑preparatory way.

- Dynar argues that factual impossibility is: if I'd known, I would not have acted. (ie: If I'd known there'd be no wallet in his pocket, I wouldn't have stuck my hand there.) In Dynar's case, Dynar would have gone through with the laundering had it been dirty or clean money. All he wanted was the commission. - Court's response: this view confounds motivation and intention. If attention were paid only to the former, then the number of crimes would be reduced, because what moves many criminals to crime is some desire relatively more benign than the desire to commit a crime. We suspect that only the most hardened criminals commit crimes just for the sake of breaking the law. To at least many malefactors, it must be a matter of indifference whether their actions constitute crimes. Probably most thieves would not turn up their noses at the opportunity to loot a house simply because it has been abandoned and so is the property of no one. The goal is the making of a quick dollar, not the flouting of the law.

- The purpose of the law of attempt is universally acknowledged to be the deterrence of subsequent attempts. A person who has intended to do something that the law forbids and who has actually taken steps towards the completion of an offence is apt to try the same sort of thing in the future; and there is no assurance that next time his attempt will fail.

- The only difference between an attempt to do the possible and an attempt to do the impossible is chance.

- Mr. Dynar committed the crime of attempt; and for having done so he should be extradited to the United States. The facts disclose an intent to launder money and acts taken in furtherance of that design. Section 24(1) of the //Criminal Code// requires no more.

__**Dynar is guilty of s.465, conspiracy:**__ - The issue is not whether Mr. Dynar’s conduct can support a __conviction__ for conspiracy (or for that matter for attempt), but only whether a //prima facie// case has been demonstrated that would justify his committal for trial if his conduct had taken place in Canada. If yes, he can be extradited to the USA. The question that must be decided, however, is whether a conspiracy can exist even where all the elements of the full indictable offence are not present because the circumstances are not as the accused believed them to be. - Conspiracy is made up of: an intention to agree, the completion of an agreement, and a common design. The //actus reus// is the fact of agreement. The important inquiry is not as to the acts done in pursuance of the agreement, but whether there was, in fact, a common agreement to which the acts are referable and to which all of the alleged offenders were privy. - Conspiracy is in fact a more “preliminary” crime than attempt, since the offence is considered to be complete before any acts are taken that go beyond mere preparation to put the common design into effect. The Crown is simply required to prove a meeting of the minds with regard to a common design to do something unlawful, specifically the commission of an indictable offence. - A conspiracy must involve more than one person. Each of the conspirators must have a genuine intention to participate in the agreement. A person cannot be a conspirator if he or she merely pretends to agree. - Where one member of a so‑called conspiracy is a police informant who never intends to carry out the common design, there can be no conspiracy involving that person. Nonetheless, a conspiracy can still exist between other parties to the same agreement. It is for this reason that the conspiracy in this case is alleged to involve Mr. Dynar and Mr. Cohen, and not the confidential FBI informant “Anthony”. - Society is properly concerned with conspiracies since two or more persons working together can achieve evil results that would be impossible for an individual working alone. The scale of injury that might be caused to the fabric of society can be far greater when two or more persons conspire to commit a crime than when an individual sets out alone to do an unlawful act. It is a menace to society. - The rationale for punishing conspirators coincides with the rationale for punishing persons for attempted crimes. Not only is the offence itself seen to be harmful to society, but it is clearly in society’s best interests to make it possible for law enforcement officials to intervene before the harm occurs that would be occasioned by a successful conspiracy or, if the conspiracy is incapable of completion, by a subsequent and more successful conspiracy to commit a similar offence.

//Is Impossibility a Defence to Conspiracy//? No. - Should conspirators escape liability because, owing to matters entirely outside their control, they are mistaken with regard to an attendant circumstance that must exist for their plan to be successful? Such a result would defy logic and could not be justified. - The conspiracy alleged in the case at bar involves the commission of an offence that requires knowledge of a circumstance as one of its essential elements. When a substantive offence requires knowledge of a particular circumstance, the Crown is required to prove a subjective element, which is best described as belief that the particular circumstance exists. The Crown is also required to prove an objective element, namely the truth of the circumstance. It is the presence of the objective circumstance that translates the subjective belief into knowledge or “true belief”. However, since the offence of conspiracy only requires an __intention__ to commit the substantive offence, and not the commission of the offence itself, it does not matter that, from an objective point of view, commission of the offence may be impossible. - Conspirators can be punished for their agreement (//actus reus//) and their intention to commit the offence (//mens rea//), without the offence being possible. - Conspiracy to commit a crime which cannot be carried out because an objective circumstance is not as the conspirators believed it to be is still capable of giving rise to criminal liability in Canada. Legal impossibility cannot be invoked as a defence to the charge.


 * Reasoning (Major J., writing for the minority of 3 judges):**
 * Agrees with Cory and Iacobucci JJ that Dynar should be extradited, that he committed an offense of conspiracy, but disagrees that Dynar committed an offence of attempt.**

Example: A purchases goods from B at a fraction of their acknowledged true value. A believes that he is getting such a bargain because the goods are stolen, and admits this to the police. After investigating, the police determine that the goods were not stolen, and that A simply got a good deal. Has the purchaser nonetheless committed an offence? My colleagues say yes, that A committed the offence of attempted possession of stolen goods. I disagree. Section 24 requires, on its plain meaning as an element of the offence, that that which was intended to be done be an offence. - It is inescapable that there must be an underlying offence capable of being committed before we can consider the elements of the attempt offence. - s.462.31 on money laundering requires __knowing__ that the money is dirty. Knowledge requires truth. The offence of money laundering could not be committed when the proceeds __are not the actual proceeds of crime__. - The appellant Crown has submitted, however, that the Court should define the word “knowing” within s. 462.31 to mean “believing” so as to impose a conviction __for the substantive offence__ when an accused __believes__ what he is laundering is the proceeds of crime. - The offence is defined differently in the United States than here in Canada: the initial requirement is not “knowing” but “believing”. - Criminal law should not patrol people’s thoughts.

Major J. gives examples where the majority would convict and the minority wouldn't: - Majority would allow an accused to be “convicted of attempting to steal [his own umbrella]”. - A person who sincerely believes in the practice of voodoo sticks a pin into a doll, believing it will cause the death of another. Professor Williams concludes this is an attempt to murder: “The answer to the particular question is that the act of voodoo is proximate to the victim’s death //in the voodooist’s mind//”. I doubt that the framers of the //Criminal Code// intended a conviction in this circumstance. - (1) The putative fact approach would in practice result in setting aside the temporal and spatial limits upon the penal law. Suppose a penal statute comes into force at midnight. A man may think he is acting at 12:05 a.m. (after it has come into force), when in fact he was acting at 11:55 p.m. (before it came into force). Is he guilty of attempting to commit what would be an offence under the Act if his facts were right? (Observe that this is not a question of mistake of law, a mistake as to what the Act says; the mistake concerns the facts.) A man may think he is acting within the bounds of territorial jurisdiction, when he is in fact acting just outside those bounds. Or a person who is not a British citizen but who believes he is a British citizen (as a result of mistaking his birth-place) may assist an enemy abroad. Is he guilty of attempted treason? If a person is not subject to the law of treason, how can he be guilty of attempted treason? - (2) My second type of problem concerns a particular type of justification. A statute may make it an offence to pursue some activity without a licence. A person may act believing he has no licence, when in fact he has one. For example, a driver stopped by the police may untruthfully assert that his wife was driving; the police question him closely, and it transpires that he was driving, and believed he had been disqualified from driving, but in fact he had not. Is he guilty of attempting to drive while disqualified? It needs no demonstration that an affirmative answer would be strange, though it is apparently the answer that was intended to be given (in theory) under the Criminal Attempts Act. [The Act adopted the putative fact theory.] - (3) The third hypothetical is somewhat similar. In the old case of //Dadson// [(1850), 2 Den. 5, 169 E.R. 407], the defendant arrested a person for unlawfully cutting and taking wood, and shot him to prevent him escaping. The person arrested had twice been convicted before, and the arrest (and, at that date, the shooting) would consequently have been lawful if the defendant had known this; but he did not know it, so the arrest (and, consequently, the shooting) was held to be unlawful. There is a strong argument for saying that the decision was wrong. Like the putatively disqualified driver, the defendant was in fact licensed by law to do the act he did, although he did not know it. To all outward seeming his act was lawful, and his ignorance of fact should not have made his otherwise [lawful] [the article actually uses the word “unlawful” here, but it is clear Williams meant “lawful”] act a crime. The policy of this rule was accepted by Parliament in the Criminal Law Act 1967, s. 2(2), where it is provided that “any person may arrest without warrant anyone who is, or whom he, with reasonable cause, suspects to be, in the act of committing an arrestable offence.” [See our //Criminal Code// s. 27.] The wording means that a person committing an arrestable offence can be validly arrested even though the arrester lacks a reasonable cause for suspecting him, and even though he does not suspect him. The state of the arrester’s mind is irrelevant once it is established that the objective facts justifying an arrest were present. If this is the proper rule, it would seem to follow that the arrester is not only guiltless of assault and false imprisonment in arresting, but is (or should be) guiltless of an attempt to commit these crimes. Yet on the putative fact theory of attempt, he would be guilty of an attempt if, on the facts as he believed them to be, his act would have been criminal. A similar problem can arise in cases of self-defence, where a person’s act is in fact necessary in self-defence but he does not realise this.