Deutsch v. The Queen

Le Dain J.‑‑This appeal, which involves a charge of attempting to procure a person to have illicit sexual intercourse with another person contrary to s. 195(1) (a) of the Criminal Code , raises two issues: the distinction between attempt and mere preparation, and the meaning of "illicit sexual intercourse".

The appeal is from the judgment of the Ontario Court of Appeal on March 17, 1983 setting aside the acquittal of the appellant by Graburn Co. Ct. J. on August 13, 1982 of the charge of attempting to procure a person to have illicit sexual intercourse with another person and ordering a new trial of the appellant on that charge.

I

During the period covered by the indictment, which is the three months ending on or about September 3, 1981, the appellant was carrying on a business known as Global Franchises Marketing, which was engaged in selling franchises of various kinds. During this period the appellant placed an advertisement in newspapers in Ottawa, Hamilton and Toronto inviting applications for the position of secretary/sales assistant and conducted interviews with three women who responded to the advertisement and with a police officer who posed as an applicant for the position and recorded the interview on a tape recorder. The advertisement read as follows:

ENJOY TRAVEL

SECRETARY‑‑Sales Assistant to Sales Executive. $600‑‑$800 per month to start plus commission, bonuses, company benefits and expenses. Must be free to travel extensively. Call 746‑2440 ask for Mel.

In the interviews the appellant indicated that a secretary/sales assistant would be expected to have sexual intercourse with clients or potential clients of the company where that appeared to be necessary to conclude a contract. The appellant also indicated that a successful secretary/sales assistant could earn as much as $100,000 per year through commission or bonus on the sale of franchises. The appellant did not make an offer of employment to the three applicants who testified at his trial. After hearing what the position required they said they were not interested and the interviews terminated. Nor did he make an offer of employment to the police officer who posed as an applicant, but when she told him she was interested in the position, despite its requirements, he told her to think it over and let him know.

The appellant was tried upon an indictment containing two counts: attempting to procure female persons to become common prostitutes, and attempting to procure female persons to have illicit intercourse with another person. Graburn Co. Ct. J. acquitted the appellant on both counts. He found that the appellant intended that a person hired for the position should have sexual relations with clients or potential clients, but he held, as a matter of law, that the acts or statements of the appellant did not, in the absence of an offer of employment, constitute the actus reus of an attempt to procure. In his opinion they were mere preparation. He accordingly did not find it necessary to decide whether the sexual intercourse contemplated by the appellant would be illicit sexual intercourse within s. 195(1)(a) or make those who engaged in it common prostitutes within s. 195(1)(d), as it then read.

The Ontario Court of Appeal (Martin, Houlden and Robins JJ.A.) (1983), 5 C.C.C. (3d) 41, dismissed the appeal from the acquittal on the charge of attempting to procure female persons to become common prostitutes, but allowed the appeal from the acquittal on the charge of attempting to procure female persons to have illicit sexual intercourse with another person and directed a new trial of the appellant on that count of the indictment. The Court held that the trial judge erred in concluding that the acts or statements of the appellant could not, in the absence of an offer of employment, constitute an attempt to procure rather than mere preparation. It held that there was evidence from which the trial judge could have concluded that there was both the mens rea and the actus reus required for an attempt to procure. The Court also held that the sexual intercourse contemplated by the appellant would be illicit sexual intercourse within s. 195(1)(a). The appellant appeals from the judgment of the Court of Appeal with respect to the second count of the indictment.

The appellant, who appeared in person on the appeal, expressed his grounds of appeal in several different ways, but in my opinion there are only two issues that require consideration by the Court:

1. Whether the Court of Appeal erred in holding that the acts or statements of the appellant could, as a matter of law, constitute an attempt to procure rather than mere preparation; and

2. Whether the Court of Appeal erred in holding that the sexual intercourse contemplated by the appellant would be illicit sexual intercourse within s. 195(1)(a) of the Code.

II

I propose to begin with the consideration of what is meant by "illicit sexual intercourse" in s. 195(1) (a) of the Criminal Code , which, at the relevant time, provided:

195. (1) Every one who

(a) procures, attempts to procure or solicits a female person to have illicit sexual intercourse with another person, whether in or out of Canada,

...

is guilty of an indictable offence and is liable to imprisonment for ten years.

Martin J.A., delivering the unanimous judgment of the Court of Appeal, said with reference to the meaning of "illicit sexual intercourse" at p. 52:

"Illicit sexual intercourse" in s. 195(1)(a) merely connotes sexual intercourse with another not authorized by law and it is not necessary for the sexual intercourse procured with another to be in itself criminal: see R. v. Robinson (1946), 92 C.C.C. 223, [1948] O.R. 857, [1949] 2 D.L.R. 531.

Various expressions have been used over the years to qualify the sexual intercourse contemplated by certain criminal law prohibitions enacted for the protection of girls and women. The English statute 18 Eliz., c. 7, of 1575‑76 created the offence of "unlawfully and carnally" knowing and abusing any girl under ten years of age. The same offence was contained in the English statute 9 Geo. 4, c. 31, of 1828, as well as the offence of "unlawfully and carnally" knowing and abusing any girl between the ages of ten and twelve. The statute 24 & 25 Vict., c. 100, of 1861, created the offence of procuring a woman or girl under twenty‑one to have "illicit carnal connexion" with any man. Section 2(1) of the Criminal Law Amendment Act, 1885 (U.K.), 48 & 49 Vict., c. 69, made it an offence to procure or attempt to procure any girl or woman under twenty‑one years of age, not being a common prostitute, or of known immoral character, to have "unlawful carnal connexion" with any other person. The Criminal Code, 1892 (Can.), c. 29, used the expressions "illicit connection" (ss. 181, 182, 183, 184), "unlawful carnal connection" (s. 185(a), (g), (h), (i)), "illicit intercourse" (s. 185(b)), and "unlawfully and carnally" (ss. 187, 189). Section 185(a) created the offence, modelled on s. 2(1) of the Criminal Law Amendment Act, 1885, of procuring or attempting to procure any girl or woman under twenty‑one years of age, not being a common prostitute or of known immoral character, to have "unlawful carnal connection" with any other person. The expression "unlawful carnal connection" was retained in the Criminal Code, R.S.C. 1906, c. 146, s. 216(a), as amended by The Criminal Code Amendment Act, 1913 (Can.), c. 13, s. 9, and in the Criminal Code , R.S.C. 1927, c. 36, s. 216(a). The expression "illicit connection" appears in ss. 211, 212, 213 and 214 of the Code of 1927.

The word "unlawful" in the statutory contexts referred to above has been treated as synonymous with "illicit" and as referring to sexual intercourse outside of marriage. In H.M. Advocate v. Watson (1885), 13 S.C.(J.) 6, 23 Scot. L.R. 267, the issue was the meaning of "unlawful carnal knowledge" in s. 5 of the Criminal Law Amendment Act, 1885, which created the offence of unlawfully and carnally knowing or attempting to have unlawful carnal knowledge of a girl between the ages of thirteen and sixteen. Lord Craighill, in charging the jury, said that "unlawful carnal knowledge is neither more nor less, where the woman is over thirteen and under sixteen years of age, than carnal knowledge by one who is not her husband."

In R. v. Karn (1909), 20 O.L.R. 91 (C.A.), the relevant issue was the meaning of the word "unlawfully" in s. 217 of the Criminal Code, R.S.C. 1906, c. 146, which provided that "Every one who, being the owner or occupier of any premises, or having, or acting or assisting in, the management or control thereof, induces or knowingly suffers any girl under the age of eighteen years to resort to or be in or upon such premises for the purpose of being unlawfully and carnally known by any man" was guilty of an indictable offence. It was contended, as in the case at bar with reference to the word "illicit", that the word "unlawful" meant prohibited by the criminal law or other provision or rule of positive law. The Ontario Court of Appeal unanimously rejected this contention. Osler and Maclaren JJ.A. both quoted the following passage from the judgment of Bramwell B. in Cowan v. Milbourn (1867), L.R. 2 Ex. 230, at p. 236:

It is strange there should be so much difficulty in making it understood that a thing may be unlawful, in the sense that the law will not aid it, and yet that the law will not immediately punish it. If that only were unlawful to which a penalty is attached, the consequence would be that, inasmuch as no penalty is provided by the law for prostitution, a contract having prostitution for its object would be valid in a court of law.

Osler J.A. referred to several sections of the Criminal Code, R.S.C. 1906, c. 146, in which the words "illicit connection" appeared and said at pp. 94‑95:

In these sections the words "unlawful" and "illicit" appear to me to be synonymous and to be used, in describing the act penalised, in the sense of not sanctioned or permitted by law and as distinguished from acts of sexual intercourse which are not regarded as immoral. See the Oxford and the Century Dictionaries, sub verb. "illicit" and "unlawful".

Maclaren J.A., observing that "the context and evil aimed at" would generally throw light on the sense in which the word "unlawful" is used in a particular section of the Code, said at p. 95:

It is frequently used as synonymous with "illicit" or as being simply "not lawful" or "not authorised or permitted by law." Such meanings are given to it as usual ones in the leading dictionaries. Inasmuch as any issue from such intercourse as took place in this instance would undoubtedly be "unlawful," it would not appear to be improper to apply the word to the act itself.

Meredith J.A. said at p. 97:

In my opinion, it is not a necessary ingredient, in the crime with which the accused was charged, that the carnal knowledge should be criminal in its character; it is enough if it be unlawful; and that it was unlawful in that sense is obvious; if the accused were suing to recover money for the use of his "premises" for the purposes to which he permitted them to be put, he would fail because of the unlawful character of the transaction; if the woman sued for an agreed price of her prostitution, she would fail in like manner; if there were issue of the connection, it would be unlawful; indeed, everything connected with and issuing out of the gross immorality, would be unlawful.

In R. v. Robinson (1948), 92 C.C.C. 223 (Ont. C.A.), the case which was cited by Martin J.A. in support of his opinion as to the meaning of "illicit sexual intercourse" in s. 195(1)(a), the relevant issue was the meaning of "unlawful" in s. 216(1) (a) of the Criminal Code , R.S.C. 1927, c. 36, which made it a criminal offence for anyone to procure or solicit any girl or woman to have "unlawful carnal connection" with any other person. In rejecting the contention that "unlawful" in that context meant "contrary to law", Laidlaw J.A., with whom Henderson J.A. concurred, said at pp. 225‑26:

"Lawful" means authorized by law. The prefix "un" may mean simply "not", and "unlawful" may be properly used to mean "not authorized by law". It is in that sense that the word is used in s. 216(1)(a) of the Code, and to give to it a different and more restricted meaning in that section, as urged by counsel for the appellant, would defeat the plain intention and purpose of the enactment. The wrong at which that subsection is aimed is the act of a person in procuring or attempting to procure or soliciting any girl or woman to have carnal connection with another person who has no right to engage with her in that act.... The essence of the offence created by the section under consideration is the wrongful act of any person who procures or attempts to procure or solicits any girl or woman to have carnal connection with any other person or persons not authorized by law. The conduct of that person is the criterion by which his or her guilt is to be determined and not the criminality of the result brought about or attempted to be brought about by it.

...

Thus in the present case while the act of carnal connection was not shown to be an act contrary to the criminal law and it does not appear that criminal proceedings would lie in respect of it, nevertheless it was not an act authorized by law and in that sense was "unlawful" within the meaning of that word as used in s. 216(1)(a).

Hogg J.A., who was of the same opinion, quoted at length from the judgment of the Court of Appeal in Karn, supra, and concluded at p. 229 that the word "unlawful" in s. 216(1)(a) "comprises acts which are known and defined as crimes, but embraces, as well, acts which are not contrary to the law in a criminal sense."

In Attorney General v. Ryan (1957), 91 I.L.T.R. 164, the Supreme Court of Ireland (Maguire C.J., Kingsmill Moore and Maguire JJ.) had to consider the meaning of the word "unlawful" in s. 2(2) of the Criminal Law Amendment Act, 1935 (Ire.), No. 6, which made it a criminal offence to attempt to have "unlawful carnal knowledge" of a girl who was between fifteen and seventeen years of age. The Court was referred to H.M. Advocate v. Watson, supra. With reference to the meaning of "unlawful", Maguire C.J. is reported as follows at p. 167: "It seemed to his Lordship that a reasonable definition of the offence with which the appellant stood charged was attempting to have carnal knowledge of a female between the age of fifteen and seventeen years, both parties being at the time of the attempt unmarried."

In R. v. Chapman, [1959] 1 Q.B. 100, the Court of Criminal Appeal (Devlin, Donovan and Ashworth JJ.) had to consider the meaning of "unlawful" in s. 19(1) of the Sexual Offences Act, 1956, 4 & 5 Eliz. 2, c. 69, which provides: "It is an offence, subject to the exception mentioned in this section, for a person to take an unmarried girl under the age of eighteen out of the possession of her parent or guardian against his will, if she is so taken with the intention that she shall have unlawful sexual intercourse with men or with a particular man." It was contended, as in the other cases to which I have referred, that "unlawful" meant contrary to some enactment of positive law. In rejecting this contention, Donovan J., after referring to the language used in earlier statutes creating sexual offences, said at p. 104:

No great assistance is to be derived for present purposes from the language used in these earlier statutes, except that it does suggest that the word "unlawfully" in relation to carnal knowledge has not been used with any degree of precision. It would be natural, however, for the framers of a statute, in days when the canon law would be more in their minds than today, to refer to any intercourse outside the bond of matrimony as "unlawful"; and for their successors when drafting consolidating Acts simply to repeat the word without a close consideration of its necessity or precise meaning.

We reject the argument that in section 19 of the Act of 1956 the word "unlawful" connotes intercourse contrary to some positive enactment. The argument, at once, prompts the question why, if the intercourse in question is already positively forbidden, section 19 should do it again.... the plain purpose of section 19 is to protect young unmarried girls. That protection would be largely, if not wholly, illusory if in every case it were incumbent on the prosecution to prove that she was taken from her parents for the purpose of intercourse of a kind positively forbidden by some enactment, and not for intercourse not so forbidden. We do not think that such can have been Parliament's intention.

And further with reference to the meaning of "unlawful" Donovan J. said at p. 105:

If the two interpretations suggested for the appellant are rejected, as we think they must be, then the word "unlawful" in section 19 is either surplusage or means "illicit." We do not think it is surplusage, because otherwise a man who took such a girl out of her parents' possession against their will with the honest and bona fide intention of marrying her might have no defence, even if he carried out that intention. In our view, the word simply means "illicit," i.e., outside the bond of marriage. In other words, we take the same view as the trial judge. We think this interpretation accords with the common sense of the matter, and with what we think was the obvious intention of Parliament.

Robinson, supra, was followed on the meaning of "illicit" in s. 195(1)(a) of the Code by the majority of the British Columbia Court of Appeal in R. v. Turner (1972), 8 C.C.C. (2d) 76, where McFarlane J.A., with whom Davey C.J.B.C. concurred, said at p. 79: "I am satisfied that the word "illicit" in that section [s. 195(1)(a)] is used in the sense of not being sanctioned or permitted by law and not necessarily in the sense of constituting a criminal offence: vide R. v. Robinson (1948), 92 C.C.C. 223, [1949] 2 D.L.R. 531, [1948] O.R. 857."

I am of the opinion that the word "illicit" in s. 195(1) (a) of the Criminal Code must be given the meaning that has been assigned by the weight of judicial opinion to the word "unlawful" in comparable legislative contexts‑‑as referring to sexual intercourse not authorized or sanctioned by lawful marriage. The alternative meaning‑‑sexual intercourse prohibited by the criminal law or other enactment of positive law‑‑apart from reducing the scope of the offence of procuring a person to have illicit sexual intercourse with another person so as to make it rarely, if ever, applicable, is simply not reconcilable with other provisions of the Criminal Code .

The evil to which s. 195(1)(a) is directed is procuring or soliciting, not the actual act of sexual intercourse itself. The provision is parallel to, and of the same kind as, that in s. 195(1)(d), which makes it an offence to procure or attempt to procure a person to become a prostitute, although prostitution is not itself a crime. Indeed, this would appear to be true of all the offences created by s. 195. They are directed to conduct which is designed to encourage or promote conduct which is not itself criminal. If fault be found with that legislative policy it is for Parliament to make the necessary changes, not for a court to do so by giving the word "illicit" in s. 195(1)(a) such a restricted meaning as not only to give s. 195(1)(a) a very limited, if not improbable, application, but also to restrict very severely the application of other important provisions of the Criminal Code for the protection of girls and women in which the words "illicit sexual intercourse" are used.

It is highly unlikely that Parliament intended, in s. 195(1)(a), which now prohibits the procuring of "a person" to have illicit sexual intercourse with another person, to create an offence that was limited to: (a) procuring a person to have sexual intercourse with a female under the age of fourteen who is not his wife (s. 146(1)); (b) procuring a person to have sexual intercourse with a person who is not his wife, is of previously chaste character and is between fourteen and sixteen years of age (s. 146(2)); (c) procuring a person to commit incest (s. 150); (d) procuring a person to seduce a female person of previously chaste character who is between sixteen and eighteen years of age (s. 151); (e) procuring a person to seduce under promise of marriage an unmarried female person of previously chaste character who is less than twenty‑one years of age (s. 152); (f) procuring a person to have illicit sexual intercourse with a stepdaughter, foster daughter or female ward (s. 153(1)(a)); (g) procuring a person to have illicit sexual intercourse with a female person of previously chaste character and under the age of twenty‑one years who is in his employment or is in a common, but not necessarily similar, employment with him and is, in respect of her employment or work, under or in any way subject to his control or direction or receives her wages or salary directly or indirectly from him (s. 153(1)(b)); (h) procuring a person, being the owner or master of a vessel or a person employed thereon, to seduce or by the exercise of his authority, to have illicit sexual intercourse on board the vessel with a female passenger (s. 154); and (j) procuring a person to commit a sexual assault on another person (ss. 246.1, 246.2 and 246.3). Procuring a person to commit any of the above offences which involve a prohibition of sexual intercourse in certain circumstances, apart from the unlikelihood of its arising in most cases, is already made a criminal offence by s. 22 of the Code. It is highly unlikely that Parliament would have considered s. 195(1)(a) necessary for such a purpose. On this view of the meaning of "illicit sexual intercourse" there would remain, however, the possibility of making it an offence to procure a female person to have sexual intercourse with another person in any of the above situations. This too, however, would severely limit the application of s. 195(1)(a) and in a manner that would appear to be contrary to an earlier expression of legislative intention. For example, limiting the offence created by s. 195(1)(a) to procuring a female person under the age of fourteen years or between fourteen and sixteen years of age to have sexual intercourse with another person (s. 146(1) and (2)) would not only severely limit the extent to which s. 195(1)(a) could apply to the kind of procuring to which it is obviously directed, but would be contrary to the legislative intention earlier evidenced by the removal of the age limit that was formerly in the provision which is now s. 195(1)(a). (Cf. s. 185(a) of The Criminal Code, 1892, referred to above).

Finally, giving the word "illicit" the restricted meaning suggested would seriously restrict or compromise the application of the other provisions of the Code for the protection of girls and women in which the words "illicit sexual intercourse" are used. I have referred to three of them: s. 153(1)(a), which makes it a criminal offence to have illicit sexual intercourse with a stepdaughter, foster daughter or female ward; s. 153(1)(b), which makes it a criminal offence for a person to have illicit sexual intercourse with a female person of previously chaste character and under the age of twenty‑one years who is in his employment or is in a common, but not necessarily similar, employment with him and is, in respect of her employment or work, under or in any way subject to his control or direction or receives her wages or salary directly or indirectly from him; and s. 154, which makes it a criminal offence for an owner or master of a vessel or a person employed thereon, to seduce or, by the exercise of his authority, have illicit sexual intercourse on board the vessel with a female passenger. To these may be added the following provisions: s. 166(a), which makes it a criminal offence for a parent or guardian of a female person to procure her to have illicit sexual intercourse with a person other than the procurer; and s. 167, which makes it a criminal offence for the owner, occupier or manager of premises, or one having control thereof or assisting in the management or control thereof, to permit a female person under the age of eighteen to resort to or to be in or upon the premises for the purpose of having illicit sexual intercourse with a particular male person or with male persons generally. Parliament cannot have intended that these offences should be limited to cases in which the resulting sexual intercourse is otherwise prohibited by the Criminal Code . This is particularly unthinkable, for example, of the offence of having illicit sexual intercourse with a stepdaughter, foster daughter or female ward.

It may be noted that in s. 146 the Code does not find it necessary to use the word "illicit" to qualify the words "sexual intercourse" where what is specifically prohibited is having sexual intercourse with a female person under the age of fourteen who is not one's wife. It is also of interest to note the change made by New Zealand legislation in the provision which corresponds to s. 195(1)(a) of the Code. Section 218 of the New Zealand Crimes Act 1908 (N.Z.), No. 32, provided: "Every one is liable to two years' imprisonment...who, from motives of lucre, by false pretences, or false representations, or other fraudulent means, procures any woman or girl under the age of twenty‑one years to have illicit carnal connection with any man." It was replaced by s. 149 of the Crimes Act 1961 (N.Z.), No. 43, which reads: "Every one is liable to imprisonment for a term not exceeding five years who, for gain or reward, procures or agrees or offers to procure any woman or girl to have sexual intercourse with any male who is not her husband." This reflects, I think, what has been traditionally and generally understood by the word "unlawful" or "illicit" in this context.

For the foregoing reasons I am of the respectful opinion that the Court of Appeal did not err in holding that the sexual intercourse contemplated by the appellant would be "illicit sexual intercourse" within s. 195(1)(a) of the Code.

III

I turn now to the question whether the acts or statements of the appellant could, as a matter of law, constitute the actus reus of an attempt to procure a person to have illicit sexual intercourse with another person, contrary to s. 195(1)(a) of the Code. The general provision of the Code defining the constituent elements of an attempt to commit an offence is s. 24, which provides:

24. (1) Every one who, having an intent to commit an offence, does or omits to do anything for the purpose of carrying out his intention is guilty of an attempt to commit the offence whether or not it was possible under the circumstances to commit the offence.

(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.

The issue is whether, if there was the necessary intent, the acts of the appellant were mere preparation to commit the offence of procuring a person to have illicit sexual intercourse with another person or whether any of them was a step in the commission of the offence, and the extent to which that distinction is to turn on the relative remoteness of the act in question from what would have been the completion of the offence. This issue, as s. 24 indicates, is a question of law. The appellant contends that the Court of Appeal erred in holding that one of the acts of the appellant could, if there was the necessary intent, constitute the actus reus of an attempt to procure.

The trial judge found that the appellant "intended that the women in question should have sexual relations with prospective customers and clients", but that the acts of the appellant, consisting of the advertisements, the interviews and what was said during the interviews concerning the requirements of the position and the money to be earned, were mere preparation and too remote from the complete offence of procuring to constitute the actus reus of an attempt to procure. He said:

I do not agree with crown counsel that if the accused had offered employment to the women that the full offence of procuring would be made out. While it is unnecessary for me to decide the issue, it would seem to me that if an offer of employment had been accepted by the women, then the full offence of procuring would have been established. I am of the view that had there been an offer of employment to the women in question, then an attempt to procure would have been established by the crown.The placement of the advertisements in the paper cannot, standing by itself, be considered as anything other than mere preparation. It is too remote towards the commission of the offence. Likewise, in my judgment, so is the interview considered solely in the light of the job specifications. An explanation of what the applicant would be required to do does not constitute an attempt to cause or induce a status or act prohibited by Section 195. The professed rewards attendant upon such a status or act cannot in my judgment constitute an act going beyond mere preparation, unless the position was offered to the applicant. The allure of the rewards remains in the area of preparation. Had the position been offered to the applicant, then there would be an act immediately connected with the commission of the offence, although it would not necessarily be the last act in the accused's attempt, but absent such an offer, as a question of law, the interviews and the contents of them remain, in my judgment, preparation only. I consider that the interview and its content was an act remotely leading to the commission of the offence, and was not an act immediately connected with it, nor sufficiently proximate to it so as to constitute an attempt; the latter language being used by the Ontario Court of Appeal in the case of Sorrell and Bondett which was decided in 1978 and is reported in 41 C.C.C. (2d) at p. 9.

The Court of Appeal held that the trial judge had not made a finding as to whether the appellant had the requisite mens rea or intent to commit the offence of procuring, but that the holding out of large financial rewards in the course of the interviews could, as a matter of law, constitute the actus reus of an attempt to procure. Martin J.A. said at p. 50:

The trial judge, as previously mentioned, found that the respondent intended that "the women in question" should have sexual intercourse with clients or potential clients if necessary to obtain a contract. I interpret that finding in its context as a finding that the respondent in the interviews with the three young women who answered the advertisement and with Constable Barkey did state and meant to state that the position required them to have sexual intercourse with clients or potential clients, and further that he contemplated that such sexual intercourse would take place as incidental to the employment. The trial judge made no finding that the respondent endeavoured to persuade the applicants to take the job and it is, I think, clear on the evidence that the respondent did not expressly attempt to persuade them to take such employment and indeed the trial judge found that the respondent had never offered the position to any of them. The holding out of large financial rewards in the context of the interviews was capable, however, not only of providing evidence of an intention to induce the applicants to become so employed, but was also capable of constituting the actus reus of an attempt to procure the applicants to have illicit sexual intercourse contrary to s. 195.

Martin J.A. expressed his conclusions on this issue as follows at pp. 56‑57:

Notwithstanding the cases which hold that an invitation or an act of persuasion may constitute an attempt to procure, I think it is possible to imagine cases where an act of persuasion or the holding out of an inducement to a woman to have sexual intercourse with another at some remote time in the future and subject to contingencies which might never occur, would be too remote from the actual procurement of illicit sexual intercourse to constitute an attempt to procure. I think, however, that in this case there was evidence upon which it would be open to a court to find that the respondent by holding out the lure of large financial rewards intended to induce the women in question to accept employment involving sexual intercourse with clients or potential clients if necessary to further his business interests and that the respondent contemplated that such sexual intercourse would be required and would occur as a normal incident of the employment. If the trial judge made those findings it would be open to him to find that the respondent had attempted to procure the women in question to have illicit sexual intercourse with another person. On the other hand, if the respondent never intended to offer the employment to the women in question, that would, of course, negative an intention to induce them to have illicit sexual intercourse with another person. These are issues of fact entirely within the province of the trial judge. The respondent's liability for attempting to procure the women for the proscribed purpose was not dependent, however, on whether he had formally offered them the job. The holding out of the financial rewards with the requisite intent to persuade the women to have illicit sexual intercourse with clients or prospective clients was itself sufficient to constitute the actus reus of an attempt to procure the women in question to have illicit sexual intercourse with another person.

Several different tests for determining whether there is the actus reus of attempt, as distinct from mere preparation to commit an offence, have been identified as reflected at one time or another in judicial decisions and legislation. All of them have been pronounced by academic commentators to be unsatisfactory in some degree. For a thorough analysis of the various tests, with suggestions for an improved test, see Meehan, The Law of Criminal Attempt‑‑A Treatise, 1984, chapter 5, and Stuart, Canadian Criminal Law, 1982, pp. 529 ff. There is a succinct appraisal of the various tests in the English Law Commission's Report No. 102 of 1980 entitled, Criminal Law: Attempt, and Impossibility in relation to Attempt, Conspiracy and Incitement. It has been frequently observed that no satisfactory general criterion has been, or can be, formulated for drawing the line between preparation and attempt, and that the application of this distinction to the facts of a particular case must be left to common sense judgment. See, for example, Kelley v. Hart (1934), 61 C.C.C. 364, per McGillivray J.A. at p. 370; R. v. Brown, [1947] O.W.N. 419, per Laidlaw J.A. at p. 421; R. v. Cline (1956), 115 C.C.C. 18, per Laidlaw J.A. at p. 26; and Haughton v. Smith, [1975] A.C. 476, per Lord Reid at p. 499. Despite academic appeals for greater clarity and certainty in this area of the law I find myself in essential agreement with this conclusion.

In my opinion the distinction between preparation and attempt is essentially a qualitative one, involving the relationship between the nature and quality of the act in question and the nature of the complete offence, although consideration must necessarily be given, in making that qualitative distinction, to the relative proximity of the act in question to what would have been the completed offence, in terms of time, location and acts under the control of the accused remaining to be accomplished. I find that view to be compatible with what has been said about the actus reus of attempt in this Court and in other Canadian decisions that should be treated as authoritative on this question.

The most recent expression of opinion in this Court on what constitutes an attempt to commit an offence is the judgment in R. v. Ancio, [1984] 1 S.C.R. 225, where the issue was the intent required for attempted murder. McIntyre J., in the course of a review of the development of the law of attempt, said with reference to the mens rea and the actus reus of attempt at p. 247:

As with any other crime, the Crown must prove a mens rea, that is, the intent to commit the offence in question and the actus reus, that is, some step towards the commission of the offence attempted going beyond mere acts of preparation. Of the two elements the more significant is the mens rea.

McIntyre J. referred with approval to the judgment of Laidlaw J.A. in R. v. Cline, supra, particularly for what it said concerning the relative importance of mens rea in attempt, but that judgment has also been treated as helpful for what it said concerning the application of the distinction between preparation and attempt. With reference to this question Laidlaw J.A. said at p. 28:

The consummation of a crime usually comprises a series of acts which have their genesis in an idea to do a criminal act; the idea develops to a decision to do that act; a plan may be made for putting that decision into effect; the next step may be preparation only for carrying out the intention and plan; but when that preparation is in fact fully completed, the next step in the series of acts done by the accused for the purpose and with the intention of committing the crime as planned cannot, in my opinion, be regarded as remote in its connection with that crime. The connection is in fact proximate.

Laidlaw J.A. offered six propositions by way of guidance for determination of the requisite mens rea and actus reus of attempt, the last two of which, with reference to the actus reus, are as follows:

(5) The actus reus must be more than mere preparation to commit a crime. But (6) when the preparation to commit a crime is in fact fully complete and ended, the next step done by the accused for the purpose and with the intention of committing a specific crime constitutes an actus reus sufficient in law to establish a criminal attempt to commit that crime.

The extent to which some version of the proximity test, which was formulated in R. v. Eagleton (1854), Dears. C.C. 376 (C.C.R.), and applied in the much‑criticized case of R. v. Robinson, [1915] 2 K.B. 342 (C.C.A.), as a "last step" or "last stage" test (cf. English Law Commission, op. cit., pp. 335‑36), is to be applied in drawing the distinction between preparation and attempt has also been the subject of commentary in this Court. In Henderson v. The King, [1948] S.C.R. 226, where one of the issues was whether there had been an attempt to rob a bank, Estey J., who was one of the majority holding that there had been an attempt, said at p. 244:

Counsel for the accused referred to a number of cases in which the attempted crime was either against the person or that of obtaining by false pretences. He contended that any act not "immediately connected with" the completed crime would be too remote to constitute an attempt. Even under the cases which he cited the accused may still have one or more acts to do, and these may be separated by an intervening period of time, in order to complete the offence and yet may be guilty of an attempt.

Among the cases referred to by Estey J. in support of this statement were R. v. Cheeseman (1862), Le. & Ca. 140, 169 E.R. 1337, where Blackburn J. said at p. 1339, "But, if the actual transaction has commenced which would have ended in the crime if not interrupted, there is clearly an attempt to commit the crime", and R. v. White, [1910] 2 K.B. 124, where Bray J. said at p. 130: "...the completion or attempted completion of one of a series of acts intended by a man to result in killing is an attempt to murder even although this completed act would not, unless followed by other acts, result in killing. It might be the beginning of the attempt, but would none the less be an attempt." Taschereau J., dissenting, in Henderson, although he differed in the result, would not appear to have applied a different concept of proximity. He said, after referring to the authorities, including Eagleton and Robinson, at pp. 234‑35:

Although it may be said that no one could doubt the express purpose of the bandits, I do not believe that it can be held that the mere fact of going to the place where the contemplated crime is to be committed, constitutes an attempt. There must be a closer relation between the victim and the author of the crime; there must be an act done which displays not only a preparation for an attempt, but a commencement of execution, a step in the commission of the actual crime itself.

In Detering v. The Queen, [1982] 2 S.C.R. 583, which involved a conviction for attempted fraud, Laskin C.J. raised a question, as I read his reasons, as to the weight to be given to the proximity test in the essential task under s. 24 of the Code of distinguishing between preparation and attempt. With reference to the contention of counsel that "proximity was an essential requirement in the sense, to put it generally, that the actions of the accused must go beyond mere preparation and close (a question of degree) to the realization of his purpose", Laskin C.J. said at p. 586:

This leaves for consideration the so‑called proximity principle. It may well be that this is envisaged by the reference to remoteness in s. 24(2), but I do not see that it advances the essential issue in attempt which requires going beyond mere preparation. Nor do I find cogency in the appellant's submission that if there is impossibility this does not bring any act of the accused closer to realization so as to establish proximity. I read s. 24(1) as making a different distinction, one merely requiring proof of intent and of accused going beyond mere preparation by making, as in this case, a false representation even though not resulting in full realization of his objective.

In my opinion, relative proximity may give an act which might otherwise appear to be mere preparation the quality of attempt. That is reflected, I think, in the conclusion of the majority in Henderson and in the conclusion of the Ontario Court of Appeal with respect to actus reus in R. v. Sorrell and Bondett (1978), 41 C.C.C. (2d) 9. But an act which on its face is an act of commission does not lose its quality as the actus reus of attempt because further acts were required or because a significant period of time may have elapsed before the completion of the offence.

In the case at bar the Court of Appeal agreed with the trial judge on the applicable meaning of "procure". The meaning selected by the trial judge and approved by the Court of Appeal was "to cause, or to induce, or to have a persuasive effect upon the conduct that is alleged." Martin J.A. expressed his agreement at p. 49 with the following statement of the issue by the trial judge: "The question for decision is did Mr. Deutsch attempt to cause or attempt to induce or attempt to have a persuasive effect upon the woman in question to have illicit sexual intercourse with another person...." I agree that the sources referred to by the trial judge and Martin J.A. support the meaning given by them to the word "procure".

The Court of Appeal differed with the trial judge as to what would have constituted the completed offence of procuring a person to have illicit sexual intercourse with another person. The trial judge held that the offence of procuring would have been completed, in the particular context of this case, by the acceptance of an offer of employment. The Court of Appeal held, citing R. v. Johnson (1963), 48 Cr.App.R. 25, and R. v. Gruba, [1969] 2 C.C.C. 365, that the offence of procuring a person to have illicit sexual intercourse with another person is not committed unless sexual intercourse actually takes place. In the appeal to this Court the respondent accepted this statement of the law as to what is required for the complete offence of procuring a person to have illicit sexual intercourse with another person. It was not challenged, and I accept it for purposes of deciding whether the acts of the appellant could, as a matter of law, constitute the actus reus of an attempt to procure.

I agree with the Court of Appeal that if the appellant had the necessary intent to induce or persuade the women to seek employment that would require them to have sexual intercourse with prospective clients then the holding out of the large financial rewards in the course of the interviews, in which the necessity of having sexual intercourse with prospective clients was disclosed, could constitute the actus reus of an attempt to procure. It would clearly be a step, and an important step, in the commission of the offence. Before an offer of employment could be made in such circumstances an applicant would have to seek the position, despite its special requirement. Thus such inducement or persuasion would be the decisive act in the procuring. There would be little else that the appellant would be required to do towards the completion of the offence other than to make the formal offer of employment. I am further of the opinion that the holding out of the large financial rewards in the course of the interviews would not lose its quality as a step in the commission of the offence, and thus as an actus reus of attempt, because a considerable period of time might elapse before a person engaged for the position had sexual intercourse with prospective clients or because of the otherwise contingent nature of such sexual intercourse.

For these reasons I would dismiss the appeal. I agree with the Court of Appeal that because the trial judge did not make a finding as to whether or not there was the necessary intent to procure there must be a new trial.

The following are the reasons delivered by

Lamer J.‑‑I agree with the reasons of my brother Le Dain. In concurring in his judgment, I should like to add a brief comment. While I agree with the scope of his definition of the expression "illicit sexual intercourse" I should like to underline the fact that this agreement is to the extent those words are resorted to in the context of the procuring or soliciting thereof in s. 195(1) (a) of the Criminal Code . While under the facts of this case it is clear that Deutsch was acting for the purpose of gain, and there is no need to address the question whether such a purpose is an essential ingredient of the notion of procuring or soliciting, I should say that my accepting such a wide definition of "illicit sexual intercourse" is dependent upon being of the view (and if and as long as that view prevails) that it is an essential ingredient of "procuring" or of "soliciting" under s. 195(1)(a) that what is being done is done for lucre, gain, or some advantage to the accused.