DOUBLE INCHOATE CRIMES: SERVING A USEFUL PURPOSE OR DOUBLE TROUBLE? Déry v The Queen; Attorney General of Canada et al, Interveners [2007] 213 CCC (3d) 289 (SCC)

Abstract

Inchoate crimes have been categorized by Husak as either “complex” inchoate crimes, such as attempt, conspiracy or incitement (the equivalent of which is known as “solicitation” in US law, and “counselling” in Canadian law) and “simple” inchoate crimes such as
housebreaking with intent, drunk driving and crimes of possession, where the crime serves as a means to punish an actor before a certain harm has been completed. A combination of inchoate crimes may be referred to as “double inchoate crimes”. Concerns have been expressed about the use of double inchoate crimes to found criminal liability. Whilst a combination of the categories typically does not give rise to difficulties in South African law, and is generally uncontroversial, the question arises whether a combination of complex inchoate crimes is appropriate, particularly in the light of criticism of such formulations in certain jurisdictions (such as Canada and the United States), and statutory restrictions on certain formulations in others (such as England).
This question will be examined in the light of the recent decision of the Canadian Supreme Court decision of R v Déry.