2. Participation Offences

Summary of Participation offences #

Overview #

This summary includes:

1. Counselling

2. Conspiracy

3. Attempts

4. Parties

5. Accessory After the Fact

6. Final Points

1. Counselling: #

Section 22(1) makes a person a party to an offence where they counsel a person to commit an act that is an offence, and that person commits it.

Section 22(2) makes a person a party to an offence where they counsel a person to commit an act that is an offence and the person commits another offence that was reasonably foreseeable from the act counselled. (This allows for a criminal conviction on an objective standard and is thus likely invalid under section 7 in many cases.)

Counselling can be defined as the act of telling, persuading, inciting, procuring, or soliciting another to commit an act that is an offence. (Hamilton)

Section 464 sets out the distinct offence of “counselling an offence that is not committed.” It renders the jeopardy of a person who counsels to be the same as that of an attempt to commit the offence counselled (i.e., half the jeopardy of the indictable offence; the same if it’s summary).

The elements of counselling a crime that is committed: s 22(1) #

Actus reus: active inducement or encouragement to do an act that is an offence + the offence being committed or an offence that is reasonably foreseeable from the act counseled.

Mens rea: the accused intentionally counsels (encourages / induces) and intends that the act be committed or knows that it likely will be. (Janeteas, for both elements)

The elements of counselling a crime that is not committed: s 464 #

Actus reus: active inducement or encouragement of the commission of a criminal offence.

Mens rea: intent that the offence counselled be committed, or knowingly counseling when aware of an unjustified risk that the offence is likely to be committed. (Hamilton for both elements)

(The Court in Hamilton distinguishes the second element of the mens rea from mere recklessness on the basis that it requires an awareness not of the possibility but of the likelihood that the offence will be committed.)

2. Conspiracy: #

Codified in s 465 but defined at common law, ‘conspiracy’ consists in an agreement (tacit or express) between two or more persons to commit an offence. The offence lies in the fact of the agreement and a common intention (between two or more persons) to put the common design into effect. No further acts or elements are necessary.

The actus reus of conspiracy [in a prosecution against a single conspirator] is the fact of the agreement between the accused and one or more other persons to commit an offence and the intention on the part of at least two or more of the parties (including the accused) to carry out the planned offence. (Dynar)

("…[E]ach of the conspirators must have a genuine intention to participate in the agreement." Dynar

The offence is thus unusual in the sense that a co-conspirator’s intention or mental state is part of the AR of the offence against the accused.)

The mens rea is the accused’s intention to enter into the agreement and his or her intention to put the common design into effect. (Dynar)

To convict either or both parties to a conspiracy, the Crown must prove that there was an agreement between two or more, and that both intended to carry it out; mere words by one party (e.g., an undercover officer) would not suffice to establish an agreement. (O' Brien)

There must be a ‘common design’ or some general agreement about the nature of the offence to be committed (“a common purpose of a single enterprise”), though there may be changes to the plan over time. (Cotroni).

A conspiracy is not established simply on the basis of proof of knowledge of the plan, or of participation in it. (i.e., the Crown is required to prove an agreement: an intent, among two or more, to enter into it the scheme and to carry it out.)

3. Attempts: #

Section 24(1) sets out the offence of attempting to commit an offence and renders a person culpable for the offence regardless of whether it was (factually) impossible to it.

Elements of attempt #

Actus reus: going beyond mere preparation to commit the offence. (Deutch)

Mens rea: an intention to commit the predicate offence. (Ancio)

Points from the case law #

On the actus reus:

An act goes “beyond mere preparation” in law when a person takes the first step toward committing the offence after preparation is complete. (Cline)

The question of whether preparation is complete is qualitative, with no clear line between mere preparation and attempt; where it is unclear whether preparation was complete, a court should assess the relative proximity of the steps taken to the complete offence, in terms of time, location, and acts to be completed. (Deutsch)

Where actions (possibly amounting to attempt) are, on their face, equivocal, the mens rea for committing the offence (or attempting to) cannot be inferred. (Sorrell and Bondet)

The general attempt provision, section 24(1), precludes as a defence the claim that it was factually impossible to commit the complete offence (reaching into a pocket to steal a wallet that wasn’t there). This left uncertain whether section 24(1) still allows for the defence of legal impossibility (if I tried to steal an umbrella that turned out to be mine, it would not have been a crime in law). The Supreme Court in Dynar held the distinction between these two forms of impossibility to be untenable: they are both essentially forms of factual impossibility.

In place of the distinction between factual and legal impossibility, the SCC in Dynar held that the only relevant distinction to draw here is one between factually impossible offences and ‘imaginary crimes.’ Only the latter are a defence to attempt, distinguished where the fault element in the offence refers to a mens rea not known to Canadian law.

For example*,* where you reach into a pocket to steal a wallet that isn’t there or try to steal an umbrella that happens to be yours, you have the *mens rea* for theft. If you smuggle sugar into Canada **knowing** it to be sugar but believing it to be a crime to ‘import sugar’, you do not have the *mens rea* of an offence under Canadian law.

Points from the case law on the mens rea of attempt:

Where an offence might require a lesser form of mens rea to obtain a conviction for the complete offence (recklessness, knowledge, etc.), a conviction for attempting to commit that offence will require nothing less than the intention to carry out the complete offence (all elements). (Ancio, Williams)

(e.g., murder allows for a conviction where there is either an intent to kill or an intent to do bodily harm that the accused knows is likely to cause death; but for attempted murder, subjective foresight of death will not suffice. A conviction requires an intent to cause death. Similarly, while aggravated assault requires only subjective fault for assault + objective foreseeability of the aggravated consequences (maiming, endangerment, etc.), the offence of ‘attempted aggravated assault’ requires an intent to cause maiming, endangerment, etc.)

4. Parties #

Section 21 renders a person a party to an offence where he or she aids or abets a principal offender (21(1)) or forms an intention in common intention to carry out an unlawful purpose (21(2)).

Aiding means assisting or helping; abetting means encouraging, instigating, or promoting. (Briscoe, Greyeyes)

Elements of Aiding in s. 21(1)(b): #

The Court set these out in Briscoe:

The actus reus of aiding is doing or omitting to do something to assist in the commission of an offence.

The mens rea of aiding has two parts:

a. an intent to assist the principal in committing the offence; and

b. knowledge of the type of offence the principal intends to commit > (but not the precise manner).

Willful blindness may substitute here for knowledge. (Briscoe)

Elements of Abetting in s. 21(1)(c) #

The Court articulated these in Cowan, citing Briscoe:

The actus reus of abetting is doing something or omitting to do something that encourages the principal to commit the offence.

The mens rea is intending to abet the principal in the commission of the offence and knowing that the principal intends to commit the offence.

The Crown need not prove the identity of the principle; they need only prove that someone was abetted. (Cowan)

In the case of murder, a party either aiding or abetting would require the additional element of “knowledge that death is likely.” (Martineau, Kirkness)

In the case of being a party to attempt murder, the mens rea for aiding or abetting would be intending to do something to aid or abet and knowledge that the principal will likely do something with the intent to kill. (Drawing from Logan on knowledge for attempt murder under 21(2).)

Points from the case law on s. 21(1) #

A person neither aids nor abets a crime for being merely present at the scene of a crime in circumstances consistent with innocence. Nor do they become a party for failing to prevent a crime, so long as they are not under a duty to act. (Dunlop and Sylvester, Jackson)

Aiding or abetting require more than mere presence. This can include encouragement, facilitation (keeping watch, holding victim down), or preventing interference with the criminal act. (Dunlop and Sylvester)

Presence may amount to aiding or abetting where a person had prior knowledge of the principal’s intent to commit the offence or where they attended for the purpose of encouraging. (Dunlop and Sylvester)

A person’s presence may also support a finding of aiding or abetting based on the totality of factors including the accused’s apprehension at the scene, the Court’s rejection of his explanation for being there, the nature of the offence, the context in which it was committed, or other circumstantial evidence of guilt. (Jackson)

A court may convict a person as a party where the elements of the offence under s. 21(1)(a),(b), or (c) or 21(2) can be established, even though the identity of the principal is unknown, or the precise role played by the party and the principal in the commission of the offence is unclear. (Thatcher)

In such a case, the jury need not be unanimous as to whether the accused was a party or a principal, so long as jury members are in agreement that the evidence proves BARD that he was one or the other. (Thatcher)

A person who aids or abets only a purchaser cannot be convicted as a party to trafficking under section 5 of the Controlled Drugs and Substances Act. But a person who aids both a purchaser and a seller, can be found guilty of being a party to trafficking – even though she worked primarily with or on behalf of the purchaser. (Greyeyes)

Common intent, s. 21(2): #

Under section 21(2), where a person forms an intention in common with another person to carry out an unlawful purpose (an act that is a criminal offence) and to assist the other person in carrying it out, he or she is liable (as a party) for offences committed by the other person that he or she knew or ought to have known would be a probable consequence of carrying out the common purpose.

Actus reus: forming of an intent in common to carry out an unlawful purpose (a criminal act) and to assist each other in carrying it out, along with the offence being carried out or any reasonably foreseeable offence (or lesser included offence).

Mens rea: an intention to carry out the unlawful purpose and to assist the other person(s) therein, along with knowledge or objective foreseeability that the (actual) offence would be carried out. (Hibbert)

The objective element of the mens rea in 21(2) does not apply to a party to a murder or attempt murder. (A conviction based on objective mens rea in the case of murder or attempt murder violates section 7: Martineau, Logan.)

The mens rea for murder under 21(2) is the same as is set out above, except the knowledge element would be: knowledge that death would likely result from the unlawful purpose that two or more parties intend to carry out. (Martineau, Logan)

In the case of being a party to attempt murder under 21(2), the mens rea is: forming an intent to carry out an unlawful purpose + an intent to assist another therein + knowledge that the principal will likely do something with the intent to kill. (Logan)

A person charged as a party to murder or attempt murder under section 21(2) may be liable for a lesser included offence such as manslaughter or assault (i.e., if they intended to carry out an act that gives rise to the reasonable possibility of causing bodily harm beyond the trivial or transitory: Creighton, Logan).

5. Accessory after the fact #

Section 23 makes it an offence to receive, comfort, or assist a person that one knows has been a party to an offence for purpose of enabling them to escape.

Actus reus: receiving, comforting, or assisting a fugitive.

Mens rea has two components:

i. subjective knowledge that the fugitive has been a party to an offence; and

ii. assisting the fugitive for the purpose of helping him escape.

Willful blindness may serve as a substitute for the knowledge element here. (Duong)

The actus reus requires a positive act (receiving, comforting, etc.) rather than just a failure to inform authorities about a fugitive’s whereabouts. (Dumont)

Advising a fugitive that police had their names and licence numbers is sufficient for the actus reus. (Young, QCA)

It will not suffice to prove that acts of assistance had the effect of helping a fugitive to escape; the Crown must also prove that they were done for this purpose. (McVay)

To establish that the fugitive ‘has been a party to an offence’, the Crown must prove that the fugitive has committed the actus reus of that offence. (R v. S(FJ))1

The accused can be convicted of being an accessory after the fact even if the principal was acquitted. (s. 23.1 and Shalaan, SCC 1998)

6. Final points: #

A person accused as a party to an offence or to attempting an offence may invoke the doctrine of abandonment to raise a doubt as to whether they had the requisite mens rea or whether they committed the actus reus (depending on the facts). In the case of attempt, the accused must abandon before they have moved ‘beyond mere preparation’.2

Test for abandoment involving a party #

In R v Gauthier, the SCC set out a four-part test for when a party has abandoned an offence: the accused must establish an an air of reality that they:

(i) had an intent to withdraw;

(ii) gave timely notice to the principal(s);

(iii) gave unequivocal notice; and

(iv) took reasonable steps to neutralize or cancel out the effective of their participation in a manner proportionate to their involvement in the offence.

Once the evidentiary burden is met for each element of this test, the Crown has the (persuasive) burden to establish BARD that one or more element does not apply.

Where the principal cannot be convicted: s 23.1 #

Section 23.1 of the Code states that a person may be convicted under sections 21 to 23 (i.e., as a party for aiding, abetting, forming an intention in common; for counselling; or as an accessory after the fact) despite the fact that the person whom they aid, abet, form an intent in common with, counsel, or assist as an accessory cannot be convicted of the offence.

  1. Section 657.2(2) of the Code states that evidence from a prosecution of another person for the offence is admissible against the accused and “in the absence of evidence to the contrary is proof that the offence was committed.” ↩︎

  2. A principal charged with attempt may also seek to rely on abandonment, but only if they abandon prior to preparation being complete. If so, the defence is indistinguishable from raising a doubt about the actus reus (i.e., whether the accused had taken a step beyond mere preparation). (Manning and Sankoff) ↩︎

© Robert Diab 2023