Modes of Participation in

Crime

(the scope of potential criminal

liability)
 Party Liability
 A number of Criminal Code provisions ensure that
those who assist in or encourage the commission of
criminal offences can be found liable, irrespective of
whether they were physically involved in the actus
reus.

 Generally, these provisions are intended to capture

people acting in concert to commit crimes.

 The required mens rea for party liability will depend

on the particular offence that is alleged to have been
committed (i.e., there are different rules for different
offences)
 Aiding and Abetting

It is not only the person who actually commits

or performs the actus reus (the “principal
offender”) who can be convicted of an offence

“Secondary offenders” are equally liable in

law – those who aid (physically or financially
support) or abet (encourage) the principal
offender who commits the offence

These people are known as “parties” to the

offence
 Aiding and abetting
Criminal Code, s.21 – four parties to offence provisions:
Everyone is party to an offence who
(1)actually commits it, s.21(1)(a) (the principal(s));

(2)does or omits to do anything for purpose of aiding any

person to commit it, s.21(1)(b) (aider(s));
(3)abets any person in committing it, s.21(1)(c)
(abettor(s));

(4)s. 21(2) where two or more persons form an intention in

common to carry out an unlawful purpose and to assist
each other therein, and any one of them in carrying out
the common purpose commits an offence, each of them
who knew or ought to have known commission of offence
would be probable consequence of carrying out common
purpose is party to that offence
 Aiding
Section 21(1)(b) applies to aiders.
A person is a party to a crime as an aider if that person:

Does (or, in the case of a legal duty, omits to do) anything that
helps the principal(s) commit the offence [the conduct
requirement or actus reus]; and

Provides the assistance with the intention of helping the

principal(s) to commit the offence [the fault requirement or mens
rea].

R. v. Maciel 2007 ONCA 196 (aiding and abetting a first degree

murder) and R. v. Hibbert, 1995 SCC (The mental states
specified in ss. 21(1)(b) and 21(2) of the Code are not
susceptible to being "negated" by duress.)
 Aiding and Abetting
Presence at commission of offence can be evidence of
aiding and abetting if accompanied by other factors, such as
• prior knowledge of principal offender’s intention to commit
offence,

• or attendance for purpose of encouragement

but mere presence without anything more is not enough;

• person cannot properly be convicted of aiding and abetting
in commission of acts which he does not know may be or
are intended

R. v. Dunlop and Sylvester, [1979] 2 S.C.R. 881 – gang

sexual assault of victim in isolated area where members of
motorcycle club have party, accused present but otherwise
not participating in the offence were not guilty
 Aiding and Abetting
Omissions will only ground liability where the
accused had a legal duty to act.

R. v. Nixon (1990) C.C.C. (3d) 97 (B.C.C.A.) –

police officer had a duty to protect an inmate from
abuse by other officers.

R. v. Laurencelle 1999 BCCA 511 – Woman

whose residence was used by kidnappers had no
legal duty to intervene, (she did not have control
of the house or the ability to make them leave)
 Abetting
Section 21(1)(c) governs abettors.
Despite its use of the verb “abets”, rather than the more
expansive “does or omits to do anything for the purpose
of abetting”, abetting includes conduct and fault elements
similar to those of aiding.
A person is a party to a crime as an abettor if that person:

• Says or does something that encourages the

principal(s) to commit the offence [the conduct
requirement or actus reus]; and

• Offers the encouragement by words or conduct with

the intention of encouraging the (or, a) principal to
commit the offence [the fault requirement or mens rea].
 Abetting
Traditionally requires presence at the scene but not always. An accused
who is at or near the scene, with the intention of providing acts of
assistance if necessary is more than merely present.

R. v. Aravena, 2015 ONCA 250 (“Bandidos” mass killing, one stood guard
prior to the murders, one was offsite listening to police scanner to monitor
any potential police activity)
*note, this could also be characterized as “aiding”,

Abetting may involve conduct and not words: for example R. v. Barnhardt
2001 BCCA 191 (stolen Jeep example), both accused intended to be
occupants of a vehicle knowing that it had been taken without the owner's
consent, presence encouraged the continued possession.

Trier of fact need not decide whether accused was principal offender or
party, only whether guilt on one or the other bases is established: R. v.
 Unlawful common purpose

21(2) Where two or more persons form an

intention in common to carry out an unlawful
purpose and to assist each other therein and
any one of them, in carrying out the common
purpose, commits an offence, each of them who
knew or ought to have known that the
commission of the offence would be a probable
consequence of carrying out the common
purpose is a party to that offence.
 Unlawful common purpose
s. 21(2)

Section applies to multiple offenders who agree to

commit a particular offence and to further offences that
a reasonable person would know was a likely outcome
of the main offence (e.g. stealing a getaway car in aid
of a bank robbery)

 the purpose is to deter joint criminal enterprises and to

encourage persons who do participate to ensure that
their accomplices do not commit offences beyond the
planned unlawful purpose.
 21(2) – constitutional requirements
(cont.)
 R. v. Logan, [1990] 2 S.C.R. 731 – accused convicted of
attempted murder, during robbery one of group shot and
severely injured another, accused admits being one of
robbers but states he had no intention to shoot, no prior
discussion concerning use of guns

 because of the importance of the legislative purpose, the

objective component of s. 21(2) can be justified with
respect to most offences. However, with respect to the
few offences for which the Charter requires subjective
intent (i.e., murder), the stigma renders the infringement
too serious
 Unlawful common purpose – constitutional
requirements

When principles of fundamental justice require subjective foresight in order

to convict principal of attempted murder, the same minimum degree of mens
rea is constitutionally required to convict a party to offence of attempted
murder.

To the extent s.21(2) allows for conviction of party to offence of attempted

murder on basis of objective foreseeability, its operation implicates s.7 of
Charter

Words “or ought to have known” are judicially interpreted as inoperative

when considering whether a person is a party to an offence under s.21(2),
with a constitutional requirement for foresight of consequences be
subjective, which is case for attempted murder; once words deleted,
remaining section requires, for attempted murder, that the party to common
venture knows it is probable that accomplice would do something with intent
to kill in carrying out common purpose
 abandoning common intention

A party under s. 21(2) may abandon the unlawful

common purpose and no longer be responsible for
subsequent offences committed by his or her
accomplices:

 Abandonment requires withdrawal from the

unlawful enterprise and timely communication of this
withdrawal to the other participants where possible.

 Aiders and abettors may also rely on the defence of

abandonment, but must not only withdraw from
the offence and give notice, but must act to undo the
effect of their participation in the offence.
 Counselling – a separate form of party liability
Person counselling offence (that is committed)
22. (1) Where a person counsels another person to be a party to
an offence and that other person is afterwards a party to that
offence, the person who counselled is a party to that offence,
notwithstanding that the offence was committed in a way
different from that which was counselled.

(2) Every one who counsels another person to be a party to an

offence is a party to every offence that the other commits in
consequence of the counselling that the person who counselled
knew or ought to have known was likely to be committed in
consequence of the counselling.
(3) For the purposes of this Act, “counsel” includes procure,
solicit or incite.
 counselling
• Accused can be convicted of counseling offences,
whether or not offences counseled are actually
committed (see s. 464 CC)

• Code s. 23.1: for greater certainty, ss.21-23 apply

in respect of accused, notwithstanding the person
who the accused aids or abets, counsels or
procures, or receives, comforts or assists cannot be
convicted of the offence
 Counselling
R. v. Hamilton, 2005 SCC 47 – accused sends “teaser” email
on internet marketing sale of “top secret” files; advertising
software would enable purchaser to generate valid credit
card numbers, instructions include how to make bombs,
break into house; accused charged under s.464 with
counseling indictable offences not committed, including fraud

Actus reus for counseling – deliberate encouragement or

active inducement of commission of criminal offence; mens
rea consists of accompanying intent or conscious disregard
of substantial and unjustified risk inherent in counseling –
must be shown accused either intended offence counseled
be committed, or knowingly counseled commission of
offence while aware of unjustified risk that offence counseled
was in fact likely to be committed as result of accused’s
conduct (para. 29)
 Party may be liable even where principal
cannot be convicted

23.1 For greater certainty, sections 21 to 23 apply in

respect of an accused notwithstanding the fact that
the person whom the accused aids or abets,
counsels or procures or receives, comforts or assists
cannot be convicted of the offence.

Enacted in response to R. v. Richard, Man C.A. 1986

(accused was charged with counselling an 11 year
old to commit an offence, and was convicted because
a child under 12 could not be convicted of an offence)
Attempts
 Attempts
Criminal Code provisions:

S.24 – every one who, having intent to commit

offence, does or omits to do anything for purpose of
carrying out his/her intention, guilty of attempt to
commit offence – whether or not possible to commit
offence

S.239 - attempt to commit murder – stand alone

offence
(same with accessory after fact to murder, s.240)

S.463 - punishment for attempting to commit offence,

being accessory after fact
 Attempts
• Crown must prove mens rea and actus reus – – intent to commit
offence in question, one step towards commission of offence beyond
mere acts of preparation

• R. v. Ancio, [1984] 1 S.C.R. 225 – Relevant mens rea for an attempt is

the intention to commit the offence. Mens rea for murder is intent to kill
or the intent to cause bodily harm likely to cause death and
recklessness about whether death ensues. However, mens rea for
attempted murder is the specific intent to kill  person cannot intend
to commit unintentional killing (accused broke into his wife’s
apartment carrying a loaded shotgun for purposes of forcing her to
leave with him; the gun went off as he was wrestling with her boyfriend
but no one was hit; he was acquitted of attempt murder).

• R. v. Deutsch, [1986] 2 S.C.R. 2 – instructive on when attempt

proceeds far enough to constitute a crime; fact that offence legally
impossible in factual circumstances no defence to attempt charge

• (accused was attempting to procure one person to have sex with a

 attempts
 the distinction between preparation and attempt is essentially a
qualitative one about the nature and quality of the act in question
and the nature of the complete offence,

 consideration must be given to the relative proximity of the act in

question to what would have been the completed offence (consider
time, location and acts under the control of the accused remaining
to be accomplished).

 proximity may give an act, which might otherwise appear to be

mere preparation, the quality of attempt. 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.
 Accused may be convicted of attempting an impossible offence: U.S.A.
Conspiracy
 Conspiracy
465. (1) Except where otherwise expressly provided by law, the following
provisions apply in respect of conspiracy:
(a) every one who conspires with any one to commit murder or to cause
another person to be murdered, whether in Canada or not, is guilty of an
indictable offence and liable to a maximum term of imprisonment for life;
(b) every one who conspires with any one to prosecute a person for an
alleged offence, knowing that he did not commit that offence, is guilty of
an indictable offence and liable
(i) to imprisonment for a term not exceeding ten years, if the alleged
offence is one for which, on conviction, that person would be liable to be
sentenced to imprisonment for life or for a term not exceeding fourteen
years, or
(ii) to imprisonment for a term not exceeding five years, if the alleged
offence is one for which, on conviction, that person would be liable to
imprisonment for less than fourteen years;
(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; and
(d) every one who conspires with any one to commit an offence punishable
on summary conviction is guilty of an offence punishable on summary
conviction.
 Conspiracy
R. v. Alexander and Blake (2005) 206 C.C.C. (3d) 233
(Ont. CA)

Crown must prove meeting of the minds:

[47] It follows from the mutuality of objective

requirement of the actus reus that a conspiracy is not
established merely by proof of knowledge of the
existence of a scheme to commit a crime or by the doing
of acts in furtherance of that scheme. Neither knowledge
of nor participation in a criminal scheme can be equated
with the actus reus of a conspiracy: see R. v.
Lamontagne, (1999), 142 C.C.C. (3d) 561 at 575-76
(Que. C.A.); R. v. Cotroni, supra, at pp. 17-8. Knowledge
and acts in furtherance of a criminal scheme do, however,
provide evidence, particularly where they co-exist, from
 “Attempt” to conspire
Attempt to conspire to commit substantive offence is not offence under
Canadian law – criminal liability does not attach to “fruitless discussions” in
contemplation of substantive crime that is never committed, nor even
attempted by parties to discussion; criminal law does not punish “bad
thoughts” that were abandoned before agreement reached, or attempt made,
to act upon them

R. v. Dery, 2006 SCC 53 – (intercepts caught the two accused “musing”

about stealing liquor – they were charged with conspiracy to commit theft and
acquitted but convicted of attempt”)
 case exposes limits of “piggy-backing’ incomplete forms of liability;
conspiracy case involving theft, stolen property, trial judge finds no
agreement established between parties and finds them not guilty of
conspiracy, however as actions more than merely preparatory to conspiracy,
conviction imposed for attempting to conspire

 Acts that precede a conspiracy are not sufficiently proximate to substantive

offence to warrant criminal sanction – given that conspiracy is essentially
crime of intention, it is difficult to reach further than law of conspiracy
already does – not goal of criminal law to catch all crime “in the egg”;
conspiracies are criminalized when hatched, and only hatched by
 Accessory after the fact
23. (1) An accessory after the fact to an offence is
one who, knowing that a person has been a party
to the offence, receives, comforts or assists that
person for the purpose of enabling that person to
escape.

Actus reus: receive, comfort or assist a person who

has committed a crime (usually murder)

Mens rea: knowledge or willful blindness that the

person assisted has been a party to an offence; &
the intent to help him or her escape.

Accused may be convicted of accessory after the

fact even where principal offender is acquitted: R.
 Criminal organization offences
467.1 (1) “criminal organization” means a group, however
organized, that

(a) is composed of three or more persons in or outside

Canada; and

(b) has as one of its main purposes or main activities the

facilitation or commission of one or more serious offences
that, if committed, would likely result in the direct or indirect
receipt of a material benefit, including a financial benefit,
by the group or by any of the persons who constitute the
group.

Leading case is R. v. Lindsay and Bonnar 2009 ONCA 532

(Hells Angels extortion case)
 Crim org offences
467.11 (1) Every person who, for the purpose of enhancing
the ability of a criminal organization to facilitate or commit
an indictable offence under this or any other Act of
Parliament, knowingly, by act or omission, participates in or
contributes to any activity of the criminal organization is
guilty of an indictable offence and liable to imprisonment for
a term not exceeding five years.

467.12 (1) Every person who commits an indictable offence

under this or any other Act of Parliament for the benefit of,
at the direction of, or in association with, a criminal
organization is guilty of an indictable offence and liable to
imprisonment for a term not exceeding fourteen years.

467.14 A sentence imposed on a person for an offence under

section 467.11, 467.111, 467.12 or 467.13 shall be served
consecutively to any other punishment imposed …