Class 9: Parties to a Crime, Counselling, Abandonment, Accessory After the Fact 100%

Question 1

What is the definition of “aiding” in a criminal context?

Whats the key word?

Answer 1

“Aiding” - a person may be found guilty of an offence because he helped somebody else to commit it. We describe those who “help” others commit crimes as aiders.

Help.

Question 2

If a crime is of specific intent, to prosecute someone as a party, what needs to the shown?

Answer 2

That they too had the specific intent needed

Question 3

What is the definition of “abettors” in a criminal context?

Whats the key word?

Answer 3

“Abettors” - Persons who “encourage” others to commit an offence may also be found guilty of the offence they encourage. We describe those who encourage as abettors.

Encourage.

Question 4

Do you need to be both an aider and Abetter to be charged as a party to the crime?

Answer 4

No you do not need both. One is enough.

Question 5

Under Criminal Code Section 21, what is the three ways to determine if someone is a party to an offence?

Answer 5

21 (1) Every one is a party to an offence who

(a) actually commits it;

(b) does or omits to do anything for the purpose of aiding any person to commit it; or

(c) abets any person in committing it.

Question 6

What is “common intention” in the criminal context?

What is this basically?

Answer 6

Basically conspiracy

(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.

Question 7

Dunlop and Sylvester v The Queen

Facts: The complainant stated the accused were two of the men who attacked and raped her. The accused denied the charge. They testified they had attended a meeting of the club at the dump earlier in the evening in question, and later were present in a beverage room where the complainant and a friend were spending some time.

As part of his charge to the jury, the trial judge stated, “To find that the accused is guilty of aiding or abetting the commission of an offence by another person, it is only necessary to show that he understood what was being done and by some act on his part assisted (helped) or encouraged the attainment of that act”.

Based on jury instructions, charges were challenged

Issue:

1) Is mere presence and passive acquiescence enough to be charged for aiding and abetting?

2) Can presence at the common area ever be helpful?

3) Can a person be convicted of aiding and abetting if he didn’t know anything criminal would take place? What is generally required?

4) Does the party need to have knowledge of the specific crime being committed? What do they need to know to be charged?

5) Can someone be charged due to “being at the wrong place a the wrong time” ?

6) If someone is present a the scene of the crime and did not prevent it but also did not encourage it, is he liable?

7) A person who is aware of a rape taking place but does nothing. Is he an accomplice?

Answer 7

Holding:

1) Mere presence at the scene of a crime is not sufficient to ground culpability.

2) Presence at the commission of an offence can be evidence of aiding or abetting only if accompanied by other factors, such as prior knowledge of the principal offender’s intention to commit the offence or attendance for the purpose of encouragement.

3) A person cannot properly be convicted of aiding or abetting in the commis­sion of acts which he does not know may be or are intended. One must be able to infer that the accused had prior knowledge that an offence of the type committed was planned (ex. In the case at bar, that their presence was with knowledge of the intended rape).

4) The party need not necessarily have knowledge of the details of the specific crime committed by the principal, but he must have some knowledge of the essential nature of the offence committed by the principal. For example on a charge of attempted murder, the accused must know of the principal’s intention to kill.

5) Sometimes people just end up at the wrong place at the wrong time. Something more is needed: encouragement of the principal offender; an act which facilitates the commission of the offence, such as keeping watch on, or enticing the victim away, or an act which tends to prevent or hinder interference with accomplishment of the criminal act, such as preventing the intended victim from escaping or being ready to assist the prime culprit.

6) A person is not guilty merely because he is present at the scene of a crime and does nothing to prevent it. If there is no evidence of encouragement, a person’s presence at the scene of the crime will not suffice to render him liable as aider or abettor.

7) A person who, aware of a rape taking place in his presence, looks on and does nothing is not, as a matter of law, an accom­plice. Passive acquiescence is not enough.

Question 8

Hypo:

X and Y are going to go kill someone. X is the killer, Y is the party to the crime. X gets charged with murder as the principle. Y gets charged as the party for murder.

X is charged on a subjective basis and Y is charged on an objective basis.

If the crown proves that Y, who was the party to the crime, should have objectively knew that it was foreseeable that X would kill.

Is this enough for a conviction?

Answer 8

If someone who attempts to kill cannot be convicted unless the Crown proves that he had the specific intent to do so, then he who accompanied the principal cannot be convicted if the Crown merely shows that the attempted murder was objectively foreseeable.

Question 9

A principle who is being charged on a subjective standard.

Can the party to the crime be charged on an objective standard?

Answer 9

In those instances where the principal is held to a mens rea standard of subjective foresight, the party cannot constitutionally be convicted for the same crime on the basis of an objective foreseeability standard

Question 10

Does a person needed to know exactly what crime is being committed to be a party to the crime?

Will any criminal activity be enough?

Answer 10

Yes. You must aid in the encouragement/help in the crime. You must know what specific crime is being committed, but you do not have to know how it will be committed/everything about it.

Knowledge of any criminal activity is not enough

Question 11

Is knowledge of the specific crime required to be prosecuted for a party to a crime?

If not, what is required?

Answer 11

The party need not necessarily have knowledge of the details of the specific crime committed by the principal, but he must have some knowledge of the essential nature of the offence committed by the principal

For example on a charge of attempted murder, the accused must know of the principal’s intention to kill.

Question 12

If someone is convicted as the principle where the crown had to prove specific intent.

Would it be enough to prosecute a party to the principal just on the basis of objective foreseeability.

Answer 12

If someone who attempts to kill cannot be convicted unless the Crown proves that he had the specific intent to do so, then he who accompanied the principal cannot be convicted if the Crown merely shows that the attempted murder was objectively foreseeable.

Question 13

R v Briscoe

Facts: Accused charged with several offences for his participation in kidnapping, rape and murder of young girl . Accused acquitted. Trial judge finding that mens rea for being party to offences not proven because accused did not have requisite knowledge of co‑accused’s intention to commit each crime. Appealed to SCC

Issue: Case holding/issue irrelevant. Answer following questions

1) Does the law charge people differently depending if they are an aider, abettor, or principal?

Basically, can the person who provided the gun be found guilty of the same offence as the person who pulled the trigger?

2) Is the actus reus and mens rea for aiding and abetting basically the same as the offence?

3) What is the actus reus needed for aiding and abetting?

4) Ommiting to do something that resulted in helping another do a crime, is this enough for aiding and abetting (just acts reus)

5) What is the mens rea required for aiding and abetting?

6) What is the two mens rea requirements for aiding and abetting? Define both.

Answer 13

Holding:

1) Canadian criminal law does not distinguish between the principal offender and parties to an offence in determining criminal liability. Section 21(1) of the Criminal Code makes perpetrators, aiders, and abettors equally liable. The person who provides the gun, therefore, may be found guilty of the same offence as the one who pulls the trigger.

2) No. The actus reus and mens rea for aiding or abetting, however, are distinct from those of the principal offence.

3) The actus reus of aiding or abetting is doing (or, in some circumstances, omitting to do) something that assists or encourages the perpetrator to commit the offence. While it is common to speak of aiding and abetting together, the two concepts are distinct, and liability can flow from either one.

4) Doing or omitting to do something that “resulted” in assisting another in committing a crime is not sufficient to attract criminal liability. The aider or abettor must also have the requisite mental state or mens rea.

5) The person must have rendered the assistance for the purpose of aiding the principal offender to commit the crime (that is the mens rea).

6) The mens rea requirement reflected in the word “purpose” has to components:

intent and knowledge.

The Crown must prove that the accused intended to assist the principal in the commission of the offence.

The Court emphasized that “purpose” should not be interpreted as incorporating the notion of “desire” into the fault requirement for party liability.

As for knowledge, in order to have the intention to assist in the commission of an offence, the aider must know that the perpetrator intends to commit the crime, although he or she need not know precisely how it will be committed.

Question 14

For a party to a crime, does the party need to intend that he wanted the offence to be successfully committed?

Answer 14

is therefore not required that the accused desired that the offence be successfully committed.

Question 15

R v Logan

Facts: Hugh Logan, Clive Brown and the respondent Warren Johnson entered a convenience store, wearing masks and armed with revolvers. Hugh Logan shot the lone clerk, Barbara Turnbull, in the neck, causing severe injuries. The cash register was robbed and the men fled.

Principle was charged with attempted murder which is subjective foresight. The party was being charged with an objective standard.

Issue:

1) Is the fact it had an objective component a problem? If so, why is it a problem?

2) The crime was for a specific intent. Does this change anything?

3) Is objectively foreseeable enough? Why not?

Answer 15

Holding:

1) The words “or ought to have known” are inoperative when considering under s. 21(2) whether a person is a party to any offence where it is a constitutional requirement for a conviction that foresight of the consequences be subjective, which is the case for attempted murder.

2 )If someone who attempts to kill cannot be convicted unless the Crown proves that he had the specific intent to do so, then he who accompanied the principal cannot be convicted if the Crown merely shows that the attempted murder was objectively foreseeable.

3) In the case before the court, the crime was one for which the specific intent of the principal had to be shown. In those instances where the principal is held to a mens rea standard of subjective foresight, the party cannot constitutionally be convicted for the same crime on the basis of an objective foreseeability standard.

Question 16

R v Gauthier

Facts: G was charged with being a party, together with her spouse, L, to the murder of their three children. According to the Crown’s theory, G was a party to the murder in planning it as part of a murder suicide pact and in supplying the murder weapon. She did not act to prevent the children from being poisoned with drinks served by her spouse.

One of the arguments presented by her at trial was that she had abandoned the common purpose of killing the children and to have clearly communicated her intention to do so to her spouse

(The so called defence of abandonment)

Issue:

1) What is the four part test for abandonment?

2) What must be met prior to a defence of abandonment being presented? (Think big picture)

Answer 16

Holding:

1) The defence of abandonment may be raised by an accused who is a party to an offence if the evidence shows

1) that there was an intention to abandon or withdraw from the unlawful purpose;

2) that there was timely communication of this abandonment or withdrawal from the person in question to those who wished to continue;

3) that the communication served unequivocal notice upon those who wished to continue; and

4) that the accused took, in a manner proportional to his or her participation in the commission of the planned offence, reasonable steps in the circumstances either to neutralize or otherwise cancel out the effects of his or her participation or to prevent the commission of the offence.

2) The defence of abandonment should be put to the jury only if there is evidence (air of reality) in the record that is capable of supporting a finding that a person who was initially a party to the carrying out of an unlawful purpose subsequently took reasonable steps in the circumstances either to neutralize the effects of his or her participation or to prevent the commission of the offence.

Question 17

R v Jackson

Facts: The appellant and four others were arrested on the site of a secluded marijuana plantation in a remote area of the forest. The entire site was dedicated to the production of marijuana on a commercial scale. It bore no evidence of any legitimate business enterprise, wilderness camping or other recreational activities.

Issue:

1) Is presence enough to be charged for a party to a crime?

Answer 17

Holding:

As the Court made clear in Dunlop v. The Queen, an accused’s mere presence at the scene of a crime in circumstances consistent with innocence will not support a conviction.

The appellant’s presence at the scene of the crime was consistent only with his culpable involvement in the production of marijuana with which he was charged.

Question 18

What does “counsel” mean in the context of the criminal code?

What are some words that counsel can mean?

Answer 18

(3) For the purposes of this Act, counsel includes procure, solicit or incite.

Question 19

What is the test for counselling under the Criminal code?

If you counsel a person to do an offence, are you liable for every offence they commit?

Answer 19

Aiding and abetting

Anything that is reasonably foreseeable.

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, regardless if 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.

Question 20

R v Hamilton

Facts: The accusedsent e‑mails (“teaser emails”) on the Internet to more than 300people, marketing the sale of “Top Secret” files he himself had purchased off a website. The emails advertised software that would enable the purchaser to generate “valid” credit card numbers (credit card number generator). The accused made at least 20sales and the files that were sold, although not the teaser, also included instructions on how to make bombs and how to break into a house.

The accused was charged under s. 464 of the Criminal Code with counselling four indictable offences that were not committed, including fraud. The accused testified that he had seen a computer generated list of the contents of the files but that he had not read the files.

Issue:
1) What is the actus reus needed for counselling?

2) What is the mens rea required for counselling? (What are the two options)

3) Is the mens rea required for counselling a specific offence the same whether or not the offence was actually committed?

4) Is recklessness enough for a mens rea requirement to be charged with counselling?

Answer 20

Holding:

1) The actus reus for counselling is the deliberate encouragement or active inducement of the commission of a criminal offence.

2) And the mens rea consists in nothing less than an accompanying intent or conscious disregard of the substantial and unjustified risk inherent in the counselling: that is, it must be shown that the accused either intended that the offence counselled be committed, or knowingly counselled the commission of the offence while aware of the unjustified risk that the offence counselled was in fact likely to be committed as a result of the accused’s conduct.

3) The mens rea for counselling a specific offence is the same whether or not the offence counselled was actually committed. The requisite mental element requires that the counselor intend the commission of the offence counselled be committed or that the results of his conduct was that the offence would actually be committed.

4) Recklessness sufficient says SCC.

Question 21

What is accessory after the fact in the criminal code mean?

Is this still good law?

Answer 21

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.

it has been repealed.

Question 22

R v Duong

Facts: The accused and L had been friends for some years when L telephoned the accused to ask if the accused would hide him as he was “in trouble for a murder”. The accused had seen media reports which linked L to two homicides. The accused hid L for about two weeks. L pleaded not guilty to two counts of first degree murder and three counts of attempted murder and was convicted after a trial on two counts of second degree murder and two counts of attempted murder.

The accused was charged with being an accessory after the fact to murder.

Issue:

1) Does the crown have to prove that the accessory knew the person they were helping was a party to the specific offence? (murder)

2) Can a crown convict someone for accessory after the fact if that person knew the person they helped did a criminal offence but not the specific offence?

3) Can wilful blindness meet the mens rea requirement?

Answer 22

Holding:

1) The wording of s. 23(1) of the Criminal Code, R.S.C. 1985, c. C-46, must allege the commission of a specific offence (or offences) and the Crown must prove that the accessory actually knew that the person to whom assistance was given was a party to the specific offence alleged.

2) Therefore, where the Crown chooses to charge someone with being an accessory after the fact to murder, it must prove that the accused had actual knowledge that the principal committed a murder, and cannot gain a conviction based on a more generalized knowledge that the principal committed a criminal offence.

3) Wilful blindness suffices. Liability turns on the decision not to inquire once real suspicions arise and not on the hypothetical result of inquiries which were never made. Where an accused chooses to make no inquiries, preferring to remain deliberately ignorant, speculation as to what the accused would have learned had he chosen to make the necessary inquiries is irrelevant to the determination of the blameworthiness of the accused’s state of mind.