Modes of Participation

Question 1

S. 21 of the Criminal Code allows for a variety of ways of participating in criminal offences. They are?

Answer 1

Actually commits the offence (primary)
Aids/abets another to do the offence
Counsels another to commit the offence
Has the “common intention” with the person who actually commits

Question 2

What case law has taught us that “Perpetrators, aiders, and abettors are equally liable.”?

Answer 2

Briscoe, 2011

Question 3

To actually commit an offence the accused generally must be physically present at the scene of the offence, with what exception?

Answer 3

Constructive presence (Innocent agent- using someone else to commit an offence)

Question 4

Which case is an example of constructive presence/ innocent agent and what were the details?

Answer 4

Berryman: passport fraud
Did not physically “make” the passport herself
Court found her presence in the AR was constructed as she acted fraudulently in setting up the person who physically made the passport (innocent agent)

Question 5

AR & MR components for aiding and abetting

Answer 5

Crown must prove that the accused actively aided/abetted and that the accused did so intentionally. “Mere passive acquiescence in the commission of an offence, or mere presence at the scene of a crime does not establish aiding or abetting.”

Question 6

AR & MR components for aiding and abetting Dunlop & Sylvester, 1979

Answer 6

Requires a positive act or an omission where a legal duty exists.
Accused must actually aid or abet the commission of the offence

Question 7

AR & MR components for aiding and abetting R. v. Dooley

Answer 7

“Aiding includes an omission of duty… failure to take steps to protect the child can be viewed as abetting the other parent to harm the child”

Question 8

MR component aiding & abetting

Answer 8

Crown must prove that the accused INTENDED to aid/abet the commission of the offence.

Question 9

Higher MR requirement for aiding & abetting murder.

Answer 9

Subjective foresight of likelihood of death (Martineau).
It is possible to find the aiding accused guilty of manslaughter where Crown cannot prove subjective foreseeability of murder.
Creighton: manslaughter requires objective foreseeability of the risk of non-trivial bodily harm.

Question 10

Knowledge rule for Aiding

Answer 10

Primary rule that accused must know the principal’s “general purpose.”
Sufficient level of knowledge = general purpose.

Question 11

Can someone can be found guilty of an offence when the Crown cannot prove whether the accused is the principal or simply a party to the offence?

Answer 11

SCC: perfectly acceptable to convict in spite of lack of proof whether principal or party (Pickton, 2010; Thatcher, 1987).
S.21
No requirement for Crown to separate principal actors from aiders/abettors as equally liable.

Question 12

Abetting AR & MR

Answer 12

AR (intended to encourage) & MR (intended & knowledge).

Question 13

Common Intention (21(2))

Answer 13

Codifies a long-standing common law principle.
If you set out to commit an unlawful act with another you are responsible for your co-offender’s conduct in committing the offence, as long as you KNEW OR OUGHT TO HAVE KNOWN that the offence would be a probable consequence of the unlawful conduct.
Objective MR unless murder charges.

Question 14

Withdrawal of Common Intention

Answer 14

An accused can withdraw, but must communication intention to withdraw in a “timely & unequivocal” manner

Question 15

Is recklessness sufficient to establish MR under s.24(1)?

Answer 15

accused persons must act with the purpose of aiding:
this imputes a level knowledge (therefore wilful blindness applies) and intention.
Recklessness is insufficient!

Question 16

Counselling

s.22(1)

Answer 16

If accused persons counsel an offence that is ultimately committed, then the counsellor can be convicted in the same way aiders and abettors can be convicted.
Includes advising, recommending, provoking, instigating or persistently request that someone commit an offence.
OBJECTIVE MR UNLESS MURDER CHARGES

Question 17

AR for Counselling

Answer 17

deliberate encouragement or active inducement of a crime.

Question 18

MR for Counselling

Is recklessness sufficient for criminal liability?

Answer 18

intent or conscious disregard of the substantial and unjustifiable risk inherent to counselling. (recklessness).

Question 19

Accessory after the Fact
s. 23(1)
• Anyone who, knowing that a person has been a party to an offence, receives, comforts or assists that person for the purpose of enabling that person to escape.
▫ Must show:

Answer 19

knowledge of commission of a crime;
Or wilful blindness!
Intention to help;
an act or omission to facilitate the escape.

Question 20

Notwithstanding clause
S. 23.1
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.

Answer 20

Where principal is underage, is acquitted, or unfit to stand trial, parties can still be convicted.

Question 21

Inchoate Offences

Answer 21

Includes counselling (s.464), attempting (s.24 &463) and conspiracy (s. 423).
Essentially, it is irrelevant that the act is not committed, prevented or incomplete, liability still ensues.

Question 22

Defining “to counsel”

Answer 22

Actively induce or advocate for a certain course of action.
Crown need not prove anyone was actually influenced.
Renunciation of intention not a defence (Hamilton) as the act is by definition not complete.
AR is complete once an accused counsels someone to commit a crime.

Question 23

MR requirement for Counselling

Answer 23

Must intend the offence to be committed by the person, or be reckless with respect to this outcome.
MR requirement includes a conscious disregard of the substantial and unjustified risk inherent in the counselling.

Question 24

MR for Attempts

Answer 24

Often carries a higher level of intention than the completed offence.
Intention can be inferred from the circumstances.

Question 25

AR of Attempts

Answer 25

Key issue: remoteness/proximate to offence?

Must have preparation and then some act (not necessarily a criminal offence) towards the ultimate offence.

Question 26

Elements of Conspiracy

Answer 26

An agreement for a common purpose
Between at least two persons
To commit a criminal offence.

Question 27

AR of Conspiracy

Answer 27

The making of an agreement

Can not conspire with yourself

Question 28

MR of Conspiracy

Answer 28

Wilful blindness not enough; must have subjective intention to be a part of the conspiracy.
Conspiracy with undercover cop not possible.