Modes of Participation Flashcards
S. 21 of the Criminal Code allows for a variety of ways of participating in criminal offences. They are?
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
What case law has taught us that “Perpetrators, aiders, and abettors are equally liable.”?
Briscoe, 2011
To actually commit an offence the accused generally must be physically present at the scene of the offence, with what exception?
Constructive presence (Innocent agent- using someone else to commit an offence)
Which case is an example of constructive presence/ innocent agent and what were the details?
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)
AR & MR components for aiding and abetting
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.”
AR & MR components for aiding and abetting Dunlop & Sylvester, 1979
Requires a positive act or an omission where a legal duty exists.
Accused must actually aid or abet the commission of the offence
AR & MR components for aiding and abetting R. v. Dooley
“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”
MR component aiding & abetting
Crown must prove that the accused INTENDED to aid/abet the commission of the offence.
Higher MR requirement for aiding & abetting murder.
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.
Knowledge rule for Aiding
Primary rule that accused must know the principal’s “general purpose.”
Sufficient level of knowledge = general purpose.
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?
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.
Abetting AR & MR
AR (intended to encourage) & MR (intended & knowledge).
Common Intention (21(2))
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.
Withdrawal of Common Intention
An accused can withdraw, but must communication intention to withdraw in a “timely & unequivocal” manner
Is recklessness sufficient to establish MR under s.24(1)?
accused persons must act with the purpose of aiding:
this imputes a level knowledge (therefore wilful blindness applies) and intention.
Recklessness is insufficient!
Counselling
s.22(1)
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
AR for Counselling
deliberate encouragement or active inducement of a crime.
MR for Counselling
Is recklessness sufficient for criminal liability?
intent or conscious disregard of the substantial and unjustifiable risk inherent to counselling. (recklessness).
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:
knowledge of commission of a crime;
Or wilful blindness!
Intention to help;
an act or omission to facilitate the escape.
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.
Where principal is underage, is acquitted, or unfit to stand trial, parties can still be convicted.
Inchoate Offences
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.
Defining “to counsel”
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.
MR requirement for Counselling
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.
MR for Attempts
Often carries a higher level of intention than the completed offence.
Intention can be inferred from the circumstances.
AR of Attempts
Key issue: remoteness/proximate to offence?
Must have preparation and then some act (not necessarily a criminal offence) towards the ultimate offence.
Elements of Conspiracy
An agreement for a common purpose
Between at least two persons
To commit a criminal offence.
AR of Conspiracy
The making of an agreement
Can not conspire with yourself
MR of Conspiracy
Wilful blindness not enough; must have subjective intention to be a part of the conspiracy.
Conspiracy with undercover cop not possible.
