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War Crimes and Related Law (Canada)
(February 2008)

Chapter 7 - Ancillary Offences


  1. Overview
  2. Conspiracy
    (a) Definition
    (b) Universal Jurisdiction
    (c) Penalty
  3. Attempt
    (a) Definition
    (b) Penalty
  4. Accessory After-the-Fact
    (a) Definition
    (b) Penalty
  5. Counselling
    (a) Definitions
    (b) Counselling Followed by Primary Offence
    (c) Counselling Alone
    (d) Penalty
  6. "Aiding and Abetting" Explained
    (a) Explained
    (b) Penalty
  7. "Common Intention"
    (a) Explained
    (b) Penalty
  8. Compounding an Indictable Offence

________________________________________

1. Overview

All of the "main" (Ch.5) and "supervisory" (Ch.6) forms of the international crime offences (ie. genocide, crime against humanity, war crimes) may also be committed in their associated "ancillary" forms [CAHWCA 4(1), 5(2.1), 6(1.1), 7(2.1)]. These include: conspiracy, attempt, accessory after-the-fact and counselling.

In addition, there used to be a category of ancillary offence known as accessory before-the-fact, now known as "aiding and abetting". The Criminal Code has now included "aiding and abetting" with all primary offence provisions, effectively putting someone who "aids and abets" in the same legal position as the primary offender. This is explained in more detail below.

There is also a section on a concept of "common intention", which is a similar concept to conspiracy, and a free-standing CC offence of "compounding an indictable offence" which is similar to both aiding and abetting, and to accessory after-the-fact.

Interesting and arcane issues can arise over whether one can "attempt" a conspiracy, or be an "accessory after-the-fact" to counselling an offence. However these are topics beyond the scope of this program.

The penalty (ie. sentence) for the "ancillary" forms of the offences is the same as for the "main" and "supervisory" forms. Thus in most cases the penalty is is a maximum of life imprisonment, with no prescribed minimum (ie. its up to the judge) [CAHWCA 4(2),5(3),6(2),7(4)]. Similarly, where the main offence (on which the ancillary form is predicated) is based on at least one "intentional killing" then the penalty is a mandatory life-sentence [CAHWCA s.4(2),6(2),15(3); CCC 717(2)]. See Ch.10: "Penalties" for a further discussion of sentencing and parole (early release).


2. Conspiracy

(a) Definition

Simply, a criminal "conspiracy" is an agreement between two or more parties to commit ANOTHER criminal offence (the "target" offence). It does not require any positive steps toward the goal (even where the target offence requires an "act", versus an omission), but it does require a mutual intention to commit the target offence.

The closely-related concept of "common intention" is discussed in s.7, below.

(b) Universal Jurisdiction

Conspiracy is unique amongst the ancillary offences in that conspiracy in Canada to commit murder or any other indictable offence (under Canadian law) outside of Canada - that (if committed) would also be an offence in that (foreign) place - is an offence [CCC 465].

For punishment purposes the target offence shall be considered as though it was to be committed within Canada [CCC 465(3)].

This "universal jurisdiction" provision opens the way for prosecution of conspiracy to commit crimes of violence in foreign states, thus allowing the use of "domestic" (ie. non-CAHWCA) law in some international crime fact situations.

(c) Penalty

The penalty for conspiracy is the same as for the "target" offence:
CCC 465
(1) Except where otherwise expressly provided by law, the following provisions apply in respect of conspiracy:
...
(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;

(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.

3. Attempt

(a) Definition

Like conspiracy, "attempt" involves a "target offence". Whenever a party has an intention to commit the target offence AND "does or omits to do" (remember - offences can be committed by acts OR omissions) anything in furtherance of that goal, they have committed the ancillary offence of "attempting" that target offence [CCC 24(1)]. Any impossibility of committing the target offence is irrelevant.

A threshold issue in cases of attempt is at what point in time the 'furthering act or omission' comes into being - as opposed to being only "preparation" - ie. acts or omissions too remote to constitute attempt. For instance, if I take a longer route home from work because it passes a hardware store - where I am thinking about buying an axe to kill my wife with - (but I neither buy the axe nor kill my wife) - am I guilty by that act alone of an attempt, or is it mere preparation? This issue is described as "remoteness" or "proximity", and is a question of law.

(b) Penalty

Where the target offence may be punishable by life imprisonment (all international crimes), the punishment for an "attempt" is a maximum of 14 years imprisonment [CCC 463(a)]. Otherwise it is punishable by half of the penalty of the target offence [CCC 463(b)].


4. Accessory After-the-Fact

(a) Definition

A party is an "accessory after-the-fact" when [CCC 23(1)]:
  • they know that another has committed an offence (the "primary offence"), and

  • they receive, comfort or assist the offender to enable them to escape" justice.
Whether there can be a conviction for the primary offence is irrelevant, but it must have been committed [CCC 23.1].

(b) Penalty

Where the primary offence may be punishable by life imprisonment (all international crimes), the punishment for being an accessory after-the-fact is a maximum of 14 years imprisonment [CCC 463(a)]. Otherwise it is punishable by half of the penalty of the target offence [CCC 463(b)].


5. Counselling

(a) Definitions

There are two forms of the counselling offence, which vary depending on whether the "primary" offence was committed or not committed.

(b) Counselling Followed by Primary Offence

The first form of counselling an offence occurs where a party "procures, solicits or incites" a second party to commit an offence (the "primary" offence), and afterwards the second does so. Whether the primary offence is committed in any specific manner which has been counselled is irrelevant [CCC 22(1)].

Further, if the second commits further offences, the first is also liable for any of those that were foreseeable as a result of the counselling [CCC 22(2)].

Note that under s.22(1) there is no requirement that the counselling CAUSE the primary offence (ie. "afterwards"), but that in s.22(2) there is (ie. "in consequence").

Whether there can be a conviction for the primary offence is irrelevant, but it must have been committed [CCC 23.1].

(c) Counselling Alone

Counselling the commission of a primary offence, even if the primary offence is never committed, is also an offence [CCC 464].

(d) Penalty

A party who counsels an offence - regardless of whether a "primary offence" is later committed, is punishable by the same punishment that applies to the primary offence [CCC 22; 464].


6. "Aiding and Abetting" Explained

(a) Explained

Technically, "abetting" is almost identical to "counselling", in that it comprises instigation or incitement to commit the primary offence. "Aiding", on the other hand, means simply assisting the commission of the primary offence. Both are distinct from "accessory after-the-fact" (see above) in that they are logically committed BEFORE the primary offence is committed.

While the terms are almost universally used in conjunction (ie. "aiding AND abetting"), they are in fact each free-standing ways of committing the primary offence to which the behaviour is directed:
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 [emphasis added]

(c) abets any person in committing it.
As an "ancillary" offence, "aiding and abetting" is different from others discussed above in that it is not a separate charge from the primary offence. While a person might be charged with "being an accessory after-the-fact to common assault", a person who "aided and abetted" it would be charged simply with "common assault".

This distinction, which may not have practical significance in most cases, is due to the wording of CCC 21, which makes those who "aid" or "abet" direct parties to the primary offence.

Whether there can be a conviction for the primary offence is irrelevant to conviction for "aiding and abetting", but it must have been committed [CCC
23.1].

(b) Penalty

As "aiding and abetting" is a parallel way of committing the direct primary offence which a party aids or abets, the penalty is of course the same as that for the primary offence.


7. "Common Intention"

(a) Explained

The Criminal Code makes it an offence to have a "common intention" to commit another, primary offence:
CCC 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.
Therefore, a party commits an offence by way of having a "common intention" where:
  • the party and one or more others form an intention to commit an offence (common purpose);

  • the same parties also have an intention to assist each other therein;

  • one of the other parties commits an offence in furtherance of the common purpose;

  • it was foreseeable by the party that the commission of that offence was a probable result of carrying out the common purpose.
"Common intention" as a basis for criminal liability shares similarities to both "aiding and abetting" and to "conspiracy" (see these above for comparison).

Firstly (like "aiding and abetting"), "common intention" is not a separate "ancillary" offence" or charge from the primary offence. While a person might be charged with "counselling common assault", a person who shared a "common intention" to commit the assault would be charged simply with "common assault". This distinction is due to the wording of CCC 21(2), which makes those who have a "common intention" direct parties to the primary offence.

Secondly (like conspiracy), "common intention" shares the element of: two or more people having a mutual intention to commit a (primary) offence. However it requires the additional elements of: intention for mutual aid, commission of an offence by one of the parties, and foreseeability of the commission of that offence.

Whether there can be a conviction for the "main" offence is irrelevant to conviction under the "common intention" category of offence, but it must have been committed [CCC 23.1].

(b) Penalty

As "common intention" is a parallel way of committing the direct main offence to which the common intention is directed, the penalty is of course the same as that for the main offence.


8. Compounding an Indictable Offence

Anyone who asks for, agrees to receive, or receives valuable consideration for compounding or concealing the commission of an indictable offence is guilty themselves of an indictable offence [CCC 141].

This is a little-used provision. "Compounding" means agreeing not to prosecute (or make a complaint against) a person.
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