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Criminal - Inchoate Offences
MORE CASES
Part 2
. R. v. Osman
In R. v. Osman (Ont CA, 2025) the Ontario Court of Appeal dismissed a Crown criminal appeal, here "from a directed verdict of acquittal on a charge of being an accessory after the fact to murder".
Here the court considers the tricky issue of whether "attempted murder [is] an included offence to murder" and whether "being an accessory after the fact to attempted murder [is] an included offence to being an accessory after the fact to murder":(iii) Is attempted murder an included offence to murder and is being an accessory after the fact to attempted murder an included offence to being an accessory after the fact to murder?
[71] A central focus of the Crown’s argument in this appeal is the contention that, because Duong 1998 holds that a person charged with being an accessory after the fact to murder can be convicted of being an accessory after the fact to an included offence to murder, if attempted murder is an included offence to murder, then being an accessory after the fact to attempted murder must be an included offence to being an accessory after the fact to murder.
[72] The Crown’s argument relies on two submissions about the relationship between a charge of murder and attempted murder. First, the Crown argues that attempted murder is an included offence to murder pursuant to both s. 660 and s. 662(1) of the Criminal Code. Second, the Crown argues that a conviction for attempted murder is possible even where the victim dies, relying on Sarrazin and Forcillo.
[73] As I will explain, I accept that the offence of attempted murder is included in a count charging murder, in circumstances where s. 660 of the Criminal Code applies. I am also prepared to assume, but do not decide, that attempted murder is an included offence under s. 662(1) by the enactment creating the offence of murder following the analysis in Tenthorey and Simpson (No. 2) for offences that are defined as including multiple means of commission. I also accept that in some cases where the victim dies, there may be an air of reality to an attempted murder verdict in relation to the principal. Where I part company with the Crown is that the jurisprudence is clear that cases in which attempted murder has an air of reality as a verdict for the principal despite the death of the victim are rare. This appeal is not one of those rare cases.
[74] In my view, the Crown seeks to extend the decisions in Sarrazin and Forcillo beyond their holdings and in a manner that is inconsistent with the requirement that an included offence have an air of reality before it is left to the jury.
[75] In both Sarrazin and Forcillo, attempted murder was available as a verdict for the principal because there was a triable issue about whether the causation of the victim’s death by the principal’s acts, an element of murder, was proven beyond a reasonable doubt. As I will explain, such cases are rare.
[76] The same caution extends to the offence of being an accessory after the fact to attempted murder as an included offence to being an accessory after the fact to murder. Pursuant to Duong 1998, as an included offence to murder, attempted murder can be considered as an included offence to the specified offence in a charge of being an accessory after the fact to murder. However, whether there is an air of reality to accessory after the fact to attempted murder will depend on the trial evidence. In practice, such cases will be rare. If there is no dispute on the trial evidence that the actions of the principal caused the death of the victim, there will be no air of reality to the offence of being an accessory after the fact to attempted murder.
(a) Attempted murder as an included offence to murder
[77] Sarrazin holds that s. 660 of the Criminal Code permits a conviction for attempted murder of a person charged with murder.[9] In other words, attempted murder can be an included offence to murder under s. 660.
[78] In Sarrazin, two accused were convicted of second-degree murder. The victim died after being shot by the accused, but there was a live issue on the trial evidence about whether the shooting caused the victim’s death. The accused argued on appeal that the trial judge erred in declining to instruct the jury on attempted murder as an included offence. This court and the Supreme Court of Canada agreed.
[79] Adopting the analysis of Doherty J.A. in this court on the included offence issue, the Supreme Court held that in the circumstances of Sarrazin, attempted murder should have been left to the jury as an included offence because there was medical evidence which could have allowed the jury to have a reasonable doubt about whether the accused caused the victim’s death: at paras. 20-21; Sarrazin CA, at paras. 26-29.
[80] Thus, it is clear from Sarrazin that where a count charges murder, attempted murder is an available verdict under s. 660 of the Criminal Code, and should be left to the jury, if the evidence raises an air of reality to a verdict of attempted murder. Importantly, however, s. 660 permits a conviction for attempted murder only when murder is charged “where the complete commission of the offence charged is not proved”.
[81] I turn then to whether attempted murder is an included offence to murder under s. 662(1) of the Criminal Code. Because of the holding in Sarrazin that attempted murder can, in appropriate cases, be an included offence to murder pursuant to s. 660 of the Criminal Code, it is not necessary to decide whether attempted murder is also an included offence to murder under s. 662(1) by virtue of being included in the enactment that creates the offence of murder.
[82] But I observe that there is force to the Crown’s argument that attempted murder is an included offence by the wording of the enactment creating the offence of a count charging murder, even though not every person who commits murder has the specific intent required for attempted murder. The argument to the contrary rests on the following steps of argument: (i) attempted murder requires the specific intent to kill according to R. v. Ancio, 1984 CanLII 69 (SCC), [1984] 1 S.C.R. 225; (ii) murder as defined in s. 229 of the Criminal Code can be committed either with specific intent to kill or with the intent to cause bodily harm knowing that it is likely to cause death and being reckless as to whether death ensues; (iii) it is thus possible to commit murder without having specific intent to kill, a necessary element to attempted murder; (iv) this means that attempted murder is not “necessarily included” in the enactment creating murder.
[83] However, this chain of reasoning appears to be inconsistent with this court’s explanations in Tenthorey and Simpson (No. 2) of how included offences by the enactment creating the charged offence apply to offences that are defined in the enactment with multiple modes of commission. In the case of murder, a person charged with murder is on notice that the Crown can prove the required intent by proving either specific intent to kill or intent to cause bodily harm knowing that it is likely to cause death and being reckless as to whether death ensues.[10] Thus, where murder is charged, the accused is on notice that the intent required for attempted murder is in issue.
(b) Caution about when an air of reality will exist for attempted murder despite the death of the victim
[84] The fact that attempted murder is available as a verdict where murder is charged under s. 660, and assuming but not deciding that the same is true under s. 662(1), does not mean that attempted murder is available as an included offence in every case where murder is charged. In Sarrazin CA, after holding that s. 660 makes attempted murder an available verdict where murder is charged, Doherty J.A. added the following caution, at para. 62:In summary, s. 660 applies to murder charges. Section 660 puts an accused charged with murder on notice that he or she is in jeopardy of being convicted of attempted murder if the Crown fails to prove the completed offence. I would think that in most murder cases there will be no air of reality to the possibility of a conviction for attempted murder as causation will not be in dispute. In those cases, it will be unnecessary to instruct the jury on the accused’s potential liability for attempted murder. [Emphasis added.] [85] Thus, while attempted murder is available as a verdict where murder is charged, there must be an air of reality on the trial evidence for a trial judge to be required to instruct the jury on it. It is clear from the caution of Doherty J.A. expressed above that where causation of death is not a live issue, it will not be appropriate to leave attempted murder to the jury as an included offence because there will be no air of reality to attempted murder as a verdict. Sarrazin is one of the rare cases where there was an air of reality to an attempted murder verdict despite the death of the victim. That was because causation of death was a live issue on the trial evidence.
[86] I turn next to this court’s decision in Forcillo, which in my view stands for a similarly limited proposition. Forcillo was not a case about included offences. In Forcillo, the Crown laid two counts, one of murder and one of attempted murder. The Crown’s theory in Forcillo was that the accused fired shots at the victim in two volleys, which could be viewed for purposes of liability as separate transactions. The medical evidence supported that the first volley of shots caused the victim’s death, although not immediately. The jury found the accused not guilty of second-degree murder, but guilty of attempted murder. The jury’s verdict indicated that they accepted the accused’s claim of self-defence for the first volley of shots. Based on the medical evidence, the second volley of shots did not cause death. The jury’s verdict indicated that it found the Crown had disproved self-defence beyond a reasonable doubt for the second volley of shots, which were fired when the victim was already lying on the ground after the first volley of shots.
[87] The accused in Forcillo appealed, arguing that the conviction for attempted murder was inconsistent with the acquittal for second-degree murder. The issues on appeal focused on whether the two volleys were properly viewed as separate transactions and the principle of self-defence law that an accused is not required to judge defensive force to a nicety. Those issues are not relevant to this appeal. This court held that the differing verdicts on the two counts were not inconsistent. Implicit in this court’s analysis in Forcillo was an acceptance that attempted murder was available as a verdict despite the fact that the victim died. This was because there was evidence that the victim was still alive at the time of the second volley of shots, and the second volley of shots did not cause the death of the victim, who was fatally injured by one of the shots in the first volley: Forcillo, at para. 3.
[88] As in Sarrazin CA, the court in Forcillo commented on the uniqueness of the factual situation that allowed this result, at para. 8:The combination of verdicts returned by the jury presents an unusual, if not unique, result. The appellant stands acquitted of murdering Mr. Yatim and he stands convicted of attempting to murder Mr. Yatim, some 5.5 seconds later. In effect, the appellant has been convicted of attempting to murder the very same person he was found to have justifiably fatally shot just 5.5 seconds earlier. [89] What is common to Sarrazin and Forcillo is that in both cases, despite the fact that the victim died, the evidence – in particular as it related to cause of death – raised an air of reality with respect to the offence of attempted murder. As Doherty J.A. observed in Sarrazin CA, that is a rare situation in a murder trial.
[90] I would observe that the conclusion in Sarrazin CA that it will be a rare case where there is an air of reality to attempted murder as an included offence to murder is not only consistent with common sense and experience, but also consistent with the limitations in the text of ss. 660 and 662(1) of the Criminal Code with respect to attempts as included offences and included offences more generally. As outlined above, both s. 660 and s. 662(1) contain the limitation that they only apply to create included offences where the offence charged “is not proved”. In Sarrazin, because of the evidence that made causation of death a live issue, it was an error for the trial judge not to leave attempted murder to the jury as an included offence because there was an air of reality to the jury having a reasonable doubt that the acts of the accused caused the death of the victim and thus, a realistic possibility that the jury could find the offence charged (murder) was “not proved”.
(c) Accessory after the fact to attempted murder as an included offence to accessory after the fact to murder
[91] I return to the principle from Duong 1998 that a person charged with being an accessory after the fact to murder can be convicted of being an accessory after the fact to an included offence to murder. The example given in Duong 1998 is that a person charged with being an accessory after the fact to murder can be found liable for being an accessory after the fact to manslaughter. The issue in this appeal is whether the offence of being an accessory after the fact to attempted murder is an included offence to a charge of being an accessory after the fact to murder, where there is no dispute that the principal’s act caused the death of the victim.
[92] In light of my conclusion that attempted murder is an included offence to murder, it follows from Duong 1998 that a person charged with being an accessory after the fact to murder can be liable to be convicted of being an accessory after the fact to attempted murder on the basis that attempted murder is an included offence to murder, at least in circumstances where the evidence would support finding the principal guilty of attempted murder.
[93] The conclusion that attempted murder can be an included offence to murder, and, for that reason, the offence of being an accessory after the fact to attempted murder can be an included offence when the charge is being an accessory after the fact to murder, does not lead to the conclusion that in every case where an accused is charged with being an accessory after the fact to murder, a trial judge must instruct the jury on accessory after the fact to attempted murder as an included offence. A trial judge will be required to instruct a jury on accessory after the fact to attempted murder as an included offence only if there is an air of reality to that offence. The next section of these reasons addresses that issue.
[94] I flag one issue, which I return to below. As noted above, the offence of being an accessory after the fact to murder requires that the acts by the accessory to assist the principal to escape be committed after the victim dies. Consistent with this requirement, a count charging accessory after the fact to murder typically particularizes the count to acts committed by the accessory after the victim has died. This temporal particularization may raise issues of notice to the accused of the actions which are the subject of the charge (i.e., whether the particularization excludes actions before the death of the victim). I address that issue in the last section of these reasons. . R. v. Osman
In R. v. Osman (Ont CA, 2025) the Ontario Court of Appeal dismissed a Crown criminal appeal, here "from a directed verdict of acquittal on a charge of being an accessory after the fact to murder".
Here the court considers "the law in relation to accessory offences in general and being an accessory after the fact to murder in particular":(i) Principles applicable to accessory offences and the offence of being an accessory after the fact to murder
[37] I begin with a review of the law applicable to accessory offences in general and the offence of being an accessory after the fact to murder in particular.
[38] Accessory after the fact offences are offences against the administration of justice. By knowingly assisting the principal to escape, the accessory interferes with the investigation of a criminal offence and the administration of justice: R. v. Wisdom, [1992] O.J. No. 3110 (Gen. Div.), at paras. 27-28.
[39] The penalty provision for the offence of being an accessory after the fact to murder is contained in s. 240 of the Criminal Code. Parliament chose to enact a higher maximum penalty for the offence of being an accessory after the fact to murder – imprisonment for life – than the general penalties for other accessory after the fact offences set out in s. 463.
[40] The conduct that constitutes the offence of being an accessory after the fact to murder is, like other accessory offences, defined by s. 23 of the Criminal Code. Section 23 of the Criminal Code provides as follows: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. [Emphasis added.] [41] In the case of being an accessory after the fact to murder, the elements of the specified offence the accessory is alleged to have assisted the principal to escape are defined by s. 229. The elements of the underlying specified offence are relevant to the knowledge requirement in s. 23 and the requirement for proof that the principal committed the specified offence.
[42] The Crown must prove the following elements to prove a charge of accessory after the fact to murder:1. that the principal[4] committed murder (or, as I explain below, an included offence to murder);
2. that the alleged accessory knew that the principal committed murder (or an included offence);
3. that the accessory provided assistance to the principal; and
4. that the accessory provided assistance for the purpose of helping the principal to escape. See: David Watt, Watt’s Manual of Criminal Jury Instructions, 2024, (Toronto: Thomson Reuters, 2024) at Final 103, p. 443; Duong 1998, at pp. 399-401, and 403; Knott, at pp. 4-5; D. Murray Brown, “Accessory After the Fact”, 2004 National Criminal Law Program: Substantive Criminal Law, Vol. 1, Section 2.5, at pp. 2-3.
[43] Before proceeding further into the jurisprudence on the elements of the offence of accessory after the fact to murder, I pause to outline the legal principle that gives rise to the issue in this appeal.
[44] The parties are in agreement that as an element of the offence of being an accessory after the fact to murder, the Crown must prove that the accessory’s acts that are alleged to have assisted the principal were committed after the victim is dead (combined with proof that the accessory knew about the unlawful killing at the time they assisted the principal). This requirement is explained by Blackstone:The felony must be complete at the time the assistance is given, else it makes not the assistant an accessory. As, if one wounds another mortally, and after the wound given, but before death ensues, a person assists or receives the delinquent; this does not make him accessory to homicide; for till death ensues, there is no felony committed. Commentaries on the Laws of England in Four Books by Sir William Blackstone, 1898, Book Four, p. 1454. See also: Knott, at p. 9; R. v. B.(A.), 1999 CanLII 6762 (B.C.S.C.), at paras. 19-22.
[45] The requirement that the acts be committed after the victim is dead is consistent with the higher penalty for being an accessory after the fact to murder in s. 240 of the Criminal Code, as compared to the general penalty for accessory offences in s. 463: Duong 1998, at p. 399; B.(A.), at para. 22. It is also consistent with the knowledge requirement in s. 23 of the Criminal Code. Section 23 requires that an accessory after the fact commit the acts aiding the principal “knowing” that the principal “has been a party to the offence”. To the extent that actual knowledge is relied on by the Crown to satisfy the mens rea requirement, a person cannot actually know the victim is dead until they are dead. As Cory and Iacobucci JJ. noted in United States of America v. Dynar, 1997 CanLII 359 (SCC), [1997] 2 S.C.R. 462, at para. 41:In the Western legal tradition, knowledge is defined as true belief: “The word ‘know’ refers exclusively to true knowledge; we are not said to ‘know’ something that is not so” (Glanville Williams, Textbook of Criminal Law (2nd ed. 1983), at p. 160). [Emphasis in original.] [46] Wilful blindness can also satisfy the mens rea for accessory offences, but is not relied on by the Crown in this case. Wilful blindness is considered in more detail in the companion appeal of Rashed.
[47] The requirement that the assisting acts must be done after the death of the victim to constitute the offence of being an accessory after the fact to murder gives rise to the issue in the appeal. There is no dispute that the respondent assisted Mr. Khiar to escape from the scene of the shooting. But it is also not in dispute that those acts took place in the immediate aftermath of the shooting, and were completed long before the death of Mr. Teme, which happened three days later. The Crown accepts that because Mr. Teme was still alive when the respondent assisted Mr. Khiar in escaping, the respondent cannot be convicted of accessory after the fact to murder, and that the trial judge was correct in not leaving the full offence to the jury.
[48] The first element of being an accessory after the fact requires the Crown to prove that the principal committed the specified offence (or, as I discuss below, an included offence). Doherty J.A. explained this requirement in Duong 1998:It is usually irrelevant on the trial of an accused that some other person committed a different offence than that charged against the accused. The charge of being an accessory after the fact is, however, an exception to this generalization. To convict an accessory, the Crown must prove that the alleged principal committed the offence set out in the indictment. Here, the appellant could only be convicted if the Crown proved beyond a reasonable doubt that Lam had committed murder: R. v. Anderson (1980), 1980 ABCA 276 (CanLII), 57 C.C.C. (2d) 255 at p. 256 (Alta. C.A.). See also R. v. Dagenais, 2018 ONCA 63, at para. 7.
[49] The knowledge requirement in the second element of the accessory offence requires the Crown to prove that, at the time the accessory provided the assistance to the principal, the accessory knew that the principal had committed the specific offence alleged (or, as I discuss below, an included offence). Knowledge on the part of the accessory that the principal committed some criminal offence is insufficient. I note that the case law in relation to the specific offence requirement focuses on the second element of the accessory offence – the accessory’s knowledge that the principal committed the specified offence. This focus of the case law reflects the practical reality that it is more often the knowledge of the alleged accessory that is in dispute than whether the principal committed the specified offence. However, the requirement that an accessory offence must be proven in relation to a specific offence committed by the principal is equally applicable to the first element of the offence – the requirement that the Crown prove that the principal offender committed the offence.
[50] Doherty J.A. explained the requirement that the accessory knew of the specific offence committed by the principal in Duong 1998, at pp. 399-401:Section 23(1) contemplates aid given to someone who has committed an offence (the principal) by a person who knew that [the] principal had committed that offence when the assistance was provided….
It is significant that the crime of being an accessory after the fact to murder has its own penalty provision (s. 240) which is more severe than the penalty provision applicable to those who are accessories to other crimes (s. 463). This is a further indication that where the Crown chooses to charge someone with being an accessory after the fact to murder, it cannot gain a conviction based on a more generalized knowledge that the principal had committed some crime.
There is little Canadian case law dealing with the knowledge requirement in s. 23(1), perhaps because the language of s. 23(1) is unambiguous….
A charge laid under s. 23(1) must allege the commission of a specific offence (or offences) and the Crown must prove that the alleged accessory knew that the person assisted was a party to that offence. [Emphasis added] [51] The requirements that the Crown prove that the principal committed the specified offence and that a person charged with an accessory offence must have knowledge of the specific offence committed by the principal (as specified in the indictment) are broad enough to cover offences which are included offences to the specified offence. In Duong 1998, at footnote 3, Doherty J.A. noted that it would appear that a person charged with accessory after the fact to murder may be convicted of the included offence of being an accessory after the fact to manslaughter. See also R. v. Webber (1995), 1995 CanLII 333 (BC CA), 102 C.C.C. (3d) 248 (B.C.C.A.), at paras. 16-25; David Watt, “Accessoryship after the Fact: Substantive, Procedural and Evidentiary Considerations” (1981), 21 C.R. (3d) 307, at pp. 318-19.
[52] Based on the fact that accessory after the fact offences are administration of justice offences, and relying on s. 23.1 of the Criminal Code, the Crown argues that the principal’s trial or verdict does not determine the liability of the alleged accessory.
[53] As it relates to accessory offences, s. 23.1 provides that s. 23 applies “in respect of an accused notwithstanding the fact that the person whom the accused … receives, comforts or assists cannot be convicted of the offence.”[5]
[54] I agree that the principal’s verdict does not determine the liability of the alleged accessory.[6] This is clear from the text of s. 23.1 of the Criminal Code. See also R. v. Duong (2001), 2001 CanLII 21276 (ON CA), 160 C.C.C. (3d) 467 (Ont. C.A.), at para. 19. However, I do not accept the Crown’s submission that seeks to divorce the liability of the accessory entirely from that of the principal.
[55] Although accessory offences are administration of justice offences, the liability of the accessory is not freestanding. The liability of the accessory depends on evidence in the accessory’s trial establishing the commission of the specified offence (or an included offence) by the principal. Sections 23.1 and 592 of the Criminal Code provide that the conviction, or even charging, of the principal is not required as a precondition to liability for the accessory. However, those provisions do not have the effect of removing the requirements in the first two elements of accessory after the fact offences that the Crown prove that the principal committed the specified offence (or an included offence) and that, at the time they assisted the principal, the alleged accessory knew that the principal had committed the specified offence (or an included offence): Watt’s Manual of Criminal Jury Instructions, Final 103; Duong 1998 at pp. 399-401, and 403; Watt, “Accessoryship after the Fact”, at pp. 324-25; Don Stuart, Canadian Criminal Law, 8th ed., (Toronto: Thomson Reuters, 2020), at p. 698; D. Murray Brown, “Accessory After the Fact”, at pp. 6-9.
[56] Based on the preceding review of the law, a person charged with being an accessory after the fact to murder can be liable for being an accessory after the fact to an included offence to murder. . R. v. Millard
In R. v. Millard (Ont CA, 2023) the Court of Appeal considered two murder appeals, heard together. In this quote the court considers the mens rea for aiding and abetting first degree murder:E. DID THE TRIAL JUDGE MISDIRECT JURORS ON THE MENS REA ELEMENT OF PLANNED AND DELIBERATE FIRST-DEGREE MURDER FOR AIDERS AND ABETTORS?
[68] The trial judge provided jurors with an instruction that would enable them to convict Mr. Smich of first-degree murder as an aider or abetter to a planned and deliberate murder, even if he himself did not engage in planning the murder or personally deliberate about it. Mr. Smich acknowledges that the trial judge’s jury instruction conforms to this court’s direction in R. v. Sauve and Trudel (2004), 2004 CanLII 9054 (ON CA), 182 C.C.C. (3d) 321 (Ont. C.A.), and R. v. Maciel, 2007 ONCA 196, 219 C.C.C. (3d) 516 (Ont. C.A.), at paras. 78-89, leave to appeal refused, [2007] S.C.C.A. No. 32050, that an aider or abetter will be guilty of first-degree murder if they assist or encourage another in committing a murder that they know the principal planned and premeditated. . R. v. Gong
In R. v. Gong (Ont CA, 2023) the Court of Appeal considers a 'common unlawful purpose' offence under CCC 21(2), an inchoate offence:[30] Section 21(2) of the Criminal Code provides: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. [31] In interpreting and applying s. 21(2), courts have recognized that this section extends liability beyond the party liability described in s. 21(1), where a person may be liable for participating in an offence either as a principal, an aider, or an abettor. Section 21(2) expands party liability for a person who forms an intention together with another to carry out an unlawful purpose, to liability for another offence that is perpetrated by the other person while carrying out the planned unlawful purpose, where the first person knew or should have known that the other person would likely commit the second offence in pursuing the common purpose: R. v. Simon, 2010 ONCA 754, 104 O.R. (3d) 340, at paras. 39-42; R. v. Srun, 2019 ONCA 453, 146 O.R. (3d) 307, at paras. 60-61. Liability for the offence committed in pursuit of the unlawful purpose may thus be extended to persons whose participation in the offence would not be captured by s. 21(1).
[32] There are three components to party liability under s. 21(2) that must be proved by the Crown: 1) agreement – by the party to participate in a common unlawful purpose; 2) offence – another participant commits a different offence while carrying out the original unlawful purpose; 3) knowledge – reasonable foreseeability of the probability of the incidental crime being committed: R. v. Cadeddu, 2013 ONCA 729, 304 C.C.C. (3d) 96, at paras. 53, 61; Simon, at para. 43; Srun, at paras. 61-64.
[33] For manslaughter, as opposed to first or second degree murder, the words “or ought to have known” in s. 21(2) are operative and signify that the objective test for the knowledge requirement for party liability applies. The Crown’s burden is to demonstrate that a reasonable person in all the circumstances knew or ought to have known that a probable consequence of pursuing the common purpose was that bodily harm that is neither trivial nor transitory would be caused to another. A conviction for manslaughter under s. 21(2) does not require foreseeability of death, but only foreseeability of harm that is not trivial or transient: R. v. Jackson, [1993] 4 S.C.R. 573, 1993 CanLII 53, at paras. 32-33; R. v. Creighton, [1993] 3 S.C.R. 3, 1993 CanLII 61, at para. 12. The balance of the case is a useful walk-through of a manslaughter discussion in this 'common unlawful purpose' context.
. R. v. Wheeler
In R. v. Wheeler (Ont CA, 2022) the Court of Appeal characterizes 'inchoate' offences:[23] In R. v. Legare, 2009 SCC 56, [2009] 3 S.C.R. 551, the Supreme Court explained the inchoate offences at para. 25 as follows:It will immediately be seen that s. 172.1(1)(c) creates an incipient or “inchoate” offence, that is, a preparatory crime that captures otherwise legal conduct meant to culminate in the commission of a completed crime. It criminalizes conduct that precedes the commission of the sexual offences to which it refers, and even an attempt to commit them. Nor, indeed, must the offender meet or intend to meet the victim with a view to committing any of the specified secondary offences. This is in keeping with Parliament’s objective to close the cyberspace door before the predator gets in to prey. [Emphasis in original.] . R. v. Cowan
In R. v. Cowan (SCC, 2021) the Supreme Court of Canada considered the inchoate criminal offences of abetting and counselling, which I have always found interesting:[29] For the purposes of determining criminal liability, the Criminal Code does not distinguish between principal offenders and parties to an offence (R. v. Briscoe, 2010 SCC 13, [2010] 1 S.C.R. 411, at para. 13). An accused’s guilt is the same regardless of the way in which they participated in the offence –– the person who provides the gun is guilty of the same offence as the person who pulls the trigger (ibid.; R. v. Huard, 2013 ONCA 650, 302 C.C.C. (3d) 469, at para. 59).
[30] Sections 21 and 22 of the Criminal Code set out the various ways in which an accused may participate in and be found guilty of a particular offence. Those provisions codify both liability for an accused who participates in an offence by actually committing it, under s. 21(1)(a) (principal liability); and liability for an accused who participates in an offence by, for example, abetting or counselling another person to commit the offence, under s. 21(1)(c) or s. 22(1) (party liability) (R. v. Pickton, 2010 SCC 32, [2010] 2 S.C.R. 198, at para. 51).
[31] Where, as here, an accused is being tried alone and there is evidence that more than one person participated in the commission of the offence, the Crown is not required to prove the identity of the other participant(s) or the precise part played by each in order to prove an accused’s guilt as a party (R. v. Isaac, 1984 CanLII 130 (SCC), [1984] 1 S.C.R. 74, at p. 81, citing R. v. Sparrow (1979), 1979 CanLII 2988 (ON CA), 51 C.C.C. (2d) 443 (Ont. C.A.), at p. 458). This principle applies where an accused is prosecuted as either an abettor or counsellor.
[32] The essential elements of abetting are well established. The actus reus of abetting is doing something or omitting to do something that encourages the principal to commit the offence (Briscoe, at paras. 14‑15). As for the mens rea, it has two components: intent and knowledge (para. 16). The abettor must have intended to abet the principal in the commission of the offence and known that the principal intended to commit the offence (paras. 16‑17).
[33] Although the jurisprudence setting out the elements of abetting refers to encouraging “the principal”, intending to abet “the principal”, and knowing that “the principal” intended to commit the offence, the Crown is not required to prove the identity of “the principal” or their specific role in the commission of the offence for party liability to attach (R. v. Thatcher, 1987 CanLII 53 (SCC), [1987] 1 S.C.R. 652, at pp. 687‑89).
[34] In Thatcher, the accused was charged with first degree murder. To establish his guilt, the Crown presented two alternative theories of liability. It argued that the accused was either the principal offender, in that he personally murdered the victim, or a party to the offence, in that he had the victim murdered by someone else. The trial judge instructed the jury that the Crown’s inability to adduce evidence of another specific, identified individual as the person who actually committed the murder did not preclude the jury from finding the accused guilty as a party. The jury returned a verdict of guilty on the offence of first degree murder. The accused appealed on the basis that the trial judge erred in instructing the jury that the Crown was not required to prove the identity of the principal offender. His appeal was dismissed by the Court of Appeal for Saskatchewan. On further appeal, this Court agreed with the Court of Appeal, holding that the trial judge’s instructions were “perfectly proper”, because “[t]here is, of course, no burden on the Crown to point to a specific, identified person as the personal assailant of the victim” (pp. 687‑88).
[35] Similar principles apply to counselling, which is defined in the Criminal Code to include “procur[ing], solicit[ing] and incit[ing]” (s. 22(3)). The actus reus is the “deliberate encouragement or active inducement of the commission of a criminal offence” (R. v. Hamilton, 2005 SCC 47, [2005] 2 S.C.R. 432, at para. 29 (emphasis deleted)). The person deliberately encouraged or actively induced by the counsellor must also actually participate in the offence (para. 63, per Charron J., dissenting on other grounds; Criminal Code, s. 22(1)). As for the mens rea, the counsellor must have “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” (Hamilton, at para. 29).
[36] While one of the requisite elements of counselling is the actual participation in the offence by the person counselled, that person can participate not only as a principal, but also as a party. This is reflected by the wording of s. 22(1), which states that an accused is a party if they “counse[l] another person to be a party to an offence and that other person is afterwards a party to that offence”. The precise manner of participation is irrelevant, since whether the person counselled is a principal or a party, “[t]he focus on a prosecution for counselling is on the counsellor’s conduct and state of mind, not that of the person counselled” (Hamilton, at para. 74).
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