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Criminal - Inchoate Offences

. 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:

[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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Last modified: 16-06-23
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