Accessory After the Fact

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General Principles

See also: Attempts and Accessories After the Fact (Offence)

Section 23 defines "accessory after the fact":

Accessory after the fact
23. (1) 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.
(2) [Repealed, 2000, c. 12, s. 92]
R.S., 1985, c. C-46, s. 23; 2000, c. 12, s. 92.
Where one party cannot be convicted
23.1 For greater certainty, sections 21 to 23 apply in respect of 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.
R.S., 1985, c. 24 (2nd Supp.), s. 45.


CCC

An accessory to an offence is not the same as a party to an offence. It is a separate offence that is committed subsequent to the initial offence.[1] An offender under s. 23(1) is an independent substantive offence.[2]

Mens Rea
The accused must know that that the person they are assisting was a principle or party to an offence, and the assistance must be for the purpose of enabling the person to escape. It is not sufficient that the accused merely do an act that enables the escape.[3]

The accused must have "an ulterior intention or desire to assist for the purpose of an escape".[4]

Evidence
All evidence that has been found admissible for the principle will be admissible against the accessory.[5]

The conviction of the principle is admissible to prove that the principal committed the offence.[6]

Examples
The following actions have been found to amount to the offence of accessory:

  1. assisting the principle by giving him information or aid.[7]
  2. hiding the principal offender[8]
  3. concealing evidence [9]
  4. giving false information to authorities including participating in a fake alibi [10]

A person is not guilty as an accessory for refusing to provide information to authorities.[11]

Lesser Included Offences
Accessory after the fact to manslaughter is a lesser included offence to accessory after the fact to murder.[12]

  1. R v Vinette, 1974 CanLII 165 (SCC), [1975] 2 SCR 222
  2. R v Hibbert, 1995 CanLII 110 (SCC), [1995] 2 SCR 973 at para 26
  3. R v McVay (1982) 66 CCC (2d) 512 (ONCA)(*no link)
  4. R v Camponi, 1993 CanLII 1163 (BCCA) at para 10
  5. R v Vinette
  6. R v Duong, 1998 CanLII 7124 (ON CA), (1998) 124 CCC (3d) 392 (ONCA) see also s.657.1 relating to criminal records
  7. R v Young (1950) 10 CR 142 (QCCA)(*no link)
    R v White [1972] 8 CCC (2d) 552 (BCPC) (*no link)
    R v Campbell 2002 NSCA 35 (CanLII)
  8. R v White
  9. R v Knuff (1980) 52 CCC (2d) 523, 1980 ABCA 23 (CanLII)
  10. R v French (1977), 1977 CanLII 53 (ON CA), 37 CCC (2d) 201 aff'd [1980] 1 SCR 148
  11. R v Semenick (1955) 11 CCC 337 (BCCA) (*no link)
  12. R v Webber, 1995 CanLII 333 (BC CA) at para 27

Effect of the Principal or Party Verdict

Accessories after the fact
592. Any one who is charged with being an accessory after the fact to any offence may be indicted, whether or not the principal or any other party to the offence has been indicted or convicted or is or is not amenable to justice.
R.S., c. C-34, s. 521.


CCC

657.2 ...
Accessory after the fact
(2) Where an accused is charged with being an accessory after the fact to the commission of an offence, evidence of the conviction or discharge of another person of the offence is admissible against the accused, and in the absence of evidence to the contrary is proof that the offence was committed.
1997, c. 18, s. 80.


CCC

Under operation of s. 593, it is not necessary that the principal be convicted to sustain a conviction of accessory after the fact.[1]

It is not necessary for the principle or party to the main offence be charged or convicted for it for an accused to be convicted as an accessory.[2] But if the principle or party is acquitted, then the accused cannot be convicted.[3] However, R v S(FJ), 1998 CanLII 842 (SCC), [1998] 1 SCR 88 seems to go so far to say that the words "Whether or not the principal is convicted" can include an acquittal.[4]

  1. R v S.(F.J.), 1997 CanLII 14989 (NS CA), at para 29
  2. R v Camponi
    R v Anderson (1980), 1980 ABCA 276 (CanLII), 26 AR 172 (ABCA)
  3. R v Vinette
  4. See R v S(FJ)

See Also