Difference between revisions of "Abandonment (Defence)"

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The purpose of this defence is to ensure that only those morally culpable are convicted and to encourage persons to withdraw from criminal activities and report them.<ref>
 
The purpose of this defence is to ensure that only those morally culpable are convicted and to encourage persons to withdraw from criminal activities and report them.<ref>
''R v Gauthier'', [http://canlii.ca/t/fxsxs 2013 SCC 32] (CanLII){{perSCC|Wagner J}}{{at|50}}<br>
+
''R v Gauthier'', [http://canlii.ca/t/fxsxs 2013 SCC 32] (CanLII){{perSCC|Wagner J}}{{atL|50|http://canlii.ca/t/fxsxs}}<br>
 
</ref>
 
</ref>
  
 
; Test
 
; Test
 
The basic common law test requires:<ref>
 
The basic common law test requires:<ref>
''R v KKP'', [http://canlii.ca/t/1prpg 2006 ABCA 299] (CanLII){{TheCourtABCA}}{{at|12}}<br>
+
''R v KKP'', [http://canlii.ca/t/1prpg 2006 ABCA 299] (CanLII){{TheCourtABCA}}{{atL|12|http://canlii.ca/t/1prpg}}<br>
{{supra1|Gauthier}}{{at|38}}<br>
+
{{supra1|Gauthier}}{{atL|38|http://canlii.ca/t/fxsxs}}<br>
''R v SRB'', [http://canlii.ca/t/22fh1 2009 ABCA 45] (CanLII){{perABCA|Berger JA}}, {{at|10}} reversed on appeal
+
''R v SRB'', [http://canlii.ca/t/22fh1 2009 ABCA 45] (CanLII){{perABCA|Berger JA}}{{atL|10|http://canlii.ca/t/22fh1}} reversed on appeal
 
</ref>
 
</ref>
 
# there must be a change of intention and physical change of place;
 
# there must be a change of intention and physical change of place;
 
# where practicable and reasonable, timely communication of the intention to abandon the common purpose to those who desire to continue in it.<ref>
 
# where practicable and reasonable, timely communication of the intention to abandon the common purpose to those who desire to continue in it.<ref>
{{ibid1|SRB}}{{at|24}} per dissent, dissent aff'd on appeal ''R v Bird'', [http://canlii.ca/t/2736k 2009 SCC 60] (CanLII), [2009] 3 SCR 638{{TheCourtSCC}} ("change of intention on the part of the accused and, where practical and reasonable, a timely communication of the accused’s intention to abandon the common unlawful purpose")
+
{{ibid1|SRB}}{{atL|24|http://canlii.ca/t/22fh1}} per dissent, dissent aff'd on appeal ''R v Bird'', [http://canlii.ca/t/2736k 2009 SCC 60] (CanLII), [2009] 3 SCR 638{{TheCourtSCC}} ("change of intention on the part of the accused and, where practical and reasonable, a timely communication of the accused’s intention to abandon the common unlawful purpose")
 
</ref>
 
</ref>
 
# communication, verbal or otherwise, must be unequivocal notice upon the other party such that if the other proceeds he does so without the further aid and assistance of those who withdraw.
 
# communication, verbal or otherwise, must be unequivocal notice upon the other party such that if the other proceeds he does so without the further aid and assistance of those who withdraw.
 
#that the accused took, in a manner proportional to his or her participation in the commission of the planned offence, reasonable steps in the circumstances either to neutralize or otherwise cancel out the effects of his or her participation or to prevent the commission of the offence.<ref>
 
#that the accused took, in a manner proportional to his or her participation in the commission of the planned offence, reasonable steps in the circumstances either to neutralize or otherwise cancel out the effects of his or her participation or to prevent the commission of the offence.<ref>
Gauthier added this last element, see para 50</ref>
+
{{supra1|Gauthier}} added this last element, see{{atL|50|http://canlii.ca/t/fxsxs}}</ref>
  
 
What amounts to abandonment will depend on the circumstances of each case.<ref>
 
What amounts to abandonment will depend on the circumstances of each case.<ref>
{{supra1|KKP}}{{at|12}}</ref>
+
{{supra1|KKP}}{{atL|12|http://canlii.ca/t/1prpg}}</ref>
  
 
; Timing
 
; Timing
 
Abandonment must occur ''before'' the offence takes place.<ref>
 
Abandonment must occur ''before'' the offence takes place.<ref>
 
{{supra1|Miller}}<br>
 
{{supra1|Miller}}<br>
{{supra1|KKP}}{{at|12}}
+
{{supra1|KKP}}{{atL|12|http://canlii.ca/t/1prpg}}
 
</ref>
 
</ref>
  
 
; Communication
 
; Communication
 
A failure to provide clear and timely communication will likely defeat the defence.<ref>
 
A failure to provide clear and timely communication will likely defeat the defence.<ref>
e.g. {{supra1|KKP}}{{at|14}}<br>
+
e.g. {{supra1|KKP}}{{atL|14|http://canlii.ca/t/1prpg}}<br>
 
''R v Miller'', [http://canlii.ca/t/1mx57 1976 CanLII 12] (SCC), [1977] 2 SCR 680{{TheCourtSCC}} at 708<br>
 
''R v Miller'', [http://canlii.ca/t/1mx57 1976 CanLII 12] (SCC), [1977] 2 SCR 680{{TheCourtSCC}} at 708<br>
''R v Fournier'', [http://canlii.ca/t/5hpf 2002 NBCA 71] (CanLII), (2002), 173 CCC (3d) 566{{perNBCA|Larlee JA}}{{at|22}}<br>
+
''R v Fournier'', [http://canlii.ca/t/5hpf 2002 NBCA 71] (CanLII), (2002), 173 CCC (3d) 566{{perNBCA|Larlee JA}}{{atL|22|http://canlii.ca/t/5hpf}}<br>
 
</ref>
 
</ref>
  
 
The manner of communicating the abandonment will depend on how deeply involved the accused was in the joint enterprise. The more peripheral the involvement the less express the language of behaviour needs to be.<ref>
 
The manner of communicating the abandonment will depend on how deeply involved the accused was in the joint enterprise. The more peripheral the involvement the less express the language of behaviour needs to be.<ref>
{{supra1|SRB}}{{at|19}}
+
{{supra1|SRB}}{{atL|19|http://canlii.ca/t/22fh1}}
 
</ref>
 
</ref>
  
 
; Procedure
 
; Procedure
 
It is often necessary that that the accused testify to explain his intentions.<ref>
 
It is often necessary that that the accused testify to explain his intentions.<ref>
{{supra1|KKP}}{{at|14}}<br>
+
{{supra1|KKP}}{{atL|14|http://canlii.ca/t/1prpg}}<br>
 
</ref>
 
</ref>
  
 
Whether a person withdraws or abandons the offence is a question of fact.<ref>
 
Whether a person withdraws or abandons the offence is a question of fact.<ref>
{{supra1|KKP}}{{at|11}}</ref>
+
{{supra1|KKP}}{{atL|11|http://canlii.ca/t/1prpg}}</ref>
  
 
; Parties
 
; Parties
 
There is suggestion that abandonment may be available to those who are aiders or abetters.<ref>
 
There is suggestion that abandonment may be available to those who are aiders or abetters.<ref>
''R v Ball'', [http://canlii.ca/t/2f90g 2011 BCCA 11] (CanLII){{perBCCA|Ryan J}}{{at|46}}<br>
+
''R v Ball'', [http://canlii.ca/t/2f90g 2011 BCCA 11] (CanLII){{perBCCA|Ryan J}}{{atL|46|http://canlii.ca/t/2f90g}}<br>
 
</ref>
 
</ref>
  

Revision as of 01:01, 14 August 2019

General Principles

The defence of abandonment is available to accused liable as parties of an offence under s. 21(1) or 21(2), were two or more persons form a common intention to carry out an offence, such that they are not responsible for the offences committed by the other parties.

The purpose of this defence is to ensure that only those morally culpable are convicted and to encourage persons to withdraw from criminal activities and report them.[1]

Test

The basic common law test requires:[2]

  1. there must be a change of intention and physical change of place;
  2. where practicable and reasonable, timely communication of the intention to abandon the common purpose to those who desire to continue in it.[3]
  3. communication, verbal or otherwise, must be unequivocal notice upon the other party such that if the other proceeds he does so without the further aid and assistance of those who withdraw.
  4. that the accused took, in a manner proportional to his or her participation in the commission of the planned offence, reasonable steps in the circumstances either to neutralize or otherwise cancel out the effects of his or her participation or to prevent the commission of the offence.[4]

What amounts to abandonment will depend on the circumstances of each case.[5]

Timing

Abandonment must occur before the offence takes place.[6]

Communication

A failure to provide clear and timely communication will likely defeat the defence.[7]

The manner of communicating the abandonment will depend on how deeply involved the accused was in the joint enterprise. The more peripheral the involvement the less express the language of behaviour needs to be.[8]

Procedure

It is often necessary that that the accused testify to explain his intentions.[9]

Whether a person withdraws or abandons the offence is a question of fact.[10]

Parties

There is suggestion that abandonment may be available to those who are aiders or abetters.[11]

Specific Offences

Where group have jointly planned to commit rape and murder and the accused assisted in the initial part of the illegal plan but then leaves part way through does not abandon the offence and can still be convicted of murder.[12]

A party who abandons a planned robbery but was the one who provided the others with guns can be liable for the murder arising from the robbery.[13]

  1. R v Gauthier, 2013 SCC 32 (CanLII), per Wagner J, at para http://canlii.ca/t/fxsxs
  2. R v KKP, 2006 ABCA 299 (CanLII), per curiam, at para http://canlii.ca/t/1prpg
    Gauthier, supra, at para http://canlii.ca/t/fxsxs
    R v SRB, 2009 ABCA 45 (CanLII), per Berger JA, at para http://canlii.ca/t/22fh1 reversed on appeal
  3. SRB, ibid., at para http://canlii.ca/t/22fh1 per dissent, dissent aff'd on appeal R v Bird, 2009 SCC 60 (CanLII), [2009] 3 SCR 638, per curiam ("change of intention on the part of the accused and, where practical and reasonable, a timely communication of the accused’s intention to abandon the common unlawful purpose")
  4. Gauthier, supra added this last element, see, at para http://canlii.ca/t/fxsxs
  5. KKP, supra, at para http://canlii.ca/t/1prpg
  6. Miller, supra
    KKP, supra, at para http://canlii.ca/t/1prpg
  7. e.g. KKP, supra, at para http://canlii.ca/t/1prpg
    R v Miller, 1976 CanLII 12 (SCC), [1977] 2 SCR 680, per curiam at 708
    R v Fournier, 2002 NBCA 71 (CanLII), (2002), 173 CCC (3d) 566, per Larlee JA, at para http://canlii.ca/t/5hpf
  8. SRB, supra, at para http://canlii.ca/t/22fh1
  9. KKP, supra, at para http://canlii.ca/t/1prpg
  10. KKP, supra, at para http://canlii.ca/t/1prpg
  11. R v Ball, 2011 BCCA 11 (CanLII), per Ryan J, at para http://canlii.ca/t/2f90g
  12. R v SRB, 2009 ABCA 45 (CanLII), per Berger JA overturned on appeal R v Bird, 2009 SCC 60 (CanLII), [2009] 3 SCR 638Template:TheCourtSCCdostal
  13. R v Joyce (1978), 42 CCC (2d) 141 (BCCA), 1978 CanLII 2422 (BC CA), per Hinkson JA

See Also