Counselling

From Criminal Law Notebook
This page was last substantively updated or reviewed January 2016. (Rev. # 95268)

General Principles

Counselling is an inchoate offence concerning the preparation of a future offence. It can be made out regardless of if the index offence actually occurs or not.

An accused can be found guilty of counselling regardless of whether the principal is acquitted.[1]

  1. ↑ R v Hick, 1991 CanLII 47 (SCC), [1991] 3 SCR 383, per Stevenson J

Where the Offence is Committed

Person counselling offence

22 (1) Where a person counsels another person to be a party to an offence and that other person is afterwards a party to that offence, the person who counselled is a party to that offence, notwithstanding that the offence was committed in a way different from that which was counselled.

Idem

(2) Every one who counsels another person to be a party to an offence is a party to every offence that the other commits in consequence of the counselling that the person who counselled knew or ought to have known was likely to be committed in consequence of the counselling.

Definition of “counsel”

(3) For the purposes of this Act, "counsel" includes procure, solicit or incite.
R.S., 1985, c. C-46, s. 22; R.S., 1985, c. 27 (1st Supp.), s. 7.

– CCC (CanLII), (DOJ)

Note up: 22(1), (2) and (3)

Elements of the Offence

Counselling under s. 22 requires:[1]

  1. the act of persuading or inducing the commission of the offence
  2. the commission of the offence itself
  3. the commission must be the consequences of the counselling;
  4. the accused intended to counsel or knowingly counselled, aware of the risk that it would bring about the commission of the offence.
  1. ↑ R v Keepness, 2009 SKQB 466 (CanLII), 348 Sask R 49, per Dawson J, at para 131

Where Offence is Not Committed

Counselling is an "independent substantive offence"[1] defined in s. 464.

Counselling offence that is not committed

464. Except where otherwise expressly provided by law, the following provisions apply in respect of persons who counsel other persons to commit offences, namely,

(a) every one who counsels another person to commit an indictable offence is, if the offence is not committed, guilty of an indictable offence and liable to the same punishment to which a person who attempts to commit that offence is liable; and
(b) every one who counsels another person to commit an offence punishable on summary conviction is, if the offence is not committed, guilty of an offence punishable on summary conviction.
R.S., 1985, c. C-46, s. 464; R.S., 1985, c. 27 (1st Supp.), s. 60.

– CCC (CanLII), (DOJ)

Note up: 464

Elements of the Offence

Counselling under s. 464 requires:

  1. the act of persuading or inducing the commission of the offence
  2. the intention that the offence be committed or
  3. an awareness that the unjustified risk that the offence would be committed as a result of the counselling.
  1. ↑ R v Fitur, 2012 MBQB 5 (CanLII), 274 Man R (2d) 18, per Greenberg J, at para 9

Actus Reus

"Counsel" under this section is more that simply advising, it has the "meaning of actively inducing" [1]

The actus reus of counselling involves the "deliberate encouragement or active inducement of the commission of a criminal offence."[2]

  1. ↑ R v Sharpe, 2001 SCC 2 (CanLII), [2001] 1 SCR 45, per McLachlin CJ
  2. ↑ R v Hamilton, 2005 SCC 47 (CanLII), [2005] 2 SCR 432, per Fish J, at para 29
    R v Root, 2008 ONCA 869 (CanLII), 241 CCC (3d) 125, per Watt JA, at para 83

Mens Rea

The mens rea of counselling involves "nothing less than an accompanying intent or conscious disregard of the substantial and unjustified risk inherent in the counselling."[1] The accused must either intend the offence 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 counselling.[2]

The mens rea of counselling requires evidence that “an accused either intended that the offence counseled be committed, or knowingly counselled the commission of the offence while aware of the unjustified risk that the offence counseled was in fact likely to be committed as a result of the accused’s conduct" [3]

Where a threat allegedly counsels murder the test to be applied is whether 1) an ordinary person would view the statement objectively would take it as an invitation to kill and 2) the accused either intended or knowingly counselling the victim's murder while aware of the unjustified risk that murder would likely be committed.[4]

It is not necessary that the accused be the originator of the plan to procure or incite.[5]

The offence is complete when "the solicitation or incitement occurs" even where the incitee "rejects the solicitation or merely feigns his or her assent."[6]

  1. ↑ R v Hamilton, 2005 SCC 47 (CanLII), [2005] 2 SCR 432, per Fish J, at para 29 (“ In short, the actus reus for counselling is the deliberate encouragement or active inducement of the commission of a criminal offence. And the mens rea consists in nothing less than an accompanying intent or conscious disregard of the substantial and unjustified risk inherent in the counselling: that is, it must be shown that the accused 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.“ [italics removed])
    R v Root, 2008 ONCA 869 (CanLII), [2008] OJ No 5214 (ONCA), per Watt JA, at para 84
  2. ↑ Hamilton, supra, at para 29
  3. ↑ R v Abou Al-Rashta and Pirouzi, 2012 ONSC 1957 (CanLII), per O'Marra J citing Hamilton, supra, at para 29
    Root, supra, at para 84
  4. ↑ see R v Jeffers, 2012 ONCA 1 (CanLII), 280 CCC (3d) 54, per Laskin JA
  5. ↑ Root, supra, at para 85
  6. ↑ Root, supra, at para 86

See Also

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