View source for Attempts and Accessories After the Fact (Offence)

[[fr:Tentatives et complicités après le fait (infraction)]]
{{Currency2|January|2015}}
{{LevelZero}}{{HeaderOffences}}
{{OffenceBox 
|OffenceTitle=Attempts and Accessories After the Fact 
|OffencePage=Attempts and Accessories After the Fact 
|Section=463 
|Act={{OBCCC}} 
|CrownElection=varies
|Jurisdiction=varies
|Bail={{OBBailVar}} 
|SummaryDisp= varies 
|SummaryMin= varies 
|SummaryMax= varies 
|IndictableDisp= varies 
|IndictableMin=varies 
|IndictableMax= varies }}
==Overview==
{{OverviewXIII|attempts and accessories after the fact}}

; Pleadings
<!--
{{PleadingsHeader}}
{{Pleadings
{{PleadingsEnd}}
-->
Offences under s. 463 will be summary conviction, hybrid, or straight indictable depending on the pleadings of the main offence that is the subject of the attempt or accessory. The pleadings available for the main offence will apply.

Accessory after the fact to murder is a [[List of Straight Indictable Offences|straight indictable]] offence. The defence has an [[Election|election of Court under s. 536]].

; Release
Offences under s. 463 will be summary conviction, hybrid, or straight indictable depending on the pleadings of the main offence that is the subject of the attempt or accessory. The release options of the main offence will apply.

; Publication Bans
{{GeneralPubBan}}

; Offences Designations
The designations associated with s. 463 offences will match the main offence making up the subject matter of the 463 offence.

==Offence Wording==
{{quotation2|
; Attempts, accessories
463. Except where otherwise expressly provided by law, the following provisions apply in respect of persons who attempt to commit or are accessories after the fact to the commission of offences:
:(a) every one who attempts to commit or is an accessory after the fact to the commission of an indictable offence for which, on conviction, an accused is liable to be sentenced to imprisonment for life is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years;
:(b) every one who attempts to commit or is an accessory after the fact to the commission of an indictable offence for which, on conviction, an accused is liable to imprisonment for fourteen years or less is guilty of an indictable offence and liable to imprisonment for a term that is one-half of the longest term to which a person who is guilty of that offence is liable;
:(c) every one who attempts to commit or is an accessory after the fact to the commission of an offence punishable on summary conviction is guilty of an offence punishable on summary conviction; and
:(d) every one who attempts to commit or is an accessory after the fact to the commission of an offence for which the offender may be prosecuted by indictment or for which he is punishable on summary conviction
::(i) is guilty of an indictable offence and liable to imprisonment for a term not exceeding a term that is one-half of the longest term to which a person who is guilty of that offence is liable, or
::(ii) is guilty of an offence punishable on summary conviction.

R.S., {{LegHistory80s|1985, c. C-46}}, s. 463; R.S., {{LegHistory80s|1985, c. 27 (1st Supp.)}}, s. 59; {{LegHistory90s|1998, c. 35}}, s. 120.
|{{CCCSec2|463}}
|{{NoteUp|463}}
}}

===Murder===
{{quotation2|
; Accessory after fact to murder
240. Every one who is an accessory after the fact to murder is guilty of an indictable offence and liable to imprisonment for life.
<br>
R.S., c. C-34, s. 223.
|{{CCCSec2|240}}
|{{NoteUp|240}}
}}

===Draft Form of Charges===
{{seealso|Draft Form of Charges}}
{{DraftHeader}}
|-
|463
| 
|"{{ellipsis}}, knowing that [name1] had been a party to the offence of [offence], did receive, comfort or assist them for the purpose of enabling them to escape{{ToWit-Conduct}} {{contrary|463}}.
|-
| 240
| accessory after the fact to murder
|"{{ellipsis}}, was an accessory after the fact to murder{{ToWit-Conduct}} {{contrary|240}}.
{{DraftEnd}}

==Proof of the Offence==

{{Proving|Attempt|463}}
{{InitialElements}}
# {{box}} attempted to commit the predicate offence. 
## {{box}} act that is more than mere preparation
## {{box}} intent to commit the offence

{{Proving|accessory after the fact|463}}<ref>
{{CanLIIRP|Young|htv9s|1950 CanLII 380 (QC CA)|98 CCC 195}}{{perQCCA|St Jaques J}}<br>
{{CanLIIRP|Camponi|1dc36|1993 CanLII 1163 (BC CA)|82 CCC (3d) 506}}{{perBCCA|Wood J}}{{atL|1dc36|10}}
</ref>
{{InitialElements}}
# {{box}} the culprit knew a crime had been committed
# {{box}} the culprit intended to aid the principal or a party to the offence in escaping
# {{box}} the culprit did an act that enabled the principle to escape (arrest, trial, punishment)

{{Proving|Accessory After the Fact to Murder|240}}
# {{box}} the elements of accessory under s. 463:
# {{box}} the offence that had been committed was murder;

{{reflist|2}}

==Interpretation==

; Stay of Proceedings Against Principal Does Not Provide Remedy
A charge of accessory after-the-fact to murder still will apply even aware of the charges against the principle of been stayed.<ref>
{{CanLIIRP|Camponi|1dc36|1993 CanLII 1163 (BC CA)|82 CCC (3d) 506}}{{perBCCA|Wood JA}}
</ref>

{{reflist|2}}
===Attempts===
* See [[Attempts]]

===Accessory===
* [[Accessory After the Fact]]

==Sentencing Principles and Ranges for Attempts==
{{seealsoSentencing}}
; Maximum Penalties
The offence may be hybrid, summary conviction or straight indictable, depending on the type of index offence. The maximum penalty varies depending on the penalty of the index offence. Where the index offence has a maximum penalty of life, the maximum penalty is '''14 years''' incarceration under s. 463(a). Where the index offence has a maximum penalty of 14 years or less, the maximum penalty is '''half the duration of the maximum penalty of the index offence''' under s. 463(b). Where the index offence is punishable on summary conviction, the maximum penalty is {{summaryconviction}} under s. 463(c). Where the index offence is hybrid under s.463(d), the maximum penalty is '''half the duration of the maximum penalty of the index offence''', if prosecuted by indictment, or {{summaryconviction}}, if prosecuted by summary conviction.

; Minimum Penalties
{{NoMinimumPenalties}}

; Available Dispositions
Available dispositions will match those of the index offence, except that offences with index offences punishable with maximum penalty of 14 years will ''not'' have a prohibition on discharges or conditional sentences.

==Sentencing Principles and Ranges for Accessory==
; Maximum Penalties
The offence may be hybrid, summary conviction or straight indictable, depending on the type of index offence. The maximum penalty varies depending on the penalty of the index offence. Where the index offence has a maximum penalty of life, the maximum penalty is '''14 years''' incarceration under s. 463(a). Where the index offence has a maximum penalty of 14 years or less, the maximum penalty is '''half the duration of the maximum penalty of the index offence''' under s. 463(b). Where the index offence is punishable on summary conviction, the maximum penalty is {{summaryconviction}} under s. 463(c). Where the index offence is hybrid under s.463(d), the maximum penalty is '''half the duration of the maximum penalty of the index offence''', if prosecuted by indictment, or {{summaryconviction}}, if prosecuted by summary conviction.

; Minimum Penalties
{{NoMinimumPenalties}}

; Available Dispositions
Available dispositions will match those of the index offence, except that offences with index offences punishable with maximum penalty of 14 years will ''not'' have a prohibition on discharges or conditional sentences.

===Principles===
The offence of accessory after the fact is a serious offence against the administration of justice. It contributes to any number of serious offences to avoid detection as well as the investigators ability to clear the innocent.<ref>
{{CanLIIR-N|Wisdom|, 1992 CarswellOnt 1757 (Gen.Div.)}}{{perONSC|Watt J}}{{ats-|27 and 28}} ("Accessoryship after the fact frustrates the legitimate investigation of crime.  It is as much a part of such investigation to clear the innocent, as it is to convict the guilty.  To the extent that accessories deflect the investigation and investigators from their proper or true course, the attendant risks are obvious.")
</ref>

A sentence of incarceration is considered the norm.<ref>
{{ibid1|Wisdom}}</ref>

{{reflist|2}}

===Factors===

Factors include:<ref>
{{CanLIIRP|Gilbert|23q3r|2006 NSPC 58 (CanLII)|792 APR 317}}{{perNSPC| MacDougall J}}<br>
{{CanLIIR-N|Wisdom|, [1992] OJ No 3110 (Ont. C. J. – Gen. Div.)}}</ref>
* the nature, extent and duration of the accessory’s involvement;
* the age and experience of the accessory;
* the nature, extent and duration of the relationship, if any between the accessory and the relevant principal;
* the presence or absence of any coercion of a threat to the accessory or others to obtain the accessory’s participation
* the nature of the accessory’s assistance; and
* the antecedents, present status and realistic prospects of the accessory.

Where the offender has knowledge of the murder even before it was going to happen is an aggravating factor.<ref>
{{CanLIIRP|Steadman|21nmn|2008 BCSC 1613 (CanLII)|[2008] BCJ 2284 (SC)}}{{perBCSC|Barrow J}}{{atL|21nmn|51}}<br>
</ref>
Also, where the offender had a larger role in the offence after the murder, such as in the disposal of a body, will be aggravating.<ref>
{{ibid1|Steadman}}{{atL|21nmn|51}}<br>
</ref>

Where the offender was motivated by fear from the principle to the murder will mitigate the level of moral culpability.<ref>
{{ibid1|Steadman}}{{atL|21nmn|51}}<br>
{{supra1|Turpin}}<br>
{{supra1|Lowe}}<br>
{{supra1|Ropchan}}<br>
</ref>

{{reflist|2}}

===Ranges===
In British Columbia, the range was set at between 18 months to 5 years.<ref>
{{CanLIIRP|Steadman|21nmn|2008 BCSC 1613 (CanLII)|[2008] BCJ 2284 (SC)}}{{perBCSC|Barrow J}}{{atL|21nmn|53}}<br>
</ref>

In the Northwest Territories, the range for accessory has been put at between 2 to 7 years in the context of a homicide.
<ref>
{{CanLIIRx|Tutin|1lm7d|2004 NWTSC 20 (CanLII)}}{{perNTWSC| Vertes J}}{{atL|1lm7d|2}} ("I find that the range of sentence for this type of offence is two to seven years")
</ref>
{{reflist|2}}

==Ancillary Sentencing Orders for Accessory==

; Offence-specific Orders
{{AOrderHeader}}

{{AOrder1| [[DNA Orders]] |s. 240 {{DescrSec|240}} |
* {{SecondDNA(AorB)|s. 240}} }}
{{AOrderEnd}}

; General Sentencing Orders
{{GeneralSentencingOrders}}

; General Forfeiture Orders
{{GeneralForfeitureOrders}}

==Record Suspensions and Pardons== 
{{RecordSuspension|s. 240 {{DescrSec|240}} }}

==See Also==
* [[Attempts]]
* [[Conspiracy (Offence)]]
; Pre-Trial and Trial Issues
* [[Pre-Trial and Trial Motions Checklist]]

{{OffencesNavBar/Homicide}}