Abandonment (Defence): Difference between revisions

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{{HeaderDefences}}
{{HeaderDefences}}
==General Principles==
==General Principles==
The defence of abandonment is available to accused liable as [[Parties to an Offence|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 defence of abandonment is available to an accused who is potentially liable as a [[Parties to an Offence|party of an offence]] under s. 21(1) or 21(2) with one or more other participants but has abandoned the common intention to commit the offence before its completion.


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>
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; Test
; Test
The basic common law test requires:<ref>
The basic common law test requires that:<ref>
{{CanLIIRP|KKP|1prpg|2006 ABCA 299 (CanLII)|213 CCC (3d) 530}}{{TheCourtABCA}}{{atL|1prpg|12}}<br>
{{CanLIIRP|KKP|1prpg|2006 ABCA 299 (CanLII)|213 CCC (3d) 530}}{{TheCourtABCA}}{{atL|1prpg|12}}<br>
{{supra1|Gauthier}}{{atL|fxsxs|34}} and {{AtL-np|fxsx|38}} and {{AtL-np|fxsx|50}} <br>
{{supra1|Gauthier}}{{atL|fxsxs|34}} and {{AtL-np|fxsx|38}} and {{AtL-np|fxsx|50}} <br>
{{CanLIIRP|SRB|22fh1|2009 ABCA 45 (CanLII)|243 CCC (3d) 419}}{{perABCA|Berger JA}}{{atL|22fh1|10}} reversed on appeal
{{CanLIIRP|SRB|22fh1|2009 ABCA 45 (CanLII)|243 CCC (3d) 419}}{{perABCA|Berger JA}}{{atL|22fh1|10}} reversed on appeal
</ref>
</ref>
# there must be a change of intention and physical change of place;
# there 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.<ref>
{{ibid1|SRB}}{{atL|22fh1|24}} per dissent, dissent aff'd on appeal {{CanLIIRP|Bird|2736k|2009 SCC 60 (CanLII)|469 AR 185}}{{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|22fh1|24}} per dissent, dissent aff'd on appeal {{CanLIIRP|Bird|2736k|2009 SCC 60 (CanLII)|469 AR 185}}{{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.
# the communication must be ''unequivocal notice'' to the other parties such that if the others proceed, they do so without the further aid and assistance of the withdrawing party.
#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 their participation in the commission of the planned offence, ''reasonable steps'' in the circumstances either to neutralize or otherwise cancel out the effects of their participation or to prevent the commission of the offence.<ref>
{{supra1|Gauthier}} added this last element, see{{atL|fxsxs|50}}</ref>
{{supra1|Gauthier}} added this last element, see{{atL|fxsxs|50}}</ref>


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</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}}{{atL|22fh1|19}}
{{supra1|SRB}}{{atL|22fh1|19}}
</ref>
</ref>


; Procedure
; Procedure
It is often necessary that that the accused testify to explain his intentions.<ref>
It is often necessary that the accused testify to explain his intentions.<ref>
{{supra1|KKP}}{{atL|1prpg|14}}<br>
{{supra1|KKP}}{{atL|1prpg|14}}<br>
</ref>
</ref>
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; Parties
; Parties
There is suggestion that abandonment may be available to those who are aiders or abetters.<ref>
There is the suggestion that abandonment may be available to aiders or abetters.<ref>
{{CanLIIRP|Ball|2f90g|2011 BCCA 11 (CanLII)|267 CCC (3d) 532}}{{perBCCA|Ryan J}}{{atL|2f90g|46}}<br>
{{CanLIIRP|Ball|2f90g|2011 BCCA 11 (CanLII)|267 CCC (3d) 532}}{{perBCCA|Ryan J}}{{atL|2f90g|46}}<br>
</ref>
</ref>


; Specific Offences
; 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.<ref>
Where a group has jointly planned to commit rape and murder, and the accused who assisted in the initial part of the illegal plan but then leaves part way through, he does not abandon the offence and can still be convicted of murder.<ref>
{{CanLIIRP|SRB|22fh1|2009 ABCA 45 (CanLII)|243 CCC (3d) 419}}{{perABCA|Berger JA}} overturned on appeal {{CanLIIRP|Bird|2736k|2009 SCC 60 (CanLII)|[2009] 3 SCR 638}}{{TheCourtSCC}}</ref>
{{CanLIIRP|SRB|22fh1|2009 ABCA 45 (CanLII)|243 CCC (3d) 419}}{{perABCA|Berger JA}} overturned on appeal {{CanLIIRP|Bird|2736k|2009 SCC 60 (CanLII)|[2009] 3 SCR 638}}{{TheCourtSCC}}</ref>


Latest revision as of 12:22, 24 July 2024

This page was last substantively updated or reviewed May 2021. (Rev. # 95913)

General Principles

The defence of abandonment is available to an accused who is potentially liable as a party of an offence under s. 21(1) or 21(2) with one or more other participants but has abandoned the common intention to commit the offence before its completion.

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 that:[2]

  1. there 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.[3]
  3. the communication must be unequivocal notice to the other parties such that if the others proceed, they do so without the further aid and assistance of the withdrawing party.
  4. that the accused took, in a manner proportional to their participation in the commission of the planned offence, reasonable steps in the circumstances either to neutralize or otherwise cancel out the effects of their 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 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 the suggestion that abandonment may be available to aiders or abetters.[11]

Specific Offences

Where a group has jointly planned to commit rape and murder, and the accused who assisted in the initial part of the illegal plan but then leaves part way through, he 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), [2013] 2 SCR 403, per Wagner J, at para 50
  2. ↑ R v KKP, 2006 ABCA 299 (CanLII), 213 CCC (3d) 530, per curiam, at para 12
    Gauthier, supra, at para 34 and 38 and 50
    R v SRB, 2009 ABCA 45 (CanLII), 243 CCC (3d) 419, per Berger JA, at para 10 reversed on appeal
  3. ↑ SRB, ibid., at para 24 per dissent, dissent aff'd on appeal R v Bird, 2009 SCC 60 (CanLII), 469 AR 185, 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 50
  5. ↑ KKP, supra, at para 12
  6. ↑ Miller, supra
    KKP, supra, at para 12
  7. ↑ e.g. KKP, supra, at para 14
    R v Miller, 1976 CanLII 12 (SCC), [1977] 2 SCR 680, per curiam at 708
    R v Fournier, 2002 NBCA 71 (CanLII), 173 CCC (3d) 566, per Larlee JA, at para 22
  8. ↑ SRB, supra, at para 19
  9. ↑ KKP, supra, at para 14
  10. ↑ KKP, supra, at para 11
  11. ↑ R v Ball, 2011 BCCA 11 (CanLII), 267 CCC (3d) 532, per Ryan J, at para 46
  12. ↑ R v SRB, 2009 ABCA 45 (CanLII), 243 CCC (3d) 419, per Berger JA overturned on appeal R v Bird, 2009 SCC 60 (CanLII), [2009] 3 SCR 638, per curiam
  13. ↑ R v Joyce, 1978 CanLII 2422 (BC CA), 42 CCC (2d) 141, per Hinkson JA

See Also

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