Attempts and Accessories After the Fact (Offence)

Attempts and Accessories After the Fact
	s. 463 of the Crim. Code
Election / Plea
Crown Election	varies; summary proceedings must initiate within 12 months of the offence (786(2))
Jurisdiction	varies
Summary Dispositions
Avail. Disp.	varies
Minimum	varies
Maximum	varies
Indictable Dispositions
Avail. Disp.	varies
Minimum	varies
Maximum	varies
Reference
	Offence Elements; Sentence Digests;

< Criminal Law/Sentencing
< Offences

Overview

Offences relating to attempts and accessories after the fact are found in Part XIII of the Criminal Code relating to "Attempts — Conspiracies — Accessories".

Pleadings

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 straight indictable offence. The defence has an 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

For all criminal or regulatory prosecutions, there is a discretionary general publication ban available on application of the Crown, victim or witness to prohibit the publishing of "any information that could identify the victim or witness" under s. 486.5(1) where it is "necessary" for the "proper administration of justice". Other available publication bans include prohibitions for publishing evidence or other information arising from a bail hearing (s. 517), preliminary inquiry (s. 539) or jury trial (s. 648). There is a mandatory publication ban in all youth prosecutions on information tending to identify young accused under s. 110 of the YCJA or young victims under s. 111 of the YCJA.

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

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., 1985, c. C-46, s. 463; R.S., 1985, c. 27 (1st Supp.), s. 59; 1998, c. 35, s. 120.

– CCC

Murder

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.
R.S., c. C-34, s. 223.

– CCC

Proof of the Offence

Proving Attempt under s. 463 should include:

☐ identity of accused as culprit
☐ date and time of the incident
☐ jurisdiction (incl. region and province)
☐ attempted to commit the predicate offence.
1. act that is more than mere preparation
2. intent to commit the offence

Proving accessory after the fact under s. 463 should include:^[1]

☐ identity of accused as culprit
☐ date and time of the incident
☐ jurisdiction (incl. region and province)
☐ the culprit knew a crime had been committed
the culprit intended to aid the principal or a party to the offence in escaping
the culprit did an act that enabled the principle to escape (arrest, trial, punishment)

Proving Accessory After the Fact to Murder under s. 240 should include:

the elements of accessory under s. 463:
the offence that had been committed was murder;

↑ R v Young (1950) 10 C.R. 142, 98 CCC 195 (Que.CA), 1950 CanLII 380 (QC CA), per St Jaques J
R v Camponi, 1993 CanLII 1163 (BCCA), per Wood J at para 10

Interpretation

Attempts

See Attempts

Accessory

Accessory After the Fact

Sentencing Principles and Ranges for Attempts

See also: Purpose and Principles of Sentencing, Sentencing Factors Relating to the Offender, and Sentencing Factors Relating to the Offence
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 2 years less a day jail and/or a $5,000 fine (from Sept 19, 2019) 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 2 years less a day jail and/or a $5,000 fine (from Sept 19, 2019), if prosecuted by summary conviction.

Minimum Penalties

These offences have no mandatory minimum penalties.

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 2 years less a day jail and/or a $5,000 fine (from Sept 19, 2019) 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 2 years less a day jail and/or a $5,000 fine (from Sept 19, 2019), if prosecuted by summary conviction.

Minimum Penalties

These offences have no mandatory minimum penalties.

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.^[1]

A sentence of incarceration is considered the norm.^[2]

↑ R v Wisdom, 1992 CarswellOnt 1757 (Gen.Div.)(*no CanLII links) , per Watt J at paras 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.")
↑ Wisdom, ibid.

Factors

Factors include:^[1]

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.^[2] 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.^[3]

Where the offender was motivated by fear from the principle to the murder will mitigate the level of moral culpability.^[4]

↑ R v Gilbert, 2006 NSPC 58 (CanLII), per MacDougall J
R v Wisdom, [1992] OJ No 3110 (Ont. C. J. – Gen. Div.)(*no CanLII links)
↑ R v Steadman, [2008] BCJ 2284(*no CanLII links) , at para 51
↑ Steadman, ibid., at para 51
↑ Steadman, ibid., at para 51
Turpin, supra
Lowe, supra
Ropchan, supra

Ranges

In British Columbia, the range was set at between 18 months to 5 years.^[1]

In the Northwest Territories, the range for accessory has been put at between 2 to 7 years in the context of a homicide. ^[2]

↑ R v Steadman, 2008 BCSC 1613 (CanLII), [2008] BCJ 2284 (SC), per Barrow J, at para 53
↑ R v Tutin, 2004 NWTSC 20 (CanLII), per Vertes J at para 2 ("I find that the range of sentence for this type of offence is two to seven years")

Ancillary Sentencing Orders for Accessory

Offence-specific Orders

Order	Conviction	Description
DNA Orders	s. 240	For conviction under s. 240, a DNA order is discretionary as a secondary designated offence listed under s. 487.04 (a) or (b).

General Sentencing Orders

Order	Conviction	Description
Non-communication order while offender in custody (s. 743.21)	any	The judge has the discretion to order that the offender be prohibited "from communicating...with any victim, witness or other person" while in custody except where the judge "considers [it] necessary" to communicate with them.
Restitution Orders (s. 738)	any	A discretionary Order is available for things such as the replacement value of the property; the pecuniary damages incurred from harm, expenses fleeing a domestic partner; or certain expenses arising from the commission of an offence under s.402.2 or 403.
Victim Fine Surcharge (s. 737)	any	A discretionary surcharge under s. 737 of 30% of any fine order imposed, $100 per summary conviction or $200 per indictable conviction. If the offence occurs on or after October 23, 2013, the order has smaller minimum amounts (15%, $50, or $100).

General Forfeiture Orders

Forfeiture	Conviction	Description
Forfeiture of Proceeds of Crime (s. 462.37(1) or (2.01))	any	Where there is a finding of guilt for an indictable offence under the Code or the CDSA in which property is "proceeds of crime" and offence was "committed in relation to that property", the property shall be forfeited to His Majesty the King on application of the Crown. NB: does not* apply to summary offences*.
Fine in Lieu of Forfeiture (s. 462.37(3))	any	Where a Court is satisfied an order for the forfeiture of proceeds of crime under s. 462.37(1) or (2.01) can be made, but that property cannot be "made subject to an order", then the Court "may" order a fine in "an amount equal to the value of the property". Failure to pay the fine will result in a default judgement imposing a period of incarceration.
Forfeiture of Weapons or Firearms (s. 491)	any	Where there is finding of guilt for an offence where a "weapon, an imitation firearm, a prohibited device, any ammunition, any prohibited ammunition or an explosive substance was used in the commission of [the] offence and that thing has been seized and detained", or "that a person has committed an offence that involves, or the subject-matter of which is, a firearm, a cross-bow, a prohibited weapon, a restricted weapon, a prohibited device, ammunition, prohibited ammunition or an explosive substance has been seized and detained, that the item be an enumerated weapon or related item be connected to the offence", then there will be a mandatory forfeiture order. However, under s. 491(2), if the lawful owner "was not a party to the offence" and the judge has "no reasonable grounds to believe that the thing would or might be used in the commission of an offence", then it should be returned to the lawful owner.
Forfeiture of Offence-related Property (s. 490.1)	any	Where there is a finding of guilt for an indictable offence, "any property is offence-related property" where (a) by means or in respect of which an indictable offence under this Act or the Corruption of Foreign Public Officials Act is committed, (b) that is used in any manner in connection with the commission of such an offence, or (c) that is intended to be used for committing such an offence". Such property is to be forfeited to Her Majesty in right of the province. NB: does not* apply to summary offences*.