Parties to an Offence

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General Principles

A person can be criminally responsible as the principal actor in committing an offence or as a member of a party acting together in the commission of an offence. In terms of guilt, there is no difference between being an aider, abettor, or principal to an offence.[1] They are all equally culpable.[2]

By contrast, liability as an "accessory after the fact" or conspirator is separate from a party. These forms of offences concern "involvement falling short of personal commission".[3]

The operating section on parties states:

Parties to offence

21 (1) Every one is a party to an offence who

(a) actually commits it;
(b) does or omits to do anything for the purpose of aiding any person to commit it; or
(c) abets any person in committing it.
Common intention

(2) Where two or more persons form an intention in common to carry out an unlawful purpose and to assist each other therein and any one of them, in carrying out the common purpose, commits an offence, each of them who knew or ought to have known that the commission of the offence would be a probable consequence of carrying out the common purpose is a party to that offence.
R.S., c. C-34, s. 21.

– CCC

Note up: 21(1) and (2)

Section 21 outlines four ways in which a person can be criminally liable for an act. A person can be a principal, an aider, an abettor, or have common intention to commit an offence.

The section is "designed to make the difference between aiding and abetting and personally committing an offence legally irrelevant."[4] As such it is unnecessary for the indictment to specify whether the accused is charged as a principal or as a party.[5]

At common law, there were four types of parties:[6]

  1. principles of the first degree;
  2. principles of the second degree;
  3. accessories before the fact; and
  4. accessories after the fact

Section 21 effectively codifies the common law distinction between principle liability and secondary liability.[7]

The trier-of-fact may find an accused liable as both a principal and secondary party at the same time. A jury does not need to be unanimous on the accused's role to find conviction.[8]

In any of the circumstances, a party to an offence must have both knowledge and intent.[9]

Where a person provides directions or instructions to a potential buyer to make a purchase of drugs from a seller, that can amount to aiding and abetting in trafficking arising from the eventual sale. [10]

Even where the other participants in the offence are not known and not charged, a jury should still be instructed on the types of party liability under s. 21.[11]

Constitutionality

Where s. 21 permits a person to be convicted as a party to first degree murder while the principal is only convicted of second degree murder does not violate s. 7 of the Charter.[12]

  1. ↑ R v Thatcher, 1987 CanLII 53 (SCC), per Dickson CJ ("This provision [s. 21] is designed to make the difference between aiding and abetting and personally committing an offence legally irrelevant.")
    R v Briscoe, 2010 SCC 13 (CanLII), per Charron J, at para 13
    R v Tomlinson, 2014 ONCA 158 (CanLII), per Watt JA, at para 143
  2. ↑ R v Sandham, 2009 CanLII 58605 (ONSC), per Heeney J, at para 121
  3. ↑ Thatcher, supra
  4. ↑ Thatcher, supra
    see also R v Maciel, 2007 ONCA 196 (CanLII), per Doherty JA, at para 85
  5. ↑ Thatcher, supra, at p. 689 (SCR) citing R v Harder, 1956 CanLII 58 (SCC), , [1956] SCR 489, per Fauteux J
  6. ↑ R v Berryman, 1990 CanLII 286 (BCCA), , 57 CCC (3d) 275 (BCCA), per curiam, at p. 382
    R v Mena, 1987 CanLII 2868 (ON CA), , 34 CCC (3d) 304 (ONCA), per Martin JA
    R v Pickton, 2010 SCC 32 (CanLII), per LeBel J, at para 51 refers to principal liability and secondary liability
  7. ↑ Pickton, ibid., at para 51
  8. ↑ Thatcher, supra, at p. 694 (SCR)
  9. ↑ R v Briscoe, 2010 SCC 13 (CanLII), per Charron J, at paras 14 to 16
  10. ↑ R v Frayne, 2011 ONCJ 557 (CanLII), per Villeneuve J
  11. ↑ R v Isaac, 1984 CanLII 130 (SCC), , [1984] 1 SCR 74, per McIntyre J, at 81 (SCR)
  12. ↑ R v Huard, 2013 ONCA 650 (CanLII), per Watt JA leave refused

Section 21(1)(a): "Commits"

Section 21(1)(a) states that "Every one is a party to an offence who ... (a) actually commits it;"

A person "actually commits" an offence when he does some act "towards the commission of the offence" with requisite mens rea or uses an agent to commit it.

Co-Principal or Joint Perpetrator

Where there is multiple people all doing some act together towards the shared achievement of the offence, each is actually committing the offence as a "joint principle offender".[1]

It is not necessary for each joint perpetrator to perform every act that makes up the offence. Where acts are divided between the parties they are both liable as principals.[2]

There is no requirement for joint perpetrators under s. 21(1)(a) for there to be any "agreement to carry out a common purpose". There only needs to be a "common participation".[3]

Whether an accused person is considered a principal or a party will have an impact on whether a defence of duress under s. 17 can apply.

A person can be found guilty as a co-principal even if the other participants were acquitted.[4]

In an assault that causes death, there is no need for the Crown to prove who "struck the fatal blow or blows".[5]

  1. ↑ E. G. Ewaschuk in Criminal Pleadings & Practice in Canada, looseleaf, 2nd ed., Vol. 1 (Aurora: Canada Law Book, 2007) at 15:1010
  2. ↑ R v Ball, 2011 BCCA 11 (CanLII), per Ryan JA, at paras 23, 24
  3. ↑ Ball, ibid., at paras 24 to 25
  4. ↑ R v Hick, 1991 CanLII 47 (SCC), , [1991] 3 SCR 383, per Stevenson J
  5. ↑ Ball, supra, at para 28

Separate Acts Create Joint Liability

Where "two people have acted in concert to commit" an criminal offence "as a joint enterprise" they can both be found liable as principals.[1]

A person can be a co-principal even where he has not personally performed every act that makes out the essential acts of the offence.[2] As long as the acts of all parties in sum make out the essential acts of the offence as part of a "common participation" will make out the offence. They do not need a "common purpose" or "common intention".[3] A contribution to "the actus reus with the requisit mens rea" will be suffficent.[4]

Two cars racing each other can be co-principals if one of the cars negligently causes death or bodily harm.[5]

  1. ↑ R v Iyanam, 2013 ONSC 1091 (CanLII), per Code J, at para 24
  2. ↑ R v Ball, 2011 BCCA 11 (CanLII), at para 24
  3. ↑ Ball, ibid., at para 25
  4. ↑ R v Hughes, 2011 BCCA 220 (CanLII), per Rowles JA, at para 77
  5. ↑ Hughes, ibid.

Connecting the Act to the Actor

Where it is proven that where it is proven that multiple people acted with an intention to commit murder, it is "legally irrelevant" to determine who pulled the trigger.[1]

Where several people participate and assist each other in the commission of an assault that would likely cause death and does so, then they are all parties to murder under s. 21(1)(a).[2] It is said that a "blow of one is, in law, the blow of all of them".[3]

In an assault context, it is not necessary to prove the degree of involvement of each perpetrator as it would be "impractical and at times impossible" to sort out the individual involvement.[4]

  1. ↑ R v Devon Trent Gerald Paskimin, 2012 SKCA 35 (CanLII), per Herauf JA, at para 23
    R v H(LI), 2003 MBCA 97 (CanLII), per Freedman JA, at para 20
  2. ↑ H(LI), ibid., at para 20
  3. ↑ R v Chow Bew, 1955 CanLII 47 (SCC), , [1956] SCR 124,, per Locke J
    R v Thatcher, 1987 CanLII 53 (SCC), per Dickson CJ
    R v Ball, 2011 BCCA 11 (CanLII), per Ryan JA, at para 30
  4. ↑ R v JFD, 2005 BCCA 202 (CanLII), per Oppal JA, at paras 7, 14
    Ball, supra

Innocent Agency

The doctrine of innocent agency permits an offender to commit an offence as a principal through the direction of an innocent third-party.[1]

This requires the principal to commit an offence "by means of an instrument 'whose movements are regulated" by [the accused]".[2]

Typical scenarios include a courier who is transporting drugs on behalf of the principal.[3]

  1. ↑ R v Berryman, 1990 CanLII 286 (BCCA), , 57 CCC (3d) 375 (BCCA), per curiam
  2. ↑ Berryman, ibid. citing Williams, "Criminal Law"
  3. ↑ R v McFadden, 1971 CanLII 1260 (NB CA), (1971), 5 CCC (2d) 204 (NBCA), per Hughes JA

Intention

The accused intents to be a party where they intend the consequences of the principal's actions. An accused "intends a particular consequence not only when his conscious purpose is to bring it about, but also when he foresees that the consequence is certain or substantially certain to result from his conduct".[1]

The accused does not need to have a ulterior motive to assist the principal in completing the offence. So warning a principal of the risk of police arriving during the commission will provide assistance as a party even where the act was motivated by a fear of being caught personally. [2]

  1. ↑ R v Iyanam, 2013 ONSC 1091 (CanLII), per Code J, at para 26 citing R v Buzzanga and Durocher, 1979 CanLII 1927 (ON CA), , 49 CCC (2d) 369, per Martin JA
  2. ↑ Iyanam, supra, at para 26

Section 21(1)(b), (c): Aiding and Abetting

Section 21(1)(b) and (c) states that "Everyone is a party to an offence who ... (b) does or omits to do anything for the purpose of aiding any person to commit it; or (c) abets any person in committing it."

A person can be convicted as an aider or abettor even where the principal is not charged or even acquitted.[1]

  1. ↑ R v Johnson, 2017 NSCA 64 (CanLII), per Beveridge JA, at para 78

"Aiding" and "Abetting"

"Aid" is often defined as conduct that assists or helps the principal in the offence.[1]

"Abet" refers to "encouraging", "instigating", "promoting" or "procuring" the commission of the offence.[2] It also includes "encouraging" or "supporting" the principal party.[3]

  1. ↑ R v Greyeyes, 1997 CanLII 313 (SCC), per L’Heureux‑Dubé J, at para 26
    R v Briscoe, 2010 SCC 13 (CanLII), per Charron J
  2. ↑ Greyeyes, supra, at para 26
    Briscoe, ibid.
  3. ↑ R v Rochon, 2003 CanLII 9600 (ON CA), per MacPherson JA, at paras 54 to 61

Actus Reus

The actus reus of aiding or abetting is "doing (or, in some circumstances, omitting to do) something that assists or encourages the perpetrator to commit the offence.[1] While it is common to speak of aiding and abetting together, the two concepts are distinct, and liability can flow from either one. Broadly speaking, "[t]o aid under s. 21(1)(b) means to assist or help the actor... . To abet within the meaning of s. 21(1)(c) includes encouraging, instigating, promoting or procuring the crime to be committed"[2]

The actus reus and mens rea of aiding is distinct from those of the actual offence.[3]

To be liable as an aider or abettor, the Crown must prove:

  1. the specific offence in the indictment was committed
  2. the accused does some act that actually aids or abets in the commission of the offence; and
  3. the accused had the mens rea for the offence.

The accused's act must have some connection to the principal's acts.[4] It should have an effect of providing "actual assistance or encouragement". An act that does not contribute or effect the commission of the offence is not aiding or abetting.[5]

It is not necessary that the principal have any awareness that the aider or abettor is contributing to the offence.[6]

  1. ↑ See also R v Briscoe, 2010 SCC 13 (CanLII), per Charron J, at para 14
  2. ↑ Briscoe, supra, at para 14 - ("aiding or abetting is doing (or, in some circumstances, omitting to do) something that assists or encourages the perpetrator to commit the offence")
    R v Tomlinson, 2014 ONCA 158 (CanLII), per Watt JA, at para 144
  3. ↑ Briscoe, supra, at para 13
  4. ↑ R v Dooley, 2009 ONCA 910 (CanLII), per Doherty JA, at para 123
  5. ↑ Dooley, ibid., at para 123
  6. ↑ R v Greyeyes, 1997 CanLII 313 (SCC), per L’Heureux‑Dubé J, at para 26
    R v Almarales, 2008 ONCA 692 (CanLII), per Watt JA, at paras 66, 67

Mens Rea

Aiding

The mens rea for aiding requires that the act be "for the purpose of aiding" the principal in the commission of the offence.[1] The accused then must (1) know that the principal is intending to commit the offence; and (2) intend to provide assistance to the principal in carrying out the act.[2] In total, the accused "must have knowledge of the facts that constitute [the unlawful objective]".[3]

There is no need for the accused to desire the offence to be "successfully committed".[4]

The knowledge element requires that the "aider knew the perpetrator intended to commit the crime although ... need not know precisely how the crime was to be committed."[5]

The knowledge component of the mens rea can be established by wilful blindness to the principals intent to commit the offence.[6]

Abetting

The mens rea for abetting is substantially the same as aiding, despite the difference in language.[7] The section should be treated as if it stated "for the purpose".[8]

Even where the index offence does not require specific intent and can be satisfied by recklessness, the Crown must still prove that the aider and abettor had specific intent to contribute to the index offence.[9]

  1. ↑ See s. 21(1)(b)
  2. ↑ R v Almarales, 2008 ONCA 692 (CanLII), per Watt JA, at para 67
    R v Briscoe, 2010 SCC 13 (CanLII), per Charron J, at paras 16, 17
    R v Taylor, 2013 ONCA 656 (CanLII), per Cronk JA United States v Fester, 2009 BCSC 1331 (CanLII), per Rice J, at para 44, ("evidence that the accused intended the consequences that ensued from his act in furtherance of the crime because he had actual knowledge of the offence intended by the principal actor or he was wilfully blind as to the proposed intentions of this person”)
  3. ↑ R v Helsdon, 2007 ONCA 54 (CanLII), per O'Connor ACJ, at para 28 (ONCA)
  4. ↑ R v Briscoe, 2010 SCC 13 (CanLII), per Charron J, at para 16
    R v Tomlinson, 2014 ONCA 158 (CanLII), per Watt JA, at para 144
  5. ↑ Tomlinson, ibid., at para 144
    Briscoe, supra, at para 17
  6. ↑ Briscoe, supra, at paras 21 to 25
    Taylor, supra
  7. ↑ Helsdon, supra, at paras 43 to 44
  8. ↑ Helsdon, supra
  9. ↑ R v Roach, 2004 CanLII 59974 (ON CA), , 192 CCC (3d) 557 (ONCA), per Borins JA, at para 44

Specific Examples

Assault

A father, under a duty to protect his son, knew of ongoing assaults upon his child by the mother was found liable as an aider in the murder of his son for failing to intervene.[1]

Conspiracy

A person may aid or abet a conspiracy. However, will generally only apply to aiding or abetting (1) the formation of a new agreement or the joining of a new member to a pre-existing conspiracy. It is not made out by simply aiding or abetting any element of the conspiracy.[2] The accused will be a party to a conspiracy "where the accused aids or abets the actus reus of conspiracy, namely the act of agreeing."[3]

However, given that acts that further the unlawful object of a conspiracy are not an element of the offence of conspiracy, such acts aiding or abetting such acts does not aid or abet conspiracy.[4] Instead, acts or omissions that advance the unlawful object of the conspiracy, with the knowledge of the conspiracy and the consent of a member of the conspiracy, is evidence of direct membership in the conspiracy.[5]

Theft

A voluntary passenger in a stolen vehicle may be found to be an abettor as their presence may have the effect of encouraging the theft.[6]

Murder

An aider or abettor does not need to intend for the victim to be murdered to be liable, he need only have the knowledge of the principal's intent to murder.[7]

For an aider to be liable for first degree murder it is necessary to prove that the accused:[8]

  • did or omitted to do something that aided another person to unlawfully cause the victim’s death
  • did the impugned act for the purpose of aiding that other person to unlawfully cause the victim’s death
  • when he did the impugned act he either had the requisite intent for murder or knew that the principal offender had the requisite intent for murder
  • when he did the impugned act, he did so for the purpose of aiding the principal offender to commit a planned and deliberate murder
  • when he did the impugned act, he planned and deliberated the murder, or knew that the murder was planned and deliberate.

It is not necessary for the Crown to prove that the aid "caused" the death.[9] The conduct needs only to be connected through the provision of "actual assistance or encouragement".[10]

  1. ↑ R v Dooley, 2009 ONCA 910 (CanLII), per Doherty JA
  2. ↑ R v JF, 2013 SCC 12 (CanLII), per Moldaver J, at paras 25, 73
  3. ↑ JF, ibid., at para 72
    see also Conspiracy
  4. ↑ JF, ibid., at paras 60 to 63(describes distinction from the McNamara model of liability)
  5. ↑ {ibid1|JF}}, at para 73
  6. ↑ see Motor Vehicle Theft (Offence)
  7. ↑ R v Johnson, 2017 NSCA 64 (CanLII), per Beveridge JA, at para 79
  8. ↑ Johnson, ibid., at para 80
  9. ↑ Johnson, ibid., at para 92
    R v Dooley, 2009 ONCA 910 (CanLII), per Doherty JA, at paras 116 to 123
  10. ↑ Dooley, ibid., at para 123

Section 21(2): Common Intention

The doctrine of common intention, codified in s. 21(2), attributes criminal liability for acts done by a member of a group to the other members of the group. Section 21(2) states:

21
[omitted (1)]

Common intention

(2) Where two or more persons form an intention in common to carry out an unlawful purpose and to assist each other therein and any one of them, in carrying out the common purpose, commits an offence, each of them who knew or ought to have known that the commission of the offence would be a probable consequence of carrying out the common purpose is a party to that offence.
R.S., c. C-34, s. 21.

– CCC

Note up: 21(2)

The effect of this provision is that a member of a group committing a criminal act can be liable for any incidental offences committed by its other members so long as the incidental offence was a "probable consequence" of carrying out the initial offence.

The purpose of s. 21(2) is to "deter joint criminal enterprises and to encourage persons who do participate to ensure that their accomplices do not commit offences beyond the planned unlawful purpose."[1]

To form intentions in common, there must be:

  1. two or more parties must form an intention in common to carry out an unlawful purpose
  2. the parties agree to carry out this unlawful purpose.

Actual assistance is not necessary.[2]

A common intention is whether two or more persons "have in mind the same unlawful purpose." The common intention may form "in the instant of the offence being committed, the mutual intention to pursue unlawful purpose and to assist each other therein being formed at the very moment of carrying it out." [3]

So for example, where a second party joins in on an assault by a primary party, there will be a common intention formed.

  1. ↑ R v Logan, 1990 CanLII 84 (SCC), , [1990] 2 SCR 731, per Lamer J
  2. ↑ R v Moore, 1984 CanLII 3542 (ON CA), (1984) 15 CCC (3d) 541 (ONCA), per Martin JA
  3. ↑ R v Vang, 1999 CanLII 2310 (ON CA), per Morden ACJ, at para 24
    See Rose, Parties to an Offence (1982), at pp. 67 - 68

Exceptional Mens Rea Offences

Section 21(2) is constitutional.[1] This is because of the subjective standard require to prove that the accused intended to have a common intention to carry out the unlawful purpose. In addition, an objective standard is required as the incidental offence must be objectively foreseeable. The court however may take into account the personal characteristics and particular circumstances of the accused.[2]

Section 21(2) will operate differently on certain offences that have a greater "stigma" and potential punishments will constitutionally require a greater mens rea. For those offences, such as murder and attempted murder,[3] , the objective component does not apply and the Crown must prove subjective component only. In those cases the phrase "ought to have known" is of no force.[4]

  1. ↑ Logan, supra
  2. ↑ R v Vasil, 1981 CanLII 46 (SCC), , [1981] 1 SCR 469, per Lamer J
  3. ↑ R v Vaillancourt, 1987 CanLII 2 (SCC), , [1987] 2 SCR 636, per Lamer J
    R v Martineau, 1990 CanLII 80 (SCC), , [1990] 2 SCR 633, per Lamer CJ
  4. ↑ Logan, supra

Intention in Common

Intention in common requires two or more persons with the "same unlawful purpose" or "goal" in mind. However, they do not need to share the same motive or desire to bring about the offence.[1]

The common unlawful purpose can be formed at the time the offence is committed rather than in advance.[2]

  1. ↑ R v Hibbert, 1995 CanLII 110 (SCC), , [1995] 2 SCR 973, per Lamer CJ, at paras 40 to 44
    R v Cadeddu, 2013 ONCA 729 (CanLII), per Strathy JA
  2. ↑ Cadeddu, ibid.

Incidental Offence

The incidental offence must be a separate offence from the offence committed as part of the unlawful purpose. It must be some incidental offence not part of the initial unlawful purpose.[1]

  1. ↑ R v Babineau, [1987] NBJ No 1118 (CA)(*no CanLII links)
    R v Cormier, [1998] NBJ No 316(*no CanLII links)

Abandonment

See also: Abandonment (Defence)

An accused may argue that they have abandoned the common intention where it is shown that:[1]

  1. that there was an intention to abandon or withdraw from the unlawful purpose;
  2. that there was timely communication of this abandonment or withdrawal from the person in question to those who wished to continue;
  3. that the communication served unequivocal notice upon those who wished to continue; and
  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.

The issue should only be put to the jury if the evidence is capable of supporting a finding that the accused was initially a party to the unlawful purpose and later "took reasonable steps in the circumstances to neutralize or otherwise cancel out the effects" of their participation or "to prevent the commission of the offence".[2]

  1. ↑ R v Gauthier, 2013 SCC 32 (CanLII), [2013] 2 SCR 403, per Wagner J, at para 50
  2. ↑ Gauthier, supra, at para 52 ("the defence of abandonment should be put to the jury only if there is evidence in the record that is capable of supporting a finding that a person who was initially a party to the carrying out of an unlawful purpose subsequently took reasonable steps in the circumstances either to neutralize the effects of his or her participation or to prevent the commission of the offence.")

Specific Examples

Murder

A girlfriend of the principal was an abettor of first degree murder under s. 21(1)(c) by standing by during the murder and yelled "kill him Georgie".[1]

The girlfriend of a principal was an abettor of manslaughter where she gave the principal a weapon for the purpose of attacking the victim. However, without the formed intent in giving the weapon, there will be no conviction.[2] Unless there is some duty to act, a bystander who is present and watches a murder cannot be found guilty of any offence connected to the murder.[3]

Robbery

Where one person steals and a companion makes a threat, they are both joint perpetrators of the offence of robbery.[4]

  1. ↑ R v Rochon, 2003 CanLII 9600 (ON CA), per MacPherson JA
  2. ↑ R v Quinn, 2009 BCCA 267 (CanLII), per Finch CJ
  3. ↑ R v Davy, 2000 CanLII 16859 (ONCA), per Rosenberg JA (2:1)
  4. ↑ R v Iyanam, 2013 ONSC 1091 (CanLII), per Code J, at para 24

Mere Bystanders

A person who is merely present at the scene or a crime cannot be evidence to prove culpability in participating in an offence.[1]

However, presence, coupled with other evidence such as a false explanation, the nature of the offence, and other circumstantial evidence may be sufficient.[2]

While the burden never shifts to the accused to explain their presence, in absence of testimony explaining the reason may permit the judge to make an inference on the surrounding evidence to find guilt.[3]

  1. ↑ R v Jackson, 2007 SCC 52 (CanLII), per Fish J, at para 3
  2. ↑ Jackson, ibid., at para 3
  3. ↑ R v Pitcher, 2013 NLCA 22 (CanLII), per Welsh JA, at para 13

Organizations as Parties

History

Under the 1892 Criminal Code s. 61 stated:

61.
...
 Every one is a party to and guilty of an offence who

(a) actually commits it; or
(b) does or omits an act for the purpose of aiding any person to commit the offence; or
(c) abets any persons in commission of the offence; or
(d) counsels or procures any person to commit the offence.

– N/A

Case Digests

See Also

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