Abandonment (Defence)
| This page was last substantively updated or reviewed May 2021. (Rev. # 95913) |
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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]
- 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.[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.
- 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]
- ↑
R v Gauthier, 2013 SCC 32 (CanLII), [2013] 2 SCR 403, per Wagner J, at para 50
- ↑
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 - ↑ 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")
- ↑ Gauthier, supra added this last element, see, at para 50
- ↑ KKP, supra, at para 12
- ↑
Miller, supra
KKP, supra, at para 12 - ↑
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
- ↑ SRB, supra, at para 19
- ↑
KKP, supra, at para 14
- ↑ KKP, supra, at para 11
- ↑
R v Ball, 2011 BCCA 11 (CanLII), 267 CCC (3d) 532, per Ryan J, at para 46
- ↑ 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
- ↑
R v Joyce, 1978 CanLII 2422 (BC CA), 42 CCC (2d) 141, per Hinkson JA