CRIMINAL CODE OFFENCES
PARTIES TO AN OFFENCE
CRIMINAL CODE OFFENCESPARTIES TO AN OFFENCE
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FUNCTIONAL COMPETENCY
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TABLE OF CONTENTS
Given circumstances of an offence, identify all the persons who could be charged as:
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As a peace officer you will be spending a considerable amount of time investigating offences that have already occurred. Not only will you have to determine what type of offence has been committed in each case, but who is responsible and who is involved.
Involvement in a crime can take various forms and degrees of complicity. Your job will be to determine the role of each party concerned, their degree of involvement as well as the appropriate follow-up action to pursue.
This module is about involvement in criminal offences. You will learn what the categories of involvement are, how to distinguish each, and the implications of that involvement.
Because a high proportion of offences are committed by more than one person, understanding the law regarding these various roles of involvement will better equip you to serve your community.
Persons who are involved, and may be charged with a particular offence are referred to as parties to that offence. These parties may play different roles but in the eyes of the law all are equally guilty.
Parties to an offence fall into a one of four categories. These are:
Chart 1 illustrates these categories graphically to help clarify the distinctions. Take a moment and review that chart now, then proceed to read the descriptions of each role. Although shown on the chart, an accessory after the fact is not technically a party to an offence, within the meaning of the Criminal Code.
Chart 1
There are four potential roles of the various parties to an offence as shown in the chart. These are described in Section 21 of the Criminal Code. Turn to that section and review it as you read through this instruction.
Example #1: Person A supplies a key to Person B for the purpose of entering and robbing a store. Person A is an aider even though he does not attend the robbery.
Example #2: Person A leaves a safe unlocked (omits to do something) or fails to lock a back window or door so that his friend can enter to commit theft. Person A is an aider.
It is important to understand that to be charged as an abettor, the offence must have taken place and the person must be at the scene during the commission of the offence. Sometimes this is a difficult charge to prove.
For example, Person A assaults Person C. Person A does the actual physical assault, while Person B encourages him on. Person B is an abettor.
Here's another situation to consider:
A, B and C decide to beat up a policeman who is on foot patrol. A punches the policeman while B acts as a lookout. C stands back and shouts encouragement to A such as: "Hit him, kick him, etc." What roles did each person play in this assault?
The fourth category of party to an offence is a counsellor.
Read Sub-section 22(1) of your code which covers the offence of "counselling". In your own words, describe that offence in your own words.
Note the criteria that the offence must be carried out for a charge of counselling to be laid.
As with the aider, a person who counsels does not have to be at the scene of the crime to be guilty, which brings up an interesting point.
Suppose someone counsels an offence by inciting or procuring another person to commit the offence, but the offence is never carried out. Is the person guilty of any offence? For the answer, turn to Section 464 of your Criminal Code.
You should have discovered that the answer is yes! Counselling to commit an indictable offence is an indictable offence, and counselling to commit a summary conviction offence is a summary conviction offence, as stipulated in Paragraphs 464(a) and (b) of the Criminal Code.
Not only are parties to an offence guilty of the offence originally intended, but they are also guilty of any other offence that occurs as a probable consequence of their original intention. Sub-section 21(2) of the Criminal Code defines this point. In your own words, paraphrase the intent of this section.
This sub-section expands the liability of the parties beyond the wrongful act originally intended. It extends to any other offence that might be committed as a probable consequence of carrying out the original purpose.
For example, if three people intend to rob a store and during that robbery someone gets hurt or killed, all parties are equally guilty of the second offence; or are they?
The Supreme Court has ruled that the phrase "knew or ought to have known" found in Sub-sections 21(2) and 22(2), does not extend to murder or attempted murder. It has ruled this provision cannot be justified under Section 1 of the Charter of Rights and Freedoms.
This means that the intent, or mens rea must be proved on the part of all parties to the offences of murder and attempted murder.
For example, two men plan to rob a bank, and during the robbery, one of them shoots and kills a teller. Can both be charged with murder?
According to the limitations just described, the person who actually did the shooting could be charged with murder. But to convict the accomplice or the other party, you would have to prove that he had equal intent to commit the murder, should it have been necessary. If that common intent could not be proved, you would be limited to charging the accomplice with robbery.
This extended liability also includes counsellors as stipulated in Sub-section 22(2). Read that section and paraphrase the intent of that section in your own words.
For example, A and B plan to push Person C around just for fun. A holds C while B hits C in the face, breaking C's jaw. They did not plan to break C's jaw but this was a consequence of the original intention of common assault. Both could now be charged with assault causing bodily harm because of the injury sustained by C.
Let's extend this example to include Person D who had counseled the original assault. Could he be held responsible for the bodily harm as well?
There is one other category of involvement that needs to be addressed, and that includes persons who assist Parties to the Offence after the offence has taken place. This is referred to as being an accessory after the fact.
Read Sub-section 23(1) and (2) of the Criminal Code and describe in your own words, who is an accessory after the fact.
Note the inclusion of the words, "receives", "comforts" or "assists" a party to an offence for the purpose of "enabling that person to escape."
Can a husband be an accessory after the fact for an offence committed by his wife?
So the key components of being an accessory are:
For example, Person A commits a theft, during which he injures himself. He reports to a doctor to have the injury treated. Following treatment he goes to the house of a friend, who, after learning of the offence, offers his home as a hide-out. Is the doctor an accessory after the fact? Why? What about the friend?
PENALTY - ACCESSORY AFTER THE FACT
What is the penalty for an Accessory After the Fact? This is described in Section 463 of the Criminal Code. Review that section to familiarize yourself with its elements.
Note how the penalty for an accessory after the fact is tied to the penalty for the perpetrator, based on the severity of the offence.
At this point we will leave parties to an offence and examine the closely related topic: conspiracy.
This is an important concept in law because when dealing with experienced criminals, it is often the only way to link them to the actual commission of a crime. Understanding the concept of conspiracy, will enable you to consider this as an alternative during your investigations.
Section 465 of the Criminal Code outlines various conspiracy offences. Read that section now and answer the following questions.
What are the four categories of offences to which conspiracy applies?
There are two important cases that outline the rules or criteria of conspiracy. These are:
In this case, the Supreme Court ruled that a conspiracy consists of the agreement of two or more, to do an unlawful act, or to do a lawful act by unlawful means. When two agree to carry it into effect, the very plot is an act in itself.
In this case the court ruled: "The crime of conspiracy is completely committed the moment two or more have agreed that they will do, immediately or at some future time, certain things. It is not necessary, in order to complete the offence, that anything should be done beyond the agreement. The conspirators may repent and stop, or may have no opportunity, or may be prevented or failed. Nevertheless, the crime is complete; it was completed when they agreed."
From these cases we can conclude that:
Conspiracy is:
By far the most common conspiracy committed is under Paragraph 465(1)(c) of the Criminal Code. This is conspiracy to commit an indictable offence.
Special note: a husband and wife cannot conspire together as they are considered one under the law.
To conclude this discussion on conspiracy, it might be interesting to review the comments of Mr. Justice Lawrence Jay, who in 1918, laid down the basic conspiracy guidelines which are still observed today. In R. v. Kupferberg (1918) - Justice Lawrence Jay said:
"A charge of conspiracy is not the same as one of aiding and abetting. It is true that in many cases, aiding and abetting is done by the mutual consent of the criminals, but it is not essential that it should be. To prove conspiracy against the appellant, it is necessary that an agreement, expressed or implied, should be proved to the satisfaction of the jury, but it is quite unnecessary to prove such agreement where the charge is one of aiding and abetting. In the latter case, it is only necessary to show that the appellant appreciated what was going on and did something to further it."
The next item is a short Self-Check to help you assess your understanding of the concepts of parties to an offence and conspiracy.
Complete all items, then verify your answers against those provided. If you are on track, review the module Summary and proceed to the Criterion Test. Any discrepancies in your answers should be discussed with a colleague, or referred to your supervisor.
To assess your understanding of the material presented in this module, answer the following questions, then check your responses against those which follow. If your answers are consistent with those presented, you should be ready to complete the criterion test for this module.
If you are confident that you understand the concept of parties to an offence, accessories after the fact and the components of conspiracy, review the following summary then complete the Criterion Test. If there are areas where you are still uncertain, view the video tape Parties to an Offence available on interlibrary loan from the Academy Resource Center (Reference #LA 007 - RCMP Resource Center). It will provide a useful review of the main points of this subject. Alternately you can discuss any issues of concern with your supervisor, or a colleague. Either way, be sure you understand the key concepts and points before you do the Criterion Test.
SUMMARY - PARTIES TO AN OFFENCE
(a) - commits the offence. (perpetrator must be present)
(b) - does or omits to do anything for the purpose of aiding any person to commit the offence (aider need not be present).
(c) - abets any person in committing (abettor must be present).
The perpetrator, aider, abettor and counsellor are equally guilty of the crime and will be charged with the same offence, whatever their connection.
Accessory after the fact is anyone who:
Conspiracy must involve:
Categories of Conspiracy: Sub-section 465(1) - Conspiracy to:
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CROSS-CHECK - CONSPIRACY AND PARTIES |
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CONSPIRACY |
AIDER/ABETTOR |
| 1. Must
be agreement to act. 2. Offence need not be committed. |
1. No requirement
to form agreement. 2. Offence must be committed. |
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CONSPIRACY |
COUNSELLING |
| 1. Does
not involve counselling. 2. Must prove element of agreement |
1. May involve conspiracy
but not necessarily. 2. Could be alternate charge to conspiracy. |
CRITERION TEST - PARTIES TO AN OFFENCE
Person A owes Person B $5,000.00, but is unable to pay. They meet and agree to rob a grocery store, part of the proceeds to be used to repay the loan. Person B provides the layout of the store, the hours of operation and how to get to the payroll. He also volunteers to recruit two other people to help with the job.
Person A, C and D enter the grocery store to commit the robbery. C forces all the patrons to the back of the store to keep them out of the way. Person A encourages person D to open the strong box and take all the money, which he does.
All three leave the store and make their get away on foot. They meet at the home of Person B where they divide up the money. The wife of Person B agrees to house the participants for several days until things cool off.
© GRC-RCMP
ecdp1032.doc
July 29, 1997
Revised: July 26, 2000
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