Crimes are often committed in groups. There is a particular interest in society in deterring persons in getting together to plan crime or assist others in their commission of crimes. Groups provide a certain degree of psychological comfort and encouragement to commit crimes. They can also lead to crimes being covered up. The wider the group, the stronger its capabilities, and the most dangerous once committed to delinquency. For this reason the criminal law expands its reach from the lone perpetrator to the accomplice, the criminal organization, etc.
Once committed amidst a group one’s personal contribution is envisaged in a manner comparable to inchoate offenses by the criminal law. That is, one does not consume the entirety of the actus reus on her own, but nevertheless forms a malicious intent commanding punishment. The metaphor is that of two individuals whose respective inchoate contributions complete the actus reus as two pieces in a puzzle. In this situation again a very subtle positive or physical contribution may therefore suffice, when coupled with a proper comprehension and desire for the criminal undertaking, to establish guilt. What is more, like an inchoate offense, participation is a mode of liability. It is a manner in which an individual may be recognized guilty for delinquent behaviour of a nature different than individual, full perpetration. Beyond perpetrating the crime as a principal, one may conspire to do so with an accomplice (planning out the details of the murder, of where to obtain the firearm, how to use it, where to find the victim), one may form a common intention with an accomplice (furthering a plan to break into the victim’s house, that one accomplice murder the victim while the other steals valuables in the house), one may do something for the purpose of aiding an accomplice carry out the crim(providing an accomplice with a weapon knowing it will be used to murder the victim), or abet any person committing the offence (encouraging another person to continue severely beating victim). We will see each in turn.
Conspiracy is the most indirect or distant form of perpetration. As with other inchoate crimes, the JF decision specifies along with Section 465 Cr. C. that a narrow interpretation is called for due to the distance between the intentions formed and the harm potentially caused. As we have already seen, the crime consists in an agreement to commit a given crime. One’s material contribution to the furtherance of this criminal object one already agreed upon and formed by others should generally not suffice to meet this criterion, despite the fact that this form of behavior may seem to express a tacit form of agreement.
Common intention is the second most indirect form of group perpetration. It is enshrined under Section 21(2) Cr.C. Here there must be a “common intention” to carry out a criminal endeavour the consequences of which may engender a variety of foreseeable consequences. A classic illustration may be that a common intention is formed to commit a robbery and that one of the two perpetrators punches a security guard trying to prevent the robbery, therefore adding the (unplanned albeit foreseeable) crime of assault to the planned crime of theft. In this case, both perpetrators will be held liable for the violence committed despite the fact that one of the two did not take part in it, due to the fact that such consequences were foreseeable. Indeed Section 21(1) Cr. C. is designed to make the difference between aiding and abetting and personally committing an offence legally irrelevant. It provides that either mode of committing an offence is equally culpable and that whether a person personally commits or only aids and abets, he is guilty of that offence and not some separate distinct offence.
The example provided here is similar to the Vaillancourt case discussing felony, where the accused person was charged of murder for the deeds of his accomplice. For crimes of such heavy stigma as murder it was established that the felony provision could not lower the mental element required to an objective standard, as this would amount under Sections 7 and 11 of the Charter to convicting an individual of an extremely grave offense without proof beyond reasonable doubt that the accused person truly did will this grave result. In the Logan case a similar issue was brought to the Supreme Court challenging the objective standard enshrined under Section 21(2) Cr.C. for an accusation of murder: “ought to have known that the infraction would be a probable consequence of carrying out of the common plan.” Again the court found that parliament could not lower the mental element to an objective one for such heavily stigmatized offences.
Aiding and Abetting is a more direct form of group participation. Aiding is tied with its twin concept abetting in Section 21(1)(b)-(c) Cr.C. While both tend to be assessed in a similar fashion, each technically points to a different scenario the limits of which are unclear. Aiding is a contribution more infrastructural or physical in nature, and abetting is a contribution more psychological in nature, closer to a form of encouragement or support. The Dunlop and Sylvester case illustrates the minimal threshold in terms of behavior: “Mere presence at the scene of a crime is not sufficient to ground culpability. Something more is needed: encouragement of the principal offender; an act which facilitates the commission of the offence, such as keeping watch on enticing the victim away, or an act which tends to prevent or hinder interference with accomplishment of the criminal act, such as preventing the intended victim from escaping or being ready to assist the prime culprit.” In both cases the person who aids or abets the commission of a crime must have, in addition, a minimal amount of knowledge of the nature of the crime itself. The Briscoe case illustrates the minimal mental element required, finding that a driver who knew that the passengers in his automobile seemed to desire committing a murder had been willfully blind to his contribution in the furtherance of this infraction. The desire to murder someone had been expressed earlier, the defendant was unsure whether the passengers would carry out their intention upon arrival, but nevertheless drove to an opportune destination. Where knowledge is the requisite mental element for aiding and abetting, Briscoe had been willfully blind to the criminal endeavor.
Class preparation
See CC s. 21
R. v. Dunlop and Sylvester, [1979] 2 S.C.R. 881
R. v. Logan, [1990] 2 S.C.R. 731
R. v. Briscoe, 2008 ABCA 327 (CanLII)
R. v. Thatcher, [1987] 1 S.C.R. 652 (headnote only).
R. v. JF, 2013 SCC 12
R. v. Gauthier, 2013 SCC 32 (headnote only).
Further readings:
Baker, Dennis J. “Conceptualizing Inchoate Complicity: The Normative and Doctrinal Case for Lesser Offenses as an Alternative to Complicity Liability.” S. Cal. Interdisc. LJ 25 (2016): 503.
———. “Foresight in Common Purpose Complicity/Joint Enterprise Complicity: It Is a Maxim of Evidence, Not a Substantive Fault Element,” 2012.
———. Reinterpreting Criminal Complicity and Inchoate Participation Offences. Routledge, 2016.
Hallevy, Gabriel. “Victim’s Complicity in Criminal Law.” IJPS 2 (2006): 72.
Lafontaine, Fannie. “Parties to Offences under the Canadian Crimes against Humanity and War Crimes Act: An Analysis of Principal Liability and Complicity.” Les Cahiers de Droit 50, no. 3–4 (2009): 967–1014.
Manirabona, Amissi. “La Complicité Par Omission: Une Analyse Critique de l’arrêt Rochon c. La Reine.” Revue Générale de Droit 42, no. 2 (2012): 729–761.
———. “La Complicité Par Omission: Une Analyse Critique de l’arrêt Rochon c. La Reine.” Revue Générale de Droit 42, no. 2 (2012): 729–761.
———. “Le Nouveau Standard d’intention Requise En Rapport Avec l’aide Ou l’encouragement Au Meurtre: Une Analyse de l’arrêt R. c. Briscoe.” Les Cahiers de Droit 53, no. 1 (2012): 109–129.
Nwapi, Chilenye. “Accountability of Canadian Mining Corporations for Their Overseas Conduct: Can Extraterritorial Corporate Criminal Prosecution Come to the Rescue?” Canadian Yearbook of International Law/Annuaire Canadien de Droit International 54 (2017): 227–275.
Rikhof, Joseph. “Complicity in International Criminal Law and Canadian Refugee Law: A Comparison.” Journal of International Criminal Justice 4, no. 4 (2006): 702–722.