Section 23 provides a separate offence for receiving, comforting, or assisting a person that one knows has been a party to an offence for the purpose of enabling that person to escape. An accessory after the fact is not a party to an offence but is punished under section 463 as if he or she had been guilty of an attempt of the crime that the person assisted committed.
The actus reus for this provision requires a person to receive, comfort, or assist a person who has committed a crime. This requires more than the mere failure to inform authorities about the fugitive’s whereabouts.143At the same time, advising fugitives that the police had their names and licence numbers is enough.144This again mirrors the traditional reluctance in the criminal law to punish an omission or failure to act.
Section 23(2) used to provide that a married person cannot be guilty of assisting his or her spouse after the commission of a crime, but it was repealed in 2000. Section 23.1 allows a person to be convicted of being an accessory after the fact even though the person assisted has not been convicted of an offence. The Supreme Court has upheld the conviction of an accused for being an accessory after the fact by assisting her brother by transporting him from a killing and orchestrating a false alibi even though her brother was eventually acquitted of the murder.145
Section 23(2) requires two distinct mental elements: 1) subjective knowledge that the person assisted has been a party to an offence, and
2) assisting the fugitive for the purpose of assisting him or her to escape. The accused must know or be wilfully blind to the fact that the other accused has committed a specific offence such as murder; knowledge that the accused may have committed some general crime is not
sufficient.146It is not sufficient that the acts of assistance have the effect of helping the person escape147or that they be undertaken for the purpose of not being suspected for the crime itself.148The requirement that the accused act with the purpose of assisting a known criminal to escape is a high form of subjective mens rea that may be more difficult for the Crown to prove than lower forms of subjective mental elements such as...