Conclusion

• Author: Kent Roach
• Profession: Faculty of Law and Centre of Criminology. University of Toronto
• Pages: 159-162

Page 159

The following chart summarizes how various provisions of the Criminal Code expand the net of criminal liability to apply to those who did not themselves perform the complete crime. The underlying rationale seems to be that society is justified in intervening and punishing people for their criminal intent or fault and participation in crimes even if they do not commit the complete criminal act.

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An accused could be convicted of counselling murder under section 464 simply for asking an undercover officer to kill someone. The same person could be convicted under section 465 of conspiracy to commit murder if he or she agreed with another person that they would kill someone and both intended to carry out the agreement. That person could not be convicted of attempted conspiracy because the courts have refused to recognize such a crime because of concerns about extending criminal liability too far. If an accused acted alone with respect to a murder, he or she could be convicted of attempted murder under

Page 160

section 24 if he or she did anything beyond mere preparation for the purpose of carrying out the intent to kill. The accused may be held to have gone beyond mere preparation to commit an offence by for example purchasing a weapon even though the murder would not happen until sometime in the future. The fact that it was impossible to kill the intended victim because he was already dead would not be a defence. The accused would be punished more for having the intent to kill than the harm that was caused or could have been caused.

An accused could be guilty of murder under section 22 if he or she counselled another person to commit a murder and that person went on to actually commit the murder. The accused would be guilty of murder under section 21(2) if he or she formed an unlawful purpose with another person and he or she knew that it was likely that his accomplice would kill the victim while carrying out the unlawful purpose. For crimes other than murder and attempted murder,¹⁴⁹all that would have to be proven under section 21(2) would be the formation of the unlawful purpose and that the accused ought to have known that his accomplice would commit the further crime. If the accused aided or abetted the murder with the fault required for murder¹⁵⁰(the minimum fault is subjective foresight of death), the accused would also be guilty of murder under section 21(1). Knowingly assisting a person to escape after a...