As discussed above, a person could not be convicted of conspiracy for agreeing with an undercover police officer to commit a crime because one party to the agreement would not have the intent to put the common design into effect. In that case, or in any case, where a person attempts to solicit another to commit a crime and the second person is unwilling to do so, the appropriate charge will be counselling a crime that is not committed. This is a separate offence under section 464 of the Criminal Code and it is subject to the same reduced punishment as an attempt. It is distinct from counselling an offence that is committed, which under section 22 of the Code is a method by which a person becomes a party to an offence and is punished as if he or she had committed the complete offence.
Section 22(3) provides that for the purposes of the Criminal Code "counsel" includes procure, solicit, or incite. It does not matter whether the person counselled acts on the solicitation or has any intention of doing so.78This means that a person can be guilty of counselling an undercover officer to commit a crime, even if the person so solicited
would never commit the offence. The Supreme Court has indicated that "the actus reus for counselling will be established where the materials or statements made or transmitted by the accused actively induce or advocate - and do not merely describe - the commission of an offence."79
The Ontario Court of Appeal has stated that a person can be guilty of counselling, even if the person solicited immediately rejects the idea of going through with the offence.80Of course, if the person counselled does carry out the crime, then the person who counselled the crime is guilty as a party to the offence that is eventually committed.81
The mens rea in section 464 is not spelled out, but given the possible breadth of the actus reus, it will be important to require subjective knowledge of the crime counselled and an actual intent by the accused (but not necessarily the person counselled) that the crime be performed. In R. v. MCLEOD,82Georgia Strait Publishing Ltd. was convicted of counselling the illegal cultivation of marijuana by publishing an article explaining how to grow marijuana. The Court of Appeal concluded that the paper was deliberately counselling readers of the paper to cultivate marijuana, but held that the evidence was insufficient to prove that the editor of the paper had this intent. If this case arose today, the protection of freedom of expression in section 2(b) of the Charter would also be a factor.83
In R. v. Janeteas,84the Ontario Court of Appeal issued a comprehensive judgment that stressed the importance of mens rea in a counselling offence. Moldaver J.A. stated that, as with the other inchoate crimes of attempts and conspiracy, the accused must intend the commission of the offence in order to be guilty of the crime of counselling an of-fence that is not committed. Recklessness was not a sufficient form of
fault because it could result in the conviction of a person who made only casual comments about the possibility of a crime being committed. The Court of Appeal rejected the policy argument that a person should be convicted simply because he may have placed a dangerous thought about the commission of a crime into another’s mind. The Alberta Court of Appeal has...