Section 22(1) provides that a person who counsels a crime that is committed becomes a party to that offence and, as such, is subject to the same punishment as if he or she had actually committed the offence. This provision applies "notwithstanding that the offence was committed in a way different from that which was counselled." An accused who counsels a person to kill another with a bomb would still be guilty of murder if the person counselled used a gun instead. In addition, section 22(2) expands liability further by providing that a counsellor becomes a party "to every offence that the other commits in consequence of the counselling that the person who counselled knew or ought to
have known was likely to be committed in consequence of the counselling."
The actus reus of counselling remains the act of procuring, soliciting, or inciting a crime. In addition, a crime must then be committed by the person counselled. The crime need not be committed in the same way as was counselled or even be the same crime that was counselled. It must, however, be a crime that was reasonably foreseeable from the counselling. Under section 23.1, an accused could be convicted of counselling even though the person who actually committed the offence could not. For example, an adult who involved children under twelve years of age in the drug trade could be convicted even though the children could not. Similarly, a person who procured a reluctant person to commit an offence could be guilty even though the reluctant person might have a valid defence such as duress.
The accused must intentionally counsel a criminal offence under section 22(1). It would not be fair to hold that an accused is a party to an offence for comments that were not intended to solicit or incite a crime, but which had that effect. Under section 22(2), an accused who intentionally counsels an offence is also a party "to every offence that the other commits in consequence of the counselling that the person who counselled knew or ought to have known was likely to be committed in consequence of the counselling." This extends liability not only to the offence intentionally counselled but any other offence that the person knew or...