Unfulfilled Crimes and Participation in Crimes

• Author: Kent Roach
• Profession: Faculty of Law and Centre of Criminology University of Toronto
• Pages: 109-140

The trend towards broad definitions of the criminal act examined in

the last chapter can be seen in provisions that make people guilty of

crimes even though they have not committed the complete crime. The

provisions examined in this chapter cast the net of criminal liability

broadly to include those who attempt but fail to complete a crime;

those who encourage or plan the commission of a crime; and those

who assist others to commit a crime.

A person who goes beyond mere preparation to rob a bank, with the

intent to commit the robbery, can be convicted of attempted robbery,

even though no robbery took place and it may have been impossible for

the complete crime to ever occur. An attempted robbery is, however, sub-

ject to less punishment than a robbery. On the other hand, a person who

assists in the robbery by driving the getaway car can be convicted of

being a party to the robbery by aiding the robbery, even though he or she

never took the property with force. Similarly, a bank teller who helped

the robber plan the heist might also be guilty of the robbery as a person

who abets the crime. The provisions governing attempts and parties to a

crime will be considered separately, but they are united in imposing the

criminal sanction on those who do not actually commit the complete

crime. The relatively high level of mens rea required for attempts and par-

ties, however, generally limits these provisions to those who act with

guilty intent or knowledge. Sentencing discretion also plays an impor-

tant role in distinguishing the various degrees of culpability caught by

the broad definitions of criminal attempts and parties to a crime.

109

Unfulfilled Crimes

and Participation

in Crimes

chapter 3

In section 24 of the Criminal Code, Parliament has prohibited

attempts at criminal offences. Any act beyond mere preparation may be

a sufficient actus reus for an attempted crime, even if the act does not

amount to a moral wrong or a social mischief. The counterbalance to

this broad definition of the actus reus is that the Crown must prove

beyond a reasonable doubt that the accused acted with the intent to

commit the complete offence. In addition to attempts, a person who

counsels or solicits the commission of a crime or is part of a conspira-

cy to commit a crime may also be guilty of the separate crimes of coun-

selling or conspiracy, even though the complete crime was never

committed. These unfulfilled crimes are designed to discourage the

commission of the complete offence and to recognize that the accused

had the intent to commit the complete crime. They are, however, sep-

arate offences and, with the exception of conspiracy, subject to less

punishment than the complete crime.

The law concerning parties to a crime is in some respects even

broader and harsher than the law relating to inchoate crimes such as

attempts, counselling, and conspiracy. Parliament has provided in sec-

tion 21(1)(b) and (c) of the Criminal Code that those who assist the

person committing the actual criminal offence through aiding or abet-

ting are guilty as parties of the same criminal offence as the person who

actually commits the crime. The person who acts as lookout or drives

the getaway car can be convicted of robbery just as the person who

actually takes the money by force. The actus reus is defined to include

acts of assistance and acts of encouragement but not mere presence. At

the same time, however, the Crown must prove the mens rea that the

accused intentionally and knowingly aided or abetted the offence. A

person who unwittingly delivers a package containing a bomb assists

in the bombing, but would not have the intent required to be guilty as

an aider or abettor to the bombing.

Section 21(2) makes an accused who has formed an unlawful pur-

pose with an accomplice responsible for crimes that the accused knew

or ought to have known would be a probable consequence of carrying

out their common purpose. This section requires the formation of an

unlawful purpose and either subjective or objective foresight of the

additional crimes. The fault element of objective foresight has been

found to be unconstitutional when applied to parties charged with

murder and attempted murder. Thus, an accused who agreed with an

accomplice to assault a person could not be convicted of murder unless

he knew that it was likely that the accomplice would actually kill the

victim. A requirement for a high level of mens rea may counterbalance

the broad definition of the prohibited act. At the same time, the courts

110 Criminal Law

have indicated that the accused who forms an unlawful purpose does

not necessarily have to desire that unlawful purpose. In addition,

objective foresight of the further crime is all that is required for most

crimes including manslaughter.

The provisions for attempted crimes and participation in crimes

examined in this chapter apply to all criminal offences in the Code and

constitute important extensions of criminal liability. For example, the

September 11 terrorists could have been charged with attempted mur-

der or conspiracy to commit murder if they were apprehended before

they boarded the planes. Similarly, those who knowingly and intention-

ally assisted them in carrying out their plots could be charged as par-

ties to their offences. At the same time, however, Parliament may create

new crimes that may apply to conduct that might otherwise constitute

an attempt to commit to a crime or a form of participation in the com-

mission of the crime.

New crimes can serve as a functional substitute for attempted

crimes. For example, charges of attempted sexual assault or attempted

sexual interference may not be necessary if a person is guilty of the

crime of inviting a person under fourteen years of age to engage in sex-

ual touching.1New crimes such as financing, facilitating, or instructing

a person to carry out activities for the benefit of a terrorist group may

be alternatives to establishing that a person is guilty of attempting or

conspiracy to commit the crime intended to be committed by the ter-

rorists.2Parliament has also recently created crimes based on participa-

tion in the activities of a terrorist group3or a criminal organization4

that can be used instead of charging a person as a party to a crime com-

mitted by the group or with an attempt to commit the crime or with a

conspiracy to commit the crime.

The multiplication of complete offences to cover what may other-

wise be attempts or conspiracies to commit existing crimes or partici-

pation in those crimes raises a number of issues. One is simply whether

policy-makers and the public understand the extensions of criminal

liability examined in this chapter in relation to inchoate offences and

participation in offences. Another is whether the new crimes will

extend the net of criminal liability by ignoring the general principles

studied in this chapter that limit attempts, conspiracies and parties to

an offence. If the new crimes do go beyond existing crimes, questions

Unfulfilled Crimes and Participation in Crimes 111

1Criminal Code, R.S.C. 1985, c. C-46, s. 152 [Code].

2Ibid., ss. 83.02, 83.03, 83.04, 83.19, 83.21, and 83.22.

3Ibid., s. 83.18.

4Ibid., s. 467.11.