Unfulfilled Crimes and Participation in Crimes

• Author: Kent Roach
• Pages: 124-162

124

Cha pter 4

UNFULFILLED CRIMES

A ND PA RTICIPATION

IN CRIMES

The trend towards broad def‌initions of the cr iminal act examined in

the last chapter is a means of expanding the breadth of the criminal

sanction. The provisions examined in this chapter also cast the net of

crimina l liability broadly to include those who attempt but fail to com-

plete 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 t he

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,

subject to less punishment than a robbe ry. On the other hand, a person

who assists in the robbery by driving t he 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 a s

a person who abets the crime. The provisions governing attempts and

parties to a cr ime will be considered separately, but they are united

in imposing the criminal sanction on those who do not actually com-

mit the complete crime. The relatively high level of men s rea required

for attempts and parties, however, generally limits the se provisions to

those who act with guilt y intent or knowledge. Sentencing discretion

also plays an import ant role in distinguishi ng the various degrees of

culpability caught by the broad def‌initions of criminal attempts and

parties to a cr ime.

Unfulf‌il led Crimes and Particip ation in Crimes 125

In section 24 of the Criminal Code, Parliament has prohibited at-

tempts to commit criminal offences. Any act beyond mere preparation

may be a suff‌icient actus reu s for an attempted crime, even if the act

does not amount to a moral wrong or a social mischief. The counter-

balance to this broad def‌i nition of the actus reus is that the Crown must

prove beyond a reasonable doubt that the accused acted with t he intent

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

counsels or solicits the commi ssion of a crime or is part of an agree-

ment to commit a crime may also b e guilty of the separate crimes of

counselling or conspiracy, even though the complete crime was never

committed. These unfulf‌i lled crimes are designed to discourage the

commission of the complete offence and to recognize that t he 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 t he 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 per-

son committing the actual c riminal offence through aiding or abetting

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 men s rea that the

accused intentionally and knowingly aided or abetted the offence. A

person who unwittingly delivers a pack age containing a bomb assist s

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

an aider or abettor to the bombing.

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

pose with an accomplice responsible for crime s that the accused knew

or ought to have known would be a probable consequence of carry-

ing out their common purpose. This sect ion requires the formation

of an unlawful pur pose and either subjective or objective foresight of

the additional crime s. The fault element of objective foresight has been

found to be unconstitutional when applied to parties ch arged 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 th at the accomplice would actually kill the

victim. A requirement for a high level of me ns rea m ay counterbalance

the broad def‌inition of the prohibited act. At the same time, the court s

CR IMIN AL LAW126

have indicated that the accused who forms an unlawful pur pose does

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

jective foresight of the further cri me is all that is required under section

21(2) for crimes other than murder and attempted murder.

The provisions for attempted crimes and part icipation in crimes

examined in t his chapter apply to all criminal offences in the Code and

constitute important exten sions of criminal liability. For example, the

September 11 terrorists could have been cha rged with attempted mur-

der or conspiracy to commit murder if they were apprehended before

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

tionally assisted them in carry ing out their plots could be charged as

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

create new crimes th at may apply to conduct that might or might not

constitute an attempt to commit to a crime or a form of part icipation in

the commission of the cri me.

New crimes can ser ve as a functional substitute for attempted

crimes. For example, charges of attempted sex ual assault or attempted

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

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

ual touching or new offences relating to luri ng children over the Inter-

net.1 New crimes such as f‌ina ncing, facilitating, or in structing a person

to carry out activities for the benef‌it of a terrorist group may be altern a-

tives to establishi ng that a person is guilty of attempting or conspir-

acy to commit the crime intended to be committed by the terrorists.2

Crimes based on participation in the activities of a terrorist group3 or

a crimina l organization4 can be used instead of charging a person a s

a party to a cri me committed by the group or with an attempt to com-

mit the crime or with a conspiracy to commit the crime. The Supreme

Court has called a new computer luring offence under section 172.1 of

the Code an “i ncipient or ‘inchoate’ offence, that is, a preparatory crime

that captures other wise legal conduct meant to culmin ate in the com-

mission of a completed crime.”5 It has stressed that it was appropriate

to require subjective fault in relation to all the elements of t he offence

including the age of the child and the pur pose of facilitating a sex ual

offence given the remoteness of the offence to actual har m.6 Never-

theless, the Court also indicated that a person may be g uilty under

1 Criminal Code, R.S.C. 1985, c. C-46, ss. 152 and 172.1 [Code].

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

3 Ibid., s. 83.18.

4 Ibid., s. 467.11.

5 R. v. Legare, 2009 SCC 56 at para. 25.

6 Ibid. at para. 33.