Unfulfilled Crimes and Participation in Crimes

• Author: Kent Roach
• Profession: Faculty of Law and Centre of Criminology.University of Toronto
• Pages: 130-168

130

CHA PTER 4

UNFULFILLED CRIMES

A ND PA RTICIPATION

IN CRIMES

The trend towards broad def‌initions of the cr iminal act exam ined in

the last chapter is a mea ns of expanding the breadt h 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 tha n a robbery. 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 al so be guilty of the robbery a s

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 com-

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

for attempts and parties, however, generally limits these 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 crime.

Unfulf‌il led Crimes and Participat ion in Crimes 131

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

tempts to commit crimi nal 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 counterbal-

ance to this broad def‌inition of the act us reus is that the Crow n 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 be guilty of the separate crimes of

counselling or conspiracy, even though the complete crime was never

committed. These unfulf‌i lled crimes are desig ned 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, sepa-

rate offences and, with the exception of conspiracy, subject to less pun-

ishment than the complete crime.

The law concerning partie s to a crime is in some respect s 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 t he per-

son committing the actual criminal offence through aiding or abetting

are guilty as pa rties of the same criminal offence as the person who

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

away car can be convicted of robber y just as the person who takes t he

money by force. The actus reus is def‌ined to include acts of assist ance

and acts of encouragement but not mere presence. At the same time,

however, the Crown must prove the men s rea that the accused inten-

tionally and knowingly aided or abetted the offence. A person who un-

wittingly delivers a pack age 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 unl awful pur-

pose with an accomplice responsible for crimes that the accused knew

or ought to have known would be a probable consequence of carryi ng

out their common purpose. This section requi res the formation of an

unlawful pur pose and either subjective or objective foresight of the ad-

ditional crime s. 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 accom-

plice to assault a person could not be convicted of murder unless he

knew that it was likely that the accomplice would actually kill the vic-

tim. A requirement for a high level of mens rea may counterba lance the

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

CR IMIN AL LAW132

indicated that the accused who forms an unlawful pur pose does not

necessarily have to desire that unlawf ul purpose. In addition, objective

foresight of the further crime is all that is required under section 21(2)

for crimes other than murder and attempted murder.

The provisions for attempted crimes and participation in crimes

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

constitute important exten sions 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 inten-

tionally assisted them in carrying 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 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 sexual assault or attempted sexual

interference may not be necessar y if a person is guilty of t he crime of

inviting a person under si xteen years of age to engage in sexual touch-

ing or new offences relating to luring ch ildren over the Internet.1 New

crimes such as f‌in ancing, facilitating, or instruct ing a person to carry out

activities for the benef‌it of a terrori st group may be alternatives to es-

tablishing th at a person is guilty of attempting or conspiracy to commit

the crime intended to be committed b y the terrorists.2 Crimes based on

participation in the activ ities of a terrorist group3 or a crimi nal organi-

zation4 can be used instead of chargi ng a person as a party to a cr ime

committed by the group or with an attempt to commit the crime or

with a conspiracy to comm it the crime. The Supreme Court has called

a new computer luring offence under section 172.1 of the Code an “in-

cipient or ‘inchoate’ offence, that is, a preparatory crime that captures

otherwise legal conduct meant to culminate in the commis sion of a

completed cri me.”5 It has stressed that it was appropriate to require

subjective fault in relation to all the elements of the offence including

the age of the child and the purpose of facilitating a sexual offence

given the remoteness of the offence to actual ha rm.6 Nevertheless, the

Court also indicated t hat a person may be guilty under such offences

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.