Unfulfilled Crimes and Participation in Crimes

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

130

CHAPTER 4

UNFULFILLED CRIMES

AND PARTICIPATION

IN CRIMES

The trend towards broad def‌initions of the criminal 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

criminal 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 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 com-

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

for attempts and parties, however, generally limits these provisions to

those who act with guilty intent or knowledge. Sentencing discretion

also plays an important role in distinguishing 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 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 counterbal-

ance to this broad def‌inition 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 commission 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 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, sepa-

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

ishment 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 per-

son committing the actual criminal offence through aiding or abetting

are guilty as parties 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 robbery just as the person who 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 inten-

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

wittingly 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 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 counterbalance the

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

CRIMIN AL LAW132

indicated that the accused who forms an unlawful purpose 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 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 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 that may apply to conduct that might or might not

constitute an attempt to commit a crime or a form of participation in

the commission of the crime.

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 necessary if a person is guilty of the crime of

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

ing or new offences relating to luring children 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 terrorist 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 activities of a terrorist group3 or a criminal organi-

zation4 can be used instead of charging a person as a party to a crime

committed by the group or with an attempt to commit 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 “in-

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

otherwise legal conduct meant to culminate in the commission of a

completed crime.”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 harm.6 Nevertheless, the

Court also indicated that 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 56at para. 25.

6 Ibid. at para. 33.