Unfulfilled Crimes and Participation in Crimes

• Author: Kent Roach
• Profession: Faculty of Law and Centre of Criminology. University of Toronto
• Pages: 115-150

115

Cha pter 4

UNFULFILLED CRIMES

AND PARTICIPATION

IN CRIMES

The trend towards broad def‌initions of the crimina l act examined i n

the l ast chapter i s a means of expanding the breadth of the criminal

sanction. The provisions examined in thi s chapter cast the net of crim-

inal liability even more broadly to include those who attempt but fa il

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 t he 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 robbery. On the other hand, a person

who assists in the robber y by driving the getaway car can be convicted

of being a party to the robbery by aiding t he robbery, even t hough 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 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 t hose 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 i ntent or knowledge. Sentencing discretion

also plays an important role i n d istinguishing the various degrees of

culpability caught by the broad def‌initions of criminal attempts and

parties to a cr ime.

CRIMIN AL LAW116

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

tempts to commit cr iminal offences. Any act beyond mere prepar ation

may be a suff‌icient actus reus for an attempted crime, even i f t he act

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

balance 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 i s part of an agree-

ment to commit a cr ime m ay al so be gui lty of the separate crimes of

counselling or conspiracy, even though the complete crime wa s never

committed. These un fulf‌illed crimes are designed to d iscourage the

commission of the complete offence and to recognize that the accu sed

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

ate offences and, with t he exception of conspiracy, subject to less pun-

ishment than the complete crime.

The law concerning parties to a crime i s in some respects even

broader and harsher than the l aw relati ng to inchoate crimes such as

attempts, counselling, and conspiracy. Parliament has provided in s ec-

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

son committing the actual crimi nal offence through aidi ng or abetting

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

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

the getaway car can be convicted of robbery just a s the person who

actually ta kes the money by force. The actus reus is def‌i ned to include

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

the same time, however, the Crown must prove the me ns 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 t he intent required to b e guilty a s

an aider or abettor to the bombing.

Section 21(2) makes an accused who h as 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 carr y-

ing out their common purpose. This section require s 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 w ith 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

Unfulf‌il led Crimes and Particip ation in Crimes 117

have indicated that t he accused who forms an unlaw ful purpose does

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

jective foresight of the further crime is all th at is required under sec-

tion 21(2) for most crimes with the exception of murder and attempted

mur der.

The prov isions for attempted crimes and participation in crimes

examined in thi s chapter apply to all criminal offences in the Cod e and

constitute important extensions of crimin al liability. For example, the

September 11 terrorist s could have been charged with attempted mur-

der or conspiracy to commit murder if they were apprehended before

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

tionally assisted them i n car rying out their plots could be charged as

parties to their offences. At t he same t ime, however, Parliament may

create new crimes that m ay apply to conduct that might or might not

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

the commission of the cri me.

New crimes can serve as a functional substitute for attempted

crimes. For example, ch arges of attempted sexua l assault or attempted

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

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

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

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

be altern atives to establishing that a person is guilty of attempting or

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

rorist s.2 Parlia ment has also recently cre ated crimes based on partici-

pation in the activities of a terrori st group3 or a criminal organizat ion4

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

mitted by the g roup or with an attempt to commit the crime or w ith a

conspiracy to commit the cr ime.

The multiplication of complete offences to cover what may other-

wise be attempts or conspiracie s to commit ex isting cr imes or par tici-

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

policy-makers and the public understand the extensions of cri minal

liability examined in this chapter in relation to inchoate offences and

participation in offences. Another is whether the new cri mes w ill ex-

tend the net of criminal liability by ignori ng the general principles

studied in this chapter that limit attempts, conspiracies, and par ties to

an offence. If t he new crimes do go beyond e xisting crimes, questions

1 Criminal Code, R.S.C. 1985, c. C-4 6, s. 152 [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.