Unfulfilled Crimes and Participation in Crimes

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

115

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 cast the net of crim-

inal liability even more 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,

subject 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 com-

mit the complete crime. The relatively high level of mens rearequired

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.

CRIMINAL LAW116

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 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 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, separ-

ate 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

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 reathat 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 carry-

ing 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 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 Crimes117

have indicated that the accused who forms an unlawful purpose does

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

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

tion 21(2) for most crimes with the exception of 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 to a crime or a form of participation in

the commission 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.1 New 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.2 Parliament has also recently created crimes based on partici-

pation in the activities of a terrorist group3 or 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 ex-

tend 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

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.