Unfulfilled Crimes and Participation in Crimes

• Author: Kent Roach
• Pages: 143-183

143

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.

CRIMIN AL LAW144

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 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 com-

mission of a crime or is par t of an agreement to commit a crime may also

be guilty of the separ ate 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, separate offences and, with the exception of con-

spiracy, subject to less punishment 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 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 with 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

Unfulf‌ille d Crimes and Participat ion in Crimes 145

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 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 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 terrori st group may be broader alternatives

to establishing that a person is guilty of attempting or conspiracy 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 crim-

inal organization4 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 “incipient 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 sex ual offence given the remoteness of the offence to ac-

tual harm.6 Nevertheless, the Court also i ndicated that a person may be

1 Criminal Code, RSC 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.