Unfulfilled Crimes and Participation in Crimes

AuthorKent Roach
The trend towards broad def‌initions of the cr iminal act exam ined in
the last chapter is a means of expanding the breadth of t he 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 robber y by aiding the robbery, even though they
never took the property with force. Simila rly, 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 governi ng attempts and parties to a
crime will b e considered separately, but they are united in imposing the
crimina l sanction on those who do not actually commit the complete
crime. The relatively high level of mens rea required for attempts and
parties, however, generally limits t hese provisions to those who act with
guilty intent or knowledge. Sentencing discretion also plays an import-
ant role in distingui shing the various degrees of culpability caught by
the broad def‌initions of crim inal attempts and part ies to a crime.
In section 24 of the Criminal Code, Parliament has prohibited
attempts to commit crimin al oences. Any act beyond mere preparation
may be a sucient actus reus for an attempted cr ime, even if the act does
not amount to a moral wrong or a social mischief. The counterbala nce
to this broad def‌inition of the act us reus is that the Crown must prove
beyond a reasonable doubt that the accused acted with the intent to
commit the complete oence.
In addition to attempts, a person who counsels or solicits t he com-
mission of a crime or is par t of an agreement 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 unful f‌illed
crimes are desig ned to discourage the commission of the complete
oence and to recognize that the accused had the intent to commit
the complete crime. They are, however, separate oences and, with
the exception of conspiracy, subject to less punishment than the com-
plete crime.
The law concerning partie s to a crime is in some respect s 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 th at those who assist the
person committing the actual criminal oence through aiding or abet-
ting are guilty as parties of the same criminal oence as the person
who commits the crime. The person who acts a s lookout or drives the
getaway car can be convicted of robber y just as the person who takes
the 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 mens rea that t he accused
intentionally and knowin gly aided or abetted the oence. A person who
unwittingly delivers a pack age containing a bomb assists in the bomb-
ing, 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 carry-
ing out their common purpose. This sect ion requires the formation
of an unlawful pur pose and either subjective or objective foresight of
the additional crime s. The fault element of objective foresight has been
found to be unconstitutional when applied to parties ch arged with mur-
der and attempted murder. Thus, an accused who agreed with an accom-
plice to assault a person could not be convicted of murder unless they
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
Unfulf‌ille d Crimes and Participat ion in Crimes 151
broad def‌inition of the prohibited act. At the same time, the court s have
indicated that the accus ed who forms an unlawful pur pose does not
necessarily have to desire that unlawf ul purpose. In addition, objective
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 part icipation in crimes
examined in t his chapter apply to all crimi nal oences in the Code a nd
constitute important exten sions of criminal liability. For example, the
September 11 terrorists could have been cha rged with attempted murder
or conspiracy to commit murder if they were apprehended before they
boarded the planes. Simi larly, those who knowingly and intentionally
assisted them in c arrying out their plots could be charged as parties to
their oences. 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 participation in t he commission
of the crime.
New crimes can ser ve as a functional substitute for attempted
crimes. For example, charges of attempted sex ual assault or attempted
sexual interference may not be necessary if a person is guilty of the
crime of inviting a p erson under sixteen years of age to engage in sexual
touching or new oences relating to luring children over the internet.1
New crimes such as f‌in ancing, facilitating, or inst ructing a person to
carry out activities for the benef‌it of a terrorist group may be broader
alternatives to est ablishing that a person is g uilty of attempting or con-
spiracy to commit the cri me intended to be committed by the terrorists.2
Crimes based on participation in the activitie s of a terrorist group3 or
a crimina l organization4 can be used instead of charging a person as a
party to a cri me 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 oence under
section 172.1 of the Code an “incipient or ‘inchoate’ oence, that is,
a preparatory crime that captures otherw ise 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 relat ion to all the
elements of the oence including the age of the child and the pur pose
of facilitating a sex ual oence given the remoteness of the oence to
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 Ib id, s 83.18.
4 Ibi d, s 467.11.
5 R v Legare, 200 9 SCC 56 at para 25.

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