Unfulfilled Crimes and Participation in Crimes

• Author: Kent Roach
• Pages: 149-191

149

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 robber y by aiding the robbery, even though they

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 governi ng attempts and parties to a

crime will b e considered separately, but they are united in imposing the

criminal 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 distinguishing the various degrees of culpability caught by

the broad def‌initions of criminal attempts and parties to a crime.

CRIMIN AL LAW150

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 counterbalance

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 oence.

In addition to attempts, a person who counsels or solicits the com-

mission of a crime or is part 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 unfulf‌illed

crimes are designed 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 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

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 as lookout or drives the

getaway 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 assist-

ance and acts of encouragement but not mere presence. At the same

time, however, the Crown must prove the mens rea that the accused

intentionally and knowin gly aided or abetted the oence. A person who

unwittingly delivers a package 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 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 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 counterbalance the

Unfulf‌ille d Crimes and Participat ion in Crimes151

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

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 oences in the Code a nd

constitute important extensions 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. Similarly, those who knowingly and intentionally

assisted them in carrying 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 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 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 f‌inancing, facilitating, or instructing a person to

carry out activities for the benef‌it of a terrorist group may be broader

alternatives to establishing that a person is guilty of attempting or con-

spiracy to commit the cri me intended to be committed by the terrorists.2

Crimes based on participation in the activities of a terrorist group3 or

a criminal 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 oence under

section 172.1 of the Code an “incipient or ‘inchoate’ oence, 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 oence including the age of the child and the purpose

of facilitating a sexual 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 Ibid, s 83.18.

4 Ibid, s 467.11.

5 R v Legare,200 9 SCC 56at para 25.