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Section 23 – Accessory As A Mode of Participation: Episode 27 of the Ideablawg Podcasts on the Criminal Code of Canada  

In previous episodes we discussed the party sections of the Criminal Code, a mode of participating in a crime as a participant who is not the main offender but assists the main offender in the commission of a crime. An accused can also participate in a crime as an accessory after the fact under section 23 of the Code. This is not a party section as the accused is not participating in the commission of the actual offence but is assisting an offender after the offence has been committed. This assistance, however, takes on a very specific form. Additionally, it should be noted that as the accused under this section is not participating in the main offence, the punishment for being found an accessory after the fact is less than the punishment of participating in the actual offence pursuant to s. 463 of the Code.

Section 23 reads as follows:

23. (1) An accessory after the fact to an offence is one who, knowing that a person has been a party to the offence, receives, comforts or assists that person for the purpose of enabling that person to escape.

It should first be noted that in the present section is a reference to subsection 2, which was repealed in 2000. The section also initially contained a further subsection, which was also repealed at an earlier time. Both of these original subsections provided exemptions to the section as a result of marriage. You may recall an earlier podcast wherein we discussed section 18, which also originally contained similar exemptions. In that podcast, I refer to s. 18 as an addendum to the s. 17 compulsion by threats or duress section. Presently, s. 18 clarifies that duress cannot be presumed merely on the basis that the offence was committed in the presence of a spouse. Turning to the original iteration of section 23, what was in the original 1892 Code as section 63, is very similar in essentials to section 23(1) but the additional subsections exempted a married couple from the effects of the section. Thus, under subsection 2 a spouse could not be charged as an accessory after the fact by assisting the other spouse. Further, under subsection 3, no “married woman” could be charged with being an accessory by assisting, on the direction and authority of her husband, another offender or her husband. It was only in the mid-1970s that the Statute Law (Status of Women) Amendment Act removed this subsection 3, which was clearly based on stereotypical presumptions that a husband has certain authoritative “rights” over his wife. At the time, this amending legislation was hailed as a huge step toward gender equality as it was created in response to the recommendations from the 1970 Royal Commission on the Status of Women. Subsection 2, however, which may be viewed as a more gender-neutral exemption, stayed in the Code until 2000 when the amendments found in the Modernization of Benefits and Obligations Act removed the subsection exemption.

What is left of the section is, as already mentioned, quite specific. The actus reus requires the accused to “receive, comfort, or assist” a person who has committed a crime. Although “assist” and “comfort” have specific meanings, the addition of the word “receive,” which is quite broad in aspect, captures a wide range of activity. However, the accused must “receive” for a specified purpose as part of the mens rea of the section. Returning to the actus reus, the Supreme Court of Canada in the Morris case has found that the section requires more than a mere failure to advise the authorities of an offender’s whereabouts. This position is consistent with the traditional common law reluctance to punish omissions and failures. However, advising an offender that the police have the offender’s name and licence plate number may be enough to fulfill the prohibited act requirements. Furthermore, an accused can be convicted of being an accessory even if the offender assisted is not convicted of offence from which he or she was fleeing. Also, due to the amendments repealing subsection 2 and 3, an accused can be an accessory even if they helped a spouse or his or her child.

The mens rea requirements require a high level of subjective mens rea. The accused must have subjective knowledge that the person being assisted has been a party to or has committed an offence. Also, the assistance, comforting or receiving of the fugitive must be for the specific purpose of assisting the fugitive’s escape from the authorities. As a result, proof that the accused was reckless is not enough. The Crown must prove subjective knowledge or deemed knowledge through the doctrine of willful blindness. Therefore, it is not enough for a finding of accessory that the acts of assistance have the effect of helping a person escape the law. Nor is it enough that the acts were undertaken for the purpose of not being suspected of the crime itself. It is therefore difficult to prove an accused participated as an accessory after the fact. As a result, the police tend to charge an offender with other more easily proven offences such as obstruct justice under s.139 or harbouring a suspected terrorist under s. 83.23

Episode 27 of the Ideablawg Podcasts on the Criminal Code of Canada; Section 23 - Accessory After the Fact


Sections 22.1 & 22.2 – When Corporations Are Criminal: Episode 26 of the Ideablawg Podcast on the Criminal Code of Canada  

In the early morning hours of May 9, 1992, the small mining village of Plymouth, Nova Scotia witnessed a disaster. The Westray coal mine, which opened only eight months previously, exploded with such ferocity houses shook and windows shattered. In the aftermath, twenty-six miners, working near the end of their shift, perished.  

The mine had a storied history even before it was opened on September 11, 1991. Politics and big business played a large role in the founding of the mine: multi-million dollars worth of Federal and Provincial funds and loans were secured and lucrative agreements with the provincially owned utility company were negotiated. In other words, much was riding on the success of this mine in the heart of Pictou County. So much so that the owners of the mine were eager to portray the mine as a “state of the art” operation even if the realties were very different.  It would be these realities which foretold the tragedy: the Inquiry, headed by Mr. Justice Richards, found the mine was grossly mismanaged, violated numerable safety standards and simply failed to protect the health and safety of its workers. Westray was an “accident” waiting to happen and yet Westray received a safety award a mere eleven days prior to the explosion.

Certainly, Pictou County experienced methane gas explosions before but nothing to match the loss of human life at Westray. This time, something needed to be done. It was clear that the explosion was no mere “accident” but was the inevitable consequence of heedless corporate behaviour. However, out of the whole organization, including the various subsidiaries, two Westray middle managers, who were not even at the mine prior to the disaster, were charged with manslaughter and criminal negligence causing death.  After slowly making their way through court, the charges against the two men were stayed as a result of a Stinchcombe application for a failure to disclose the prosecutorial evidence in a timely manner. In 1997, the Supreme Court of Canada ordered a retrial of the case based on the trial judge’s conduct creating a reasonable apprehension of bias.  The Crown decided not to re-prosecute as there was, in the opinion of the Crown, insufficient evidence to connect the men to the crimes charged. There was also no conclusive evidence to show how or why the methane ignited to cause the explosion. The Crown simply could not prove the men were criminally liable even though the Inquiry report was clear the explosion would not have happened if the corporate body would have followed proper safety measures and if the government had enforced safety regulations.

The question is not how this could have happened but how to ensure that it could not happen again. This is where the story ends but the legislative response begins.

In the last few episodes, we discussed liability and modes of participation: how an individual accused can be criminally responsible for a crime even though he or she was not the principle offender.  The story of Westray extends this theory of participation to corporations and to employer-employee relationships. This legislative story essentially starts on May 9, 1992 but does not come to fruition until June 12, 2003, when the federal government introduced legislation holding corporations criminally responsible for failing to provide a safe workplace. The legislation has three parts, necessitating two categories of amendments to the Code. The first category relates to connecting the corporation to the prohibited conduct. Amending the Code in two areas does this: the first, which concerns us in this podcast, provides the corporate connection to a crime. The second area, which we will discuss further down this Criminal Code road when we come to s. 217.1, provides the legal duty to which corporations must be held. The final category of amendments is the sentencing piece, under s. 718.21, outlining the unique factors to be considered in sentencing a corporation.

Sections 22.1 and 22.2 read as follows:

22.1 In respect of an offence that requires the prosecution to prove negligence, an organization is a party to the offence if

(a) acting within the scope of their authority

(i) one of its representatives is a party to the offence, or

(ii) two or more of its representatives engage in conduct, whether by act or omission, such that, if it had been the conduct of only one representative, that representative would have been a party to the offence; and

(b) the senior officer who is responsible for the aspect of the organization’s activities that is relevant to the offence departs — or the senior officers, collectively, depart — markedly from the standard of care that, in the circumstances, could reasonably be expected to prevent a representative of the organization from being a party to the offence.


22.2 In respect of an offence that requires the prosecution to prove fault — other than negligence — an organization is a party to the offence if, with the intent at least in part to benefit the organization, one of its senior officers

(a) acting within the scope of their authority, is a party to the offence;

(b) having the mental state required to be a party to the offence and acting within the scope of their authority, directs the work of other representatives of the organization so that they do the act or make the omission specified in the offence; or

(c) knowing that a representative of the organization is or is about to be a party to the offence, does not take all reasonable measures to stop them from being a party to the offence.

Both sections provide a mechanism for an organization to be considered a party to an offence. Section 22.1 outlines the liability in cases of criminal negligence – as would have been the case in the Westray charges of manslaughter and criminal negligence causing death. Please remember that the actual corporate body was not charged in the Westray incident – only those two managers. Section 22.2 outlines liability as a party where the charges are fault based such as fraud or theft.

For negligence based offences a corporation is deemed a party to an offence on the basis of the actions of one or more representatives of the organization, who are acting within the scope of their authority, as long as the senior officer or officers in charge of that aspect of the organization relevant to the offence markedly departs from the standard of care reasonably expected to prevent the representatives or representative from engaging in that prohibited conduct. Similarly under s. 22.2, a corporation would be a party to an offence if a senior officer, with the intent to benefit the corporation, while acting within the scope of their authority, directs other representatives of the corporation to commit the offence or knowing that a representative is or will commit an offence and that officer fails to take reasonable steps to prevent the offence.

As I am sure you have realized these are very complicated sections and it is a difficult way to deem participation but there are reasons for this based on prior case law. Before we come to this I want to highlight some features of these sections for future reference and thought.

First, the sections do not refer to “corporations” but to “organizations.” “Organization” is a defined term under the Criminal Code pursuant to s. 2 and it means:

 a) a public body, body corporate, society, company, firm, partnership, trade union or municipality, or

(b) an association of persons that

(i) is created for a common purpose,

(ii) has an operational structure, and

(iii) holds itself out to the public as an association of persons

This definition is extremely broad and under (b) captures really any gathering of people who have come together for a common organized purpose. There is also in the Code the concept of a “criminal organization,” also defined under section 2 and referring to organizations created mainly for a criminal purpose (see s. 467.1) such as a criminal gang or in media nomenclature a biker gang, drug cartel or mafia. So, “organization” would capture both criminal organizations and legitimate organizations, hence the broad definition. Another reason for the broad definition may be the need to ensure an organization cannot “opt out” by tailoring its structure to fall outside of the definition.

Looking back at the sections, although the definition of “organization” is broad, the section operates in very limited circumstances. The sections are very careful to capture only prohibited conduct, which arises out of an individual’s corporate authority and duties. Those criminal actions unconnected to the organization are not relevant. In those circumstances the individual alone would be charged for their actions.

Another limitation in the sections is the distinction between “representatives” of the organization and “senior officer.” Again, looking at the section 2 interpretation section, “representative” means director, partner, employee, member, agent or contractor of the organization and “senior officer” is “a representative who plays an important role in the establishment of an organization’s policies or is responsible for managing an important aspect of the organization’s activities and, in the case of a body corporate, includes a director, its chief executive officer and its chief financial officer.” The “senior officer” is therefore a specialized representative of the corporation. Thus, the sections are structured around the corporate hierarchy with the senior officers in charge of the representatives, be they director or employee, with the senior officer having an enhanced placement in the organizational structure. To understand why the sections make this distinction and have this requirement, we now must look at the doctrinal dimension of corporate criminal liability.

Traditionally, as criminal law was concerned with intentional or subjective mens rea offences, criminal liability did not attach to the corporation but only to those individual employees who had the required subjective criminal intent. These employees essentially represented the corporation. Thus the “identification theory” was created to attach liability to the corporation but via an actual corporal body in the form of an individual player. This principle, arising from English common law and a 1915 case from the House of Lords provided that the corporation is only liable for what is done by “the directing mind and will of the corp., the very ego and centre of the personality of the corporation.” Case law thus formulated the test to identify the corporation with the senior official who acts as the “directing mind” or “alter ego.” If the directing mind has the requisite fault for the crime, the corporation would be guilty but if not the corporation would be acquitted.  To ensure that the corporation could not “hide behind the corporate veil,” a corporation would still be criminally liable even with no formal delegation of authority to the directing mind, even if the directors were unaware of the actions of the directing mind, and in certain circumstances, even if the corporation expressly prohibited the conduct in question. A corporation, however, would not be liable if the directing mind acted wholly fraudulently and wholly against the interest of the corporation.

Originally the term “directing mind” was defined broadly as in the 1985 SCC Canadian Dredge and Dock case. Due to the size of Canada, there could be, therefore, more than one directing mind could include board of directors, managers or anyone delegated the “governing executive authority” as in regional heads. Since this line of cases, the courts have placed some limits on who is a directing mind. The person must be an officer or manager of a corporation acting in the scope of work duties and responsibilities and must have the authority to “design and supervise the implementation of corporate policy” rather than merely carrying out policy. The problem became that the designers of corporate policy may be so far from the criminal acts that the court cannot find fault with the “directing mind.”

As a result of these weaknesses, critics have called to the end of the “identification theory” in favour of a more individualistic approach. For large multi-national corporations, critics have suggested replacing the theory with liability based on a “corporate culture” which encourages or condones the crime. This is where the new amendments come in as they do go far to reimagining the Identification Theory in favour of a corporate culture aspect. Thus, under section 22.1 a corporation would be guilty of manslaughter if within its organizational structure there was an objective foresight of an unlawful act which could cause bodily harm or if there was a marked departure from the reasonable corporate behaviour.

As an aside, there are further difficulties with section 22.1 on a conceptual basis as it relies upon objective mens rea, which is a marked departure from the standard of care required, and is very different from the traditional criminal law concepts of subjective mens rea. I have discussed in previous blogs (most notably here) the various issues with the importation of objective mens rea into the criminal law through the regulatory field (here wherein I discuss the Costa cruise ship tragedy, and here wherein I discuss laboratory safety and here wherein I discuss the criminalization of prediction -  as in weather and earthquake). It becomes an even wider societal issue as we, as a society, struggle with what kind of behaviour we want to be considered as criminal. This struggle is framed by the special stigma and loss of liberty attached to the criminal law. As a result, only those behaviours we deem egregious should be criminalized. The import of regulatory type behaviour into the criminal law should cause us to pause and question whether these types of behaviour are best addressed in the criminal law as opposed to the regulatory field. Concomitantly, we should be constantly reviewing those crimes presently in the Criminal Code, which no longer reflect societal norms and realities. Similarly, we should question whether the correct response to certain corporate behaviour is the criminal sanction, with its traditional fair trial and due process provisions originally created to protect the individual from the more powerful state. Corporations are not an easy fit into that system and yet certain behaviours, as exemplified by the Westray incident, require that special response of the criminal law.  

Thus, this podcast ends as it started with the story of twenty-six men who died while doing their job. The legacy these men left is found in the Westray memorial found in New Glasgow in Pictou County, in the poem written by a surviving son, and in the legislative amendments, which reflect society’s desire to protect the vulnerable worker through the full force of the criminal law.


Episode 26 of the ideablawg Podcast on the Criminal Code of Canada - Sections 22.1 and 22.2 - When Corporations Are Criminal


When Counseling Is A Crime - Section 22: Episode 25 of the Ideablawg Podcasts on the Criminal Code of Canada

Outside of the legal world, people give advice all the time. Friends, neighbours and parents are readily available to give us their point of view and recommendations on everything from how to bake a cake to how to raise our children. But the advice pool does not stop there – just open a newspaper and there is sure to be an advice column or better yet, click on the mouse and there are reams of websites offering assistance, insight and suggestions.

Another descriptor word for advice is counseling – as described in the Merriam-Webster dictionary counseling is the giving of “advice and support” to help people “deal with problems, make important decisions.” Of course the root word is “counsel,” which means as just suggested in the prior sentence but also just happens to be the term used when referring to a lawyer – legal counsel. Presumably then, a lawyer will give “advice and support” on legal matters, steering the client through the legal maze. Again reviewing the dictionary meaning of “counsel,” there is an aspect of “consultation” when one counsels another. Thus, it is an interaction or active process involving a sharing of information and often resulting in a plan of action. In fact, the word “counsel” comes from the Latin word consulere or to consult, consider, or deliberate. It is no coincidence therefore that in ancient Rome, a consul was one of the highest executive positions in the republic.  

So what do we make of a rogue counselor or one who gives, not just bad advice, but advice to commit a criminal offence and an offence is in fact committed? Section 22 of the Criminal Code contemplates this very situation and places such an unscrupulous counselor in the same position as a party to an offence.


Section 22 has three subsections and reads as follows:

22(1) Where a person counsels another person to be a party to an offence and that other person is afterwards a party to that offence, the person who counseled is a party to that offence, notwithstanding that the offence is committed in a way different from that which was counseled.

(2) Every one who counsels another person to be a party to an offence is a party to every offence that the other commits in consequence of the counseling that the person who counseled knew or ought to have known was likely to be committed in consequence of the counseling.

 (3) For the purposes of this Act, “counsel” includes procure, solicit or incite.


There are a number of really interesting points to be made about this section. First, let’s review subsection 1. Not only does this section, as mentioned earlier, deem the counselor as a participant in the actual offence committed but it also attaches criminal liability to the counselor even if the manner in which the actual crime is committed differs from the manner in which the crime was counselled to be committed. An example of this is when Y counsels X to commit a murder by shooting B with a gun but in fact X uses a knife to kill B.  Y is still a party to the murder, even thought the manner of killing is different.

 Second, in 22(2) we see a broadening of the liability. Any person who counsels a crime is a party to every offence the counseled party commits as a result of the counseling as long as the counselor knew or “ought to have known” that such a crime was likely to be committed as a result of the counseling. We will come back to this “knew or ought to have known” concept a little later but this section captures a broader range of conduct. In this situation, if Y counsels X to rob Z of money and X not only robs Z but kills him, then Y may be a s.22 party if Y knew that murder was a likely consequence of his counseling.

Third, in s. 22(3), we have a definition. As you may recall from previous podcasts, definitions are scattered throughout the Code. Some are found in the fairly lengthy definitional or interpretative section 2, some are found at the beginning of a Part and others, like this definition for counsel, is found in the actual section to which it refers. Interestingly, this definition of “counsel” is not the usual definition of “counsel” as found in the dictionary. Indeed, this meaning extends counseling far beyond the usual. To counsel under the section is not merely acting as a consultant or engaging in a discourse wherein advice is given but is much more actively nefarious. 

To “procure, ” as we know appears in the Criminal Code in the context of “procuring” a miscarriage as in section 287 and as in procuring a person to have “illicit sexual intercourse” (I have discussed this term in a previous podcast – Episode 7) or to procure someone to become an inmate of a “common bawdy-house” as in s. 212 (caution – review the newly proposed sections of procurement in Bill C-36 found here). Procure is also used in counterfeit money offence under s.460, extortion by libel in section 302 and procuring a noxious substance under s. 288. Needless to say “procure” does not have the benign aura, which “counsel” seems to have and is, in fact, downright seedy. According to the dictionary, “procure” means to get something through action or effort or to make something available. It is derived from the Latin root procurare and means to take care of. It is a far cry from a Roman Consul.

To “solicit” is again an active word. I need not go to the dictionary meaning for this term. Instead, I will be content with the Supreme Court of Canada definition in the 1978 Hutt case, which struck down the then soliciting for prostitution section of the Code. There, Justice Spence reviewed the meaning of “solicit” and found it required action – a mere smile or inclination of the head was not enough. To “solicit” as a prostitute one must be “pressing and persistent.”

Finally, to “incite” is a volatile word depicting a violent reaction. It means to “stir up” or “urge on.” It too is a word heavily laden with emotion, action, and illegalities.

Now that we are aware of the meaning of counseling in the s. 22 context, let’s return to the mens rea requirement for the section. The fault element for s.22(1) is straightforward: an accused must intentionally counsel another person to commit an offence. In s. 22(2) we have an expanded mens rea requirement as the accused must know or “ought to have known” that the crime committed, even if different from the actual counseled offence, was likely to be committed in consequence of the counseling. The phrase “ought to have known” is not a constitutionally acceptable form of liability for those accused charged with being a party to a subjective liability offence such as murder. In those offences, the Crown must prove that this accused knew the offence committed was a likely consequence of his counseling as per my earlier example.  For objective liability offences, the Crown need only prove that the accused “ought” to have known based upon a reasonable person’s actions in similar circumstances.

Before I leave you with the section, keep in mind that this section only covers counseling to commit an offence where the offence is actually committed. In this section the act of counseling is equated with participation in the crime. There is another section, which we will arrive at, that pertains to when a crime is counseled but is not committed. In the case of s.22, as the criminal acts are complete, the punishment as a counseling party to that crime is the same as the punishment for committing the actual crime. Therefore one who counsels a murder is subject to the penalties for murder upon conviction.

Next week we will consider together two fairly new amendments to the Code – sections 22.1 and 22.2, which deem an organization as a party to an offence, in certain circumstances. 

Episode 25 of the Ideablawg Podcasts on the Criminal Code of Canada - When Counseling is A Crime Under Section 22


The Architecture of Prisons: The Built Space of Confinement

As lawyers, busy with our files, hunched over case law, we seldom stop to think about the other disciplines connected to our world. Sure we think about other areas if we have a specific reason too. As evidenced by the Goudge Report, which cautions lawyers to take a deeper view of expert evidence particularly medical evidence, other worlds do collide in the courtroom. But, what we really fail to consider is the construction of our legal world: who builds it and how.

In a previous blog, I wrote about the courtroom as a bounded space and what that means in terms of public perception and how we, as lawyers, bridge that spatial divide. In this posting, I want to take that built space further and talk about the built space of confinement – prisons.

This subject matter came to me through familial connections – my son is studying architecture and he has shared with me many an interesting article. CLOG, a thematic architectural digest, recently released the CLOG: PRISONS edition. It’s an immensely interesting read and I encourage you to go straight to your nearest bookstore and purchase it or purchase online here.



You can’t miss the book – it’s dressed in bright orange – for two reasons: orange is the ubiquitous colour of many remand jumpsuits (as in orange is the new black) and it also happens to be the primary colour, along with bright blue, of the Schie Penitentiary in Rotterdam (as in orange is The Netherlands national colour – think William of).

The facility designed by architect Carel Weeber also designed the controversial Peperklip housing in Amsterdam and is at the forefront of social housing design, which is not such a short step to designing a prison. However, in this instance, the somewhat colourblind Weeber tapped master colourist and visual artist, Peter Struycken, to lend the colour ambiance. Schie is truly a study in post-modernism.


Instead of merging into the background, as the Metropolitan Correctional Centres do in Chicago, New York, and San Diego through their stylistic skyscraper image, the Rotterdam jail rushes out to say “we are here.” 

Also present is the necessary bike path to the entrance. However, what works for the outside is not necessarily what works for the inside: jails will always serve two communities, the public, who desire the separation, and the offenders who loathe it. Once, the interior of the Schie facility shone out as well with exuberantly coloured walls – a cross between a Matisse painting and a Keith Haring jig – but after prisoners’ protests, the walls were re-painted a calming grey – prison grey to be exact. So much for the hipster imagined prisons.

Arrestingly, CLOG opens with Editor Jacob Reidel’s smart piece on prison barges with a fascinating look at the historical significance of the prison afloat. He starts with the newest version found in NYC at the Vernon C. Bain Correctional Centre (VCBC), an 800 person jail barge, which is part corrections and part navy, a throwback to the galley prisoner, who could choose death or a life of fortitude aboard Europe’s most magnificent battle ships.


Insightfully, Reidel ends his piece with these words:

The prison ship therefore perfectly exposes the tenuous relationship between prisons and what is most valued in architecture. If 200 years ago buildings assumed a role once left to ships, the VCBC’s resumption of the role exposes the sad failure to improve the purpose and architectural reality of incarceration. Like the stacked container ships the VCBC resembles, the modern prison remains a space for storage and removal.

The containment theme is continued in the article on solitary confinement by Aaron White and how the building of the first such prototype jail, Pennsylvania’s Western State Penitentiary, conceived by architect William Strickland in 1818, became the first design to describe the punishment as well. It was demolished in 1833 as an obsolete structure of faux experimental social policy.

Interestingly, Strickland also designed the idyllic United States Naval Asylum. It is of course the ideal, which Strickland and others were attempting in the 1800s based upon the ideal form of justice, theorized and designed in the late 1700s by non-architect social theorist, known to all lawyers, Jeremy Bentham. Bentham’s Panopticon, the penultimate design for social control would be the model of reform into and past the Victorian era. Bentham’s vision, where the ideal and the idyllic live in constructions in the clouds, is succinctly felt in The Panopticon Writings:

Morals reformed - health preserved - industry invigorated, instruction diffused - public burthens lightened - Economy seated, as it were, upon a rock - the gordian knot of the Poor-Laws are not cut, but untied - all by a simple idea in Architecture!

CLOG: PRISONS gives us a mere visual clip of the features of erecting space: the social policy driving the design, such as the Egyptian theme of John Haviland’s New Jersey State Prison in Trenton and the moral dimensions of designing Guantanamo Bay. I would therefore add Clog’s Prisons to my earlier list of essential criminal lawyer’s reads. If we are part of the system, which sends people to prison then we have an obligation to understand what that means. 


Parties Part 2 – Common Intention: Episode 24 of the Ideablawg Podcasts on the Criminal Code of Canada

Last episode I introduced the concept of parties in criminal law and we discussed in detail section 21(1) of the Criminal Code, which describes when an accused person becomes a party as an aider or abettor. In this episode, we will look at section 21(2), which is a more general party section relating to the common intention between two or more persons. Caution: do not confuse this section with the inchoate or unfilled crime of conspiracy. They are not the same and in fact a person can be a party to a conspiracy by aiding and abetting the conspirator but we will get to that way down the road when we finally reach section 465.

Section 21(2) reads as follows:

Where two or more persons form an intention in common to carry out an unlawful purpose and to assist each other therein and any one of them, in carrying out the common purpose, commits an offence, each of them who knew or ought to have known that the commission of the offence would be a probable consequence of carrying out the common purpose is a party to that offence. 

This section is jammed packed with information. First, the section refers to “an intention in common” or what we will call a “common intention.” Typically, and strategically, this section is used when the principal accused person has committed crimes beyond which the parties intended to aid and abet and the party “know or ought to have known” those acts “would be a probable consequence of carrying out the common purpose.”

This section is jammed packed with information. First, the section refers to “an intention in common” or what we will call a “common intention.” Typically, and strategically, this section is used when the principal accused person has committed crimes beyond which the parties intended to aid and abet and the party “know or ought to have known” those acts “would be a probable consequence of carrying out the common purpose.”

“Unlawful purpose” simply means contrary to the Criminal Code. The actus reus is not confined to the specific offence the principal commits and may be any included offence. So, a principal may be convicted of robbery but a party may be acquitted of the robbery but convicted of the lesser-included offence of theft. The same reasoning applies to murder and the lesser-included offence of manslaughter but before we discuss that, let’s discuss mens rea of the section.

Second, is the mens rea requirement. The Crown must prove beyond a reasonable doubt a formation of the common purpose and knowledge that the offence would be a probable consequence of carrying out the unlawful purpose. As there are two categories of mens rea - objective or subjective – the Crown must prove either subjective knowledge, for those offences requiring subjective mens rea, or objective forseeability for those offences requiring objective mens rea.

We have not as yet discussed the difference between these two types of criminal liability. I have written previous blog postings on this issue in The Subjective/Objective Debate Explained and in Is This The End of Subjective Intention? The Supreme Court of Canada and the Walle case. I encourage you to review these postings for more details for further explanation but for our purposes, I will give you a fairly brief definition.

The subjective standard requires the Crown to prove, beyond a reasonable doubt, that the accused intended his or her actions while the objective standard requires the Crown to prove, beyond a reasonable doubt, that a reasonable person would have not acted as the accused did in the circumstances of the case. By using a standard of reasonableness as opposed to this particular accused person’s intent, the objective liability is a lower standard of liability and therefore easier for the Crown to prove beyond a reasonable doubt. As a result of the Charter, however, certain crimes must require subjective liability and cannot require objective. Murder is the best example of a purely subjective liability offence. However, the lesser-included offence of manslaughter is considered an objective liability offence, which only requires an objective forseeability of bodily harm.

This difference in mens rea is important for s.21(2) parties. If an accused is charged under the section as a party to a murder, the Crown must prove beyond a reasonable doubt that the accused “knew that the commission of the offence would be a probable consequence of carrying out the common purpose” NOT “ought to have known.” If, however, the accused is considered a party to a manslaughter, then the “ought to have known” phrase applies as it signifies an objective standard.

For punishment purposes, a party faces the same punishment as the principal although a party’s sentence may be lower than that of a principal based on lesser participation in the crime.

Next podcast, we will discuss section 22 and counseling a crime that is committed.

Episode 24 of the Ideablawg Podcasts on the Criminal Code of Canada: Section 21(2) Common Intention Parties