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.