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.
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.”
“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.