In the intricate landscape of Canadian criminal law, an individual who helped facilitate an offence or assisted in executing a crime may be considered a “party to an offence.” So what exactly does it mean to be a party to an offence, and how does someone become entangled in the web of criminal liability without actually committing the criminal act?
Understanding the nuances of being a party to an offence is crucial for those who may find themselves unwittingly connected to a criminal act, facing potential charges and potentially life-altering punishments and consequences.
What Does it Mean to Be a Party to an Offence?
Canadian law seeks to hold individuals accountable for their actions, recognizing that not all wrongdoers are alike. Canadian criminal law, therefore, provides a framework that accounts for a spectrum of involvement in criminal acts to ensure that all individuals involved are held responsible for their participation to an appropriate degree.
Being a party to an offence means that an individual is held criminally responsible for a crime, even if they did not directly commit the illegal act themselves. This legal concept treats those who contributed to the commission of the offence as culpable as the person(s) who physically carried out the illegal act. For example, an individual who drives a getaway car after a robbery may be found guilty of the same offence as the person who committed the robbery.
Section 21 of the Criminal Code
Section 21 of the Criminal Code of Canada (the “Criminal Code”) outlines who a party to an offence is. The Criminal Code provides that a party to an offence is anyone who actually commits an offence, does or omits to do anything for the purpose of aiding a person to commit the offence, or abets a person in committing the offence.
Does Presence at a Crime Scene Matter?
In many cases, an individual’s mere presence and non-interference at the scene of a crime is insufficient to ground a finding of aiding/abetting or assigning culpability. Some situations obligate a person to act, such as the requirement for medical personnel to take action in an emergency. However, in those cases, a person does not typically become a party to an offence if they simply fail to fulfil their duty to act.
Classification of Parties
A party may be a “party to an offence” by aiding, abetting, common intention, counselling an offence, or becoming an accessory after the fact. These classifications are outlined in greater detail below.
Aiding a Crime
As set out in section 21(1)(b) of the Criminal Code, a person who takes action, or fails to take action, for the purpose of aiding another person in executing a criminal offence is also a party to that same offence. The distinguishing factor between a guilty and innocent party is the knowledge requirement. For example, an individual who lends their vehicle or baseball bat to another person without knowing that it will be used in the commission of a criminal offence, such as a robbery, may not be deemed a party to an offence. On the other hand, if the owner of the vehicle or baseball bat knew that their friend intended to use the property in a crime, they would fall within the scope of section 21(1)(b). Additionally, a party who does not act, despite having a legal duty to do so, can be found to be a party to an offence.
Further, a party to an offence may not be assigned criminal liability if they can establish that their assistance was provided under duress. In other words, an individual may be excused from liability if their act, or failure to act, was compelled by threats of harm and there was no opportunity to remove themselves from the situation safely.
Abetting a Crime
Section 21(1)(c) of the Criminal Code provides that a person who abets a person in committing an offence is also a party to that particular offence. Abetting occurs when a person encourages, promotes, or instigates a crime to be committed. The abetting party must have encouraged the principal offender to commit the illegal act.
Under section 21(2) of the Criminal Code, where two or more persons form a common intention to carry out an unlawful purpose and assist each other to carry out the common purpose, they may both be guilty of the offence. Both offenders must have known (or ought to have known) that the offence would result from their “common purpose” actions.
Liability under this section may arise if the offence was one that a reasonable person should have known would be a probable consequence of the commonly intended purpose. However, some criminal offences require a specific intention to be proven for the accused to be found guilty. In cases involving those types of offences, to find liability via a “common intention”, the parties must have subjectively anticipated the offence would be the consequence of their actions committed through their common intention.
Person Counselling an Offence
A person may be charged under section 22(1) of the Criminal Code as a person counselling an offence if they “counsel another person to be a party to an offence and that other person is afterwards a party to that offence…notwithstanding that the offence was committed in a different way from that which was counselled.”
This offence requires a person to actively induce and deliberately encourage the commission of a criminal offence and for the offence to actually occur. Section 22(2) of the Criminal Code further assigns liability to the counsellor for additional crimes committed by the counselled person which the counsellor “knew or ought to have known was likely to be committed in consequence of the counselling.”
Accessory After the Fact
Section 23(1) of the Criminal Code provides that “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.” Unlike other “parties to an offence”, an accessory after the fact is not charged as a party to the offence. Instead, they are charged with the specific offence of being an accessory after the fact.
Being found guilty as an accessory after the fact does not require the person to have been tried and convicted of the offence. Further, section 23(1) of the Criminal Code provides that an accessory may be convicted even if the principal offender is not. The mental component of this offence is the intention to conduct the acts which helped the main offender.
Hicks Adams: Providing Trusted Advice to Parties to an Offence in Toronto
At Hicks Adams, our experienced criminal defence lawyers understand that navigating the criminal justice system can be complicated and stressful. Not only can being charged with being a party to an offence impact your current personal and professional life, but it can also severely impact future opportunities. Our skilled team will work closely with you to outline your options, defend your rights, and ensure you fully understand the potential outcomes of your charges. To arrange a confidential consultation with one of our lawyers to discuss your case, contact us online or call us at 416-975-1700.