CRIMINAL LAW
UBC LAW 509
EXTENSION OF CRIMINAL LIABILITY
5 modes of participation: ss. 21 (a) principal; (b) aiding (c) abets (4) Common intention to carry
out an unlawful purpose and to assist each other (5) Counselling offence (s.22)
PRINCIPAL OFFENDER
S. 21(1)(a) the person who “actually commits” the offence.
R. v. Thatcher, [1987] distinction b/w Pr and A/A is “legally irrelevant”, they are all parties and
“equally culpable”. No duty on Cr to separate forms of participation. JURY doesn’t need to be
unanimous on mode of participation.
R v Pickton 2010 SCC 32 - Application of Thatcher principle. Reaffirmed re jury.
Main focus of 21(1)(b)(c) is on intention with which aid/encouragement was provided. The act
must be done with particular intention to facilitate/encourage Pr’s commission of offence, with
knowledge that Pr intends to commit crime.
AIDING/ABETTING
“Aiding” “material assistance” – to assist or help. “Abetting” - encouraging, instigating,
promoting or procuring to the person who “actually commits” the offence (i.e. the principal
offender).
• Actus Reus
R. v. Greyeyes, [1997] - Agent for the Purchaser. Aiding buyer - as. drug possession or aiding
seller – as drug trafficking?
TEST: did the Accused provided more than incidental assistance in facilitating the drug
transaction? If so, then s/he can be found guilty under s.21(1) of aiding the offence of drug
trafficking.
Mens rea – with purpose/intention of aiding – i.e. intended the consequences that flowed from
his aid.
MAJ - higher threshold - more than incidental assistance. MIN - lower threshold: whether A
assisted/encouraged sale.
Dunlop and Sylvester 1979 (rape, passer-bys) - “mere presence” - party to an offence.
Classification: Protected A
, “A person is not guilty merely b/c he is present at scene and does nothing to prevent it.” BUT
“Presence can be evidence of A/A, if accompanied by other factors, such as prior knowledge of
principal’s intention to commit or attendance for purpose of encouragement.” This includes
element of mental fault: “A person cannot be convicted of A/A in commission of acts which he
does not know may be or are intended”. Examples: Encouragement of principal, Keeping watch,
Enticing victim, Preventing victim form escaping, Being on the ready to assist the principle,
Omitting to do smth it’s a duty.
R. v. Jackson, [2007] - The mere presence of an accused at the scene of a crime does not prove
culpable participation in its commission; but here – yes. (cannabis plantation, can draw inference
from facts)
R. v. Nixon (1990) - Beating up by POs, this PO present. “A. who is present and carries out no
acts to aid/encourage may be a party if purpose of failing to act was to aid in the commission.”
Factors: Presence of A at Time of assault, Knowledge of assault, Stat duty to protect, Failure to
act amounts to encouragement.
R. v. Popen (1981) Party to manslaughter of infant daughter as a result of mistreatment by his
wife. Again, mere presence can be party of had a duty to prevent illegal act.
• Mens Rea
R. v. Briscoe – WEM 13-year old sex assault and killing. B. drove the car, handed weapon, “shut
up”
Crucial question - was there knowledge of Principle’s intention to commit the crime. Trial did
not consider willful blindness. CA ordered a new trial, Briscoe appealed. SCC confirmed CA’s
decision.
Principal and parties equally culpable. But actus reas and mens are different. Doing /omitting
that is assisting is not sufficient; must have requisite mental state: s. s.21(1)(b) - for the purpose
of aiding.
Mens rea: “purpose”, 2 components: intent & knowledge. Intent - per Hibbert, “purpose” =
“intention”. Knowledge - aider must know principal intends to commi crime (no need to know
precisely how)
COMMON INTENTION
s.21(2) Where 2 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 common purpose,
commits an offence *each of them who knew/ought to have known that commission of offence
would be a probable consequence of carrying out common purpose *is a party to that offence.
S.21(2) is for when there was a break in time between 2 offences, and the offence actually
committed follows after but as a consequence of the offence originally planned.
R. v. Kirkness B&E + sex assault of an 83yo by principal. Dissent: Com Int need not be pre-
planned. Sufficient if it “arises just prior to/at time of the commission”. Essential elements of
Com Int are usually implied from the facts.
Abandonment (can be a defence for Com In) requires “something more than a mere mental
change of intention and physical change of place”; “timely communication of the intention to
Classification: Protected A
, abandon”; “defendants will be held to a different standard depending upon the degree of
participation”.
A causal, but not a temporal connection, is required.
Analysis - steps in establishing liability: (1) Ac formed intention in common with other to carry
out a crime (2) Commission of offence has to be probable (3) Ac must or ought to have known of
this probability
• Constitutional Issues
Potential for someone to be liable thru common intention for an offence that they ought to have
known raises potential constitutional issues due to the objective fault level that it creates.
R. v. Logan - Robbery + attempted murder of cashier.
It’s a Const requirement under s.7 for some offences to have subjective mens rea - due to the
seriousness & stigma. There “ought to have known” is inoperative for these; cannot a be
conviction on mens rea below Const required minimum. But parties could be crim. negligent re
behavior of the principal. For other offences, the “ought to have known” still applies.
Objective of 21(2) is to deter joint criminal enterprises. Because of the importance of l/g
purpose, objective component of 21(2) can be justified re most offences. But for few – not.
R. v. Jackson - applies Logan test. Murder requires subj mental fault under s.7. Cannot be
convicted as a party thru common intention on obj mental fault level. But can be convicted as a
Com Int of lesser included offence of mansl on an “ought to have known” b/c mansl does not
require subjective mental fault (foreseeability of death, subjective awareness of the risk of
death), only foreseeability of harm.
Analysing of s.21(2) fact pattern: (1) what is underlying offence? (2) Did the A & principal have
intention in common to carry out an unlawful purpose and to assist each other? (3) Did any one
of them, in carrying out the common purpose, commit underlying offence? (focus on the actus
reus) (4) Did the Accused know that the commission of the offence would be a probable
consequence of carrying out the common purpose? (subjective 21(2) component) (5) If not, turn
to objective component: should A ought to have known? NOT FOR offences with
constitutionally required to have subjective mens rea.
ATTEMPTS
“Inchoate liability”. Incomplete offence – 3 types: * attempt *enticement (counselling)
*conspiracy
Attempts - culpable conduct & fault that lies b/w innocent behaviour and успеш. завершение
прест-я.
Key reason for criminalizing - demonstrable and sufficient harm once the commission of a crim
offence has been set in motion to sanction the commencement of the offence as criminal conduct
on its own.
Main questions of principle: (1) How does crim law mark the boundary b/w a thought to
commit an offence and prelim conduct that attracts legitimate imposition of the crim sanction.
Classification: Protected A
UBC LAW 509
EXTENSION OF CRIMINAL LIABILITY
5 modes of participation: ss. 21 (a) principal; (b) aiding (c) abets (4) Common intention to carry
out an unlawful purpose and to assist each other (5) Counselling offence (s.22)
PRINCIPAL OFFENDER
S. 21(1)(a) the person who “actually commits” the offence.
R. v. Thatcher, [1987] distinction b/w Pr and A/A is “legally irrelevant”, they are all parties and
“equally culpable”. No duty on Cr to separate forms of participation. JURY doesn’t need to be
unanimous on mode of participation.
R v Pickton 2010 SCC 32 - Application of Thatcher principle. Reaffirmed re jury.
Main focus of 21(1)(b)(c) is on intention with which aid/encouragement was provided. The act
must be done with particular intention to facilitate/encourage Pr’s commission of offence, with
knowledge that Pr intends to commit crime.
AIDING/ABETTING
“Aiding” “material assistance” – to assist or help. “Abetting” - encouraging, instigating,
promoting or procuring to the person who “actually commits” the offence (i.e. the principal
offender).
• Actus Reus
R. v. Greyeyes, [1997] - Agent for the Purchaser. Aiding buyer - as. drug possession or aiding
seller – as drug trafficking?
TEST: did the Accused provided more than incidental assistance in facilitating the drug
transaction? If so, then s/he can be found guilty under s.21(1) of aiding the offence of drug
trafficking.
Mens rea – with purpose/intention of aiding – i.e. intended the consequences that flowed from
his aid.
MAJ - higher threshold - more than incidental assistance. MIN - lower threshold: whether A
assisted/encouraged sale.
Dunlop and Sylvester 1979 (rape, passer-bys) - “mere presence” - party to an offence.
Classification: Protected A
, “A person is not guilty merely b/c he is present at scene and does nothing to prevent it.” BUT
“Presence can be evidence of A/A, if accompanied by other factors, such as prior knowledge of
principal’s intention to commit or attendance for purpose of encouragement.” This includes
element of mental fault: “A person cannot be convicted of A/A in commission of acts which he
does not know may be or are intended”. Examples: Encouragement of principal, Keeping watch,
Enticing victim, Preventing victim form escaping, Being on the ready to assist the principle,
Omitting to do smth it’s a duty.
R. v. Jackson, [2007] - The mere presence of an accused at the scene of a crime does not prove
culpable participation in its commission; but here – yes. (cannabis plantation, can draw inference
from facts)
R. v. Nixon (1990) - Beating up by POs, this PO present. “A. who is present and carries out no
acts to aid/encourage may be a party if purpose of failing to act was to aid in the commission.”
Factors: Presence of A at Time of assault, Knowledge of assault, Stat duty to protect, Failure to
act amounts to encouragement.
R. v. Popen (1981) Party to manslaughter of infant daughter as a result of mistreatment by his
wife. Again, mere presence can be party of had a duty to prevent illegal act.
• Mens Rea
R. v. Briscoe – WEM 13-year old sex assault and killing. B. drove the car, handed weapon, “shut
up”
Crucial question - was there knowledge of Principle’s intention to commit the crime. Trial did
not consider willful blindness. CA ordered a new trial, Briscoe appealed. SCC confirmed CA’s
decision.
Principal and parties equally culpable. But actus reas and mens are different. Doing /omitting
that is assisting is not sufficient; must have requisite mental state: s. s.21(1)(b) - for the purpose
of aiding.
Mens rea: “purpose”, 2 components: intent & knowledge. Intent - per Hibbert, “purpose” =
“intention”. Knowledge - aider must know principal intends to commi crime (no need to know
precisely how)
COMMON INTENTION
s.21(2) Where 2 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 common purpose,
commits an offence *each of them who knew/ought to have known that commission of offence
would be a probable consequence of carrying out common purpose *is a party to that offence.
S.21(2) is for when there was a break in time between 2 offences, and the offence actually
committed follows after but as a consequence of the offence originally planned.
R. v. Kirkness B&E + sex assault of an 83yo by principal. Dissent: Com Int need not be pre-
planned. Sufficient if it “arises just prior to/at time of the commission”. Essential elements of
Com Int are usually implied from the facts.
Abandonment (can be a defence for Com In) requires “something more than a mere mental
change of intention and physical change of place”; “timely communication of the intention to
Classification: Protected A
, abandon”; “defendants will be held to a different standard depending upon the degree of
participation”.
A causal, but not a temporal connection, is required.
Analysis - steps in establishing liability: (1) Ac formed intention in common with other to carry
out a crime (2) Commission of offence has to be probable (3) Ac must or ought to have known of
this probability
• Constitutional Issues
Potential for someone to be liable thru common intention for an offence that they ought to have
known raises potential constitutional issues due to the objective fault level that it creates.
R. v. Logan - Robbery + attempted murder of cashier.
It’s a Const requirement under s.7 for some offences to have subjective mens rea - due to the
seriousness & stigma. There “ought to have known” is inoperative for these; cannot a be
conviction on mens rea below Const required minimum. But parties could be crim. negligent re
behavior of the principal. For other offences, the “ought to have known” still applies.
Objective of 21(2) is to deter joint criminal enterprises. Because of the importance of l/g
purpose, objective component of 21(2) can be justified re most offences. But for few – not.
R. v. Jackson - applies Logan test. Murder requires subj mental fault under s.7. Cannot be
convicted as a party thru common intention on obj mental fault level. But can be convicted as a
Com Int of lesser included offence of mansl on an “ought to have known” b/c mansl does not
require subjective mental fault (foreseeability of death, subjective awareness of the risk of
death), only foreseeability of harm.
Analysing of s.21(2) fact pattern: (1) what is underlying offence? (2) Did the A & principal have
intention in common to carry out an unlawful purpose and to assist each other? (3) Did any one
of them, in carrying out the common purpose, commit underlying offence? (focus on the actus
reus) (4) Did the Accused know that the commission of the offence would be a probable
consequence of carrying out the common purpose? (subjective 21(2) component) (5) If not, turn
to objective component: should A ought to have known? NOT FOR offences with
constitutionally required to have subjective mens rea.
ATTEMPTS
“Inchoate liability”. Incomplete offence – 3 types: * attempt *enticement (counselling)
*conspiracy
Attempts - culpable conduct & fault that lies b/w innocent behaviour and успеш. завершение
прест-я.
Key reason for criminalizing - demonstrable and sufficient harm once the commission of a crim
offence has been set in motion to sanction the commencement of the offence as criminal conduct
on its own.
Main questions of principle: (1) How does crim law mark the boundary b/w a thought to
commit an offence and prelim conduct that attracts legitimate imposition of the crim sanction.
Classification: Protected A
