If a Person Encouraged Another Person to Do a Crime, Is the Person Just As Criminally Culpable As the Person Who Actually Did the Crime?

Aiding and Abetting Involves Assisting, Inciting, Encouraging, or Supporting, Another Person to Commit a Crime. The Law Deems That a Person Who Engages In Aiding and Abetting Is Just As Criminally Culpable As the Person Who Actually Committed the Crime.

Understanding the Criminality of Assisting, Supporting, or Encouraging Criminal Conduct Performed By Another Person

Person Under Arrest A person who assists or incites another person in the committing of a crime is just as criminally responsible as the person who actually commits the crime. Indeed, the person who aids or abets or counsels another person to commit a crime may be prosecuted and punished in the same manner as the person who actually committed the crime despite a lack of direct participation in the crime.

The Law

The Criminal Code, R.S.C. 1985, c. C-46, contains three sections that address the criminal culpability of persons who assist, support, or encourage, a crime despite a lack of direct participation in committing the crime.  The sections include section 21, section 22, and section 465, each of which respectively state:

Parties to offence

21 (1) Every one is a party to an offence who

(a) actually commits it;

(b) does or omits to do anything for the purpose of aiding any person to commit it; or

(c) abets any person in committing it.

Common intention

(2) 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.

Person counselling offence

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 counselled is a party to that offence, notwithstanding that the offence was committed in a way different from that which was counselled.

Idem

(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 counselling that the person who counselled knew or ought to have known was likely to be committed in consequence of the counselling.

Definition of counsel

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

Conspiracy

465 (1) Except where otherwise expressly provided by law, the following provisions apply in respect of conspiracy:

(a) every one who conspires with any one to commit murder or to cause another person to be murdered, whether in Canada or not, is guilty of an indictable offence and liable to a maximum term of imprisonment for life;

(b) every one who conspires with any one to prosecute a person for an alleged offence, knowing that they did not commit that offence, is guilty of

(i) an indictable offence and liable to imprisonment for a term of not more than 10 years or an offence punishable on summary conviction, if the alleged offence is one for which, on conviction, that person would be liable to be sentenced to imprisonment for life or for a term of not more than 14 years, or

(ii) an indictable offence and liable to imprisonment for a term of not more than five years or an offence punishable on summary conviction, if the alleged offence is one for which, on conviction, that person would be liable to imprisonment for less than 14 years;

(c) every one who conspires with any one to commit an indictable offence not provided for in paragraph (a) or (b) is guilty of an indictable offence and liable to the same punishment as that to which an accused who is guilty of that offence would, on conviction, be liable; and

(d) every one who conspires with any one to commit an offence punishable on summary conviction is guilty of an offence punishable on summary conviction.

The aiding and abetting provisions within section 21 of the Criminal Code involving the principle of parasitic criminality was well explained by the Court of Appeal in the case of R. v. Okojie, 2021 ONCA 773, wherein it was said:

[52]  Our criminal law does not distinguish among the modes of participation in an offence in determining criminal liability. Section 21(1) of the Criminal Code makes principals, aiders and abettors equally liable. A person becomes a party to an offence when that person, knowing of a principal’s intention to commit the crime, and with the intention of assisting the principal in its commission, does something that helps or encourages the principal in the commission of the offence: Vu, at para. 58, citing R. v. Briscoe, 2010 SCC 13, [2010] 1 S.C.R. 411, at paras. 14-18.

[53]  Section 21(2) is a form of parasitic criminal liability capturing participants in a common unlawful purpose in specified circumstances. The accused is party to an offence that is committed by another participant in carrying out the common unlawful purpose provided the accused has the required degree of foresight that the incidental crime would be committed: R. v. Simon, 2010 ONCA 754, 263 C.C.C. (3d) 59, at para. 43.

It is notable that the prosecution of an indirect participant who aided and abetted rather than directly participated in the criminal act is without a requirement to identify the person who actually committed the criminal act.  Accordingly, a person may be convicted of aiding and abetting despite that the direct participant goes unprosecuted.  This possibility was explained by the Supreme Court in the case of R. v. Cowan2021 SCC 45 where it was said:

[29]  For the purposes of determining criminal liability, the Criminal Code does not distinguish between principal offenders and parties to an offence (R. v. Briscoe, 2010 SCC 13, [2010] 1 S.C.R. 411, at para. 13). An accused’s guilt is the same regardless of the way in which they participated in the offence –– the person who provides the gun is guilty of the same offence as the person who pulls the trigger (ibid.; R. v. Huard, 2013 ONCA 650, 302 C.C.C. (3d) 469, at para. 59).

[30]  Sections 21 and 22 of the Criminal Code set out the various ways in which an accused may participate in and be found guilty of a particular offence. Those provisions codify both liability for an accused who participates in an offence by actually committing it, under s. 21(1)(a) (principal liability); and liability for an accused who participates in an offence by, for example, abetting or counselling another person to commit the offence, under s. 21(1)(c) or s. 22(1) (party liability) (R. v. Pickton, 2010 SCC 32, [2010] 2 S.C.R. 198, at para. 51).

[31]  Where, as here, an accused is being tried alone and there is evidence that more than one person participated in the commission of the offence, the Crown is not required to prove the identity of the other participant(s) or the precise part played by each in order to prove an accused’s guilt as a party (R. v. Isaac, 1984 CanLII 130 (SCC), [1984] 1 S.C.R. 74, at p. 81, citing R. v. Sparrow (1979), 1979 CanLII 2988 (ON CA), 51 C.C.C. (2d) 443 (Ont. C.A.), at p. 458). This principle applies where an accused is prosecuted as either an abettor or counsellor.

[32]  The essential elements of abetting are well established. The actus reus of abetting is doing something or omitting to do something that encourages the principal to commit the offence (Briscoe, at paras. 14‑15). As for the mens rea, it has two components: intent and knowledge (para. 16). The abettor must have intended to abet the principal in the commission of the offence and known that the principal intended to commit the offence (paras. 16‑17).

[33]  Although the jurisprudence setting out the elements of abetting refers to encouraging “the principal”, intending to abet “the principal”, and knowing that “the principal” intended to commit the offence, the Crown is not required to prove the identity of “the principal” or their specific role in the commission of the offence for party liability to attach (R. v. Thatcher, 1987 CanLII 53 (SCC), [1987] 1 S.C.R. 652, at pp. 687‑89).

Summary Comment

A person who assists, supports, or encourages, another person to engage in criminal conduct is just as culpable, and may be similarly punished, as the person who actually commits the criminal conduct.

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