According to Canadian criminal law, those who encourage or assist in the commission of an offence are just as guilty as the person who commits it. This occurs through what is often referred to as “aiding and abetting”. The difference between aiding and abetting and actually carrying out the crime is understood by Canadian courts as legally irrelevant, as those aiding and abetting are defined by the Criminal Code as being equally parties to the offence. Practically, this means that the person who provided the gun may be guilty of the same offence as the person who pulled the trigger.
Section 21 of the Code outlines who is a party to an offence. It include anyone who actually commits an offence, aids in the commission of an offence through either an act or omission, or abets any person in the commission of an offence. The Code also provides that two or more people who form a common intention to carry out an unlawful purpose will be deemed parties to whatever offence the other commits in furtherance of that common intention, provided that they knew (or, in limited cases, simply ought to have known) that the offence would be a probable consequence of carrying out their mutually intended unlawful purpose. This is complicated and could cause confusion. In addressing each categorization in turn, we hope to clarify how each operates and demonstrate how someone may become a party to an offence.
Section 21(1)(a) – The Principal Offender
Section 21(1)(a) of the Code states that those who actually commit an offence are a party to that offence. This is relatively straightforward – the person who with their own hands committed the robbery is a party to the robbery offence. However, it becomes more complicated where there are a number of people committing the offence together, and where the offender is committing the offence through an innocent third party.
Where two or more persons are playing an active role in the commission of a crime, each becomes a co-principal to that offence. When this is the case, it is not necessary to determine exactly which person committed which element of the offence. Rather, every act done to commit the offence is deemed to have been committed by all co-principals. For example, if two accused attack a victim, and both intend to kill him, it does not matter which of the accused strikes the fatal blow. Both, as co-principals, are said to have killed him.
A person can be a principal to an offence despite not actually committing the offence with their own hands. This occurs where they instead direct an innocent agent to commit the offence in their place. For example, a person can be convicted of forgery where the actual making of the false document was performed by an innocent agent, if that agent was acting as a “mere machine” for the offender who regulated their movements. An offence committed by an innocent agent becomes the offence of whoever is directing them, who then becomes the principal offender contemplated by section 21(1)(a).
Section 21(1)(b) – Aiding
Section 21(1)(b) of the Code provides that those who do or fail to do anything for the purpose of aiding another in the commission of an offence is also a party to that offence. Although this person has not committed the act with their own hands, they have nevertheless taken some action, or inaction, intended to assist or help the principal in carrying out the offence. This person must have actually intended to provide this assistance and they must have known beforehand that the principal intended to commit the crime. This knowledge requirement prevents otherwise innocent people from being captured by section 21(1)(b). For example, if somebody loans their friend their car, not knowing that the friend intended to use the car as a getaway vehicle in a robbery, the owner could not be said to be aiding their friend in the commission of the offence. However, if the owner knew that the friend intended to commit this robbery and then provided the vehicle intending to assist them in their robbery, the owner would fall within the scope of section 21(1)(b) and become a party to the offence. A person who is wilfully blind to the intentions of their friend would also be a party to the offence, because wilful blindness “imputes knowledge to an accused whose suspicion is aroused to the point where he or she sees the need for further inquiries, but deliberately chooses not to make those inquiries.”
Failing to do something may, in some cases, also amount to aiding in the commission of an offence. An accused who is present at the scene of an offence and who carries out no overt acts to aid or encourage the commission of the offence may nonetheless be convicted as a party if his purpose in failing to act was to aid in the commission of the offence. This is likely to arise if the bystander had a duty to act under the law and failed to do so. For the most part, however, mere presence at the scene of a crime and non-interference are both insufficient for aiding and abetting a crime.
A party to an offence may also be excused from criminal liability where the assistance was provided under duress; which essentially means that the conduct was compelled by threats of immediate death or grievous bodily harm and where there was no opportunity to “safely extricate” from the situation.
Section 21(1)(c) – Abetting
Section 21(1)(c) of the Code provides that those who abet any person in committing an offence are also a party to that offence. “Abetting” means encouraging, instigating, promoting or procuring a crime to be committed, and must be done during the actual commission of the offence. In order to be guilty by abetting, the accused must have intended to encourage the principal in committing the offence. The type of conduct that will be sufficient will vary from case to case. As one example, an accused who was present during a sexual assault who stood by and laughed during the assault, was found to have abetted the assault of the victim through his laughter.
Sufficiency or Insufficiency of Presence
As previously mentioned, mere presence at the scene of a crime and non-interference are generally insufficient to ground culpability or for a finding of aiding or abetting. Although there are a number of exceptions that depend on the specific circumstances of any situation (for example, the obligations of parents or emergency personnel to act, among many other examples), there is generally no obligation on others to take action to rescue or assist any victim of a crime, and the failure to do so does not result in that person becoming a party to the offence.
Despite this general rule, presence can be evidence of aiding and abetting if accompanied by other factors such as prior knowledge of the intended offence or attendance for the purpose of encouragement. For example, in cases of civil disobedience, the “strength of numbers” serves as a strong source of encouragement, and presence for that purpose could make a person present a party to offences committed during such an event.
Section 21(2) – Common Intention
Section 21(2) of the Code contemplated a scenario where two or more people have formed an intention in common to carry out an unlawful purpose and to assist each other in accomplishing that purpose. This must be a genuine common intention untainted by duress. If one of these people, in carrying out that common unlawful purpose, commits an independent offence that is different from the intended unlawful purpose, each person who knew that the independent offence was a probable consequence of the shared unlawful purpose becomes a party to that independent offence. In some cases, liability under this section may arise if the independent offence was something that a reasonable person should have known to be a probable consequence of the commonly intended conduct. However, for offences which require a specific intention to be proven, the independent offence must have been subjectively anticipated by each other participant to give rise to criminal liability.
Criminal liability as a “party to an offence” is one of the most complicated areas of criminal law. Many do not realize that guilt can be established against those who did not commit any offence by their own hand; sometimes even by those who were not even present at the scene of the crime. Similarly, merely being present when a crime is committed does not automatically give rise to criminal liability. As such, choosing experienced and capable legal counsel is critical to protecting your legal rights and defending allegations made by the state alleging involvement as a “party”.