The Offence of Being an Accessory After the Fact
Being an accessory after the fact is a separate criminal offence in Canada. This guide breaks down what the Crown must prove, the act and mental elements (knowledge, intent, and purpose to help someone escape), and the potential penalties under…
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Reviewed by Jonathan Pyzer, a criminal defence lawyer with over 23 years of experience and lead counsel at Pyzer Criminal Lawyers.
You do not have to commit a crime to be charged with one. Helping someone avoid arrest or escape after they committed an offence is a standalone criminal charge under Section 23 of the Criminal Code.
An individual can face criminal liability for an offence they did not personally commit. When someone plays a role in the commission of a crime without being the principal offender, the law refers to them as a “party to the offence.”
Being an accessory after the fact is one way this happens, but it works differently from other forms of party liability. Aiding, abetting, common intention, and counselling all result in a person being charged with the underlying offence itself. An accessory after the fact gets charged with a separate, standalone offence under Section 23 of the Criminal Code of Canada.
Section 23 defines it plainly: “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.”
That definition sounds broad.
Requirements for Establishing Guilt
Every Criminal Code offence has two components the Crown must prove: the act element (what the person did or failed to do) and the mental element (the “guilty mind” behind it).
For an accessory after the fact conviction, the Crown needs to prove both. The act element and the mental element must each be satisfied on the evidence. If either one falls short, the charge fails.
Overview of R. v. Camponi Guidelines
R. v. Camponi set out guidelines for determining whether the act element is met. The question is whether the accused provided assistance to a third person and whether that conduct had the effect of receiving, comforting, or assisting them.
The courts have interpreted “assisting” broadly. It catches most forms of help a person is capable of giving. But there is a floor. In R. v. Dumont, the court held that simply failing to tell the authorities where the principal offender is located does not satisfy the act requirement. Staying quiet, on its own, is not enough.
Elements of Being an Accessory After the Fact
The Act Element: Assistance Without Principal’s Conviction
One thing that surprises people about this charge is that the principal offender does not need to have been convicted for the accessory to face liability. Section 23.1 of the Criminal Code makes this explicit, and R. v. S.(F.J.) confirmed it.
The reasoning makes sense once you think about it. If the principal was acquitted on a Charter application or a defence that had nothing to do with whether the crime occurred, the accessory should not walk free on a technicality. The accessory’s conduct is judged independently.
R. v. McAvoy went further. The principal does not even need to have been tried. If an accessory successfully helps someone flee the country and that person is never brought before a court, the accessory can still be convicted. The alternative would reward the most effective accessories.
On the other side, if the principal has been tried and convicted, section 657.2(2) treats that conviction as presumptive proof of the offence. The Crown does not need to re-prove that the underlying crime happened.
The Mental Element: Intent and Knowledge
The mental element has two parts that the Crown must establish.
First, the accused must have had actual knowledge that the person they helped was a party to an offence. This is not a low bar. General suspicion that someone was mixed up in criminal activity does not cut it. The knowledge must be specific to the offence in question.
That said, the Crown can also satisfy this requirement by proving willful blindness. This applies when a person has strong suspicions that something is true but deliberately avoids asking questions to confirm it. Choosing not to know is treated the same as knowing.
Second, the accused must have intended to perform the acts that made up the assistance. If someone gave a person money, provided a place to stay, or lied to police, they must have done so intentionally.
Purpose of Assistance: Specific Intent to Aid Escape
Knowledge and intent alone are not enough. The Crown must also prove that the assistance was given “for the purpose of enabling that person to escape,” as Section 23 requires.
This is where a lot of these cases are won or lost. Helping someone who happens to have committed a crime is not automatically criminal. The help has to be given with the specific goal of helping them avoid justice.
Giving a friend a couch to sleep on is not a crime. Giving that same friend a couch to sleep on because you know they just robbed a store and you want to keep them hidden from police? That is the core of this offence.
The reason you helped does not matter. Fear, loyalty, money, family pressure. None of that changes the analysis. If your purpose was to help the person escape, this element is met.
Sentencing Guidelines Under Section 463 of the Criminal Code
The penalties for being an accessory after the fact scale with the seriousness of the underlying offence. Section 463 of the Criminal Code sets the framework.
If the principal offence is punishable by life imprisonment, like murder, the accessory faces a maximum of 14 years. For other indictable offences, the maximum for the accessory is half of whatever the principal offender faced. So if the underlying crime carries a 10-year maximum, the accessory faces up to 5 years. If it carries 14 years, the accessory faces up to 7.
For summary conviction offences, the accessory is also guilty of a summary offence and faces penalties in that range, which means fines up to $5,000 or imprisonment up to two years less a day.
Minimum Sentence For the Offence of Accessory After the Fact
There is no mandatory minimum sentence for being an accessory after the fact.
That gives judges a wide range of options when it comes to sentencing. The factors they consider include how serious the principal offence was, what kind of help the accessory provided and how extensive it was, the level of knowledge and intent involved, the accused’s criminal history, and whether there were mitigating circumstances like coercion or duress.
Sentences can range from a discharge in minor cases to years in prison when the principal offence was violent or serious. The absence of a mandatory minimum does not mean these charges are treated lightly. It means the court has room to match the sentence to the actual circumstances.
If you are facing an accessory after the fact charge, the specifics of your situation matter more than the general framework. Getting legal representation early allows those specifics to be identified and addressed before they become locked in.
This article provides general legal information only and should not be construed as legal advice. Laws and their interpretation may change, and the application of law to specific circumstances requires professional legal assessment. If you have questions about a legal matter, please contact us for a free consultation.
Jonathan Pyzer
Jonathan Pyzer, B.A., L.L.B., is an experienced criminal defence lawyer and distinguished alumnus of McGill University and the University of Western Ontario. As the founder of Pyzer Criminal Lawyers, he brings over two decades of experience to his practice, having successfully represented hundreds of clients facing criminal charges throughout Toronto.
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