An individual may be liable for those offences which he she does not commit as a principle offender but in which he or she plays a part in committing. When an individual becomes liable for an offence in this way, he or she is referred to as a “party to the offence.” One specific way an individual can be found guilty of a crime as a party is as an accessory after the fact. However, an accessory is not technically a party to the offence in question. Unlike all other parties, who are charged with the offence in question and assigned liability using the legislative rules relating to aiding and abetting, common intention and counselling, an accessory is not charged as a party to the actual offence. Rather, the accessory is charged with the specific offence of being an accessory after the fact found in section 23 of the Criminal Code of Canada.
Section 23 of the Criminal Code creates the offence of being an accessory after the fact. It states 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.”
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There are two aspects to every offence in the Criminal Code of Canada: the act element (the acts or omissions which make up the crime) and the mental or fault element (the “guilty mind” requirement). In order to establish that an individual is guilty of being an accessory after the fact, the Crown must prove that the requirements of the both the act element and the mental element for being an accessory after the fact are satisfied based on the evidence.
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In R. v. Camponi, the court established some guidelines for determining whether the the act element required to establish an individual acted as an accessory after the fact have been satisfied in a given case. The legislative requirement is that the accused provided assistance to a third person and that his or her conduct had the effect of receiving, comforting or assisting the third person. The definition of assisting is very broad and catches most form of aid a person is capable of rendering. However, according to R. v. Dumont, mere failure to inform the authorities of the principal’s whereabouts is not sufficient to satisfy the act requirement.
The act element for the offence of accessory after the fact does not require that the third party have been tried and convicted to the offence. Under section 23.1, the accessory may be convicted even if the principal is not convicted. This rule was affirdmed in R. v. S.(F. J.). This provision is meant to prevent acquittals of accessories after the fact where the principle is acquitted based on a Charter application or successful defence. Moreover, based on the ruling the R. v. McAvoy, the principal need not even ever have been tried for the alleged crime. This rule is meant to prevent accessories who are successful in helping the principle offender flee the jurisdiction from escaping liability simply because the principal cannot be found or cannot be tried. However, if the principle is tried and convicted, s. 657.2(2) indicates that his or her conviction will provide presumptive proof of the offence, thus relieving the Crown of the obligation of proving that the person aided by the accessory may have committed a crime.
The mental element for the offence of being an accessory after the fact is intent to conduct the acts that are alleged to have helped the principle offender. According to R. v. Duong, the accused must have knowledge or be willfully blind to the fact that the person committed the offence. Willful blindness refers to the situation where a person suspects that he or she is lacking important knowledge but chooses to remain ignorant. Moreover, the accused must also know the person was party to a particular offence; general knowledge of criminal activity will not suffice.
The alleged accessory’s assistance must be provided for the purpose of helping the person to escape justice. Thus, not every person who helps the principle offender following the commission of his or her alleged crime will attract liability as an accessory. The accused, to be an accessory, must have helped the principle with the aim of helping him or her escape criminal responsibility for his or her crime. We call this a specific intent crime. The accused must not only have intended the actions of assistance but must also have had the specific intention that those act of assistance help him elude or escape the authorities. The specific intent to aid the principle in fleeing the jurisdiction need not be the accused’s sole purpose for aiding the principle. However, according to R. v. Morris, it is not sufficient that acts merely had the effect of assisting the principal or were undertaken in order for the accessory to avoid arrest for the primary offence. It is the accused’s purpose in acting that is of interest to the court and not the effect of his or her actions.
Section 463 of the Criminal Code of Canada lists the sentences available o the court when a person found guilty of being an accessory after the fact. The available sentences vary in severity according to the crime committed by the principle whom the accessory was found guilty of assisting. For example, if the principle offender was accused of committing a crime that carried a possible life sentence, the accessory may be given a sentence of up to fourteen years. At the other extreme, if the principle committed a summary offence the accessory may only receive a sentence appropriate for a summary offence. There is no minimum sentence for the offence of accessory after the fact and judges retain discretion as to exact duration of every offender’s sentence. There are a number of mitigating factors which the accused’s criminal defence lawyer can raise during sentencing to procure a shorter sentence, such as the defendant’s lack of criminal record, his or her age, his or her relationship with the principle and the degree of assistance he or she provided.