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 distinct form of party liability may be assigned by virtue of the doctrine of common intention.
The doctrine of common intention applies where x and y plan to carry out some unlawful act together, referred to here as the “primary offence”, and, in the course of the commission of that unlawful act, x carries out some other unlawful act which was not part of the original plan, referred to here as the “secondary offence”. In such a situation, the doctrine of common intention would operate to hold y responsible for the unplanned unlawful act committed by x.
For example, if Bob and Tim plan to rob a convenience store and, in the course of the robbery, Bob assaults the clerk, Tim may be charged and convicted of the assault perpetrated by Bob using the common intention rule.
The common intention rule is created by s. 21(2) of the Criminal Code of Canada, which states that “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.”
When an individual is charged with an offence based on the doctrine of common intention they will be charged with the actual offence allegedly committed; the rule in s. 21(2) is simply a mechanism used by the court to assign liability to a person regardless of the fact that that person did not actually commit the acts which constitute the secondary offence.
However, when the Crown attempts to assign liability for the secondary offence in court, it will not try to prove that the defendant committed the secondary offence itself, but rather that he or she was party to a common intention somehow related to the secondary offence.
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 liability using the common intention rule, the Crown must show that both the act element and mental element of the crime of common intention were present in the case at hand.
The Crown need not show that the act requirement and mental requirement for the secondary crime itself is satisfied. Thus, in the example above, the Crown must show that Tim had a the act requirement and mental requirement required by s. 21(2) to establish common intention, not that Tim committed the act requirement and the mental requirement for the crime of assault.
The act element for the crime of common intention is twofold. The first component is the formation of a common intention to carry out an unlawful purpose. Though s. 21(2) uses the term “unlawful act” the act in question likely must be criminal and not merely a regulatory or civil offence.
The Crown need not show that the individuals involved had any sort of formal agreement or plan relating to that common intention. Moreover, in R. v. Kirkness the Supreme Court of Canada held that the common intention need not be formed much in advance of the commission of the crime.
What is simply required is that the Crown establish that the defendant and another individual were involved in unlawful activity with a common purpose when the secondary offence was committed.
The more complicated aspect of the doctrine of common intention is the relationship between the liability of the defendant accused of having a common intention, and the liability of the individual accused of committing the secondary offence, often referred to as the “accomplice”.
According to s. 23.1 of the Criminal Code of Canada the accomplice need not be convicted of the secondary offence, provided that there is evidence that the secondary offence was actually committed. This rule applies primarily in situations where the accomplice is acquitted because his or her criminal defence lawyer successfully raises a substantive defence or asserts that the defendant’s rights under the Canadian Charter of Rights and Freedoms have been breached.
In these situations, there may be compelling evidence that the acts constituting the crime took place; however, the defendant is not held liable based on other relevant circumstances. In such situations, the defendant accused of having a common intention may still be convicted.
However, in R. v. Zannini the court held that in situations where the accomplice is acquitted on the merits of the case, in other words in situations where the Crown cannot adduce sufficient evidence to prove that the accomplice committed the secondary offence, it is highly unlikely that the individual accused of having a common intention will be convicted.
The most critical component of the act element of the crime of common intention is the second component, which requires that the secondary offence be a probable consequence of carrying out the primary unlawful act.
The Crown must establish subjective or objective foresight of all the elements of the secondary offence. This means that it is sufficient for the Crown to show either that the accused individual in question had foresight of the secondary crime or tat a reasonable person in the accused’s circumstances would have had such foresight.
In R. v. Vasil the court explained that probable crimes are assessed objectively in light of circumstances known to the accused. According to the court in R. v. Govedarov the accused’s knowledge of his or her accomplice’s character and likely behaviour may be considered by the court at this stage. Moreover, the court confirmed in R. v. Barlett and again in R. v. Vang that the accused individual need not necessarily have had foresight of exactly how the crime would be committed.
Thus, it would be sufficient for the accused to reasonably foresee that, in the course of executing a common intention to rob a bank, a teller may be killed in the process; the accused need not specifically foresee the method (shooting, stabbing, suffication, etc.) with which the teller would be killed.
Both components of the act element are conceptually distinct from the mental element; however, analysis of the act element and mental element are often very similar. This is because the mental element for common intention is also twofold and each component conforms with one of the components of the act element.
Thus, in most situations where the mental element is proven, the act element must necessarily also be present. However, it is important to separate the two conceptually because in rare situations, for example situations where the defendant’s mental capacity is at issue, the act element and mental element must be considered separately.
The first component of the mental element is the formation of a common intent and intent to assist in carrying it out. According to R. v. Moore, intent to assist is required, not actual assistance. Thus, even if the defendant’s attempts to assist are fruitless, he or she may still be found to have the required mental element based on his or her intent to assist in carrying out the common intention.
The second component of the mental element requires that the accused knew, or should have known, that the commission of the secondary offence was a probable consequence of carrying out the primary unlawful purpose. Subjective or objective foreseeability will suffice for most crimes. This means that the mental requirement can be satisfiedif the Crown adduces proof that the accused him-or-herself foresaw that the secondary crime may result from the unlawful purpose or if the Crown can prove that a reasonable person would have foreseen such a result.
However, according to R. v. Logan, subjective foreseeability is required for “stigma crimes” (murder, sexual assault of a minor, and some other serious offences which are particularly shunned by the community). For all non-stigma crimes, objective foresight will suffice. Objective foresight, according to R. v. Vasil, is measured in terms of what a reasonable person would have known in the circumstances known to the accused.
R. v. Creighton expands on this definition by stating that none of the accused personal characteristics are taken into account (for example, stupidity or naivety).
The only relevant personal attribute of the accused for the purpose of establishing objective foresight is mental incapacity. If the accused is proven to be mentally incapable of forming intent, objective foresight cannot be used to satisfy the mental requirement.
The overall result is that the accused can be convicted of almost any probable offence that arises in the course of carrying out the primary unlawful purpose. Individuals are considered to be equally culpable regardless of the extent of their participation. Thus, in law, there is no rule providing for more lenient sentences for parties as opposed to principles, though, of course, a judge is free to take the nature of the defendant’s involvement under consideration when exercising his or her discretion to determine sentences.
However, according to R. v. Whitehouse, the accused may escape liability if, before the secondary offence is committed, he or she abandons the intention to assist in carrying out the unlawful purpose. The accused individual’s criminal defence lawyer must lead evidence or abandonment, which the court will assess with regards to the totality of the circumstances.
One important factor, according to R. v. Kirkness is the role played by the accused in devising or carrying out the plan. The greater the role played by the accused, the more decisively his or her criminal defence lawyer must establish that the accused intended to abandon the common intention.
The minimum requirement is unequivocal notice to the other party of the intent to abandon the common purpose and the fact that no further aid or assistance would be given by the defendant. In R. v. Becerra the court held that simply leaving the scene of the crime and encouraging the accomplice to do the same was insufficient to establish abandonment; however, in R. v. Kirkness telling the accomplice to stop committing the secondary offence was sufficient to establish abandonment.
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