An individual may be liable for those offences which he/she does not commit as a principle offender but in which he/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.” Section 22 of the Criminal Code creates a form of party liability for counselling another person to be party to an offence. This includes counselling another person to commit the offence as the principle offender, or counselling another person to be a party to an offence through aiding, abetting, forming a common intention, or counselling a third person to commit a crime.
Section 22(1) of the Criminal Code of Canada states that “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.” This provision creates the general offence or counselling. Section 22(1) also tells us that an individual may be guilty of counselling even if the offence is not carried out specifically according to his or her design. Thus, if x. counsels y to kill z by poisoning her, and y actually kills z by shooting her, x may still be found guilty of counselling y to kill z.
Section 22 (2) expands upon the crime of counselling as outlined in section 22(1), stating that “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.” This provision assigns liability to the counsellor for any additional crimes committed by the person counselled which the counsellor knew or should have known may be committed as a consequence of the counselling. Thus, if x counsels y to kill z and y succeeds in assaulting z but fails to kill her, x may still be found guilty of counselling assault. Or, if x. counsels y to kill z and y breaks into her home to do so, x could be found guilty for counselling the break and enter, even if x did not specifically counsel y to commit this offence.
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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 counselling an offence, the Crown must prove that the requirements of the both the act element and the mental element for counselling are satisfied based on the evidence.
The act element for counselling is twofold. The first requirement is that the defendant acted to persuade the defendant to commit the offence. According to s. 22(3) to prove counselling the Crown must adduce evidence showing that the defendant counselled, procured, solicited or incited a third party to commit an offence. Caselaw has defined each of these terms in a different way:
- Counsel: advise or recommend in the sense of deliberately encouraging or actively inducing the offence,
- Procure: instigate, encourage or persuade the third party to commit the offence,
- Solicit: entreat or urge the third party to commit the offence,
- Incite: urge, stir up, or stimulate the third party to commit the offence.
The second component of the act element requires that an offence actually be committed by the person counselled. The offence must be criminal, a regulatory or civil offence will not suffice. However, it is important to remember that the crime need not be committed in the exact manner that it was counselled, nor must the crime committed by the exact offence counselled. The counsellor may be found guilty of counselling a crime other than the crime committed under s. 22(2) if the crime actually committed is one that the counsellor knew or ought to have known may be committed as a result of his or her counselling.
The mental element for counselling is intention that the offence counselled be committed. However, it is possible that a high degree of recklessness as to whether the offence would actually be committed may suffice to satisfy the fault requirement. In other words, if the counsellor knowingly counsels the commission of the offence while being aware of the risk that the offence counselled is likely to be committed as a result, the counsellor may be found guilty of counselling despite the fact that he or she does not specifically intend that the offence be committed. There is a very fine line between intention and the high degree of recklessness required. However, the rule that a high degree of recklessness may be used to substantiate the mental element of the crime does operate to assign liability in rare cases where intention is not present yet the counsellor plays a large role in the commission of the offence. For example, if an individual explained to a third party precisely how a specific crime may be committed (for example, exactly what procedure could be used to rob a specific bank) without strongly recommending that the listener rob the bank, the speaker may be found to have recklessly explained the method of commission to the listener and subsequently to be guilty of counselling.
The fault element is slightly different where the offence committed by the person counselled is not the exact offence counselled but another offence. In these situations, the required mental element is subjective or objective foresight of the likelihood of the offences being committed as a result of the counselling. This means that the Crown must establish either that the defendant him-or-herself foresaw that the crime committed may actually be committed as a result of the counselling or that a reasonable person in the defendant position would have foreseen that the crime committed may have been committed as a result of the counselling. This requirement cannot be satisfied by objective foreseeability when an individual is charged with counselling a stigma crime (such as murder or attempted murder). Stigma crimes are those crimes which attract a high level of public outrage and perpetrators are shunned by the community. The constitution mandates that one cannot only be convicted of a stigma crime if the court finds that the accused had subjective foresight of the crime; proof on an objective test will not suffice.
According to the rule in R v. Thatcher individuals convicted of counselling crime are considered to be equally culpable with all other parties to the crime and with the principle offender. However, the accused’s criminal defence lawyer may raise the indirect nature of the accused’s involvement as a mitigating factor at sentencing and the trial judge may choose, at his or her discretion, to take it into account and award a lighter sentence. However, in some situations counselling an offence may be considered just as serious or more serious than the commission of the offence itself. The nature of the offence in question and the particular circumstances surrounding its commission must be considered before determining sentence.