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Lecture 5

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LAWS 2302
John Hale

Lecture 5 Parties to an Offence, s. 21 - (1) Every one is a party to an offence who • (a) actually commits it; • (b) does or omits to do anything for the purpose of aiding any person to commit it; or • (c) abets any person in committing it. Counseling (offence committed) S.22 - (1) 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 counseled is a party to that offence, notwithstanding that the offence was committed in a way different from that which was counseled. - (2) Everyone 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 counseling that the person who counseled knew or ought to have known was likely to be committed in consequence of the counseling. • Responsible if, say, the person kills the home owner - (3) For the purposes of this Act, "counsel" includes procure, solicit or incite. Counseling, s.464 - Applies where the offence counseled is not committed Parties: summary (4 ways of being in a party) 1. Actually commit the offence, s. 21(1)(a) 2. Aid, s. 21(1)(b) 3. Abet, s. 21(1)(c) 4. Counsel, s. 22 Aiding, s. 21(1)(b) - 21. (1) Every one is a party to an offence who • (b) Does or omits to do anything for the purpose of aiding any person to commit it… - R. v. Helsdon (2007, OCA) • Crown has to prove that the aider knew what the person was up to • Not responsible if you innocently (don’t know) someone is committing the crime • May be helping them to do it, but if you don’t know it, then you are not guilty Parties: Common intent, s. 21(2) - R. v. F.W. Woolworth Co. (1974, Ont. C.A.) • About the same as Helsdon • Allowed someone to set up a kiosk where the guy was selling pens • He was lying about the real price that they were. Woolworth was accused of aiding him in false advertising  Woolworth didn’t know he was doing this - R. v. Logan (1990, SCC @ p. 1030) • The principle offender commits a specific intent crime, then the person charged with aiding must also be proven to have specific intent • The Crown must prove subjective mens rea in an aiding party • You must know what they are doing to really be helping them and to be charged for it Parties: Common intent, s. 21(2) - Crown must prove 4 elements: 1. Common intent 2. Carrying out common purpose 3. Ought to have known about probable commission of offence (objective foresight, except re Logan: subjective crimes) 4. Party commits offence in carrying out common purpose Counseling, s. 464 - Punishment is the same (for those who counseled) as for attempts: • Life sentence: max 14 yrs (except attempt murder, which carries max life) • Indictable: 1/2 max penalty • Summary conviction: same as for person who commits Counseling, cases - R. v. McLeod (1970, BCCA) • Editor of Georgia Straight Unlimited (like a hippie news paper) • Spread in the newspaper about how to grow your own marijuana • Sent staff to buy the paper, and to say she was counseled to grow marijuana to get him charged • Publishing company was all charged.Asked how they can counsel someone who was never planning on doing something she was counseled to do • Counseled counts even if it falls on deaf ears. Not about convincing someone, but rather trying to do so - R. v. Glubisz (1979, BCCA) , R. v. Pereira (1996, BCCA), R. v. Evans (1996, BCSC), R. v. Gonzague (1983, Ont. CA) • All about people (undercover cop) being sent to have someone admit to them they want the person to kill someone for them • The crime is in giving the instructions, not the actual follow through R. v. Hamilton (2005, SCC, p. 1036, 1078) 1. Making explosive substances 2. Doing anything with intent to cause an explosion 3. B&E with Intent 4. Fraud R. v. Hamilton (2005, SCC) - Issues: 1. What is the mens rea for counseling under s. 464? 2. Is recklessness sufficient? 3. Is motive part of the mens rea? - Held: 1. The intent that the offence counseled be committed or recklessness. 2. Yes, recklessness is sufficient. 3. No, motive is not part of the mens rea. - Result:Acquittal set aside and new trial ordered re Counseling Fraud; acquittals upheld re other counts. - The actus reus for counseling is settled (R. v. Sharpe (2001, SCC) as being the making of statements or transmitting of materials that actively induce or advocate the commission of an offence, rather than merely describing it. - The courts have been divided on the mens rea. Some courts have held that ∆ must intend that the offence ultimately be committed, while others have held that it is enough just that ∆ intend to be taken seriously. - The actus reus for counseling is the deliberate encouragement or active inducement of the commission of a criminal offence. - The mens rea is the accompanying intent or conscious disregard of the substantial and unjustified risk inherent in the counseling, i.e., it must be shown that ∆ either intended that the offence counseled be committed, or knowingly counseled the commission of the offence while aware of the unjustified risk that the offence counseled was in fact likely to be committed as a result of ∆’s conduct. Conspiracy, s. 465 - (1) Except where otherwise expressly provided by law, the following provisions apply in respect of conspiracy: • (a) everyone who conspires with anyone to commit murder or to cause another person to be murdered, whether in Canada or not, is guilty of an indictable offence and liable to a maximum term of imprisonment for life; • (c) everyone who conspires with anyone to commit an indictable offence not provided for in paragraph (a) or (b) is guilty of an indictable offence and liable to the same punishment as that to which an accused who is guilty of that offence would, on conviction, be liable; and • (d) everyone who conspires with anyone to commit an offence punishable on summary conviction is guilty of an offence punishable on summary conviction. Conspiracy (international) s. 465 - (3) Everyone who, while in Canada, conspires with anyone to do anything referred to in subsection (1) in a place outside Canada that is an offence under the laws of that place shall be deemed to have conspired to do that thing in Canada. - (4) Everyone who, while in a place outside Canada, conspires with anyone to do anything referred to in subsection (1) in Canada shall be deemed to have conspired in Canada to do that thing. - (5) Where a person is alleged to have conspired to do anything that is an offence by virtue of subsection (3) or (4), proceedings in respect of that offence may, whether or not that person is in Canada, be commenced in any territorial division in Canada, and the accused may be tried and punished in respect of that offence in the same manner as if the offence had been committed in that territorial division. • You don’t have to be tried where the offence took place. It can be anywhere in Canada Conspiracy, cases - R. v. Gralewicz (1980, SCC, p. 1063), R. v. O’Brien (1954, SCC), R. v. Dungey (1979, Ont. CA, p. 1063) • All make the same point. One person conspired with someone else, but the other person was only pretending to go along with the plan • Two people must agree for a conspiracy. There must be at least 2 people who agree, genuinely, on a plan. • If you come to an agreement with an undercover officer, it doesn’t count. There must be a MEETING OF THE MINDS R. v. Déry (2006, SCC, p. 1075) - There is no crime of “attempted conspiracy” - “[T]hough Mr. Déry discussed a crime hoping eventually to commit it with others, neither he nor they committed, or even agreed to commit, the crimes they had discussed. The criminal law does not punish bad thoughts of this sort that were abandoned before an agreement was reached, or an attempt made, to act upon them.” - Case of conspiracy, but since the other person didn’t agree, the Court wanted him to be charged with attempted conspiracy Conspiracy cases - R. v. Kowbel (1954, SCC), Rowbotham v. The Queen (1988, Ont. C.A.), R. v. Kwan (1992, BCCA), R. c. Barbeau (1996, Qué. C.A.) • If a married couple plan conspiracy, they are, under law, considered one person • In Kowbel, they could not be found guilty, because they (husband and wife) only count as 1 person • MUST BE LEGALLY MARRIED. Doesn’t apply to common law marriage Inchoate crimes - Attempts, s. 463 - Counseling, s. 464 - Conspiracy, s. 465 - Inchoate crimes are crimes not completed. They are attempted crimes. - The focus is really on the intent (mens rea) of the person Attempts, s. 24 - (1) Everyone who, having an intent to commit an offence, does or omits to do anything for the purpose of carrying out the intention is guilty of an attempt to commit the offence whether or not it was possible under the circumstances to commit the offence. • Guilty of an attempt even though you don’t fully carry out the crime  Ex: picking someone’s pocket, but it’s empty. Guilty of attempted theft - (2) The question whether an act or omission by a person who has an intent to commit an offence is or is not mere preparation to commit the offence, and too remote to constitute an attempt to commit the offence, is a question of law. - The notion of the impossible attempt.An example is if you reach into a persons back pocket, and they tried but did not have anything. They are guilty on an attempt although it was impossible to commit the crime. At some point they cross a line from cri
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