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CRIM 230 (44)

CRIM 230 NOTES Ch7.docx

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CRIM 230
Simon Verdun- Jones

CHAPTER 7 – Modes of Participation in Criminal + Inchoate Offences The Various Modes of Participation in A Criminal Offence Actually Committing an Offence (s21(1)a)  “The principle” = Person who actually commits an offence. His/her presence may be either “actual” or “constructive” o Actual – eg Murder, principle = person who pulls trigger o Constructive - when committed offence through an innocent agency - girl takes juice w/ poison to her mom told by her dad  no actus reus by dad, but Courts may rule that an accused a person has committed an offence though the innocent agency  Is still an offence if did so “by means of an instrument ‘whose movement are regulated’ by him”.  Berryman 1990 - send in passport application for fake passports. Didn’t actually ‘made’ passport, but person who made the passport is ‘the innocent agent’ o Doctrine of innocent agency  understandably has a somewhat limited scope.  Verma (1996) – a doctor charged for trafficking narcotic, by writing prescriptions – court said ‘innocent agent not entirely controlled by principle’. Writing the prescription has no control over whether such an exchange of drugs for money will take place between purchaser and pharmacist. Aiding and Abetting The Commission (s21(1)b/c)  “Aiding” means actively providing assistance/help to the person who actually commits an offence o Crown must prove that the accused actively rendered assistance(AR) and did so with the intent to provide such assistance (MR)  “Abetting” means instigating, urging or encouraging another person to commit an offence o Crown must prove that the accused actively encouraged (AR) and did so with the intent to provide such encouragement (MR)  Criminal Code places same criminal liability to the aider/abettor, as the person who actually commits. Actus Reus o Must actively encourage or assist the principal in the commission of the offence o Mere passive acquiescence in the commission of an offence or Mere presence at the scene of the crime does not constitute aiding or abetting  Dunlop and Sylvester – at scene of rape, knows about it, but did nothing to prevent it. Not guilty because did not encourage, keep watch, provide assistance or stopped victim from getting away. Mere prescence does not render guilty.  Williams 1998 – crossing border in car’s passenger seat, found drugs, even if crown could prove he knew, is not gulty unless can prove he provided assistance/encouragement  Hofung2001 – even if present in apartment when heroin is traded, not guilty as trafficking o In exceptional circumstances, the defendant’s “mere presences” may be sufficient for him/her to be convicted if he is under a legal duty of act, and fail to do so, then provided the failure to act is accompanied by the intent to provide assistance/encouragement  Nixon 1990 – had duty to lock up jail, but let open and citizen was assaulted by multiple officers – he was suppose to prevent commission of an assault and safeguard lives and safety of prisoners Mens Rea o Crown must prove accused intended to render assistance/encouragement  Jackson and Davy 1993 – Davy did not know Jackson killed victim, thus lack intent  not murder. Is manslaughter on the basis that he aided Jackson in the situation where ‘a reasonable person would have foreseen the risk of bodily harm to the victim’ o It is sufficient that he knows ‘general nature of type of crime’ which the principle will commit. To be convicted, aider does not need to know all details of crime. o Don’t need to know exact nature, time or location of actual crime – provided that they know principle will commit one of a limited number of crimes and they intentionally lent their assistance. Eg Yanover and Gerol 1985 – gerol gave dynamite, is guilty even tho did not know where and when explosion will happen. o Recklessness is not sufficient basis for conviction as an aider. Crown must prove actual knowledge or wilful blindness (treated as equal to actual knowledge)  Roach 2004 – Roach help Dube commit fraud but did not know.  Aiding and Abetting in the Context of the Purchase of Illegal Drugs o Persons who provide assistance to those who purchase illegal drugs, as a general rule is charged with ‘aiding/abetting in possession’, but there are exceptions where they are charged for ‘aiding/abetting’ for trafficking  eg Greyeyes 1997 – acting as agent for undercover cop, who was purchaser, not seller – but he acted as spokesperson negotiated price, handled the money transaction, without him, this purchase would never have taken place. Thus he is guilty of aiding in trafficking. Counseling an Offence (s22)  Section 22 (1) - If accused counsel an offence that is ultimately committed, they will be convicted of that offence in exactly the same matter as aiders and abettors  Section 22 (2) - Accused who counsel a crime is also guilty for every other offence that the principle commits as a direct consequence of the counselling o Objective test: Crown must prove accused knew or ought to have known, that the other offence was likely to be committed as a consequence of the counselling (EXCEPT murder, need subjective foresight)  Section 22 (3) - The word counsel includes procure, solicit or incite o Procure – paying or offering something to someone to make them commit crime o Incite – playing on emotion (he totally dissed you, you are a loser), provoking o Solicit – promoting the idea (you should totally do it), instigating, persuading Common Intention (s21(2))  Common intentions = if two or more persons enter into an agreement to commit a crime and to assist each other in carrying out that plan, then each of those individuals is liable for the consequences of the other’s criminal acts that are committed in the pursuit of that common objective o Objective test: once the Crown has proved the common purpose then the defendant is liable to conviction for any offence which he either know or ought to have known would be a ‘probable consequence’ of carrying it out (Doesn’t apply to murder or attempted murder)  A and B rob C. C refuses so B assault C. A is also guilty of assault, because they have common intention to commit robbery, “and to assist each other therein”. A out to know that infliction of harm was a “probably consequence of carrying out the common purpose” o Subjective foresight of death
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