Criminal Law for Legal Professionals, 3rd Edition

CHAPTER 6
Parties to an Offence
 Criminal Law for Legal Professionals, 3rd Edition 2

Learning Outcomes
• After reading this chapter, you should be able to:
• Explain the various ways a person may become a party
to an offence
• Identify the difference between aiding and abetting

• Identify and apply the offence of counselling

• Identify and apply the offence of being an accessory

after the fact

Copyright © 2021 Emond Montgomery Publications. All rights reserved.

 Criminal Law for Legal Professionals, 3rd Edition 3

Introduction
• Sections 21, 22, 23, and 23.1 of the Criminal Code deal
with charges that may be laid against the helpers,
advisers, or protectors of the principal offender
• Those who assist or encourage the principal offender(s) to
commit an offence may also be held criminally
responsible for the offence
• They are regarded as parties to the offence and will be
liable to the same penalty as the principal offender

Copyright © 2021 Emond Montgomery Publications. All rights reserved.

 Criminal Law for Legal Professionals, 3rd Edition 4

Aiding and Abetting, Section 21

• “Aiding in the commission of an offence” is assisting or
helping the principal offender carry out an offence
• Example: acting as a lookout while the principal offender
shoplifts
• “Abetting” is encouraging the principal offender to commit
an offence
• Example: verbally encouraging the perpetrator of an assault

• A person who aids or abets may be charged with either

aiding or abetting, or with the offence itself, and may also
receive the same sentence as the principal offender
Copyright © 2021 Emond Montgomery Publications. All rights reserved.
 Criminal Law for Legal Professionals, 3rd Edition 5

Aiding and Abetting, Section 21 (cont’d)

• The Crown must prove the accused knew that the

principal was committing or intended to commit an offence
and the accused intentionally aided or assisted, helped, or
encouraged the offender
• Innocent Agent

• A person who helps the principal offender commit the

offence, without realizing that an offence is being committed
• Section 21(2) deals with the issue of common intention

Copyright © 2021 Emond Montgomery Publications. All rights reserved.

 Criminal Law for Legal Professionals, 3rd Edition 6

Counselling, Section 22
• Instructing, recruiting, or advising a person to commit a
criminal offence, knowing that the person is likely to
commit the offence
• Applies even if the offence was actually committed
differently from what was counselled
• Murder, however, requires a subjective, rather than an
objective, mens rea
• The only way to convict a person of counselling murder or
attempted murder is if the counsellor actually counselled
murder and not another offence that led to murder
Copyright © 2021 Emond Montgomery Publications. All rights reserved.
 Criminal Law for Legal Professionals, 3rd Edition 7

Accessory After the Fact, Section 23

• A person who, knowing that an offence has been
committed, offers assistance to the offender for the
purpose of helping him to escape detention or capture
• Providing food, shelter, and/or clothing to an offender is
considered sufficient for conviction
• It is not enough to offer assistance that results in an
offender escaping—the accused must actually have
offered assistance with the purpose of enabling the
offender to escape
• The penalty for this offence is the same as the penalty for
attempting to commit an offence
Copyright © 2021 Emond Montgomery Publications. All rights reserved.
 Criminal Law for Legal Professionals, 3rd Edition 8

When the Principal Offender Is Not Convicted

of the Offence, Section 23.1

• Even if the principal offender is not convicted of the

offence, a person aiding and abetting, counselling, or
being an accessory after the fact may still be convicted
• Example: an adult counselling an 11-year-old to steal
goods from a store
• The 11-year-old cannot be convicted of, or even charged
with, a criminal offence because he is under 12 years old
• The adult can still be charged with counselling the offence

Copyright © 2021 Emond Montgomery Publications. All rights reserved.

 Criminal Law for Legal Professionals, 3rd Edition 9

Key Terms
• abetting, 60 • objective mens rea, 61

• accessory after the fact, 63 • party to the offence, 60

• aiding, 60 • principal offender, 60

• counselling, 62 • subjective mens rea, 61

• innocent agent, 61

Copyright © 2021 Emond Montgomery Publications. All rights reserved.