When Counseling Is A Crime - Section 22: Episode 25 of the Ideablawg Podcasts on the Criminal Code of Canada

Outside of the legal world, people give advice all the time. Friends, neighbours and parents are readily available to give us their point of view and recommendations on everything from how to bake a cake to how to raise our children. But the advice pool does not stop there – just open a newspaper and there is sure to be an advice column or better yet, click on the mouse and there are reams of websites offering assistance, insight and suggestions.

Another descriptor word for advice is counseling – as described in the Merriam-Webster dictionary counseling is the giving of “advice and support” to help people “deal with problems, make important decisions.” Of course the root word is “counsel,” which means as just suggested in the prior sentence but also just happens to be the term used when referring to a lawyer – legal counsel. Presumably then, a lawyer will give “advice and support” on legal matters, steering the client through the legal maze. Again reviewing the dictionary meaning of “counsel,” there is an aspect of “consultation” when one counsels another. Thus, it is an interaction or active process involving a sharing of information and often resulting in a plan of action. In fact, the word “counsel” comes from the Latin word consulere or to consult, consider, or deliberate. It is no coincidence therefore that in ancient Rome, a consul was one of the highest executive positions in the republic.  

So what do we make of a rogue counselor or one who gives, not just bad advice, but advice to commit a criminal offence and an offence is in fact committed? Section 22 of the Criminal Code contemplates this very situation and places such an unscrupulous counselor in the same position as a party to an offence.

Section 22 has three subsections and reads as follows:

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 is committed in a way different from that which was counseled.

(2) 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 counseling that the person who counseled knew or ought to have known was likely to be committed in consequence of the counseling.

 (3) For the purposes of this Act, “counsel” includes procure, solicit or incite.

There are a number of really interesting points to be made about this section. First, let’s review subsection 1. Not only does this section, as mentioned earlier, deem the counselor as a participant in the actual offence committed but it also attaches criminal liability to the counselor even if the manner in which the actual crime is committed differs from the manner in which the crime was counselled to be committed. An example of this is when Y counsels X to commit a murder by shooting B with a gun but in fact X uses a knife to kill B.  Y is still a party to the murder, even thought the manner of killing is different.

 Second, in 22(2) we see a broadening of the liability. Any person who counsels a crime is a party to every offence the counseled party commits as a result of the counseling as long as the counselor knew or “ought to have known” that such a crime was likely to be committed as a result of the counseling. We will come back to this “knew or ought to have known” concept a little later but this section captures a broader range of conduct. In this situation, if Y counsels X to rob Z of money and X not only robs Z but kills him, then Y may be a s.22 party if Y knew that murder was a likely consequence of his counseling.

Third, in s. 22(3), we have a definition. As you may recall from previous podcasts, definitions are scattered throughout the Code. Some are found in the fairly lengthy definitional or interpretative section 2, some are found at the beginning of a Part and others, like this definition for counsel, is found in the actual section to which it refers. Interestingly, this definition of “counsel” is not the usual definition of “counsel” as found in the dictionary. Indeed, this meaning extends counseling far beyond the usual. To counsel under the section is not merely acting as a consultant or engaging in a discourse wherein advice is given but is much more actively nefarious. 

To “procure, ” as we know appears in the Criminal Code in the context of “procuring” a miscarriage as in section 287 and as in procuring a person to have “illicit sexual intercourse” (I have discussed this term in a previous podcast – Episode 7) or to procure someone to become an inmate of a “common bawdy-house” as in s. 212 (caution – review the newly proposed sections of procurement in Bill C-36 found here). Procure is also used in counterfeit money offence under s.460, extortion by libel in section 302 and procuring a noxious substance under s. 288. Needless to say “procure” does not have the benign aura, which “counsel” seems to have and is, in fact, downright seedy. According to the dictionary, “procure” means to get something through action or effort or to make something available. It is derived from the Latin root procurare and means to take care of. It is a far cry from a Roman Consul.

To “solicit” is again an active word. I need not go to the dictionary meaning for this term. Instead, I will be content with the Supreme Court of Canada definition in the 1978 Hutt case, which struck down the then soliciting for prostitution section of the Code. There, Justice Spence reviewed the meaning of “solicit” and found it required action – a mere smile or inclination of the head was not enough. To “solicit” as a prostitute one must be “pressing and persistent.”

Finally, to “incite” is a volatile word depicting a violent reaction. It means to “stir up” or “urge on.” It too is a word heavily laden with emotion, action, and illegalities.

Now that we are aware of the meaning of counseling in the s. 22 context, let’s return to the mens rea requirement for the section. The fault element for s.22(1) is straightforward: an accused must intentionally counsel another person to commit an offence. In s. 22(2) we have an expanded mens rea requirement as the accused must know or “ought to have known” that the crime committed, even if different from the actual counseled offence, was likely to be committed in consequence of the counseling. The phrase “ought to have known” is not a constitutionally acceptable form of liability for those accused charged with being a party to a subjective liability offence such as murder. In those offences, the Crown must prove that this accused knew the offence committed was a likely consequence of his counseling as per my earlier example.  For objective liability offences, the Crown need only prove that the accused “ought” to have known based upon a reasonable person’s actions in similar circumstances.

Before I leave you with the section, keep in mind that this section only covers counseling to commit an offence where the offence is actually committed. In this section the act of counseling is equated with participation in the crime. There is another section, which we will arrive at, that pertains to when a crime is counseled but is not committed. In the case of s.22, as the criminal acts are complete, the punishment as a counseling party to that crime is the same as the punishment for committing the actual crime. Therefore one who counsels a murder is subject to the penalties for murder upon conviction.

Next week we will consider together two fairly new amendments to the Code – sections 22.1 and 22.2, which deem an organization as a party to an offence, in certain circumstances. 

Episode 25 of the Ideablawg Podcasts on the Criminal Code of Canada - When Counseling is A Crime Under Section 22

The Architecture of Prisons: The Built Space of Confinement

As lawyers, busy with our files, hunched over case law, we seldom stop to think about the other disciplines connected to our world. Sure we think about other areas if we have a specific reason too. As evidenced by the Goudge Report, which cautions lawyers to take a deeper view of expert evidence particularly medical evidence, other worlds do collide in the courtroom. But, what we really fail to consider is the construction of our legal world: who builds it and how.

In a previous blog, I wrote about the courtroom as a bounded space and what that means in terms of public perception and how we, as lawyers, bridge that spatial divide. In this posting, I want to take that built space further and talk about the built space of confinement – prisons.

This subject matter came to me through familial connections – my son is studying architecture and he has shared with me many an interesting article. CLOG, a thematic architectural digest, recently released the CLOG: PRISONS edition. It’s an immensely interesting read and I encourage you to go straight to your nearest bookstore and purchase it or purchase online here.

 

You can’t miss the book – it’s dressed in bright orange – for two reasons: orange is the ubiquitous colour of many remand jumpsuits (as in orange is the new black) and it also happens to be the primary colour, along with bright blue, of the Schie Penitentiary in Rotterdam (as in orange is The Netherlands national colour – think William of).

The facility designed by architect Carel Weeber also designed the controversial Peperklip housing in Amsterdam and is at the forefront of social housing design, which is not such a short step to designing a prison. However, in this instance, the somewhat colourblind Weeber tapped master colourist and visual artist, Peter Struycken, to lend the colour ambiance. Schie is truly a study in post-modernism.

Instead of merging into the background, as the Metropolitan Correctional Centres do in Chicago, New York, and San Diego through their stylistic skyscraper image, the Rotterdam jail rushes out to say “we are here.” 

Also present is the necessary bike path to the entrance. However, what works for the outside is not necessarily what works for the inside: jails will always serve two communities, the public, who desire the separation, and the offenders who loathe it. Once, the interior of the Schie facility shone out as well with exuberantly coloured walls – a cross between a Matisse painting and a Keith Haring jig – but after prisoners’ protests, the walls were re-painted a calming grey – prison grey to be exact. So much for the hipster imagined prisons.

Arrestingly, CLOG opens with Editor Jacob Reidel’s smart piece on prison barges with a fascinating look at the historical significance of the prison afloat. He starts with the newest version found in NYC at the Vernon C. Bain Correctional Centre (VCBC), an 800 person jail barge, which is part corrections and part navy, a throwback to the galley prisoner, who could choose death or a life of fortitude aboard Europe’s most magnificent battle ships.

 

Insightfully, Reidel ends his piece with these words:

The prison ship therefore perfectly exposes the tenuous relationship between prisons and what is most valued in architecture. If 200 years ago buildings assumed a role once left to ships, the VCBC’s resumption of the role exposes the sad failure to improve the purpose and architectural reality of incarceration. Like the stacked container ships the VCBC resembles, the modern prison remains a space for storage and removal.

The containment theme is continued in the article on solitary confinement by Aaron White and how the building of the first such prototype jail, Pennsylvania’s Western State Penitentiary, conceived by architect William Strickland in 1818, became the first design to describe the punishment as well. It was demolished in 1833 as an obsolete structure of faux experimental social policy.

Interestingly, Strickland also designed the idyllic United States Naval Asylum. It is of course the ideal, which Strickland and others were attempting in the 1800s based upon the ideal form of justice, theorized and designed in the late 1700s by non-architect social theorist, known to all lawyers, Jeremy Bentham. Bentham’s Panopticon, the penultimate design for social control would be the model of reform into and past the Victorian era. Bentham’s vision, where the ideal and the idyllic live in constructions in the clouds, is succinctly felt in The Panopticon Writings:

Morals reformed - health preserved - industry invigorated, instruction diffused - public burthens lightened - Economy seated, as it were, upon a rock - the gordian knot of the Poor-Laws are not cut, but untied - all by a simple idea in Architecture!

CLOG: PRISONS gives us a mere visual clip of the features of erecting space: the social policy driving the design, such as the Egyptian theme of John Haviland’s New Jersey State Prison in Trenton and the moral dimensions of designing Guantanamo Bay. I would therefore add Clog’s Prisons to my earlier list of essential criminal lawyer’s reads. If we are part of the system, which sends people to prison then we have an obligation to understand what that means. 

Parties Part 2 – Common Intention: Episode 24 of the Ideablawg Podcasts on the Criminal Code of Canada

Last episode I introduced the concept of parties in criminal law and we discussed in detail section 21(1) of the Criminal Code, which describes when an accused person becomes a party as an aider or abettor. In this episode, we will look at section 21(2), which is a more general party section relating to the common intention between two or more persons. Caution: do not confuse this section with the inchoate or unfilled crime of conspiracy. They are not the same and in fact a person can be a party to a conspiracy by aiding and abetting the conspirator but we will get to that way down the road when we finally reach section 465.

Section 21(2) reads as follows:

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. 

This section is jammed packed with information. First, the section refers to “an intention in common” or what we will call a “common intention.” Typically, and strategically, this section is used when the principal accused person has committed crimes beyond which the parties intended to aid and abet and the party “know or ought to have known” those acts “would be a probable consequence of carrying out the common purpose.”

This section is jammed packed with information. First, the section refers to “an intention in common” or what we will call a “common intention.” Typically, and strategically, this section is used when the principal accused person has committed crimes beyond which the parties intended to aid and abet and the party “know or ought to have known” those acts “would be a probable consequence of carrying out the common purpose.”

“Unlawful purpose” simply means contrary to the Criminal Code. The actus reus is not confined to the specific offence the principal commits and may be any included offence. So, a principal may be convicted of robbery but a party may be acquitted of the robbery but convicted of the lesser-included offence of theft. The same reasoning applies to murder and the lesser-included offence of manslaughter but before we discuss that, let’s discuss mens rea of the section.

Second, is the mens rea requirement. The Crown must prove beyond a reasonable doubt a formation of the common purpose and knowledge that the offence would be a probable consequence of carrying out the unlawful purpose. As there are two categories of mens rea - objective or subjective – the Crown must prove either subjective knowledge, for those offences requiring subjective mens rea, or objective forseeability for those offences requiring objective mens rea.

We have not as yet discussed the difference between these two types of criminal liability. I have written previous blog postings on this issue in The Subjective/Objective Debate Explained and in Is This The End of Subjective Intention? The Supreme Court of Canada and the Walle case. I encourage you to review these postings for more details for further explanation but for our purposes, I will give you a fairly brief definition.

The subjective standard requires the Crown to prove, beyond a reasonable doubt, that the accused intended his or her actions while the objective standard requires the Crown to prove, beyond a reasonable doubt, that a reasonable person would have not acted as the accused did in the circumstances of the case. By using a standard of reasonableness as opposed to this particular accused person’s intent, the objective liability is a lower standard of liability and therefore easier for the Crown to prove beyond a reasonable doubt. As a result of the Charter, however, certain crimes must require subjective liability and cannot require objective. Murder is the best example of a purely subjective liability offence. However, the lesser-included offence of manslaughter is considered an objective liability offence, which only requires an objective forseeability of bodily harm.

This difference in mens rea is important for s.21(2) parties. If an accused is charged under the section as a party to a murder, the Crown must prove beyond a reasonable doubt that the accused “knew that the commission of the offence would be a probable consequence of carrying out the common purpose” NOT “ought to have known.” If, however, the accused is considered a party to a manslaughter, then the “ought to have known” phrase applies as it signifies an objective standard.

For punishment purposes, a party faces the same punishment as the principal although a party’s sentence may be lower than that of a principal based on lesser participation in the crime.

Next podcast, we will discuss section 22 and counseling a crime that is committed.

Episode 24 of the Ideablawg Podcasts on the Criminal Code of Canada: Section 21(2) Common Intention Parties

Section 21- Modes of Participation By Being A Party To An Offence Part One: Episode 23 of the Ideablawg Podcasts on the Criminal Code of Canada

In the next few sections, we are leaving behind the housekeeping/general sections of the Code and moving into modes of participation or the various ways an accused can participate in a crime. The general section heading is called “Parties To Offences,” although it is section 21, which deals with the specific concept of parties to an offence. Yet, the general heading is apt as “party” means to participate in an event, while s. 21 specifies, in legal terms, what is required to be a party under that section.

Before we go to that section, we must step back and consider the concept of “secondary liability.” Secondary liability is where one party (participant in an event) is not directly involved but assumes or is deemed responsible for the actions of another party who is directly involved. This type of liability, in the civil arena, has long been recognized at common law. Examples of such liability are vicarious liability and corporate liability, particularly in the area of copyright and patents.

In the criminal law, however, secondary liability has limited application, partly due to the Charter, which prohibits criminal liability and punishment on those individuals who are deemed responsible for the actions of others on the basis the individual has no mens rea for the crime or often no actus reus as well. Traditionally, in criminal law, as stated by Justice Estey in the 1985 Canadian Dredge & Dock Co case, “a natural person is responsible only for those crimes in which he is the primary actor either actually or by express or implied authorization.” This was reinforced through the application of section 7 of the Charter, when the SCC, in the 1985 Re B.C. Motor Vehicle Act, emphasized the minimum mens rea requirement for a crime required some form of mens rea, which could be found in objective liability. Thus, secondary liability, which required no mens rea on the part of the person deemed responsible, was contrary to the fundamental principles of criminal law and, therefore, contrary to the Charter.

An example of permissible vicarious liability can be found in the quasi-criminal or regulatory field such as speeding offences based on photo radar. A license plate of a speeding vehicle is caught on camera but the speeding ticket is sent to the owner of the vehicle, whether or not the owner was the actual perpetrator. Thus the owner has neither the mens rea (which in the regulatory field, depending on the punishment, is considered Charter appropriate) or the actus reus for the offence yet is still deemed guilty for purposes of the highway traffic regulation. Such a deeming of liability would be unacceptable in the criminal law as the components of a crime (criminal intention and prohibited act) would be absent and as the Charter requires some form of mens rea be present where an accused person may be subject to incarceration upon conviction. However, in the regulatory field, where public safety is at a premium and the stigma of a criminal conviction is absent, as long as the possibility of jail is not an option upon conviction, vicarious liability is acceptable.

Although this form of secondary liability is not found in the criminal law the traditional common law concepts of parties is acceptable as the accused person, in the party scenario, is criminally liable based on his or her participation in the crime albeit not as the principal or main offender. Parties may have lesser roles in the crime but their participation, in terms of criminal intention and action, is directly connected to them and to the commission of the crime, making them personally criminally responsible.

The parties sections in the Code therefore anticipate two situations of persons deemed parties: one situation as found in the following section 22 of the Code embrace those accused who induce others to commit crimes, with or without that accused person’s direct involvement in the criminal act and the other situation, as in s. 21 involve those accused persons who help others commit crimes.

Now let’s turn to section 21. There are four types of parties to an offence as outlined in this section.

The first type of party is found under section 21(1)(a) and is as follows:

s. 21. (1) Every one is a party to an offence who

         (a) actually commits it;

This may seem contrary to the party principles I just outlined but in fact it is a prosecutorial aide. This subsection, by making a principal or main offender (in other words the accused person who actually commits the offence) a party to an offence, relieves the Crown from specifying in the Information or at trial whether an accused person is the principal offender or a party. Thus, the Crown need not prove at trial that any specific accused was the principal offender as long as the Crown proves each accused knowingly assisted or abetted the other. This means multiple accused can be convicted as parties without anyone being convicted as a principal.

The second type of party is as follows:

s. 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;

Here, the person becomes a party by “aiding” another person, be that person a party or principal, in the commission of the offence. Here, the word “aid” means providing assistance. The party may “aid” by doing something or by failing to do something. The Crown must prove the accused aided as the actus reus or prohibited act of being a party. Remember that the Crown must not only prove an accused is a party but must also prove the elements of the offence to which the accused is a party.

The third way of becoming a party is under s. 21(1)(c):

s. 21. (1) Every one is a party to an offence who

(b) abets any person in committing it.

The actus reus here is abetting, which, according to the SCC in R v Greyeyes, includes "encouraging, instigating, promoting, and procuring" the crime.

To “aid” or “abet” are distinct forms of liability but what is the difference? The best way to explain the difference is through the following example: a person who distracts a security guard in a store so another person can steal an item, is acting as a party to the offence of theft by “aiding” the principal who took the item. Conversely, a sales clerk who encourages and allows another person to take an item is “abetting.”

However, in both of these forms of liability, the mere presence of the accused at the scene of the crime is not enough to convict the accused as a party nor is the mere inaction or passive acquiescence of the accused enough to convict. In the seminal Supreme Court of Canada (SCC) case on the issue, Dunlop and Sylvester v The Queen from 1979, the two accused were charged, with others, for a “gang” rape but were acquitted by the majority of the SCC as, according to the evidence, the two saw the rape but they did not encourage or assist in the act. Neither did they try to stop it, they simply left. Morally wrong - yes -but not legally responsible.

Mere presence and passive acquiescence may be enough if accompanied by other factors such as prior knowledge of the principal’s intention or if the presence of the accused prevents the victim from escaping or receiving assistance. Also, a failure to render assistance may be enough to make an accused person a party if that person was under a legal duty to act. For example, merely watching a crime being committed does not make someone a party unless the person is a police officer (let’s make this easy and say on duty and in the execution of that duty) and is therefore under a legal duty to stop the crime.

The Crown must also prove the mens rea requirement for s. 21(1) by showing the accused intended to assist or encourage the principal accused. However, the Crown need not prove that the accused knew the exact details of the crime to be committed. The accused need only be aware of the type of crime to be committed and must be aware of the circumstances necessary to constitute the offence. A final caution: motive is not intention. The accused need not desire the end result for the mens rea requirement.

If the accused is charged as a party to a murder, the mens rea requirements for murder are applicable. Therefore, the Crown must prove that the accused party intended death or was reckless whether or not death ensued. This requirement is Charter based and requires the Crown prove the accused person had subjective foresight of death. Due to this high level of liability, an accused party may be acquitted of being a party to the murder, even if the principal offender is convicted of murder, but convicted as a party to a manslaughter, which requires a much lower level of mens rea found in the objective foresight of bodily harm. (Click on the hyperlinks for the case authority)

The fourth type of liability as a party under section 21(2), common intention, will be the subject of our next podcast!

Episode 23 of the Ideablawg Podcast on the Criminal Code of Canada: Section 21(10 - Parties - Modes of Participation

Section 20 – On Holiday: Episode 22 of the Ideablawg Podcasts on the Criminal Code of Canada

Section 20 is another procedural housekeeping section found under the General Part I section of the Criminal Code. The section validates certain Criminal Code documents issued, executed or entered into on a holiday and reads as follows:

A warrant or summons that is authorized by this Act or an appearance notice, promise to appear, undertaking or recognizance issued, given or entered into in accordance with Part XVI, XXI or XXVII may be issued, executed, given or entered into, as the case may be, on a holiday.

The term “holiday” is not defined in the Criminal Code but is defined in the Federal Interpretation Act under section 35 and includes those non-juridical days in which the courts are closed such as Sunday, Easter Monday and even “any day appointed by proclamation to be observed as a day of general prayer or mourning or day of public rejoicing or thanksgiving.” The definition also includes provincial public holidays and civic holidays.

In terms of the Interpretation Act, a holiday is significant in the computation of time limits. Many legal actions must be taken within a certain period of time to be valid. If such a time limited action is not taken within the proscribed period of time, the action may be statute barred. In those circumstances, the action would be considered legally “dead.” There are, however, some time limits, which can be extended by the Court or even reinstituted in certain circumstances. In any event, a lawyer does not want to miss any time sensitive dates and therefore the calculation of when a matter or document is due is of utmost importance. Section 26 of the Interpretation Act deals with the possibility of such a time limit expiring or falling on a holiday. If that occurs, the matter is considered properly done “on the day next following that is not a holiday.”

However, in the case of the Criminal Code section the concern is less with a time-limited action and more with the issuance, execution, service, and entrance into of particular Code documents on a holiday. In those instances, section 20 preserves the authority and jurisdiction of those documents, including warrants, summons, and appearance notices. Thus, any act done on a holiday in relation to these Criminal Code documents as listed is valid, thus ensuring that those documents also remain valid. No argument can then later be made that the court has no jurisdiction over an accused person who is brought to court under the auspices of a document issued, executed or served on a holiday. Furthermore, no argument can be made that a release from custody is invalid merely because the release documents were issued and entered into on a holiday.

In terms of the history of the section, section 20 was first enacted in the 1892 Code as section 564(3) but only referred to the issuance and execution of warrants on Sunday or a statutory holiday. In the 1953-54 amendments, the authority of the section was broadened and the newly enacted section 20 applied to a warrant or summons. In 1959 (2) was added and validated any bail order made on a Sunday. This is an important addition, as an accused person who is arrested and not released by the police must be brought before a justice for a judicial interim (bail) hearing within 24 hours, if a justice is so available, in accordance with section 503.

In Alberta, for example, the province offers 24-hour bail hearings and therefore, a person may be ordered released on a holiday. This possibility was further taken into account when section 20 was refined by the Bail Reform Act in 1970, which added the further forms of release, such as an undertaking, appearance notice, promise to appear and recognizance, as listed in the present section.

Section 20 - On Holiday: Episode 22 of the Criminal Code of Canada