Section 23.1: The "Limitless" Criminal Law - Episode 28 of the Ideablawg Podcasts on the Criminal Code of Canada

One of the interesting learning moments for me, resulting from this Criminal Code podcast, is the realization that the criminal law has changed in the past three decades, which, in common law time, is a fairly short period of time. Certainly, this section, which we will consider today, s. 23.1 of the Criminal Code, is an example of how the Code can and does change the practice of criminal law. To give perspective, s. 23.1 was added to the Code in the 1985 amendments, while I was in law school. I recall those amendments mostly because I had to “re-learn” the section numbers of the Criminal Code. I particularly recall how the assault section, s. 244, was changed to the section number we use today – s. 265 - and my fear that I would never be able to remember the new section numbers. Considering I needed to look up what the old section number was to write this blog, I wonder how I could have been so worried. What I was not too concerned with at the time was the change caused by s. 23.1, which in hindsight was certainly a much bigger deal than the mere section number changes.

Section 23.1 reads as follows:

For greater certainty, sections 21 to 23 apply in respect of an accused notwithstanding the fact that the person whom the accused aids or abets, counsels or procures or receives, comforts or assists cannot be convicted of the offence.

Therefore, it is possible for an accused to be convicted of counseling a crime even if the person actually committing the crime is not guilty or cannot be tried and/or convicted. For example, an adult who involves children under twelve in the drug trade can still be convicted as a party even though the children, who are actually committing the crime, cannot be convicted, according to s. 13 Code, as they are statutorily debarred on the basis of age. For more on section 13 of the Code, read or listen to my previous podcast. Additionally, even though an accused who commits a counseled crime while under duress would have a valid legal defence, the person who counseled such an offence under s. 22, may still be convicted. It is also possible for an accused to be convicted as an accessory after the fact even if the fugitive offender is ultimately acquitted of the crime from which he or she was escaping. I will return to accessory in a moment as this particular mode of crime has been viewed as different than the other modes and has caused more legal controversy despite s. 23.1.

Based on the above, particularly the “Oliver Twist” example, it does make sense that the Crown be able to prosecute secondary participants on a separate basis than the main offenders. However, prior to 1985 this was not the case. This did not mean that a person involved in a crime, in circumstances where they might be a party or a counselor or an accessory, could not be charged. Indeed, prior to these amendments the charge of conspiracy was usually laid against the secondary accused. However, as we will see when we finally do arrive at the conspiracy section 465, to found a conviction under the conspiracy section is quite complicated. Certainly, more complicated than basing the offender’s participation through the party section.

Although this concept or ability to prosecute was easily accepted after 1985 for participating as a party or as a counselor to a crime, the issue of being tried as an accessory after the fact, where the fugitive offender was not convicted, was not. To understand the special status of being an accessory after the fact, we must consider the Supreme Court of Canada Vinette case from 1975. In the Vinette case, the accused Vinette was charged as an accessory after the fact to a murder committed by Vincent by assisting Vincent to dispose of the victim’s body. Vincent entered a plea of guilty to manslaughter and at Vinette’s trial, Vincent’s plea, as a “confession,” was admitted against Vinette. Vinette was convicted by the jury but the conviction was quashed by the Court of Appeal on the basis that Vincent’s plea was not admissible against the co-accused Vinette. Mr. Justice Pigeon, writing on behalf of the majority, allowed the Crown’s appeal and upheld the conviction. In Justice Pigeon’s view, the elements of being an accessory after the fact differs from the main offence and therefore is a separate charge. Thus, the usual evidentiary rules pertaining to admissions made by co-accused do not apply and Vincent’s statements are admissible. According to Justice Pigeon, not only was a charge of accessory separate from the main offence but also by its very nature must be committed after the main offence. This chronological requirement also suggested that the main offender must be tried and convicted before the accessory could be found guilty. However, after a line of cases which tried to decipher Justice Pigeon’s suggestion, it was determined that as the Vinette decision made no mention of the now s. 592, which permitted an accessory to be indicted before the main offender, the chronological argument carried no validity. We will eventually come to s.592 and revisit this conundrum.

In any event, the idea that being an accessory after the fact was a unique charge, which was intimately tied to the main offence resulted in a line of cases questioning s. 23.1 in relation to s. 23. In fact, in the delightful decision of the Honourable Justice Woods, on behalf of the British Columbia Court of Appeal in the 1993 Camponi case, the historical common law significance of being charged as an accessory after the fact was traced in light of s. 592 and s. 23.1. Again, I want to keep back some discussion of this for the much, much later s. 592 podcast but needless to say Justice Woods found no problem with trying an accessory after the fact before the main offender and no problem finding an accessory guilty even if the main offender was acquitted. To that end, and in reference to s.23.1, Justice Woods remarked at paragraph 25 of the decision that:

This section was enacted in 1986, c. 32, s. 46. with what must be regarded as an unusually confident legislative tone, it announces an intention to bring greater certainty to the law relating to ss. 21-23 of the Code. Whether it has achieved that lofty goal will be for history to decide. Suffice it to say that in the context of the present discussion its intent seems to have been to put the quietus to any lingering notion that s. 592 preserved, or was intended to preserve, the essence of the common law rule relating to accessories after the fact.

Finally the matter appeared to be truly put to rest when the 1997 Nova Scotia Court of Appeal FJS (also known as Shalaan) case came to the same conclusion as Camponi and this decision was affirmed with brief reasons by the Supreme Court of Canada. Interestingly, the controversy continued, not in the law courts per se but between the lines in the annotated Criminal Codes. In the commentary under s. 23.1, Martin’s Annual Criminal Code references the Supreme Court of Canada FJS case in support of the position that an accessory after the fact could be convicted even if the main offender was acquitted, while in Allan Gold’s The Practitioner’s Criminal Code, as least as of the 2008 version, the commentary dismissed the Supreme Court of Canada’s decision as decided per incuriam.

But we are not finished with this section and the myriad of case law this section has garnered. Recently, on April 3, 2014, the Supreme Court of Canada dismissed the leave application in the Huard case, which raised the constitutionality of the well-established principle, as really encapsulated by s. 23.1, that a party may be convicted of a more serious offence than that of the main offender. In that case, Mr. Huard was convicted as a party to a first-degree murder even though the principal offender was only convicted of second-degree murder. Counsel argued that the principles of fundamental justice, as guaranteed under s. 7 of the Charter, requires that those less morally culpable should not be punished more severely than those more morally culpable. Mr. Justice Watt, on behalf of the Ontario Court of Appeal, dismissed the argument as he found the “mere common law rule” relied upon was not a principle of fundamental justice and s. 23.1 “makes it clear” that a party can be convicted even if the main offender is acquitted or not even tried. As an aside, the Appellant in the Camponi case relied upon an article written by Justice Watt, which he wrote prior to his appointment to the Bench, on accessory after the fact and the ambiguities found in s. 592. This shows that the connections in the Canadian criminal law are indeed endless and it appears that they may be unlimited too!

Episode 28 of the Ideablawg Podcasts on the Criminal Code - Section 23.1

Section 23 – Accessory As A Mode of Participation: Episode 27 of the Ideablawg Podcasts on the Criminal Code of Canada

In previous episodes we discussed the party sections of the Criminal Code, a mode of participating in a crime as a participant who is not the main offender but assists the main offender in the commission of a crime. An accused can also participate in a crime as an accessory after the fact under section 23 of the Code. This is not a party section as the accused is not participating in the commission of the actual offence but is assisting an offender after the offence has been committed. This assistance, however, takes on a very specific form. Additionally, it should be noted that as the accused under this section is not participating in the main offence, the punishment for being found an accessory after the fact is less than the punishment of participating in the actual offence pursuant to s. 463 of the Code.

Section 23 reads as follows:

^{23. (1) An accessory after the fact to an offence is one who, knowing that a person has been a party to the offence, receives, comforts or assists that person for the purpose of enabling that person to escape.}

It should first be noted that in the present section is a reference to subsection 2, which was repealed in 2000. The section also initially contained a further subsection, which was also repealed at an earlier time. Both of these original subsections provided exemptions to the section as a result of marriage. You may recall an earlier podcast wherein we discussed section 18, which also originally contained similar exemptions. In that podcast, I refer to s. 18 as an addendum to the s. 17 compulsion by threats or duress section. Presently, s. 18 clarifies that duress cannot be presumed merely on the basis that the offence was committed in the presence of a spouse. Turning to the original iteration of section 23, what was in the original 1892 Code as section 63, is very similar in essentials to section 23(1) but the additional subsections exempted a married couple from the effects of the section. Thus, under subsection 2 a spouse could not be charged as an accessory after the fact by assisting the other spouse. Further, under subsection 3, no “married woman” could be charged with being an accessory by assisting, on the direction and authority of her husband, another offender or her husband. It was only in the mid-1970s that the Statute Law (Status of Women) Amendment Act removed this subsection 3, which was clearly based on stereotypical presumptions that a husband has certain authoritative “rights” over his wife. At the time, this amending legislation was hailed as a huge step toward gender equality as it was created in response to the recommendations from the 1970 Royal Commission on the Status of Women. Subsection 2, however, which may be viewed as a more gender-neutral exemption, stayed in the Code until 2000 when the amendments found in the Modernization of Benefits and Obligations Act removed the subsection exemption.

What is left of the section is, as already mentioned, quite specific. The actus reus requires the accused to “receive, comfort, or assist” a person who has committed a crime. Although “assist” and “comfort” have specific meanings, the addition of the word “receive,” which is quite broad in aspect, captures a wide range of activity. However, the accused must “receive” for a specified purpose as part of the mens rea of the section. Returning to the actus reus, the Supreme Court of Canada in the Morris case has found that the section requires more than a mere failure to advise the authorities of an offender’s whereabouts. This position is consistent with the traditional common law reluctance to punish omissions and failures. However, advising an offender that the police have the offender’s name and licence plate number may be enough to fulfill the prohibited act requirements. Furthermore, an accused can be convicted of being an accessory even if the offender assisted is not convicted of offence from which he or she was fleeing. Also, due to the amendments repealing subsection 2 and 3, an accused can be an accessory even if they helped a spouse or his or her child.

The mens rea requirements require a high level of subjective mens rea. The accused must have subjective knowledge that the person being assisted has been a party to or has committed an offence. Also, the assistance, comforting or receiving of the fugitive must be for the specific purpose of assisting the fugitive’s escape from the authorities. As a result, proof that the accused was reckless is not enough. The Crown must prove subjective knowledge or deemed knowledge through the doctrine of willful blindness. Therefore, it is not enough for a finding of accessory that the acts of assistance have the effect of helping a person escape the law. Nor is it enough that the acts were undertaken for the purpose of not being suspected of the crime itself. It is therefore difficult to prove an accused participated as an accessory after the fact. As a result, the police tend to charge an offender with other more easily proven offences such as obstruct justice under s.139 or harbouring a suspected terrorist under s. 83.23. 

Episode 27 of the Ideablawg Podcasts on the Criminal Code of Canada; Section 23 - Accessory After the Fact