Following the horrific terror attacks perpetrated by the Islamic State (“IS” or “ISIS”) in Paris and Beirut this past week, a great deal of attention has focused on attempting to track down individuals who collaborated with the attackers. There has been a great deal of confusion in the press as to how collaborators would be treated under the criminal justice system.
In Canada, there are a number of ways in which individuals may be considered to be parties to an offence. Under Canadian law (which of course does not apply to the recent attacks in Paris and Beirut, but it is illustrative nonetheless), section 21(1) of the Criminal Code states:
“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.”
Section 21(1)(a) refers to the “perpetrator” or “principal” who actually commits the offence. “Co-principal” liability can flow from a situation in which other people are found to have contributed to the actual commission of an offence. For example, in a deadly attack on a victim—where multiple attackers are involved—each attacker may be found guilty of the killing, as the Crown does not need to prove which attacker struck the fatal blow(s) (see: R v Ball (2011), 267 CCC (3d) 532 (BC Court of Appeal) and R v Alexis (2002), 163 CCC (3d) 387 (BC Court of Appeal)).
Section 21(1)(b) refers to an “aider” and section 21(1)(c) refers to an “abettor.” The Crown must prove that an aider intended to assist the perpetrator in carrying out the offence and that he or she knew the perpetrator intended to commit the offence (in general terms—specifics need not be known) (see: R v Briscoe,  1 SCR 411). Abetting is essentially “encouraging” or “supporting”—the Crown must prove that an abettor encouraged or supported the perpetrator with acts or words and that he or she intended to encourage or support the perpetrator or principal to commit the offence (see: R v Greyeyes (1997), 116 CCC (3d) 334 (SCC) and R v Rochon (2003), 173 CCC (3d) 321 (ON Court of Appeal)).
Under section 21(2) of the Criminal Code, there is yet another way for an individual to be found to be a party to an offence: “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 provision is somewhat complicated, but the courts have held that where there is a common unlawful purpose amongst a group of people to assault a particular individual, knowing that the assault could potentially result in serious harm or death, if one member of the group (who simply sought to assault the victim) knew that someone else in the group would probably commit a more serious offence—such as murder—and that murder was in fact the result, that individual can be convicted of murder (see: R v Young (2009), 246 CCC (3d) 417 (ON Court of Appeal)).
Additionally, under section 22 of the Criminal Code, where any person counsels—which can include procuring, soliciting, or inciting—anyone else to become a party to an offence, the person who did the counseling may be convicted of being a party to that offence (or any offence considered a collateral crime).
A somewhat similar offence is being an “accessory after the fact,” which is prohibited under section 23(1) of the Criminal Code: “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.”
Conspiracy charges are also possible, though these will be the focus of a future blog post.
Where the courts have found an individual guilty of being a party to an offence (without that person actually being the perpetrator), sentences can still be quite similar to sentences given to perpetrators—depending on the role and level of contribution of the offender. Where it is found that the party to the offence played an essential role in helping the perpetrator to carry out the crime, this individual will likely receive a sentence that is very close to that of actual perpetrator.
Many people in society seem to believe that the only people who can be held accountable for a crime are those who actually carry out that offence. Certainly under Canadian law, that is false—many people can be found to be parties to an offence, and they can all be held criminally liable. While there are often evidentiary difficulties, it is important to bear in mind that the elements the Crown must prove vary depending on the type of involvement a party is alleged to have had with regard to an offence.