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Inchoate and Accessory Offences

  • Lesson 8 of 24
  • Core
  • Inchoate Offences & Accessories. Attempts (s. 24), criminal conspiracies (s. 465), and accessory after the fact (s. 23).
  • 10 min
  • Reviewed

By James R. GosnellEducational material, not legal advice.

Key points

Attempt, unsuccessful counselling, conspiracy and accessory-after-the-fact liability each require proof of their own conduct and intent. Liability can arise before or after the target offence, and must be distinguished from participation in that offence.

Overview

Criminal liability can arise before the intended offence is completed, or from assistance supplied after its commission. , an offence that is not committed, , and being an are distinct offences. Each requires its own material and mental elements; suspicion of involvement is insufficient.

Learning Objectives

  • Distinguish preparation, attempt, counselling, conspiracy, and assistance after an offence.
  • Identify the conduct and intent that the Crown must prove for each offence.
  • Separate these offences from participation in the principal offence under sections 21 and 22 of the Criminal Code.

Attempt

Conduct beyond mere preparation

Under section 24, a person who intends to commit an offence and does or omits something for the purpose of carrying out that intention may commit an attempt. The conduct must go beyond mere preparation. The distinction is a question of law assessed in context, including the nature of the intended offence and the relationship between the acts already performed and its completion. Buying equipment or approaching a location cannot be classified conclusively without the surrounding facts.

An intention without sufficiently advanced conduct does not establish attempt. Conversely, generally does not excuse an attempt: reaching into an empty pocket with the intention of stealing may qualify. A person cannot attempt an imaginary offence consisting of conduct that is not criminal in law. Nor does Canadian criminal law recognize attempted conspiracy: R. v. Déry, 2006 SCC 53.

Intention and proof

The Crown must prove the intention required for the particular attempt. Do not assume that every route to guilt for the completed offence also suffices for its attempt. Attempted murder requires an intention to kill, although some forms of completed murder have a different mental formulation: R. v. Ancio, [1984] 1 S.C.R. 225.

Because attempt requires , intoxication evidence may be relevant to whether the accused actually formed that intent. The issue is actual intent, not simply the capacity to form it. The Crown retains the burden of proving the required intent beyond a reasonable doubt.

Abandonment before conduct passes the preparation stage can mean no attempt has occurred. Once an attempt is complete, a subsequent change of heart does not erase it.

Worked example: the point of liability

Factual Scenario

In this hypothetical, Alex urges Benoit to steal cash from a traveller's coat pocket. Benoit and Camille genuinely agree to carry out that theft: Benoit will take the cash while Camille deliberately distracts the traveller. They buy gloves and select a station, but have not yet approached anyone. Later, Camille starts the planned distraction. Benoit reaches into the traveller's pocket intending to take the cash, but the pocket is empty. Sam, who had no earlier involvement, learns exactly what happened and hides Benoit to help him avoid arrest.

Identify when conspiracy and attempt arise, whether Camille can be a party despite taking no cash, and whether Sam's conduct belongs to the same route. Assume the traveller never consented and no claim of right arises.

Variation

Before anyone approaches a traveller, Camille clearly tells Benoit she is leaving the plan and refuses to perform the distraction. She has supplied no equipment or other assistance beyond joining the agreement. What does this change, and what would differ if she withdrew only after Benoit reached into the pocket?

Counselling an Offence That Is Not Committed

Active inducement

Section 464 addresses counselling where the counselled offence is not committed. Counselling entails active inducement or encouragement, including procuring, soliciting or inciting. Merely describing an offence, without the necessary encouragement and mental element, does not suffice.

The mental element includes an intention that the counselled offence be committed, or knowingly counselling while consciously disregarding the substantial and unjustified risk that the offence is likely to be committed as a result: R. v. Hamilton, 2005 SCC 47. Apply that formulation to the actual communication and context; do not replace it with a negligence test.

If the counselled offence is committed, section 22 instead supplies a route to participation in it. Section 22 also has a separate rule for consequential offences; the fact that an offence ultimately occurred does not dispense with the statutory requirements.

Conspiracy

A genuine agreement

Conspiracy requires an agreement between at least two people to pursue the unlawful object, together with the requisite intention to agree and carry out that common object. The agreement may be express or inferred from conduct. No completed target offence or further overt act is generally required once the criminal agreement is formed.

Mere knowledge, association, parallel conduct or assistance does not automatically establish agreement. If the only supposed partner merely pretends to agree, there is no genuine agreement between those two. An undercover officer's participation does not prevent a conspiracy from existing between other people who genuinely agree.

Factual impossibility is generally no defence. As with attempt, the agreement must concern an offence that exists in law. Withdrawal after the agreement has already completed the conspiracy does not retrospectively undo that offence, although later conduct may prevent liability for a subsequent offence through the withdrawal rules illustrated in the timeline exercise.

Co-conspirator statements

The is conditional. Under the approach discussed in R. v. Carter, [1982] 1 S.C.R. 938, the trier of fact must first find the conspiracy proved beyond a reasonable doubt, and the accused's membership probable on the evidence directly admissible against that accused. Statements made by co-conspirators in furtherance of the common object can then be considered against the accused under the exception.

The preliminary probability finding is not the final standard of guilt: guilt must still be established beyond a reasonable doubt on the admissible evidence. Not every remark made by an alleged co-conspirator falls within the exception.

Accessory After the Fact

Knowing assistance to escape

Section 23 concerns receiving, comforting or assisting a person, knowing that the person has been a party to an offence, for the purpose of enabling that person to escape. The Crown must establish the underlying offence and the accused's qualifying assistance, knowledge and purpose. Deliberate avoidance of inquiry can establish where its requirements are met.

Assistance can concern physical escape or avoiding legal consequences, such as concealing evidence. Mere failure to report another person is insufficient under this provision. Assistance that happens to benefit an offender also does not suffice without the required purpose.

Worked example: assistance before or after the offence

Distinguish spontaneous assistance after the offence from a prior agreement to help commit it. A getaway driver who knowingly agreed in advance to assist a robbery may be a party to the robbery under section 21 even though the driving occurs afterward. A person who first offers a hiding place after learning of the completed robbery raises the separate section 23 analysis. The timing of the physical act alone does not settle the classification.

Penalties and Verdicts

The general penalty rules for attempts and accessories after the fact appear in section 463, with specific exceptions. Attempted murder is governed by section 239; accessory after the fact to murder by section 240. Conspiracy has its own rules in section 465, and counselling under section 464 also has a separate penalty framework. Identify the exact charge, prosecution mode and applicable provision before calculating a maximum.

A charge of a completed offence may support a verdict of attempt where the applicable included-offence rules permit it. A charge of attempt does not simply authorize conviction of the completed offence because more extensive conduct is proved. JurisClasseur discusses the distinct procedural rules in .

Practice Checklist

  • Identify the precise target offence and the alleged form of liability.
  • For attempt, locate the conduct beyond preparation and prove the required intention.
  • For counselling, identify active encouragement and the applicable mental element.
  • For conspiracy, prove a genuine agreement and apply the evidentiary conditions before using co-conspirator statements.
  • For assistance after the fact, distinguish prior participation from later knowing assistance intended to enable escape.
  • Check the particular penalty and verdict provisions rather than borrowing those of the completed offence.

Check your understanding

Two short exercises before you move on: reason through the lesson’s worked examples, then recall its key terms from memory.

Apply the rules

Each worked example gives the facts first and keeps its analysis closed. Decide the outcome, then open the analysis to compare.

  1. 1Worked example: the point of liabilityIncludes a variation

Active recall

1 / 8

Formulate your answer before revealing the definition. Your self-assessment schedules a review; it does not measure mastery.

Attempt

Tentative

How would you define this concept? Which conditions or limits matter?

Glossary

Accessory after the factComplice après le fait
A person who knowingly assists a party to an offence for the purpose of enabling escape.
AttemptTentative
Conduct beyond mere preparation undertaken with the intention required to commit the target offence.
Co-conspirator exception to hearsayException au ouï-dire relative aux coconspirateurs
A conditional rule permitting statements furthering the common object to be considered against an accused after the conspiracy is proved beyond a reasonable doubt and membership is found probable on evidence directly admissible against that accused.
ConspiracyComplot
A genuine agreement to pursue an unlawful object with the required shared intention.
CounsellingConseil
Active inducement or encouragement to commit an offence, accompanied by the required mental element. Describing an offence alone is insufficient.
Factual impossibilityImpossibilité factuelle
Circumstances preventing completion of an intended offence, such as an empty pocket in an attempted theft. It generally does not excuse attempt or conspiracy, unlike pursuing conduct that is not criminal in law.
Specific intentIntention spécifique
The actual intention required for the particular attempt, which must be proved beyond a reasonable doubt. A mental state sufficient for the completed offence does not necessarily suffice for its attempt.
Wilful blindnessAveuglement volontaire
Deliberate avoidance of inquiry that may substitute for the knowledge required of an accessory after the fact when the doctrine’s conditions are established.

References and Further Reading

  • Primary commentary: JurisClasseur Québec — Droit pénal général, , nos 1–66 (merged source PDF, pp. 307–330): attempt, nos 5–17; counselling, nos 18–23; conspiracy, nos 24–45; accessory after the fact, nos 46–62; withdrawal, nos 63–66. and 20–29, supports participation in an attempted offence.
  • Criminal Code, ss. 21–24, 239–240, 463–465 and the applicable included-offence provisions.
  • Cases discussed above are treated in . Their propositions concern the particular offence and evidentiary issue identified, rather than a general presumption of liability.
Canadian Criminal LawLesson 8 of 24