Criminal Code of Canada - section 22(1) - Person counselling offence

section 22(1)

INTRODUCTION AND BRIEF DESCRIPTION

This section states that if someone encourages another person to commit a crime, and that person goes on to commit the crime, the encourager can be held responsible for the crime even if it was not committed in the exact way they encouraged.

SECTION WORDING

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 counselled is a party to that offence, notwithstanding that the offence was committed in a way different from that which was counselled.

EXPLANATION

Section 22(1) of the Criminal Code of Canada defines the legal concept of counselling. It states that if a person advises or encourages someone else to commit a crime, and that person later goes on to commit the crime, the counsellor will also be deemed responsible for the offence. This means that the person who actually carries out the crime may be charged as a principal, while the person who counselled them may be charged as a party to the offence. However, a key provision of this section is that the actual commission of the offence may differ from what was originally counselled. This means that even if the crime was committed in a different way to what was advised or encouraged by the counsellor, they may still be liable for the offences committed by the other person. For example, if someone counsels another person to commit a theft and the other person goes on to commit a robbery instead, the counsellor would still be responsible for the robbery that was committed. The section is aimed at preventing individuals from instigating or facilitating criminal acts without actually participating in the commission of the crime themselves. By holding counsellors accountable for the crimes they encourage others to commit, the law seeks to discourage people from engaging in criminal activities or from encouraging others to do so, thereby promoting public safety and order. In conclusion, section 22(1) of the Criminal Code of Canada acts as a deterrent to potential criminals and ensures that those who participate in criminal acts, through counselling or other means, are held responsible for their actions.

COMMENTARY

Section 22(1) of the Criminal Code of Canada is an important provision that deals with the issue of counselling as a form of criminal participation. The section defines and outlines the legal consequences of counselling someone to commit an offence and establishes that a person who provides such counselling can be held criminally responsible for the crime committed by the counselee. The term 'counselling' in this context is not restricted to verbal advice or instructions, but can also include any actions or behaviours that encourage another person to commit a crime. For example, a person who provides a weapon to someone with the intention of using it to commit a robbery is considered to have counselled the crime, even if they did not explicitly encourage or instruct the person to commit the robbery. Section 22(1) is significant because it recognizes that a person who counsels an offence is not simply an accomplice, but rather a co-perpetrator of the crime. This means that they can be held equally liable with the actual perpetrator, regardless of the level of their participation. In other words, a person who counsels a crime can be charged and convicted of the same offence as the person who carries it out, even if they did not physically participate in the crime. The provision also recognizes that the crime may be committed in a way different from what was originally counselled, but that this does not absolve the person who provided the advice or encouragement. For example, if a person counsels another to rob a bank with a gun, but the other person decides to use a knife instead, the person who provided the advice is still guilty of counselling the offence. Section 22(1) is significant because it acts as a deterrent against people who may be tempted to encourage others to commit crimes. It also serves as a warning to people who may be tempted to take criminal advice from others. The provision ensures that such individuals cannot claim ignorance of the law or their culpability in the crime, as they were well-aware of the consequences of their actions. However, section 22(1) has also been criticized for its potential to be overbroad in its application. Some commentators argue that the provision's broad definition of counselling could be used to criminalize innocent behaviour, such as giving advice or expressing an opinion. For instance, a parent who advises their child to take certain actions in self-defence or to protect their property could theoretically be charged with counselling an offence if the child ends up committing a crime. Moreover, the application of section 22(1) presents several interpretive challenges. For instance, it may be difficult to determine when an action constitutes 'counselling' as opposed to a more passive form of encouragement or persuasion. Furthermore, the provision does not make clear whether a person must have intended for the offence to be committed in order for counselling liability to arise, or whether recklessness or negligence would be sufficient. In conclusion, section 22(1) of the Criminal Code of Canada is an important provision that recognizes counselling as a form of criminal participation and holds those who provide such counselling liable for the offences committed by the counselee. While the provision is important for deterring criminal conduct, its broad definition of counselling and potential for overbreadth presents interpretive challenges that must be addressed to ensure that it is applied appropriately.

STRATEGY

Section 22(1) of the Criminal Code of Canada acknowledges the importance of counselling as a fundamental legal principle. Counselling involves encouraging or advising someone to commit an offence. Any person who counsels another to participate in an offence can be charged for being a party to that offence, even if they did not commit the offence themselves. There are several strategic considerations that legal professionals should take when dealing with Section 22(1). Firstly, lawyers must understand that the section has broad implications. It implies that any person who counsels another can be held accountable for an offence that is committed. As such, lawyers should always advise their clients against counselling others to commit offences. This is particularly important in the context of criminal networks where individuals may be involved in various illegal activities. Secondly, legal professionals should be aware of the different ways that counselling can occur. Counselling can be explicit, where a person advises another to commit an offence in clear terms. It can also be implicit, where a person uses methods such as body language, gestures, or coded language to convey their intentions. As such, lawyers should carefully examine the circumstances of each case to understand the nature of counselling. Thirdly, when dealing with Section 22(1), the prosecutor must be able to prove beyond a reasonable doubt that the individual in question counselled another person to commit an offence. The accused may argue that they were merely providing advice or information that was not intended to be taken as a suggestion to commit an offence. The crucial element of Section 22(1) is that the person counselling the offence knows that the other person will commit the offence. Fourthly, legal professionals should have a thorough understanding of other relevant sections of the Criminal Code that relate to counselling offences. For instance, Section 21(1)(b) of the Criminal Code states that anyone who aids or abets another person to commit an offence is guilty of that offence. This section has a broader scope than Section 22(1) since it applies to anyone who assists in crime commission, not just those who counsel. Lastly, legal professionals should consider employing some strategies when dealing with Section 22(1). One strategy could be to advise their clients to report any attempts to solicit them to commit an offence. Reporting such attempts can be used as evidence to demonstrate that the accused had no intention of counselling another person to commit an offence. Another strategy would be to carefully examine the evidence, particularly the intent behind the accused's actions. Legal professionals should be aware of the burden of proof on the prosecutor and use this to their advantage when defending their clients. In conclusion, Section 22(1) of the Criminal Code of Canada is an essential legal provision that recognizes the importance of counselling in criminal activity. Legal professionals must understand the strategic considerations when dealing with this provision and employ effective strategies to protect the rights and interests of their clients. It is also essential to note that counselling can have severe implications, including lengthy imprisonment, so everyone should refrain from engaging in such acts.