Aiding and Abetting, Section 21 of the Criminal Code, RSC, 1985, c. C-46
Section 21 of the Criminal Code states:
21 (1) Everyone 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.
Aiding
As the term implies, ‘aiding’ is intentionally helping or assisting the principal offender in committing a crime. In other words, the person who is aiding knows that an offence is being committed. In contrast, if a getaway car stalled 5 kilometres away from the crime scene and a friendly stranger assisted the fleeing criminals by giving them a boost, the stranger would be considered an ‘innocent agent’ because he did not realize that an offence occurred. Similarly, if the offenders threatened a toll booth operator at gunpoint, the operator then allowed the getaway car onto the highway; the operator has not ‘aided’ the offenders.
Abetting
Abetting encourages, instigates, or promotes the principal offender to commit an offence or a crime. An example of abetting may be when an individual cheer on the principal offender to start a fight to harm another individual. As such, if found guilty, the abettor may also receive the same sentence as the individual who committed the actual harm.
Although merely being present and failing to stop a crime is usually insufficient in finding a party guilty for aiding or abetting, an exception would be where a party had a legal obligation to act, such as an adult’s obligation to report and take action in child protection matters. In addition, inaction may also be considered as aiding and abetting if an act or omission was intentional; for example, a bribed security guard disengaged from the security cameras during a robbery.
Section 21(2) of the Criminal Code is more difficult to grasp as it deals with what constitutes “ought to have known;” it reads:
21(2) 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 out 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.
The objective standard of mens rea is often applied to aiding and abetting offences, meaning the phrase “ought to have known” involves determining what a reasonable person would have had in their mind, which differs from ‘subjective mens rea,’ determining criminal intention based on what the offender had in their mind.
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