What Is Counselling? 

S.22 of the Criminal Code indicates that: 

 

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.

 

(2) Everyone who counsels another person to be a party to an offence is a party to every offence that the other commits in consequence of the counselling that the person who counselled knew or ought to have known was likely to be committed in consequence of the counselling.

 

(3) For the purposes of this Act, counsel includes procure, solicit or incite.

 

In order for the Crown to prove that you are guilty of counselling, the Crown must prove beyond a reasonable doubt that: 

 

1. You deliberately encouraged the commission of the offence; and 
2. You had the intention that the crime be committed; or 
3. You were extremely reckless as to whether or not the crime will be committed. 

 

The Crown must prove, as per R v Hamilton [2005] 2 S.C.R 432, that you actively and willfully were seeking to persuade someone to commit the crime. The crime does not need to be actually committed in the same way that you allegedly counselled or even be the same crime, however, it does have to be reasonably foreseeable from the crime that was counselled. 

 

In relation to the intention that the crime is committed, s.22(2) of the Criminal Code by using the words “ought to have known”, extends liability to any other offence that you knew or ought to have known would have been committed as a result of the alleged counselling.