Toronto Criminal Lawyers Blog

An individual may be liable for those offences which he she does not commit as a principle offender but in which he or she plays a part in committing. When an individual becomes liable for an offence in this way, he or she is referred to as a “party to the offence.” One specific way an individual can be found guilty of a crime as a party is as an accessory after the fact. However, an accessory is not technically a party to the offence in question. Unlike all other parties, who are charged with the offence in question and assigned liability using the legislative rules relating to aiding and abetting, common intention and counselling, an accessory is not charged as a party to the actual offence. Rather, the accessory is charged with the specific offence of being an accessory after the fact found in section 23 of the Criminal Code of Canada.

Section 23 of the Criminal Code creates the offence of being an accessory after the fact. It states that “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.”

There are two aspects to every offence in the Criminal Code of Canada: the act element (the acts or omissions which make up the crime) and the mental or fault element (the “guilty mind” requirement). In order to establish that an individual is guilty of being an accessory after the fact, the Crown must prove that the requirements of the both the act element and the mental element for being an accessory after the fact are satisfied based on the evidence.

In R. v. Camponi, the court established some guidelines for determining whether the the act element required to establish an individual acted as an accessory after the fact have been satisfied in a given case. The legislative requirement is that the accused provided assistance to a third person and that his or her conduct had the effect of receiving, comforting or assisting the third person. The definition of assisting is very broad and catches most form of aid a person is capable of rendering. However, according to R. v. Dumont, mere failure to inform the authorities of the principal’s whereabouts is not sufficient to satisfy the act requirement.

The act element for the offence of accessory after the fact does not require that the third party have been tried and convicted to the offence. Under section 23.1, the accessory may be convicted even if the principal is not convicted. This rule was affirdmed in R. v. S.(F. J.).  This provision is meant to prevent acquittals of accessories after the fact where the principle is acquitted based on a Charter application or successful defence. Moreover, based on the ruling the R. v. McAvoy, the principal need not even ever have been tried for the alleged crime. This rule is meant to prevent accessories who are successful in helping the principle offender flee the jurisdiction from escaping liability simply because the principal cannot be found or cannot be tried. However, if the principle is tried and convicted, s. 657.2(2) indicates that his or her conviction will provide presumptive proof of the offence, thus relieving the Crown of the obligation of proving that the person aided by the accessory may have committed a crime.

The mental element for the offence of being an accessory after the fact is intent to conduct the acts that are alleged to have helped the principle offender. According to R. v. Duong, the accused must have knowledge or be willfully blind to the fact that the person committed the offence. Willful blindness refers to the situation where a person suspects that he or she is lacking important knowledge but chooses to remain ignorant. Moreover, the accused must also know the person was party to a particular offence; general knowledge of criminal activity will not suffice.

The alleged accessory’s assistance must be provided for the purpose of helping the person to escape justice. Thus, not every person who helps the principle offender following the commission of his or her alleged crime will attract liability as an accessory. The accused, to be an accessory, must have helped the principle with the aim of helping him or her escape criminal responsibility for his or her crime. We call this a specific intent crime. The accused must not only have intended the actions of assistance but must also have had the specific intention that those act of assistance help him elude or escape the authorities. The specific intent to aid the principle in fleeing the jurisdiction need not be the accused’s sole purpose for aiding the principle. However, according to R. v. Morris, it is not sufficient that acts merely had the effect of assisting the principal or were undertaken in order for the accessory to avoid arrest for the primary offence. It is the accused’s purpose in acting that is of interest to the court and not the effect of his or her actions.

Section 463 of the Criminal Code of Canada lists the sentences available o the court when a person found guilty of being an accessory after the fact. The available sentences vary in severity according to the crime committed by the principle whom the accessory was found guilty of assisting. For example, if the principle offender was accused of committing a crime that carried a possible life sentence, the accessory may be given a sentence of up to fourteen years. At the other extreme, if the principle committed a summary offence the accessory may only receive a sentence appropriate for a summary offence. There is no minimum sentence for the offence of accessory after the fact and judges retain discretion as to exact duration of every offender’s sentence. There are a number of mitigating factors which the accused’s criminal defence lawyer can raise during sentencing to procure a shorter sentence, such as the defendant’s lack of criminal record, his or her age, his or her relationship with the principle and the degree of assistance he or she provided.

There is no place on Canadian soil where individuals have less constitutional protection than at an international airport. The government and the courts have determined that overriding concerns for effective law enforcement, security, and national sovereignty are more important than the protection of Charter rights in the airport context. Section 1 of the Charter allows the government to limit Charter rights as much as is reasonably justified in a free and democratic society. For all intents and purposes, the court has ruled that it is reasonably justifiable to limit Charter rights against search and seizures to facilitate customs and security at an international airport. This limitation of freedom applies only in the context of international flights. When you are flying domestically, Charter rights apply to you the same way as they do anywhere else in the country. However, when you are flying between countries, the protection afforded by the Charter is severely limited.

There are three levels of airport security. Primary inspection occurs at customs. A custom officer will ask an individual questions about his or her travel plans. The individual has no constitutional rights in this context. He or she cannot legally refuse to answer the question. If he or she does so, the airport has a right to detain the individual.

Secondary inspection consists of a search of any luggage the individual is carrying. The officer need not demonstrate any reasonable ground for suspicion to search an individual’s belongings. It is perfectly legal for airport officers to conduct random and arbitrary bag searches. In fact, random searches are seen as a prudent technique airport officers may use to discover evidence, prevent smuggling, and deter smuggling.

A skin search or body search is also considered to be a form of secondary search. Te only criteria preceding such a search is that it be approved by a senior airport officer. Individuals facing such a search are protected by one constitutional right: the s. 10 right to counsel. This protection is available so that a criminal defence lawyer can advise you that the strip search cannot legally be conducted without the permission of a senior airport officer. Beyond that, there is very little a criminal defence lawyer can do to help you protect your privacy when you face a search of this kind. Moreover, ndividuals in this situation are not awarded protection by the other Charter rights such as the s. 8 right to be free from unreasonable search and seizure. Body searches, like bag searches, may be conducted at random by airport officers. In any other context an officer would have to meet the criteria set out in R. v. Golden before exercising his or her discretion to conduct a body search. However, in the airport context no such justification is necessary.

Finally, tertiary search consists of a body cavity search. Among other things the officer conducting the search must show that he or she has a “high level of justification” for conducting the search. Though the Supreme Court of Canada is not clear about the meaning of the term “high level of justification”, most criminal defence lawyers, Crown Attorneys and judges in the lower court agree that this translates to reasonable and probable grounds approaching certainty that the search will reveal evidence.  For more information on the legal requirements the police must meet before exercising their discretion to conduct a body cavity search see out blog Searching the Person. In lieu of conducting a body cavity search, airport officers may detain the individual until natural circumstances force them to expel the bags from their body. Based on the ruling in R. v. Monney, the airport can hold an individual for at least seven hours in a detention cell, known as a “drug-loo room”, to wait for him or her to expel the evidence. However, the maximum amount of time airport officials may hold an individual is unclear in the current case law.

Only approximately 15% of individuals who are strip or cavity searched in the airport are found to be carrying contraband. This means that 85% of people are unnecessarily degraded under the current system. Criminal defence lawyers are using every option available to them to try to change the law so that it better protects your privacy. However, given the rationale behind the lack of constitutional protection at the airport, it is unlikely that the rules regarding search at the airport will be relaxed in the near future.

This guest post is contributed by Stephanie DiGiuseppe. She can be reached at stephaniedigiuseppe@gmail.com.

Generally speaking, a hearsay statement is an out-of-court statement made by person A to person B (or overheard by person B), which is being tendered in court as evidence of the proof of the statement’s content(s). By necessity, therefore, person A is unavailable, or unwilling to testify to the truth of that statement in court. Thus, the rule against hearsay prohibits the admission of out-of-court statements which are tendered for their truth. For example, a witness says “Harry told me Brian was driving to Toronto”. Since the witness did not see Brian driving himself, the statement would be hearsay evidence to the fact that Brian was driving, and not admissible. However, in certain circumstances, a hearsay statement may be tendered in court as evidence of the fact that it was made, or even as to the declarant’s state-of-mind. For example, a witness testifies that “Carrie said in front of me that she was waiting for a ride from Bob”. While the statement may not be tendered into evidence as proof that Bob drove Carrie on the occasion in question, it may be adduced as proof of Carrie’s intention to locate a ride from someone, for example. The specific circumstances of how a hearsay statement may be adduced for something other than its truth will depend on the context of the case.

The arguments against the adduction of hearsay statements for proof of their truth are many-fold. First, and foremost, is the lack of opportunity for contemporaneous cross-examination. If the statement is being tendered into evidence as proof of its truth then surely the person who disputes its validity should have an opportunity to depose or “question” the person on his knowledge of the statement. This is not possible when a statement is tendered into evidence by a person other than its maker. Secondly, the trier of fact, whether it is a judge or jury, cannot observe the declarant’s reaction on cross-examination. This is an important point because the credibility of the witness is often said to be at its most revealing during cross-examination. Thirdly, the person repeating the hearsay statement in court may have been mistaken or confused as to what they have heard. Statements made in one context may be markedly different in meaning if made in another.

This does not mean, however, that all hearsay statements adduced into evidence for their truth are de facto inadmissible. There are certain enumerated exceptions to the rule against hearsay which have developed over the years by way of the common law – otherwise known as “judge made law” – or are provided for by way of statute. Some of the most notable are confessions, business records made in the ordinary course of business, excited utterances, dying declarations, declarations against interest and present sense impression. The most obvious unifying feature of these exceptions is that they are made in circumstances which significantly minimize concerns as to their reliability. Take for instance the exception of a dying declaration. The most famous example of this exception unfolded in an old British case where a woman who had her throat slit ran outside of her house screaming “Look what Patrick did to me” – Patrick being her husband. Any witnesses who may have heard the woman would be barred from repeating that statement in court as proof that Patrick slit her throat. However, under this exception, and many of the others which are predicated on similar reasoning, the courts consider that such a statement was made in circumstances that provide it with a significant degree of reliability and lessen the potential for concoction or misunderstanding.

More recently, the Supreme Court of Canada developed yet another avenue to adduce hearsay statements into evidence as proof of their contents. The “principled approach” is to said to assess the factors of necessity and reliability. Thus, hearsay evidence that did not fit into one of the categorical exceptions could now be admitted if the evidence was shown to be both necessary and reliable. This is a contextual analysis which the trial judge will be charged with determining, and will vary depending on the facts of each case.