Canadian Criminal Law (January 2019) (10) Counseling

R v Hamilton (2005) SCC

● Facts;
o H offered for sale access to a credit card number generator
▪ Through the Internet
o H was charged with counselling the commission of indictable offences that were not in fact committed
(four counts)
o The trial judge was not satisfied that H had the requisite mens rea or culpable intent and she acquitted him
● Issue;
o (1) What are the mens rea elements of counseling (s22(1))?
● Ratio;
o (1) The accused was granted a new trial, as the elements of counseling were conflated by the trial
judge.
● Reasoning;
o The actus reus of counselling is the ‘active inducement of the commission of a criminal offence’
o The mens rea is either;
▪ (a) that the accused intended that the offence counselled be committed or
▪ (b) knowingly counselled the commission of the offence while aware of the unjustified risk that
the offence counselled was in fact likely to be committed as a result of the accused’s conduct

Counselling a Crime that is not Committed (pp. 147-153)

● (1) The Actus Reus of Counselling a Crime that is NOT Committed
o the accused made statements to actively induce or advocate the commission of an offence (Hamilton)
▪ nb. the statements must be distinct from simply describing an offence
▪ counselling includes ‘procure, solicit, or incite’ (s22(3))
● the person can be convicted, even if the person they counselled never had any intention of
committing the offence (ex. police officer)
● (2) The Mens Reus for Counselling a Crime that is NOT Committed
o (i) subjective knowledge of the crime counselled and
o (ii) actual intent by the accused that the crime be performed
▪ no need to prove that the person counselled have the actual intent
● (3) Impossibility and Counselling
o a person could be guilty of as a party (aiding, abetting, counselling or assisting) even though the person
cannot be convicted of the actual offence (s23.1)
▪ this is not the case for crimes that are not committed

Counselling a Crime that is Committed

● (1) The Actus Reus of Counselling a Crime that IS Committed
o (i) procuring, soliciting or inciting a crime (s22(3)) and
o (ii) the person counselled actually committed a crime that was reasonably foreseeable from the counselling
▪ crime need not be committed in the same way that was counselled
▪ crime need not be the same crime that was counselled
● (2) The Mens Rea of Counselling a Crime that IS Committed
o (i) must intentionally counsel a criminal offence (s22(1))
▪ liability is also extended to any offence that the person knew or ought to have known would be
committed as a result of the counselling (s22(2))
● must be subjective intention for murder or attempted murder (Martineau, Logan) (s7)
● the objective fault element here is different than s464.