INTRODUCTION AND BRIEF DESCRIPTION

Anyone who counsels someone to commit a crime is also guilty of all the crimes that the person they counselled commits as a result of their advice.

SECTION WORDING

22(2) Every one 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.

EXPLANATION

Section 22(2) of the Criminal Code of Canada defines the legal principle of counselling. According to this section, a person who counsels or urges another person to commit a crime, is just as responsible for the commission of that crime as the person who actually committed it. This means that, if someone advises, instructs, or persuades another person to commit a crime, they can be charged with the same offences as the person who actually commits that crime. In order to be found guilty under this section, the Crown must prove that the accused knew or ought to have known that the person they were counselling was likely to commit an offence as a result of their advice or encouragement. This means that, if a person counsels someone to commit a crime but did not know or have reason to know that the crime would be committed, they cannot be held criminally responsible. However, this section of the Criminal Code is quite broad, and it does not distinguish between the seriousness of the crime that was counselled. This means that someone who counsels another person to commit a relatively minor offence can still be charged as a party to a much more serious crime that is committed as a result of that counselling. Overall, section 22(2) of the Criminal Code of Canada serves as a deterrent for anyone considering counselling or encouraging someone to commit a crime. The severe legal consequences that can result from such behaviour underline the importance of preventing, and duly punishing, such actions in Canadian society.

COMMENTARY

Section 22(2) of the Criminal Code of Canada is a vital provision of the Criminal Code that holds individuals accountable for their actions when they advise, urge, or encourage others to commit an offense. This section makes it clear that individuals who counsel others to commit an offense are also committing an offense themselves, making them liable as a party to every crime that the other person commits. In other words, the person who counsels another person to commit an offense becomes a co-conspirator with that person, and can be charged for the same offense as the perpetrator. The concept of counseling is broad, and it includes any act that instigates or contributes to the commission of a crime. It is not limited to direct advice or instructions; it can include indirect and subtle forms of encouragement, such as offering financial incentives, making suggestive statements, or providing logistical support. The significant consequence of Section 22(2) is that it attributes criminal responsibility to anyone who aids or supports criminal activities, regardless of the extent of their involvement. The phrase "ought to have known was likely to be committed" in Section 22(2) is significant because it implies that a person's intentions do not determine whether they are guilty of counseling. Rather, it focuses on whether the counselor should have been aware of the potential consequences of their actions. This aspect of Section 22(2) makes it possible to prevent crimes that would otherwise go undetected, by holding not only the perpetrators but also their accomplices accountable. However, it is essential to understand that not all forms of advice or communication can result in being held criminally liable under section 22(2). If the advice or communication is intended for lawful purposes, it would not apply. For example, a lawyer who advices a client on the legal implications of an investment, even if the investment turns out to be fraudulent, would not be guilty of counseling an offense, as their advice was intended for lawful purposes. Section 22(2) is a critical component of the Canadian Criminal Justice System, as it ensures that offenders do not escape justice by enlisting the help of others. It makes it clear that anyone who participates in criminal activities, no matter how indirectly, will be held accountable for their actions. This provision acts as a strong deterrent, ensuring that individuals think twice before getting involved in criminal activity or aiding in such activity. In conclusion, Section 22(2) is an essential provision that plays a significant role in ensuring that justice is served in Canada. It holds counsellors accountable for their actions where they encourage and aid criminal activities. This provision makes it clear that even an indirect or subtle form of involvement in criminal activity can result in criminal charges, making it easier to prevent offences by holding both perpetrator and accomplice liable.

STRATEGY

Section 22(2) of the Criminal Code of Canada sets out a significant legal issue in criminal law: the liability of parties who counsel others to commit crimes. The section establishes that such parties are liable for all offences committed by the offender as a result of the counselling, which reflects the principle of complicity. This means that even if an individual does not directly participate in a crime, they can still be held accountable if they play a role in guiding or persuading someone to commit the crime. As a result, it is essential that individuals and organizations understand how this section works, and what strategic considerations and techniques could be employed to mitigate this risk. One of the most significant strategic considerations for parties who may face liability under Section 22(2) is to establish a clear and rigorous code of ethics and compliance program. By establishing a code of conduct, policies, and procedures, organizations can ensure that all employees and agents are aware of the legal obligations and prohibitions, as well as the consequences of violating these rules. This program can help to reduce the likelihood that employees or agents will engage in activities that could result in violations of Section 22(2). Additionally, a strong compliance program can demonstrate to courts and law enforcement agencies that the organization has taken positive steps to prevent unlawful activities. Another essential strategy is to develop a thorough risk management plan that identifies and addresses potential legal concerns. Factors such as industry regulations, geographical location, type of business, and market risks should be taken into account when developing a risk management plan. By identifying potential vulnerabilities to criminal liability, organizations can take proactive measures such as internal controls, background checks, and employee training to reduce their exposure to legal liabilities. One of the most effective ways of avoiding legal liabilities under Section 22(2) is to hire experienced legal counsel who understands the implications of this section of the Criminal Code of Canada. Legal counsel can provide guidance on potential legal risks and strategies to reduce legal liabilities. They can also help organizations to navigate the legal system and represent them in court if necessary. Finally, it is a fundamental strategy to ensure that parties are aware of the legal boundaries of their activities and always act within the limits of the law. This involves a comprehensive understanding of the legal system and potential legal prohibitions. Parties should avoid engaging in any activity that could be seen as facilitating or encouraging criminal behavior. In conclusion, parties who may be liable under Section 22(2) of the Criminal Code of Canada must take a proactive and rigorous approach to manage their legal risks. By developing a strong compliance program, risk management plan, hiring experienced legal counsel, and consistently acting within the legal boundaries, parties can reduce their exposure to legal liabilities and protect themselves and their organizations from potential prosecution.