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Understanding Derivative Responsibility in Canadian Law

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If you’re familiar with the term “derivative,” it’s probably in relation to those exotic financial instruments traded on Bay Street. And, unless you’re an experienced Bay Street trader, derivatives are an investment you should probably steer clear of due to their often-complex financial structure.

However, what if police are investigating you for derivative responsibility in a criminal case — what does that mean?

Simply put, derivative responsibility means that you aided and abetted the commission of a crime. While you may not have been the primary perpetrator, your actions — whether before, during, or after — helped instigate and/or commit the offence or aided the primary perpetrator in their commission of it.

Commonly used terms to describe those with derivative responsibility include accessory, accomplice, aider, abetter, and conspirator. If police accuse you of being any of these, you should consult with an experienced criminal defence lawyer, like those at the Greater Toronto Area law firm of Mass Tsang. Derivative responsibility in criminal offences can carry significant penalties if convicted, in many cases equal to the penalties facing the main perpetrator(s).

Legal Derivative Responsibility Basics

Generally speaking, anyone who aids and abets the commission of a crime are referred to as either an accomplice or accessory, which have subtle differences in their meanings. An accomplice is typically more closely linked to the commission of the offence than an accessory, though both intentionally assist the primary offender(s) committing it.

Accomplices are often at or near the crime scene, whether to help with transportation, serve as a lookout for police or security, or commit other actions that support the primary perpetrator(s) instigating the crime. A getaway driver for a robber is an accomplice, as is a store employee who leaves a door unlocked to allow a thief to gain entry. Accomplices typically face the same penalties as the principal suspect(s).

Accessories are usually not at the crime scene and often assist the main perpetrator(s) either before or after the criminal act has been committed. The timing here is vital because accessories who assist before the act — known as “accessories before the fact” — are often treated the same as an accomplice. In contrast, those who assist “after the fact” are usually treated more leniently than the primary offender(s). An accessory before the fact typically helps instigate the crime, while an accessory after the fact often helps the primary offender(s) cover up the act.

A “conspirator” is a separate category of derivative responsibility. A conspiracy involves two or more people who agree to commit an offence together, and the law treats all conspirators equally responsible, no matter what role each played in instigating the offence. If police can secure evidence proving that the conspirators had begun instigating the planned crime, they can bring conspiracy-related charges, even if the criminal act is never committed. In most cases, penalties for conspiracy charges are the same for the actual criminal act.

Derivative Responsibility in Canada’s Criminal Code

Provisions in Canada’s Criminal Code do not specifically refer to accomplices, but some delineate “accessories after the fact.” The language in Section 21 of the Code essentially defines accomplices and accessories before the fact and “parties to the offence, without using the terms:

“21 (1) Every one is a party to an offence who

  1. Actually commits it;
  2. Does or omits to do anything for the purpose of aiding any person to commit it; or
  3. Abets any person committing it.”

Thus, this language clearly puts accomplices and accessories before the fact in the same criminal category as the primary offender(s). Accessories before the fact are further categorized the same as the principal offender(s) in Section 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 ought 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.”

Section 463 of the Criminal Code directly addresses accessories after the fact by putting them in the same category as an offender charged with an attempted crime. Thus, an offender charged with being an accessory after the fact to bank robbery faces the same penalties as someone accused of an attempted bank robbery. Besides murder and charges that carry a life sentence, Section 463 mandates that those charged with being an accessory after the fact are subject to penalties half as severe as those given to the primary offender(s).

An accessory after the fact for life-sentence-related charges faces a maximum punishment of 14 years imprisonment. An accessory after the fact for murder faces the same penalties as the murderer, as mandated by Section 240 of the Code.

Conspirators are addressed in Section 465, and as previously noted, conspirators face the same penalties as primary offenders who actually commit the criminal act.

Defending Against a Derivative Responsibility Charge

The primary defence against a derivative responsibility-related charge is to disprove that defendant intentionally or knowingly aided and abetted the commission of the offence. As we’ve pointed out in previous blog posts, the two factors the Crown must prove to secure a conviction for most criminal offences are “actus reus” and “mens rea.” Actus reus is Latin for “guilty act,” and prosecutors must prove that a defendant factually committed it. The Latin term mens rea means “guilty mind,” and prosecutors must prove the defendant intended to carry out the criminal act and/or knew it was illegal.

A getaway driver for bank robbers might have difficulty proving that they did not intend to help them escape or know that they were committing a crime. However, numerous other aiding and abetting scenarios within the context of a criminal act are open to challenge with regard to intent and/or knowledge. For example, a defendant who hides a bank robber’s stolen cash after a robbery may be able to argue that they didn’t know a bank robbery had been committed and that the loot was unrecognizable because it was packaged up. In short, Crown prosecutors often face challenges proving mens in derivative responsibility-related crimes.

Trust the Experts at Mass Tsang for Your Criminal Defence

If you’re facing criminal charges based on derivative responsibility, secure the services of a skilled criminal defence lawyer like those at Mass Tsang. With decades of experience strategizing effective criminal defences for our Greater Toronto Area clients, contact us for a free consultation. 



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