Is it a Crime to be Present While a Crime is being Committed Even if You Don't Do Anything?

It is not a crime to be present while a crime is being committed. Under Canadian law, there is no crime dealing with being present at the scene of the crime. A person can only be charged with an offence if they are somehow involved in its commission. Those instances are worthy of a brief discussion.

For starters, section 21(1) of the Criminal Code of Canada stipulates that: “Everyone is a party to an offence who a) actually commits it; b) does or omits to do anything for the purpose of aiding any person to commit it; or c) abets any person in committing it.” Being a party to an offence means that a person was involved in its commission and can therefore be convicted of it.

In other words, simply being at the scene of the crime without any involvement in its undertaking is not illegal: you must be actively aware of, and involved with, the crime itself.

Of course, it is illegal if you assist another person to commit a crime with full knowledge of them seeking to do so. It is also illegal to “receive” or “comfort” a person you know has been party to an offence for the purpose of enabling that person to escape, as per section 23(1) of the Criminal Code.

What Constitutes Being a Party to an Offence According to the Criminal Code?

The primary difference between being a party and an accessory is that the former happens concurrently with the crime, while the latter occurs either before or after.

Parties to Offences

• 21 (1) Everyone is a party to an offence who
  • (a) actually commits it;
  • (b) does or omits to do anything for the purpose of aiding any person to commit it; or
  • (c) abets any person in committing it.

Common intention:

• (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.
• R.S., c. C-34, s. 21.

Counselling an offence

• 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.

Idem:

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

Accessory after the fact

• 23 (1) 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.
• (2) [Repealed, 2000, c. 12, s. 92]

• R.S., 1985, c. C-46, s. 23;
•  2000, c. 12, s. 92.

Where one party cannot be convicted:

• 23.1 For greater certainty, sections 21 to 23 apply in respect of an accused notwithstanding the fact that the person whom the accused aids or abets, counsels or procures or receives, comforts or assists cannot be convicted of the offence.

The bottom line is that if you are not at all involved with the crime, you will not be charged with its commission. Simply being at the scene is not sufficient for charges to be laid.

So long as you are not a party to the offence or an accessory after the fact, you have not done anything illegal. From there, whether you decide to assist in the investigation or in helping victims is a matter of discretion: the average person has no legal duty to take further action.

If you have been charged with a criminal offence please contact Kostman and Pyzer, Barristers for legal advice!