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The concept of Common Intention dictates that an individual can be held responsible for offences they have not committed as the principal offender but have played some part in the commission of those offences. This would render the individual a "party to the offence."
One specific method of assigning party liability is the doctrine of common intention. It comes into effect when two individuals, X and Y, have the plan to execute some unlawful act, identified here as the "primary offence". When, in the process of committing the primary offence, X performs another unlawful act that was not part of the original plan, we term it the "secondary offence".
The doctrine of common intention holds Y accountable for the unexpected illegal action undertaken by X. For instance, let's say Bob and Tim intend to rob a convenience store. During the robbery, Bob assaults the clerk. Tim could potentially face charges and be deemed guilty of the assault orchestrated by Bob under the rule of common intention. This rule finds its formation in s. 21(2) of the Criminal Code of Canada.
Formed by s. 21(2) of the Criminal Code of Canada, the common intention rule asserts that where two or more people devise a joint intention to execute an unlawful action and assist one another in accomplishing it, if any one of them commits an offence while executing the common plan, each person who knew or should have realized that the offence would likely result from the common plan is a party to that offence. Subsequently, when someone faces charges rooted in the common intention doctrine, they are accused of committing the actual offence; the rule itself is just utilized by the court to assign liability, despite the fact that the person didn't physically engage in the actions constituting the secondary offence.
On presenting the case in court, the Crown doesn't endeavour to substantiate that the defendant committed the secondary offence, but instead that the defendant was party to a common intention connected to the secondary offence. Every offence in the Criminal Code of Canada comprises two factors: the act element representing the actions or omissions shaping the crime, and the mental or fault element pertaining to the "guilty mind". To establish liability under the common intention rule, the Crown has to demonstrate both these elements in the case.
Unlike the usual needs to fulfil the act and mental requirements of the secondary offence itself, the Crown here has to show that the defendant fulfilled the requirements to establish common intention. For example, relating back to the previous scenario, the Crown's obligation is to demonstrate that Tim had the act and mental requirements outlined by s. 21(2) to establish common intention, not to show that he executed the act and mental requirements for assault.
The crime of common intention necessitates a dual act element, with the first part being the creation of a common intention to execute an unlawful action. Even if the word "unlawful act" is employed in s. 21(2), the act in focus must likely be criminal, not just a regulatory or civil offence. The Crown doesn't need to show a formal agreement or plan. As clarified in R. v Kirkness, the Supreme Court of Canada stated that the common intention doesn't need to be formed much before the crime is committed. All that's required is for the Crown to establish that the defendant and another person were engaged in an illegal activity with a shared objective when the secondary offence occurred.
The more complex part of the common intention doctrine pertains to the relationship between the accountability of the defendant accused of having a common intention, and the individual accused of committing the secondary offence, often labelled as the "accomplice". As per s. 23.1 of the Criminal Code of Canada, the accomplice doesn't need to be charged with the secondary offence, given that there's evidence of the secondary offence actually being committed. This rule predominantly applies when the accomplice is released as their criminal defence lawyer presents a substantive defence or claims that the defendant's rights under the Canadian Charter of Rights and Freedoms have been violated. Even in such circumstances, the defendant accused of having a common intention can still be convicted.
However, R. v Zannini states that if the accomplice is acquitted on the merits of the case, i.e., the Crown can't provide sufficient evidence of the secondary offence by the accomplice, it is unlikely that the individual accused of having a common intention will be convicted. The crucial part of the act element of the crime of common intention is that the secondary offence has to be a probable consequence of carrying out the primary illegal act. The Crown must substantiate subjective or objective foresight of all aspects of the secondary offence, indicating that either the accused individual's foresight of the secondary crime or that a reasonable person in the accused's situation would be enough. In R. v Vasil, the courts clarified that likely crimes are evaluated objectively based on the circumstances known to the accused.
Moreover, the accused's awareness of their accomplice's character and probable behaviour may be considered at this stage, as per the court in R. v. Govedarov. Added to that, according to R. v. Barlett and R. v. Vang, the accused individual is not required to have predicted exactly how the crime would be committed. Hence, the accused just needs to reasonably anticipate that in the course of carrying out a common intention to rob a bank, a teller might be killed; they don't need to anticipate the specific method of the murder.
The act and mental elements, although conceptually distinct, tend to overlap in many situations due to the mental element for common intention also being two-component and each part aligns with one of the components of the act element. Consequently, if the mental element is proven, the act element must also be present. However, it's essential to differentiate the act element and mental element conceptually since there can be rare instances where these need to be considered separately, like when the defendant's mental capacity is of concern.
The first part of the mental element involves forming a mutual intention and an intention to assist in its execution. As per R. v. Moore, the intent to assist is needed, not the actual assistance, indicating that even if the defendant's attempts at assistance fail, they can be found to possess the required mental element based on their intent to assist in the common intention fulfillment. The second part of the mental element demands that the accused person knew or should have known that committing the secondary offence was a probable consequence of carrying out the primary unlawful purpose. Subjective or objective foreseeability will suffice for most crimes, implying that the mental requirement can be met if the Crown offers proof that the accused person anticipated that the secondary crime may result from the primary purpose, or if the Crown can prove that a reasonable person would anticipate such results.
However, for "stigma crimes" as specified in R. v. Logan, including murder, sexual assault of a minor, and other severe offences which are particularly condemned by the community, subjective foreseeability is needed. For all other non-stigma offences, objective foresight is adequate. Objective foresight, as defined by R. v. Vasil, is measured by what a reasonable person, cognizant of the circumstances known to the accused, would have known. R. v. Creighton expands this by asserting that none of the accused's personal characteristics, such as naivety or stupidity, are taken into account.
The only personal aspect relevant to establishing objective foresight is mental incapacity. If the accused is proven to be mentally incapable of forming an intention, objective foresight can't be utilized to meet the mental requirement. The overall result is that the accused can be deemed guilty of almost any probable offence that arises during the execution of the primary unlawful purpose. Individuals are considered equally culpable irrespective of their participation extent. Therefore, in law, no rule provides more lenient sentences for parties compared to principles, although a judge has the freedom to consider the defendant's involvement when deciding sentences. But, according to R. v. Whitehouse, prior to the secondary offence being committed, if the accused abandons the intention to assist in executing the illegal purpose, they may avoid liability. The accused's criminal defence lawyer must provide evidence of abandonment, which the court will assess based on the situation's totality.
One factor of importance as cited by R. v. Kirkness is the role the accused had in devising or executing the plan. The larger the role played by the accused, the more compellingly their criminal defence lawyer must establish that the accused intended to abandon the common intention. The minimum requirement is unambiguous notice to the other party of the intention to abandon the common purpose and the fact that no further aid or help will be provided by the accused. In R. v. Becerra, the court stated that just leaving the crime scene and urging the accomplice to do the same was insufficient to establish abandonment. However, in R. v. Kirkness, telling the accomplice to stop committing the secondary offence was enough to establish the abandonment.
