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Criminal - Inchoate (2). R. v. Mohamed ['common intention']
In R. v. Mohamed (Ont CA, 2025) the Ontario Court of Appeal allowed criminal appeals, here from convictions for first-degree murder for three defendants regarding the same victim.
Here the court considers the CCC s.21(2) 'common intention' inchoate offence:[40] Turning to s. 21(2), which is a key issue in this case, it reads as follows: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. [41] Section 21(2) operates differently than s. 21(1). Whereas s. 21(1) captures those who participate in, aid in or abet a specific crime, s. 21(2) is much broader in scope. It extends liability to those individuals who are not principals, aiders or abettors to offences. It applies to situations where the accused has agreed with at least one other to commit an offence and, while carrying out that agreed-upon unlawful purpose, at least one or more of the participants to the original agreement (but not the accused) commits a different offence. Section 21(2) will apply if the accused knew (or, in the case of offences not requiring specific intent, ought to have known) that one of the participants to the agreed-upon unlawful purpose would likely commit the incidental offence while pursuing the common unlawful purpose. Therefore, s. 21(2) extends responsibility for incidental offences – offences other than the offence the accused originally agreed to participate in – provided that the incidental offence is committed “in carrying out” the originally-agreed-upon unlawful purpose and the accused had the requisite degree of mens rea: R. v. Cadeddu, 2013 ONCA 729, 304 C.C.C. (3d) 96, at paras. 50-52; R. v. Simon, 2010 ONCA 754, 104 O.R. (3d) 340, at paras. 25, 40-42, leave to appeal refused, [2010] S.C.C.A. No. 459.
[42] Accordingly, s. 21(2) liability breaks down nicely into three elements, categorized as: (1) agreement (the original unlawful purpose); (2) offence (the offence committed that is incidental to the originally-agreed-upon unlawful purpose); and (3) knowledge (subjective or objective foresight of the incidental offence).
[43] To establish agreement, the Crown must prove that there was a common intention between at least two people to jointly carry out a common unlawful purpose: R. v. Gong, 2023 ONCA 230, 425 C.C.C. (3d) 122, at para. 32. Of course, the common unlawful purpose must constitute a criminal offence: Cadeddu, at para. 56. Therefore, it is the act of agreeing upon the commission of a criminal offence.
[44] To establish the offence, the Crown must prove that at least one of the individuals (not the accused) who was part of the original agreement committed a different offence while carrying out the original agreement: Gong, at para. 32; Cadeddu, at paras. 59-60. This is often referred to as the “incidental offence”, and it must be different from the agreed-upon offence: Simon, at para. 42. Although not the offence intended by the parties, the incidental offence must be related to the original unlawful purpose in that it was committed in the course of carrying out the initial agreement: Cadeddu, at paras. 59-60; R. v. Patel, 2017 ONCA 702, 356 C.C.C. (3d) 187, at para. 41.
[45] As for knowledge – the mens rea component of s. 21(2) – the accused must have the requisite state of mind with respect to the incidental offence. In the context of s. 21(2), that state of mind demands proof of foresight of the probability – meaning likelihood – of the incidental offence being a consequence of carrying out the original common unlawful purpose. Although s. 21(2) provides both a subjective and objective basis – “knew or ought to have known” – for establishing the requisite foresight, where subjective knowledge is the only legally- and constitutionally-sufficient basis upon which to establish mens rea (e.g., in the case of murder), only subjective knowledge of the likelihood of the commission of the incidental offence will do: R. v. Jackson, 1993 CanLII 53 (SCC), [1993] 4 S.C.R 573, at p. 583; R. v. Srun, 2019 ONCA 453, 146 O.R. (3d) 307, at para. 63.
[46] Therefore, when it comes to murder, the Crown must prove that the accused knew that it was likely that one of the participants in the original agreement would commit a murder while carrying out the original unlawful purpose. While the incidental offence of murder need not occur in an expected way, the likelihood of a murder being committed by one of the participants in the course of carrying out the original agreement must be subjectively foreseen by the accused. In other words, the accused must know it is likely that one of his co-participants in the original agreement will, with the requisite intention for murder, kill someone while carrying out the originally-agreed-upon unlawful purpose: R. v. Logan, 1990 CanLII 84 (SCC), [1990] 2 S.C.R. 731, at pp. 747-748.
[47] For purposes of first-degree murder, it is difficult to see how s. 21(2) could be used as a route to liability where the allegation rests solely upon planning and deliberation pursuant to s. 231(2) of the Criminal Code. Although this court has left open the question as to whether s. 21(2) is an available route to a planned and deliberate first-degree murder, I confess to having some difficulty with the idea: R. v. Phillips, 2017 ONCA 752, 355 C.C.C. (3d) 141, at para. 248.
[48] It is hard to imagine a scenario where an accused who knows that a co-participant to their agreement is likely to commit an intentional, planned and deliberate killing while carrying out the agreement is not, at a minimum, an aider. Indeed, the very notion of planning an incidental crime would seem to belie the very reason that s. 21(2) exists, which is to widen the circle of culpability for unplanned crimes that arise as an incidental consequence of carrying out the agreed-upon unlawful purpose.
[49] That said, it would not be appropriate to definitively rule on this point in the absence of full argument, especially since the Crown concedes that s. 21(2) did not furnish a path to first-degree murder here and instead argues that s. 21(2) was not left for the jury to consider as a path to first-degree murder. As a result, I need not conclusively resolve the issue here and leave it for another day.
[50] Finally, to be guilty of manslaughter pursuant to s. 21(2), the Crown must prove that “a reasonable person in all the circumstances would have foreseen that a probable consequence [likelihood] of carrying out the original common purpose was perpetration of an inherently dangerous act creating a risk of bodily harm to the deceased that was neither trivial nor transitory”: Patel, at para. 42. See also: Jackson, at pp. 586-587; Gong, at paras. 33 and 41. . R. v. Mohamed [terminology and principles]
In R. v. Mohamed (Ont CA, 2025) the Ontario Court of Appeal allowed criminal appeals, here from convictions for first-degree murder for three defendants regarding the same victim.
Here the court illustrates terminology and reasoning used for 'inchoate' offences [under CCC s.21(1) 'Parties to offence']:(b) Section 21 and modes of participation
[33] As detailed below, the jury was instructed that there were “different ways of committing first-degree murder (or one of the lesser offences)”, namely second-degree murder and manslaughter: (i) as principals or joint principals (s. 21(1)(a)); (ii) as aiders (s. 21(1)(b)); or (iii) as participants in a common unlawful purpose (s. 21(2) of the Criminal Code).
[34] Principals and co-principals are sometimes referred to as primary actors, whereas aiders and abettors, as well as those who are captured by way of a common unlawful purpose, are sometimes referred to as secondary actors.
[35] Although the actus reus and mens rea for each route to liability are different, whatever the route, the law treats each person found guilty, whether as a primary or secondary actor, as parties to the offence and, as such, equally guilty of that offence. Therefore, as Charron J. put it, “[t]he person who provides the gun … may be found guilty of the same offence as the person who pulls the trigger:” R. v. Briscoe, 2010 SCC 13, [2010] 1 S.C.R. 411, at para. 13. See also: R. v. Maciel, 2007 ONCA 196, at para. 85, leave to appeal refused, [2007] S.C.C.A. No. 258; R. v. Cowan, 2021 SCC 45, [2021] 3 S.C.R. 323, at para. 29.
[36] As a refresher, s. 21(1) of the Criminal Code specifies three different types of party liability:Parties to offence
21 (1) Every one 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. [37] I will refer to s. 21(1)(a) liability as “principal” or “co-principal” liability. These are individuals who actually commit the offence, in the sense that they commit all of the elements of the offence, accompanied by the required mens rea for a principal offender. Where two or more persons actually commit the offence, they are considered co-principals: R. v. Pickton, 2010 SCC 32, [2010] 2 S.C.R. 19, at para. 53.
[38] I will refer to s. 21(1)(b) liability as “aiding.” Aiders are those individuals who do something for the purpose of aiding the principal or co-principals in the commission of the offence. To fall within this category, one must possess the required mens rea for an aider when providing that assistance: Pickton, at para. 53. I will return to aiding in more detail below.
[39] There is no need to address abetting under s. 21(1)(c) as there was no reference to it in this case.
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[66] This was followed by a classic Thatcher instruction, telling the jury that they need not all agree on which mode of participation an accused was guilty under, provided that they were unanimous that one of the required ways had been proven beyond a reasonable doubt: R. v. Thatcher, 1987 CanLII 53 (SCC), [1987] 1 S.C.R. 652.
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[96] An air of reality for a mode of participation arises where there is some evidence that, if believed, could reasonably support an inference of guilt on that theory of liability: R. v. Grandine, 2022 ONCA 368, 414 C.C.C. (3d) 207, at para. 35; R. v. Al-Enzi, 2021 ONCA 81, 401 C.C.C. (3d) 277, at para. 150, leave to appeal refused, [2023] S.C.C.A. No. 35. An instruction on a theory of liability that does not have an air of reality will constitute a reversible error: R. v. Ranger (2003), 2003 CanLII 32900 (ON CA), 67 O.R. (3d) 1 (C.A.), at para. 132; Patel, at para. 43; Grandine, at para. 35. Decisions on whether there is an air of reality are reviewable on a standard of correctness: R. v. Tran, 2010 SCC 58, [2010] 3 S.C.R. 350, at para. 40; R. v. Cinous, 2002 SCC 29, [2002] 2 S.C.R. 3, at para. 55.
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[110] Principal liability is established where the Crown proves that an accused committed the requisite act along with the requisite intention. In a co-principal scenario, an accused does not need to commit the entire criminal offence provided that the co-principals together commit the offence and share the requisite intention.
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[113] While aiding a principal in the commission of a murder makes the aider just as culpable as the principal, the actus reus and mens rea for aiding are different.
[114] For purposes of the actus reus, the aider must do something to assist the principal in the commission of the offence. Performing the role of a getaway driver would clearly meet that requirement.
[115] For purposes of the mens rea, there are two components: intention and knowledge. The aider’s intention must be to help the principal commit that offence. As emphasized in Briscoe, at para. 16, intention is not to be confused with desire. Therefore, even if the aider does not want the principal to commit the offence, the aider must intend to assist the principal in its commission. Secondly, the aider must know what offence the principal intends to commit. As a matter of “common sense”, this knowledge is a prerequisite to proof of intention: Briscoe, at para. 17; Maciel, at para. 88. In the case of first-degree murder, the Crown must prove that the aider knew the murder was planned and deliberate and intended to assist the perpetrator in carrying it out: Maciel, at para. 89. . R. v. Rashed
In R. v. Rashed (Ont CA, 2025) the Ontario Court of Appeal dismissed a Crown criminal appeal from "a directed verdict of acquittal on a charge of accessory after the fact to murder", here in a ruling that was coupled with the related appeal in R v Osman.
Here the court considers the inchoate offence of accessory after the fact to murder:(i) Accessory after the fact to murder
[28] In the appeal of R. v. Osman, 2025 ONCA 516, heard together with this appeal and released concurrently, I review the law in relation to accessory after the fact offences in general and accessory after the fact to murder in particular. I do not repeat that analysis here, but focus on the aspects of it that are relevant to the wilful blindness issue in this appeal.
[29] Accessory after the fact offences require that the accessory accused have knowledge of the specific offence they are alleged to have assisted the principal to flee at the time they assist the principal. Knowledge that the principal has committed some criminal offence is insufficient: R. v. Duong (1998), 1998 CanLII 7124 (ON CA), 124 C.C.C. (3d) 392 (Ont. C.A.), at pp. 399-401, 403.
[30] The parties agree that the knowledge requirement for accessory offences can be satisfied by actual knowledge or wilful blindness: Duong, at pp. 401-02.
[31] The parties agree that as an element of the offence of being an accessory after the fact to murder, the Crown must prove that the accessory’s acts that are alleged to have assisted the principal were committed after the victim is dead: Commentaries on the Laws of England in Four Books by Sir William Blackstone, 1898, Book Four, p. 1454; R. v. Knott, 2006 CanLII 6588 (Ont. S.C.), at p. 9; R. v. B.(A.), 1999 CanLII 6762 (B.C.S.C.), at paras. 19-22.
[32] For an accessory accused to be guilty of being an accessory after the fact to murder, the knowledge requirement of the offence requires that at the time the accessory assisted the principal to flee, the accessory knew or was wilfully blind to the fact that the principal had committed the specified offence – murder. For the accessory accused to have the required knowledge, they must, at the time they assist the principal to flee, know that the victim is dead or be wilfully blind to that fact.
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