COURT OF APPEAL FOR ONTARIO

DATE: 2003-02-05 DOCKET: C33274

BETWEEN:

Her Majesty the Queen

Respondent

• and -

Peter Janeteas

Appellant

BEFORE: Weiler, Charron and Moldaver JJ.A.

COUNSEL: James Lockyer for the appellant Christopher Webb for the respondent

HEARD: November 5, 2002

On appeal from conviction for counselling murder and counselling unlawful bodily harm by Justice John Jennings of the Superior Court of Justice, sitting with a jury, dated October 6, 1999.

MOLDAVER J.A.:

[1] On October 6, 1999, after trial by judge and jury, the appellant was convicted under s. 464(a) of the Criminal Code, R.S.C. 1985, c. C-46, of one count of counselling the indictable offence of murder and two counts of counselling the indictable offence of unlawfully causing bodily harm. On December 12, 1999, the appellant was sentenced to an eighteen-month conditional sentence. He appeals only from his convictions.

[2] At issue in this appeal is the requisite mental state for the crime of counselling an indictable offence that is not committed. The trial judge instructed the jury that the requisite mental state would be made out if the jury was satisfied beyond a reasonable doubt that the appellant "spoke the words with the intent that his advice or counselling [that the proposed victim be maimed or killed] be accepted" by the recipients of the advice.

[3] The appellant takes issue with that instruction. He submits that it defines the mental state required for the crime of counselling too narrowly. In his view, the jury should have been told that to convict, they also had to be satisfied that the appellant intended the commission of the offences counselled (in this case murder and/or unlawfully causing bodily harm). The appellant further submits that if he has accurately identified the requisite mental state, he should be acquitted because the Crown has never taken the position that he intended the commission of the substantive offences.

[4] For reasons that follow, I am of the view that the appellant is correct and that the jury should have been instructed as he contends. In view of this and the Crown's concession that on this record, there is no basis for concluding that the appellant intended that the substantive offences be committed, I am satisfied that the convictions cannot stand and verdicts of acquittal must be substituted.

OVERVIEW OF FACTS

[5] As the outcome of this appeal hinges on a legal determination, it is unnecessary to dwell on the facts. The appellant is a general contractor. In October 1995, he met J.B. ("J.B.") and her mother B.G. ("B.G.") when he submitted a bid to renovate a duplex owned by B.G. and her husband. In the course of his communications with J.B. and B.G., he learned that J.B. was having serious marital difficulties with her husband, Dr. M.B., and that these difficulties had resulted in criminal charges being laid against Dr.M.B. for assaulting J.B. and sexually molesting their two children.

[6] According to the appellant, over the next several months, he began to fear for Dr.M.B.'s safety as a result of conversations with J.B. and B.G. in which they made it known that they wanted to have the doctor harmed or even killed. By February 1996, his concern for the doctor's well-being had reached a point where he felt the doctor should be warned. Before doing so, however, he wanted to obtain some hard evidence to take to Dr.M.B..

[7] To that end, on February 26, 1996, the appellant spoke to J.B. and B.G. on the telephone and he tape-recorded the conversations. While the tapes speak for themselves, based on the conversations, it would have been open to the jury to find that:

• J.B. and B.G. had given some thought to having Dr.M.B. maimed or killed.
• J.B. had spoken to some furniture movers about her marital problems and they had indicated a willingness to harm Dr.M.B..
• The appellant was actively encouraging J.B. and B.G. to have Dr.M.B. harmed or killed and he was willing to make the necessary arrangements as they wished.

[8] Armed with these tapes, the appellant met with Dr.M.B. on February 26 and over the next few months, the doctor paid him $35,000 in cash. According to the appellant, the payments were initially made out of a sense of gratitude and latterly, to ensure the appellant's cooperation as a witness in the doctor's upcoming criminal trial.

[9] With respect to the tape-recorded conversations, the appellant maintained that it was not his intention to encourage J.B. or B.G. to have Dr.M.B. maimed or killed; rather, he simply wanted them to repeat on tape that which the appellant believed they had already decided to do. He further testified, without challenge by the Crown, that it was never his intention that any harm come to Dr.M.B..

[10] J.B. and B.G. provided a different version. Apart from what might be described as "wishful thinking" on their part, they denied telling the appellant that they wanted to have Dr.M.B. harmed or killed. J.B. admitted that in the beginning, she confided in the appellant about her personal situation because he was easy to talk to and she thought he cared about her. As time went on however, she became alarmed by his efforts to convince her that she should have her husband maimed or killed and she began to view him as a "nutcase". According to J.B., although she had no intention of going along with the appellant's proposals, she became particularly concerned for her husband's safety after the February 26 phone call. As a result of that call and a further conversation with the appellant at her home later that day, she reported the appellant's activities to the police on February 29, 1996.

[11] On the evening of February 29, the appellant received a message from the police on his answering machine requesting that he be in touch with them. According to the appellant, he returned the call but did not hear back from the police. In May 1996, the appellant decided on his own to contact the police and he played the tape-recorded conversations to them. The appellant met again with the police in June 1996. For reasons that are not clear, it was not until October or November of that year that he was arrested and charged with counselling.

Trial judge's ruling on the requisite mental state for the offence of counselling under s. 464(a) of the Code.

[12] After the evidence was completed, the trial judge heard submissions from counsel on the mental state required for the crime of counselling an uncommitted indictable offence. In his ruling, the trial judge accurately summarized the position of the parties as follows:

Counsel disagree upon what mental element or mens rea must be proved by the Crown if a conviction is to be obtained.

The position of the Crown is that considering the external circumstances that existed to the knowledge of accused, the necessary mental element is that the accused intended to speak the words [that] constituted counselling of murder and that his words be taken seriously.

The position of the defence is that the Crown must prove in addition to that, that the accused intended the act counselled to take place.

[13] The trial judge then reviewed a number of authorities and an article from a leading text on criminal law. After noting that he had not been referred to any binding authority "directly on point", he continued as follows:

Firstly, I will consider the purpose of Section 464. It seems to me to be obvious that the evil it addresses is to prevent the incitement to crime of those who might otherwise not so act. The fact that the crime is not carried out is fortunate but irrelevant. The evil is that one would attempt to persuade another to commit a crime. That is so because it does not matter that the person being incited agrees or is persuaded to act criminally.

Can it be as counsel suggested in response to a question from me, that the law refuses to punish under this section someone who counsels another to commit murder knowing that his advice has been taken seriously, because unbeknownst to the person being counselled, the counsellor is not serious or has motives other than that the act counselled be carried out [emphasis in original].

By analogy of Section 264 of the Criminal Code, threatening. That is another section where words spoken constitute the actus reus. Once the threat is spoken, the external circumstances are complete. If it is proved that the speaker intends that his words be taken seriously, the mental element is made out. It is no defence for the speaker to say later that he never would have carried out the threat conveyed.

Section 22(2) of the Code makes the counsellor a party to an offence committed in consequence of the counselling if the counsellor knew or ought to have known the offence was likely to have been committed because of the counselling.

It is difficult for me to accept that parliament intended a higher standard of actual intention for the lesser offence under Section 464.

In this case, there is evidence upon which the jury could find: One, the accused knew both women were emotionally fragile; two, he knew they were very angry at the proposed victim and, according to the accused, had prior thoughts of harming him; three, he intended that his suggestions to them that the proposed victim be killed or maimed be taken seriously. Under those external circumstances I propose to instruct the jury that the Crown must prove beyond a reasonable doubt that the accused spoke the words with the intent that his advice or counselling that Dr.M.B. be maimed or killed be accepted by Mrs. J.B. and Mrs. B.G. [emphasis added].

The Charge

[14] The trial judge instructed the jury in accordance with his ruling. With respect to the mental state required for the offence of counselling, he told the jury that the Crown must prove beyond a reasonable doubt:

… that [the appellant] spoke the words with the intent that his advice or counselling that Dr.M.B. be maimed or killed be accepted by Ms. J.B. and/or Mrs. B.G..

[15] Later, after summarizing the position of the Crown, the trial judge turned his attention to the defence and he outlined the essence of the appellant's position as follows:

… He [the appellant] said that his purpose in making the phone call was not to persuade the two women to accept his advice that Dr.M.B. should be maimed or killed, but to get them to confirm on tape what they had told him earlier; that they had decided Dr.M.B. should be maimed or killed.

[16] The trial judge then instructed the jury, in accordance with the principles set out in R. v. W. (D.), 1991 93 (SCC), [1991] 1 S.C.R. 742, that if they believed the appellant's explanation regarding his intent or if that explanation left them in a state of reasonable doubt, then the appellant was entitled to be acquitted. By its verdict, it is apparent that the jury rejected the appellant's explanation.

[17] Against this backdrop, I turn to the legal issue at hand.

Relevant Criminal Code Provisions

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.

(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.

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

s. 24. (1) Every one who, having an intent to commit an offence, does or omits to do anything for the purpose of carrying out his intention is guilty of an attempt to commit the offence whether or not it was possible under the circumstances to commit the offence.

s. 464. Except where otherwise expressly provided by law, the following provisions apply in respect of persons who counsel other persons to commit offences, namely,

(b) every one who counsels another person to commit an indictable offence is, if the offence is not committed, guilty of an indictable offence and liable to the same punishment to which a person who attempts to commit that offence is liable; …

Analysis

[18] To the extent that there is any debate about the mental state required for the offence of counselling, it tends to centre primarily, although not exclusively, on whether the counsellor must intend the commission of the offence counselled or whether recklessness in that regard will suffice. Apart from the present case and one other (R. v. Balaban (1984), 13 W.C.B. 212 (Ont.Co.Ct.)), I know of no other authority or writing that holds that the mental state of the counsellor as to whether the offence counselled is or is not to be committed is irrelevant. Other Canadian authorities[^1], scholarly writings[^2], the U.S. Model Penal Code[^3], and studies conducted by Law Reform Commissions in Canada and Great Britain[^4] point not only in the opposite direction but indicate overwhelmingly that the offence of counselling can only be made out upon proof that the counsellor intended the commission of the offence(s) counselled.

[19] A good discussion of the issue is found in R. v. Hamilton, supra, where the accused was charged under s. 464(a) of the Code with counselling various indictable offences that were not committed. In rejecting the submission of the Crown that "the mens rea required for counselling is simply the intent to counsel", Smith J. reviewed a number of Canadian authorities, including R. v. Grossman, supra and R. v. Dionne (1987), 1987 6865 (NB CA), 38 C.C.C. (3d) 171 (N.B.C.A.), leave to appeal to the S.C.C. refused, 38 C.C.C. (3d) vi, and at paras. 35 - 39, he concluded:

In my view, the law is correctly set out in R. v. Grossman (mens rea) and R. v. Dionne (actus reus). This conclusion is consistent with the elements necessary for a finding of guilt in secondary liability. The actus reus ought to be a substantial act in the furtherance of the offence, and the mens rea an intent to further the offence. Put another way, no one should be found guilty of furthering an offence without intending that the offence be committed.

Section 22 of the Criminal Code sets out the offence of counselling an offence where an offence is subsequently committed. Under s. 22(1), both the counsellor and the offender who commits the predicate offence are parties to the offence. The essential elements of s. 22(1) are that the offender committed the counselled offence (the element absent from s. 464), the counsellor advised, recommended, instigated, or encouraged the offender to commit the counselled offence (the actus reus), the offender committed the counselled offence because the counsellor counselled him to commit that offence (causation), and the counsellor knew or intended that his or her conduct would cause the offender to actually commit the offence counselled (the mens rea of intent that the actual offence would be committed). In other words, it is not sufficient that the counsellor counsel the offence and intend his own actions. The counsellor must also intend that his conduct will result in the offender actually committing the offence counselled.

Thus, counselling under s. 22(1) is a dual mens rea offence. The first mens rea, the intent to counsel the offence, may be difficult to distinguish from the actus reus. In many cases the actus reus will lead to the making of an inference of mens rea. In my view, the McLeod [R. v. McLeod (1970), 1970 1009 (BC CA), 1 C.C.C. (2d) 5 (B.C.C.A.)] case falls into this category.

The second mens rea requirement is the intention that the offender actually carry out the offence.

I conclude that the mens rea requirement for counselling a specific offence is the same whether or not the offence counselled is actually committed. Where the offence is not committed, the counsellor must both intend his own actions, i.e. to counsel the offence, and must also intend that the offence be carried out [emphasis added].

[20] The view taken by Smith J. in R. v. Hamilton is shared by the learned authors in Smith and Hogan's Criminal Law, supra. At p. 276 of that text, the requisite mental state for the crime of incitement is explained as follows:

Mens rea

As in the case of counselling and abetting, it must be proved that D knew of (or deliberately closed his eyes to) all the circumstances of the act incited which are elements of the crime in question. As with attempts, he must intend the consequences in the actus reus. If D incites E to inflict grievous bodily harm upon P, D is not guilty of incitement to murder, though both D and E will be guilty of murder if death should result from the infliction of the intended harm. An intention to bring about the criminal result is of the essence of incitement [footnote omitted] [emphasis added].

[21] Likewise, in LaFave and Scott, Substantive Criminal Law, supra, at Ch. 6, §6.1, pp. 3 and 8-9, under the headings "Solicitation" and "Required Mental State and Act", the learned authors explain the offence of soliciting and the required mental state:

Solicitation

Assume that A wishes to have his enemy B killed, and thus - perhaps because he lacks the nerve to do the deed himself - A asks C to kill B. If C acts upon A's request and fatally shoots B, then both A and C are guilty of murder. If, again, C proceeds with the plan to kill B, but he is unsuccessful, then both A and C are guilty of attempted murder. If C agrees to A's plan to kill B but the killing is not accomplished or even attempted, A and C are nonetheless guilty of the crime of conspiracy. But what if C immediately rejects A's homicidal scheme, so that there is never even any agreement between A and C with respect to the intended crime. Quite obviously, C has committed no crime at all. A, however, because of his bad state of mind in intending that B be killed and his bad conduct in importuning C to do the killing, is guilty of the crime of solicitation. For the crime of solicitation to be completed, it is only necessary that the actor with intent that another person commit a crime, have enticed, advised, incited, ordered or otherwise encouraged that person to commit a crime. The crime solicited need not be committed.

Required Mental State and Act

Although the crime of solicitation might be defined quite simply as asking another person to commit an offense, this does not adequately reflect either the mental element or act which must exist in order for the crime to be completed.

As to the required mental state, none is explicitly stated in the usual common law definition of solicitation, and likewise none is expressly set forth in several solicitation statutes. However, the acts of commanding or requesting another to engage in conduct which is criminal would seem of necessity to require an accompanying intent that such conduct occur, and there is nothing in the decided cases suggesting otherwise. Virtually all of the more recently enacted solicitation statutes avoid any doubt by setting forth in specific terms the intent requirement. Some state the solicitor must intend that an offense be committed, some that he must intend to promote or facilitate its commission, and some others that he must intend that the person solicited engage in criminal conduct.

Thus, as to those crimes which are defined in terms of certain prohibited results, it is necessary that the solicitor intend to achieve that result through the participation of another. If he does not intend such a result, then the crime has not been solicited, and this is true even though the person solicited will have committed the crime if he proceeds with the requested conduct and thereby causes the prohibited result [footnotes omitted] [emphasis added].

[22] In their discussion, LaFave and Scott refer to § 5.02(I) of the U.S. Model Penal Code. That provision reads as follows:

(1) A person is guilty of solicitation to commit a crime if with the purpose of promoting or facilitating its commission he commands, encourages or requests another person to engage in specific conduct that would constitute such crime or an attempt to commit such crime or would establish his complicity in its commission or attempted commission [emphasis added].

As the emphasized words make clear, to be guilty of the offence of solicitation, the solicitor must intend that the crime solicited be carried out. Nothing less will suffice.

[23] In Secondary Liability: Participation in Crime and Inchoate Offences, supra, the Law Reform Commission of Canada undertook a thorough and comprehensive review of the inchoate crimes of attempt, counselling and conspiracy. With respect to the mental element required for such crimes, which the Commission broadly described as "furthering" offences, the Commission rejected the notion that recklessness as to the consequences should suffice. Rather, for reasons explained in part below, the Commission concluded that criminal responsibility should only attach to those who intend the consequences of their act:

All this suggests that in a furthering offence mens rea should be restricted to intent (direct or indirect). Criminal liability should only apply to acts intended to further crimes or known as certain to do so. It should not be incurred for acts which are merely very likely to do so. Would this be too restrictive? Suppose D lends X his gun knowing that X will probably use it to murder Y. Should D not be liable for such recklessness? Surely, the graver the probable offence, the more reprehensible the act of helping.

To this there can be various answers. First, the graver the probable offence, the smaller the likelihood that assistance will be given without intent to see the crime committed - people do not usually lend guns to known potential killers without intending them to use them.

Third, there is the ordinary meaning of words such as "attempting," "counselling" and "inciting." Such words imply an intent that the crime attempted and so forth be committed. One who attempts to do something must aim at it, therefore to do it has to be his purpose. One who incites another to do it must urge him on purpose, the purpose being to get him to do it.

Law, of course, can use words in a special sense. For reasons of convenience it may restrict the vague meaning of a word in popular usage. "Night," for example, has been defined by common law and subsequently by Criminal Code section 2 as "the period between nine o'clock in the afternoon and six o'clock in the forenoon of the following day."

With "incitement" and so forth, this has not happened [the word "incitement" has not been given a special legal meaning]. In law, as well as outside the law, incitement involves an intention by the inciter to get the "incitee" to commit the offence incited. Attempt involves intent by the attempter to complete the crime (pp. 30-31) [footnotes omitted] [emphasis added].

[24] In the end, the Commission identified five principles that it felt should "govern the mental element of secondary liability." The first of those principles, found at p. 36 under the heading "Conclusion", is directly on point and reads as follows:

(1) No one should be liable for furthering an offence without intending that the offence be committed.

[25] The Law Reform Commission in Great Britain arrived at a similar conclusion in its consultation paper Assisting and Encouraging Crime, supra. The Commission made the following observation at p. 66 about the mental element required for the offence of incitement:

The books are clear, however, that in addition to knowledge of the circumstances and elements of the principal crime, the inciter must have as his purpose the commission of the principal crime: "An intention to bring about the criminal result is of the essence of incitement" [footnotes omitted].

[26] Later, at p. 129, under the heading "The mental element of the offence", the Commission stated:

The general policy issue, much debated in connection with assisting, as to whether the defendant must have the commission of the principal crime as his purpose, should be much easier to resolve in the case of encouraging crime. That is because the whole notion of encouraging, inciting or exhorting the commission of a crime presupposes that the encourager wishes that crime to be committed. As Ashworth puts it, in connection with the present offence of incitement:

"The fault element in incitement is that D should intend the substantive offence to be committed and should know the facts and circumstances specified by that offence. This is unlikely to cause a problem in most cases, since someone who either encourages or exerts pressure on another person to commit an offence will usually, by definition, intend that offence to be committed." [Andrew Ashworth, Principles of Criminal Law (Oxford: Oxford University Press, 1991) at p. 417].

[27] Notably, in its provisional proposal urging the creation of a new crime identified as the offence of "encouraging crime", the Commission made the following recommendations at p. 133:

We therefore suggest, for critical comment,

(1) A person commits the offence of encouraging crime if he

(a) solicits, commands or encourages another ("the principal") to do or cause to be done an act or acts which, if done, will involve the commission of an offence by the principal; and

(b) intends that that act or those acts should be done by the principal; and

(c) knows or believes that the principal, in so acting, will do so with the fault required for the offence in question [footnotes omitted] [emphasis added].

[28] As indicated, these and other authorities stand for the proposition that the crime of counselling will only be made out upon proof that the counsellor intended the commission of the crime counselled. Various reasons are cited for rejecting recklessness as the standard. Chief among them is ensuring that criminal liability does not attach to instances of counselling that may be casual or accidental. The Great Britain Law Reform Commission expresses this concern as follows "…there should be no danger of conduct that merely happens to fortify P in his criminal inclinations, without that being D's intention or purpose…" (p.129) A second rationale for rejecting mental element of recklessness recognizes that this lowered standard may catch some legitimate undercover crime investigation techniques that involve encouragement of crime, with no intention that the crime counselled actually be carried out. (LaFave and Scott, Substantive Criminal Law at Ch. 6 §6.11, p.14; Glanville Williams, Textbook of Criminal Law, 1st Ed. (London: Steven & Sons, 1978 at p.386).

[29] Apart from those considerations, which I believe are sound, I can think of no compelling reason why the requisite mental state for the inchoate crime of counselling should be different from the mental state required for the inchoate crimes of attempt and conspiracy.

[30] With respect to "attempted" crimes, under s. 24(1) of the Code, the offender must intend to commit the desired offence (see R. v. Ancio (1984), 1984 69 (SCC), 10 C.C.C. (3d) 385 at 401 (S.C.C.)). As for the crime of conspiracy, it is settled law that to be guilty, the offender must intend to commit the offence that forms the subject of the agreement (see R. v. O'Brien, 1954 42 (SCC), [1954] S.C.R. 666). Accordingly, the question that must be asked is whether, as a matter of principle, there is any basis for lowering the mental state required for the inchoate offence of counselling. If such a basis exists, in my view, it can only be that the rationale for criminalizing "counselling" differs from the rationale for criminalizing "attempts" and "conspiracies". And yet, the Law Reform Commission of Canada draws no such distinction. On the contrary, in its report at p. 6, the Commission explains the rationale for inchoate offences in general as follows:

The same arguments hold for inchoate crimes. Again, if the primary act (for example, killing), is harmful, society will want people not to do it. Equally, it would not want them even to try to do it, or to counsel or incite others to do it. For while the act itself causes actual harm, attempting to do it, or counselling, inciting or procuring someone else to do it, are sources of potential harm - they increase the likelihood of that particular harm's occurrence. Accordingly, society is justified in taking certain measures in respect of them: outlawing them with sanctions, and authorizing intervention to prevent the harm from materializing.

[31] There are some who maintain that the mental element for the crime of counselling should be less onerous than that required for other inchoate crimes because the crime of counselling is inherently more dangerous. The reasoning is that in the case of counselling, even though the counsellor may not intend the commission of a crime, the counsellor may nevertheless lose control of the situation once the seed is planted in the recipient's mind. The point is made by Alexander and Kessler at p. 1156 of their article "Mens Rea and Inchoate Crimes", (1997) 87 J. of Crim. L. and Criminology 1138, as follows:

There is one further complication. In many cases, defendant will not have complete control over whether he can withdraw his support from the criminal enterprise. Therefore, he is not in an exactly parallel position to the defendant who is planning to commit a crime himself but who can always prevent the crime by changing his mind. Encouragement of another always creates a risk that one will fail in an attempt to withdraw one's support, or that one will be rendered incapable of withdrawing support. There is no analogue to this problem when dealing with incomplete attempts or bare conspiracies.

[32] Alexander and Kessler rely heavily on this distinction in support of their thesis that recklessness should suffice as the mental element for solicitation. At pp. 1175-76 of their article, they write:

In solicitation and conspiracy, then, we have crimes in which defendant's conduct is dangerous apart from his mental state. That point in turn suggests that we rethink the mens rea requirements for these crimes. Although the Model Penal Code requires a purpose that the crime be committed as the mens rea for both solicitation and conspiracy, this requirement makes no sense where the danger stems from the encouragement of others to commit the crime. Recklessness should suffice as the mens rea for solicitation. Recklessness with its notion of conscious disregard of unjustified (and substantial) risk, takes into consideration all legitimate reasons one might have for conduct that one realizes might be taken by someone else as encouragement to commit a crime when the conduct's purpose is not such an encouragement.

Although an actor is not culpable for forming a criminal intention or for taking an otherwise harmless step toward realizing that intention, he is culpable for encouraging others to commit criminal acts, even if his purpose is innocent, at least if he is reckless regarding the likelihood that they will commit those acts [footnotes omitted] [emphasis in original].

[33] The trial judge appears to have been influenced by this distinction in arriving at his conclusion that the requisite mental state for counselling will be met if the counsellor's advice is "accepted" by the recipients. For convenience, the relevant passage from his ruling is repeated below: Can it be as counsel suggested in response to a question from me, that the law refuses to punish under this section someone who counsels another to commit murder knowing that his advice has been taken seriously, because unbeknownst to the person being counselled, the counsellor is not serious or has motives other than that the act counselled be carried out [emphasis in original].

[34] Manifestly, the trial judge was not prepared to accept that someone who encourages the commission of a serious crime, knowing that his advice has been taken seriously, should go free. Although he did not say so expressly, implicit in his reasoning is the notion that such conduct is inherently dangerous and should be punished. Indeed, as I understand his reasons, it is this concern that led the trial judge to lower the bar on the mental state required for the offence of counselling even below that contemplated by Alexander and Kessler. As indicated earlier, the test fashioned by the trial judge - did the counsellor speak the words with the intent that his advice be accepted by the recipients - renders the mental state of the counsellor as to whether the offence counselled is or is not committed irrelevant.

[35] The trial judge found support for his thinking in what he considered to be a ready-made analogy in s. 264.1 (uttering threats) and in his interpretation of s. 22(2) (offences committed in consequence of counselling) of the Code. For convenience, I repeat those aspects of his ruling:

By analogy of Section 264 of the Criminal Code, threatening. That is another section where words spoken constitute the actus reus. Once the threat is spoken, the external circumstances are complete. If it is proved that the speaker intends that his words be taken seriously, the mental element is made out. It is no defence for the speaker to say later that he never would have carried out the threat conveyed.

Section 22(2) of the Code makes the counsellor a party to an offence committed in consequence of the counselling if the counsellor knew or ought to have known the offence was likely to have been committed because of the counselling.

It is difficult for me to accept that parliament intended a higher standard of actual intention for the lesser offence under Section 464.

[36] With respect, I cannot agree with the trial judge's analysis for several reasons.

[37] First, the s. 264.1 analogy is inexact. Manifestly, s. 264.1 is not an inchoate offence. As a matter of policy, Parliament has chosen to criminalize conduct that is meant to instill fear in others. Given that that is the harm which the provision seeks to prevent, it matters not whether the offender actually intended to follow through with the threat.

[38] Second, as I read s. 22(2) of the Code, it is of no assistance in resolving the issue at hand because it only comes into play if the counsellor is otherwise guilty of counselling the original offence. That, in turn, depends on whether the mental state for the crime of counselling requires that the counsellor intend the commission of the original offence.

[39] Third, to the extent that the trial judge relied upon the "degree of dangerousness" distinction identified by Alexander and Kessler to set a lower bar for the mental state required for the offence of counselling, I am of the view that the distinction breaks down when the inchoate offence of counselling is compared with the inchoate offence of conspiracy. Specifically, I do not accept that a person who counsels another to commit an offence (with no intent that the offence be committed), is somehow more dangerous or engaged in more dangerous activity than a person who conspires with another to commit an offence (with no intent that the offence be committed). Neither wishes to see an offence committed but both may embolden the second party to commit the offence and both may lose control over the situation. In my view, this comparison undermines the argument that the mental state for the inchoate crime of counselling should be lowered because counselling is a more dangerous crime than conspiracy.

[40] Although the "degree of dangerousness" distinction may be somewhat more persuasive in the case of attempts, even there, the issue is not free from controversy. Thus, in contrast to the position taken by Alexander and Kessler (see para. 33, above), LaFave and Scott make the following observations at Ch. 6, §6.1, of their article:

Similarly, it is claimed that the solicitor does not constitute a menace in view of the fact that he has manifested an unwillingness to carry out the criminal scheme himself. There is not the dangerous proximity to success which exists when the crime is actually attempted, for, "despite the earnestness of the solicitation, the actor is merely engaging in talk which may never be taken seriously" [footnotes omitted] [emphasis added].

[41] In sum, I am not persuaded that the "degree of dangerousness" distinction warrants a reduction in the mental state required for the offence of counselling.

[42] Fourth, even if I were satisfied that the mental state for the inchoate crime of counselling should be lower than that required for other inchoate crimes, I would not adopt a model that renders the mental state of the counsellor as to whether the offence counselled is or is not to be committed irrelevant. On the contrary, at a minimum, I would require that the offender act in reckless disregard of the consequences. However, for reasons already stated, I find the orthodox view (actual intent) more compelling and I see no reason to depart from it.[^5]

[43] In this regard, as Ashworth notes (see paragraph 27 above), it should not be overlooked that in most cases, a person who counsels another to commit an offence, intending that the advice be taken seriously, "will usually, by definition, intend that offence to be committed." The present case is one of those rare instances where, despite the appellant's intention that his words be taken seriously, the Crown does not maintain that he intended the commission of the crimes counselled. While the appellant's actions were reprehensible, I am not convinced that the reach of the criminal law should be extended, at the expense of established principle, to ensnare the likes of the appellant.

[44] Even if I am wrong and recklessness as to consequences is sufficient for the offence of counselling unlawful bodily harm, if not murder, the convictions cannot stand because the trial judge did not leave recklessness to the jury. Rather, as I have pointed out, the case was left to the jury on the basis that it need not consider the mental state of the appellant as to whether the crimes counselled were or were not to be committed.

[45] In the circumstances, had I concluded that recklessness as to consequences was sufficient (at least with respect to the offence of counselling unlawful bodily harm), I would nonetheless have quashed the convictions and substituted verdicts of acquittal because on this record, it cannot be said that the appellant was reckless as to whether the crimes counselled were or were not to be committed. On the contrary, by warning Dr.M.B. immediately after the February 26 phone calls, he demonstrated just the opposite.

CONCLUSION

[46] The requisite mental element for the offence of counselling requires, among other things, that the counsellor intend the commission of the offence(s) counselled. Crown counsel on appeal concedes that the trial judge's instruction did not convey that information to the jury. He further concedes that on this record, the evidence does not support such a finding. Accordingly, I would allow the appeal, quash the convictions and in their place, substitute verdicts of acquittal.

Signed: "I agree K. Weiler J.A." "I agree L. Charron J.A." "M.J. Moldaver J.A."

RELEASED: "KMW" FEBRUARY 5, 2003

[^1]: R. v. Grossman, [1994] O.J. No. 4078 (Gen. Div.); R. v. Hamilton (2002), 2002 ABQB 15, A.J. No. 30 (Alta Q.B.).

[^2]: Smith and Hogan, Criminal Law, 8th ed. (London: Butterworths, 1996); LaFave and Scott, Substantive Criminal Law (St. Paul, Minn.: West Publishing Co., 1986); Peter Gillies, Criminal Law, 4th ed. (New South Wales: LBC Information Services, 1997). For a contrary view see Larry Alexander and Kimberly D. Kessler, "Mens Rea and Inchoate Crimes" (1997) 87 J.of Crim. L. and Criminology 1138.

[^3]: U.S. Model Penal Code §5.02(1) (1985).

[^4]: Law Reform Commission of Canada, Secondary Liability: Participation Crime and Inchoate Offences [Working Paper 29] (Ottawa: Minister of Supply and Services Canada, 1982); Great Britain Law Commission, Assisting and Encouraging Crime [Consultation Paper No. 131] (London: HMSO, 1993).

[^5]: With respect to the crime of counselling murder, I question whether a standard of recklessness would pass constitutional muster.