IV. COUNSELLING AND

Oonagh Fitzgerald* Lynn Douglas*

Bill C-19 1 proposes certain changes to the existing Criminal Code2 sections dealing with secondary liability for . The Bill takes a piecemeal approach to law reform in that it endeavours to amend only the Code provisions respecting counselling, procuring and inciting (sections 22 and 422) and conspiracy (section 423), although the concept of secondary liability encompasses all illegal involvement in crime other than actual perpetration. 3 A brief glance at the existing law on counselling and conspiracy shows clearly that there is a need for more comprehensive reform.

A. Counselling, Procuring and Inciting

A review of the proposed amendments to sections 22 and 422 reveals that they are merely cosmetic adjustments, of form rather than substance, resulting in no perceptible improvements to the law. It is peculiar that such fruitless adjustments should be put forward when what is obviously required is substantive amendment. Clauses 7 and 94 of the Bill, if passed by Parliament, would: 1. remove the word "procure" from subsections (1) and (2) of section 22; 2. add a new subsection 22(3) which would explain that, "for the purposes of this Act", the remaining word " 'counsel' includes procure, solicit or incite";

Law Reform Commission of Canada. This article does not necessarily reflect the Commission's views. I Criminal Law Reform Act, 1984, Bill C-19, 32nd Parl., 2d sess., 1983-84 (1st reading 7 Feb. 1984) [hereafter cited as Bill C-19]. 2 R.S.C. 1970, c. C-34. 3 Thus, under the existing Code, secondary liability includes aiding and abetting (subs. 21(b) and (c)), participation in a common unlawful purpose (sub. 21(2)), counselling or procuring (s. 22), being an after the fact (s. 23) (although a strong argument can be made for excluding the accessory after the fact from secondary liability since his involvement only arises, by definition, after the crime has been committed, and instead characterizing his conduct as an offence against the administra- tion of justice); attempting (s. 24); inchoate counselling, procuring or inciting (s. 422); and conspiracy (s. 423). The Law Reform Commission of Canada is currently completing a WORKING PAPER ON SECONDARY LIABILITY that takes a comprehensive view of this topic. Ottawa Law Review [Vol. 16:331

3. delete the words "procure and incite" from section 422; and 4. make consequential amendments to various Code sections that presently contain the word "procure".' There are three main problems in the existing law on counselling and procuring. The primary difficulty is the uncertainty as to both the meaning of the words "counsel, procure and incite", and the inens rea and requirements for liability under sections 22 and 422. Second, there is a lack of symmetry between sections 22 and 422. Third, subsection 22(2) utilizes an objective rather than a subjective test for criminal liability. Clearly, clauses 7 and 94 of Bill C- 19 were only meant to address the first two problems. It is unfortunate that Bill C-19 makes no effort to address the third problem, which cries out for reform. The present subsection 22(2) extends the scope of liability under subsection 22(1) by applying an objective standard of culpability for consequential offences. The Crown need only prove that the accused "knew or ought to have known" that the offence was likely to be committed as a result of his counselling or procuring. This imposition of absolute liability on one person for the of someone else runs counter to the fundamental principle that criminal liability should only be founded on individual blameworthiness. Even the fact that we are dealing with confederates in a criminal scheme not justify such treatment. Bill C-19 should have amended this does 5 subsection so as to conform with that basic principle. It seems that the second problem, which is quite a minor one, has been resolved satisfactorily. At present, section 22 speaks of counselling and procuring, whereas section 422 prohibits counselling, procuring and

I Bill C-19, subcls. 7(2), 7(3) and cl. 8 make consequential amendments to s. 178.1, subs. 214(3), 76(d), 224(a), 57(a) and para. 516(1)(a) which presently contain the word "procure". but these changes do not affect the substance of those provisions. No mention is made, however, of a mass of special sections that impose liability for inciting and procuring various conduct. Some of these sections could be covered by the general counselling sections, ss. 22 and 422; for example, subs. 72(a) and (b) would be covered if there were a simple offence of duelling. The need for consistency in the Code suggests that some other special sections should be changed to counselling offences, for example, para. 50(1)(a): inciting a subject of a State that is at war with Canada to leave Canada without the of the Crown, and s. 53: attempting to incite a member of the Canadian Forces to commit a traitorous act. There is another group of special "procuring" sections which for some unknown reason have been left untouched by Bill C-19, suggesting that perhaps it was thought that the meaning of the sections would be changed if the word "procure" were replaced by the word "counsel"; for example, sub. 114(a): procuring a reward for assistance in securing an official appointment, and sub. 195(1): procuring a female person to have sexual intercourse with another, etc. The fact that Bill C-19 makes no effort to resolve these inconsistencies only illustrates the superficial nature of the proposed reforms. 5 R. v. Vallieres, 15 C.C.C. (2d) 241 (Que. C.A. 1973). The accused was acquitted of using his writings and actions to counsel the bombing of a factory because there was no that he had participated in the decision to bomb that factory. Thus, by insisting on particularity with respect to the crime counselled, the Court ignored the plain meaning of sub. 22(2). 1984] Bill C-19: Counselling and Conspiracy inciting. It is arguable under existing law that an inciter, unlike a counsellor or procurer, cannot actually become a party to an offence committed as a result of his inciting; he can only incur inchoate liability under section 422. By defining both participatory and inchoate liability with one word "counsel", Bill C-19 forecloses this argument and establishes a desirable symmetry. However, the first problem, that of definition, is much larger and not so easily resolved. First of all, neither the existing Code sections nor Bill C-19's proposed amendments explain the mental requirements for establishing liability. The courts are forced to determine them as best they can. Early cases speak of unlawful and malicious intent, 6 signifying that in those days at least, would not suffice. Lately it has been suggested that the counsellor or procurer's liability can be extended to the situation where he intends to counsel or procure another person to do an act, knowing that it is certain or practically certain that in doing that act, the perpetrator will also do an illegal act.' It has even been suggested that mere negligence may suffice for criminal liability, for 8 example, the careless solicitor advising his client. But if recklessness is sufficient to attract liability, and if the actus reus of the offence remains loosely defined, as it is in the present Code and Bill C-19, a person may find himself liable for counselling, having done something with a perfectly legitimate motive. For example, such a situation might arise where he published a political treatise in hope of attaining fame and fortune, yet was reckless as to the acts his book might "counsel" others to commit. We should not have to rely on the courts to exercise sufficient restraint in defining the mental elements of counselling under sections 22 and 422. 9 Surely, it would be preferable if Bill C-19 contained an express provision regarding the mental element of counselling. ' 0 The Code is equally indefinite with respect to the actus reus required for liability under sections 22 and 422, so that the courts have had to determine the scope of criminal conduct. Early case law does little to narrow that scope: in R. v. Higgins" it was held that mere solicitation is

6 R. v. Higgins, 2 Ea. 5, at 21, 102 E.R. 269, at 276 (K.B. 1801) (Lawrence J.). 7 G. WILLIAMS, TEXTBOOK ON CRIMINAL LAW 303-04 (1978). This proposition seems to be supported by the result in Attorney-General's Reference (No. 1 of 1975), [1975] 1 Q.B. 773, [1975]2 All E.R. 684 (C.A.). 8 Parsons, The Liability of a Solicitorfor the Unlawful Acts of a Client Acting on Advice Given Hin, 23 CAN. B. REV. 568, at 569 (1945). 9 See, e.g., R. v. Vallieres, [1970] 4 C.C.C. 69 (Que. C.A. 1969), in which the Court appears to have adopted a narrow view of inens rea for counselling since it ignored the objective test of liability in sub. 22(2). 10 See, e.g., Criminal Code, R.S.C. 1970, c. C-34, para. 21(l)(b): "does or omits to do anything for the purpose of aiding"; see also, AMERICAN LAW INSTITUTE, MODEL PENAL CODE sub. 5.02(1) (Proposed Official Draft, 1962): "with the purpose of promoting or facilitating its commission .. 11 Supra note 6. Ottawa Law Review [Vol. 16:331 an act and, if coupled with malicious intent, is punishable. Later cases have helped to define the physical elements of the offence, but they have also illustrated that the three words used in section 422 can have quite different meanings. Thus, "counselling" means merely advising or recommending. 12 It must relate to a specific offence, 13 but the person counselled need not be influenced by the communication.' 4 The word "incitement", which in ordinary speech suggests more forceful, initiatory persuasion, has been defined as counselling, procuring or commanding' 5 without any neces- sity that the inciter have originated the criminal scheme; 16 it is enough that the words reach the person being incited, even though they have no effect upon him. 17 "Procuring", which in common parlance implies actually obtaining someone to commit the offence, has been authorita- tively defined in Attorney-General's Reference (No. I of 1975) as meaning simply "to produce by endeavour".' 8 In Canada the position differs from that taken in the United Kingdom:' 9 the offence of procuring is complete once the solicitation or incitement occurs; 20 and it does not matter that the person procured never had any of doing that which he was procured to do. 2' Given the different meanings of counsel, procure and incite, it seems that the simplification proposed by Bill C-19 will be an improvement over the present situation, although the problems resulting from lack of definition of the and actus reus for counselling remain unresolved. These difficulties are in no way alleviated by the new statutory definition of counsel provided by subsection 22(3). It only tells us that counsel includes procure, solicit and incite, but it does not tell us conclusively what else is included and what counsel means. Nor does it

12 Brousseau v. The King, 56 S.C.R. 22, at 23, 29 C.C.C. 207, at 208 (1917) (Fitzpatrick C.J.C.). See R. v. David, 50 C.C.C. (2d) 557 (Que. C.A. 1979). 13 R. v. Vallieres, supra note 5. 14 R. v. McLeod, 12 C.R.N.S. 193, 75 W.W.R. 161 (B.C.C.A. 1970). 15 G. WILLIAMS, supra note 7, at 384. 16 G. WILLIAMS, CRIMINAL LAW: THE GENERAL PART 612 (2d ed. 1961). 17 V. ROSE, PARTIES TO AN OFFENCE 110-11 (1982). Note that in the United Kingdom "procuring" requires successful persuasion whereas "incitement" only requires communication. 18 Supra note 7, at 779, [1975] 2 All E.R. at 686 which was followed in Canada in R. v. Glubisz, 9 C.R. (3d) 300,47 C.C.C. (2d) 232 (B.C.C.A. 1979). 19In England a person charged with procuring a criminal offence must be shown to have influenced the conduct or state of mind of the person who is alleged to have been procured; otherwise he has only attempted to procure: R. v. Broadfoot. 64 Cr. App. R. 71, [1976] 3 All E.R. 753 (C.A.); Attorney-General's Reference (No. I of 1975). supra note 7; R. v. Christian, 23 Cox C.C. 541 (Cent. Crim. Ct. 1913). 20 R. v. Gonzague, 34 C.R. (3d) 169 (Ont. C.A. 1983). 21 R. v. Walia (No. 1), 9 C.R. (3d) 293, at 293-94 (B.C.C.A. 1975) which was followed in R. v. Glubisz, supra note 18. 1984] Bill C- 19: Counselling and Conspiracy tell us what procure, solicit 22 and incite mean. It is arguable that such a definition offends the principle of legality, nullun crimen sine lege, since the unnecessarily broad definition of counsel and its uncertain scope do not give citizens fair warning 23 as to, what constitutes criminal conduct. The question of defining the actus reus and inens rea for counselling, procuring and inciting, or for counselling alone under Bill C-19, is particularly sensitive because of the great danger that the criminalization of the communication of ideas will render the fundamen- tal freedom of expression nugatory. Until now Canadian courts have been indifferent to this conflict of values, choosing to uphold the longstanding criminal law and merely repeating complacently Lord Wright's adage that such freedoms are not absolute but are "hedged in by all the laws against defamation, blasphemy, and so forth" .24 With the advent of the Canadian Charter of Rights and Freedoms,2 5 subsection 2(b) of which guarantees freedom of opinion and expression, the courts can no longer close their eyes to this issue. Nevertheless, it is doubtful that subsection 2(b) of the Charter will win the day despite its constitutionally entrenched status, because section 1 subjects the supposedly guaranteed freedoms of section 2 "to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society". Perhaps the prevention of crime through criminalizing "counselling" will be viewed as such a justifiable restriction. Before subsiding into deep pess' -nism about the future of Cana- dians' freedom of expression, it is helpful to see what lessons can be learned from the American experience. The American courts, in an effort to respect freedom of thought and expression as much as possible,2 6 distinguish between legitimate advocacy of violation of the law and illegitimate incitement to crime. The test for incitement is whether the advocacy created a clear and present danger of immediate serious

22 The use of the word "solicit" in this context apparently was taken from the AMERICAN LAW INSTITUTE, MODEL PENAL CODE s. 502 (Proposed Official Draft, 1962) which uses the word "solicitation" to describe an offence roughly similar to that contained in s. 422 of our Criminal Code. "Solicit" in regard to prostitution has been defined in Canada as requiring pressing or persistent conduct: Hutt v. The Queen, [ 1978] 2 S.C.R. 476, 82 D.L.R. (3d) 95. 23 G. FLETCHER, RETHINKING CRIMINAL LAW 570 (1978); J. HALL, GENERAL PRINCIPLES OF CRIMINAL LAW 47 (2d ed. 1960). 24 R. v. McLeod, supra note 14, at 196, 75 W.W.R. at 164; cf. R. v. Vallieres, supra note 9. 21 Constitution Act, 1982, Part I, enacted by Canada Act, 1982, U.K. 1982, c. 11. 26 In United States v. Schwimmer, 49 S. Ct. 448, at 451 (1929), Holmes J. explained that this freedom of thought and expression means "not free thought for those who agree with us but freedom for the thought that we hate". Ottawa Law Review [Vol. 16:331 violence. 27 In America the threshold for criminal liability for incitement is thus quite high. Justice Brandeis stated: The fact that speech is likely to result in some violence or in destruction of property is not enough to justify its suppression. There must be the probability of serious injury to the State. Among free men, the deterrents ordinarily to be applied to prevent crime are education and punishment for violations of the law, not abridgements of the rights of free speech and 28 assembly. Thus we find that in trying to resolve this conflict the American courts take into account, on the one hand, the likelihood of the listener being immediately moved to commit some serious injury to the state; and on the other hand, the alleged inciter's legitimate interests in exercising his freedom of opinion and expression. Consequently, if we look at some of the Canadian decisions, such as R. i. McLeod29 and R. v. David, 30 in light of the American rights cases, we see that there might have been room for a different result, and that perhaps freedom of expression 31 should have been the overriding interest in the circumstances . Neither the existing Code sections nor Bill C-19 provide us with any guidance as to what factors are relevant in determining in a particular situation whether an offence has been committed. Even if we could forgive this oversight in the outdated Code, there can be no excuse for the drafters of Bill C-19 having overlooked the pressing questions raised by our new Charter and having failed to provide a clear statement of this threshold of liability. Under the present Code, or under Bill C-19 if it is re-introduced and passed, we must trust the courts to find a suitable balance between the competing interests of freedom of thought and expression and security from crime. Bill C-19 proposes another change affecting section 422, inchoate counselling, which points out again the piecemeal character of these amendments and the lack of overview of the subject of secondary

27 Brandenburg v. Ohio, 89 S. Ct. 1827 (1969); Bond v. Floyd, 87 S. Ct. 339 (1966); Whitney v. California, 47 S. Ct. 641 (1927) (Brandeis J.); Gitlow v. New York, 45 S. Ct. 625 (1925)(Holmes J. dissenting). 28 Whitney v. California, id. at 649. 29 Supra note 14. 30 Supra note 12. 31 In R. v. Vallieres, supra note 9, at 75, the Quebec Court of Appeal seemed to be taking an approach similar to that of the American courts when it approved the trial judge's direction to the jury: Gentlemen of the jury, if, in this case, the accused was anything but a theoretician, writer, professor, disseminator of sociological, political, or other ideas or thoughts, if he was merely a thinker, even a revolutionary one, belonging to the F.L.Q. or some other organization, whether or not he still favoured violence, and even if he swore that he was prepared to sack and burn everything in Quebec society which displeased him, all these things, in principle, and I emphasize in principle, do not necessarily mean that he took part in the placing and exploding of the terrorist bomb in the LaGrenade factory, on May 5, 1966. 1984] Bill C- 19: Counselling and Conspiracy liability. Clause 93 of Bill C-19 proposes to amend section 421 by adding paragraph (d) which explicitly states the liability of one who is charged with attempting to commit or being an accessory after the fact to a -mixed" or "hybrid" offence. This provision is meant apparently to correct an oversight in the 1976 Code amendments respecting hybrid offences. The present Code only makes express provision for attempting to commit indictable offences and offences punishable on summary conviction, without referring to these mixed offences. It seems unlikely that this oversight would actually result in the accused having to be prosecuted by indictment under subsection 421(b) in all such cases; presumably if the Crown made its election to proceed by way of summary conviction, then subsection 421(c) would be available. 32 Nevertheless, the proposed amendment should resolve any procedural anomalies that might have arisen as a result of this . What seems particularly odd is that no change is proposed to clarify the case of counselling a hybrid offence. Surely, if the amendment proposed by clause 93 of Bill C-19 is justifiable, a similar change is in order in the counselling situation, too. As it is, this failure strikes another blow to the fragile symmetry of the secondary liability provisions of the Code. In summary, the proposed amendments to sections 22 and 422 help neither to define the scope of liability nor to tidy up loose ends. The proposed sections are drawn so vaguely as to offend both the principle of legality and the Charter of Rights and Freedoms. With no promise of substantive parliamentary amendments we can only hope for the exercise of judicial wisdom to restrict the scope of liability for counselling.

B. Conspiracy

Bill C-19 is equally unsuccessful in tackling the problems surround- ing the offence of conspiracy. The Bill focuses on one substantive problem only, namely, the scope of the offence, and does not resolve 3 even this problem satisfactorily. 3 Under the current Criminal Code subsection 423(1) it is an to: a) conspire to commit ; b) conspire to falsely prosecute someone; or c) conspire to commit an indictable offence. Subsection 423(2) further provides that it is an indictable offence to conspire to effect an unlawful purpose or to effect a lawful purpose by unlawful means. Bill C-19 abolishes subsection 423(2) and adds paragraph (d) to section 423(1), creating an offence of conspiracy to commit an offence punishable on summary conviction.

32 See Interpretation Act, R.S.C. 1970, c. 1-23, sub. 27(1). 1a Bill C-19 also covers procedural changes regarding jurisdiction, appearance at trial, and trial outside Canada. See subs. 95(3)-(7) of the Bill. These procedural matters, however, will not be dealt with in this short paper. Ottawa Law Review [Vol. 16:331

The abolition of subsection 423(2) is long overdue and should be a welcome sight to the judiciary and legal commentators alike. The phrase "unlawful purpose or lawful purpose by unlawful means" has had a nebulous history. It is now well known to have been an accident that conspiracy at included such a broad, vague object, the by Professor Hawkins 34 and on result of relying on inaccurate statements 36 a dictum by Lord Denman C.J. 35 which he later retracted . It is interesting to note that there was no equivalent to subsection 423(2) in the original Criminal Code of 1892. 37 Instead, the 1892 Code followed the English Draft Code,3" covering only specific conspiracies to commit a certain limited number of offences. The Commissioners who prepared the English Draft Code stated very clearly that it was their intention to exclude unlawful purpose from the definition of conspira- cy. 39 One can surmise that it was the intention of the formulators of the 1892 Criminal Code to do the same for similar reasons. Yet in 1955 a new subsection was added to the conspiracy offence, that is, subsection 408(2), which provided for conspiracy to effect an unlawful purpose or a lawful purpose by unlawful means. Why was such a provision deemed necessary? Professor Stuart explains: The reason for the new subsection was plain. The new section 8 specifically abolished common law offences in Canada, but common law offences which had previously been prosecuted in Canada were to be separately codified, as explained by Mr. Garson, Minister of Justice, in introducing the Bill: What has happened is that the Royal Commission consulted with the provincial law enforcement officers and found that [sic] that resort had been had to common law offences, over the past sixty years, in only a very limited number of cases. These cases have now been incorporated in this bill, in codified form, as Criminal Code offences. It was implicitly recognized that the existing Code provisions, the most general of which is now section 423(l)(d), penalizing conspiracies to commit indictable offences, were by no means as embracing as common law conspiracy. The time-honoured phrase "unlawful purpose or lawful purpose by unlawful means" was enacted, the precise ambit being left to the courts. This highly ambiguous position was accepted by the House of Commons 4 0 without a single comment.

4 See W. HAWKINS, I. A TREATISE OF THE PLEAS OF THE CROWN 348 (1716 & photo. reprint 1973) where he stated: [T]here can be no doubt, but that all Confederacies whatsoever, wrongfully to prejudice a third Person, are highly criminal at Common Law. ... 11 R. v. Jones, 4 B. & Ad. 344, 110 E.R. 485 (K.B. 1832). 36 He retracted his earlier statement in R. v. Peck, 9 Ad. & E. 686, 112 E.R. 1372 (K.B. 1839). For more information on this whole matter see D. STUART, CANADIAN CRIMINAL LAW 553 (1982) and Sayre, Criminal Conspiracy, 35 HARV. L. REV. 393 (1922). 31 S.C. 1892, c. 29. 38 REPORT OF THE ROYAL COMMISSION TO CONSIDER THE LAW RELATING TO INDICTABLE OFFENCES, 20 BRIT. SESS. PAPERS 217 (1878-79). 39 Id. at 16. 40 Supra note 36, at 555. 1984] Bill C-19: Counselling and Conspiracy

This amendment, however, has brought only confusion and uncertainty into the Canadian law on conspiracy. The courts have been left to grapple with the problem of how broad an interpretation to give this vague phrase. In doing so they have rejected definitively the wide ambit of common law conspiracy. 41 Unlawful purpose has been given a limited meaning "contrary to law", that is, contrary to federal or provincial legislation.4 2 The courts have pointed out that to allow for a broader meaning would result in the anomalous situation that a person could be found guilty of a criminal offence for agreeing to do that which Parliament or any other legislative body had in its wisdom declined to make an offence. In other words, it would give the judiciary criminal lawmaking powers which it clearly does not have in Canada. 43 In abolishing subsection 423(2), Bill C-19 recognizes that there is no place for common law conspiracy in our criminal law. For that conclusion it should be applauded. However, the Bill replaces unlawful purpose with conspiracy to commit an offence punishable on summary conviction, which is not without its own interpretational problems. What is included within "offences punishable on summary conviction"? Is Bill C-19 simply codifying Gralewicz,44 that is, including within conspiracy all federal and provincial offences, or is it going further, that is, limiting conspiracy to Criminal Code and other federal offences? At first glance it would appear that the Bill intends to limit conspiracy to federal offences. But does it? Provincial offences are generally referred to as offences punishable on summary conviction or by summary proceedings. 4" The word "offence" is not defined in the Code and the Interpretation Act 46 is of little help. Indeed case law shows that the word "offence" in the Code can, at least in some instances, include

41 Although Wright v. The Queen, [1964] S.C.R. 192, [1964] 2 C.C.C. 201 (1963) gave a very broad interpretation to ' unlawful purpose" which would have allowed other courts to use the full width of common law conspiracy, as Mr. Justice Chouinard noted in Gralewicz v. The Queen, [1980] 2 S.C.R. 493, at 506, 54 C.C.C. (2d) 289, at 300, no court has taken up the possibility: "All the Canadian cases in which conduct was held capable of being the subject of a criminal conspiracy to effect an unlawful purpose were based on conduct prohibited by legislation." 42 See Grales'icz, id. at 509, 54 C.C.C. (2d) at 302. See also R. v. Celebrity Enterprises Ltd., [1977] 4 W.W.R. 144 (B.C. Cty. Ct.), appeal dismissed 42 C.C.C. (2d) 478 (B.C.C.A. 1977), leave to appealto S.C.C. denied 20 N.R. 625 (1978). "3See Graleivicz, id. at 508, 54 C.C.C. (2d) at 301 where the Court followed the English decision of D.P.P. v. Withers, [1975] A.C. 842, at 863, [1974] 3 All E.R. 984, at 995 (H.L. 1974) which held "that it is not open to the courts nowadays either to create new offences or so to widen existing offences as to make punishable conduct of a type hitherto not subject to punishment". I4Id. 4 See, e.g., Loi sur les Poursuites Sommaires, L.R.Q. 1977, c. P-15; The Summary Convictions Act, R.S.O. 1970, c. 450; Summary Convictions Act, R.S.N.B. 1973, c. S-15. " R.S.C. 1970, c. 1-23, s. 27. Although. the Act discusses the categories of offences, it does not appear anywhere to limit the word "offence" to federal enactments. Ottawa Law Review [Vol. 16:331 provincial offences. 47 Therefore, the new provision in Bill C-19 does not succeed in removing the uncertainty in the law as to the scope of conspiracy. If Bill C-19 is only reacting to and codifying the case law, then, it is suggested, it does not go far enough. Conspiracy should be limited to Criminal Code offences. There are three main reasons for this. First, as Mr. Justice Rothman pointed out in R. v. Jean Talon Fashion Center Inc., some provincial offences are very minor: It must, I believe, be allowed that not all agreements to infringe provincial statutes or municipal by-laws can be serious enough to justify indictment for criminal conspiracy. The violation of some statutes may involve very minor infractions, and many municipal by-laws are purely regulatory in nature.4" Criminal law and criminal sanctions should be used with restraint; they should be limited to serious, harmful conduct and to situations where there is a serious public interest to protect. 49 Second, for the sake of certainty and comprehensiveness, the Criminal Code should be self- contained. Third, and perhaps most important, it should be Parliament's role alone to create criminal offences. To allow the courts to criminalize provincial offences by using the conspiracy offence is to give the courts the criminal lawmaking power which they have already stated is not 0 theirs.5 As in regard to counselling, Bill C-19's amendment to conspiracy is just as interesting for what it does not do as for what it does do. In effect the unlawful purpose problem is a non-issue. Agreement is widespread that it has no place in our Code. 51 The Bill is simply tidying up this matter. However, there are pressing problems in the area of conspiracy that Bill C-19 does not address. For example, the required elements of conspiracy, such as agreement, are undefined in the Code.52 There is also

17 See R. v. Howard, [1972] 3 O.R. 119, 7 C.C.C. (2d) 211 (C.A.); R. v. Sommervill, [1963] 3 C.C.C. 240, 43 W.W.R. 87 (Sask. C.A.). 48 22 C.C.C. (2d) 223, at 234 (Qua. C.S. 1975). 49 LAW REFORM COMMISSION OF CANADA, REPORT: OUR CRIMINAL LAW 19-22 (1976). 50 Graleivicz, supra note 42. As Cartwright J. (as he then was) said in Frey v. Fedoruk, [1950] S.C.R. 517, at 530, 97 C.C.C. 1, at 14: In my opinion, this power has not been held and should not be held to exist in Canada. I think it safer to hold that no one shall be convicted of a crime unless the offence with which he is charged is recognized as such in the provisions of the Criminal Code, or can be established by the authority of some reported case as an offence known to the law. I think that if any course of conduct is now to be declared criminal, which has not up to the present time been so regarded, such declaration should be made by Parliament and not by the courts. 5' See, e.g., M. GOODE, CRIMINAL CONSPIRACY IN CANADA 74-78 (1975); A. MEWETT & M. MANNING, CRIMINAL LAW 157-58 (1978); D. STUART, supra note 36, at 575. 52 See MacKinnon, Note, 10 OTTAWA L. REV. 448 (1978) where this was called "a central problem in the law of criminal conspiracy". 1984] Bill C-19: Counsellingand Conspiracy the problem of merger where one can be found guilty of both conspiracy and the full offence. 3 Furthermore, the question remains as to who can be a party to a conspiracy, for example, the husband-wife and the corporation issues. Finally, the complicated drafting poses another problem. Surely the offence can be drafted more simply to avoid the overlap and inconsistencies within section 423 itself.

C. Conclusion

It is perhaps not so surprising that counselling and conspiracy should be so inadequately dealt with in Bill C- 19 when one looks at the history in general of Criminal Code amendments. What stands out is how piecemeal they have always been, plugging holes here and there but not coming to grips with each offence as a whole. 54 A more global approach is needed if future amendments are to cease creating and perpetuating as many problems as they solve.

53 This matter has been the subject of concerned comment. See, e.g., R. v. Kravenia, [19551 S.C.R. 615, 112 C.C.C. 81; R. v. Graham, 108 C.C.C. 153, 11 W.W.R. 565 (B.C.C.A. 1954); R. v. Sommers, 122 C.C.C. 6 (B.C.S.C. 1958). 54 For example, the legislative history of counselling, procuring and inciting indicates that this is an area of the law that has often been the subject of such haphazard adjustments. J. STEPHENS, A DIGEST OF THE CRIMINAL LAW (1877) formed the basis of the English Draft Code which in turn was the basis of the first Criminal Code, S.C. 1892, c. 29. The E.D.C. participation rules (ss. 71, 72) were adopted by the original Criminal Code in ss. 61 and 62. Ss. 528-30 of the new Code were obviously based on ss. 422-424 of the E.D.C. dealing with and incitement, except that the references to inciting in E.D.C. ss. 422 and 423 were deleted. The result was that there was no general offence of inchoate inciting, only s. 530 creating the offence of inciting the commission of an offence under any statute other than the Code. The Canadian courts apparently were not discouraged by this, and interpreted sub. 69(d) (sub. 61(d) in the original Code) as providing liability for counselling and procuring whether or not the person counselled or procured subsequently committed the offence. The problem with this argument was that it resulted in an inchoate inciter being subject to full punishment for the crime incited, whereas one who attempted that same crime was only subject to considerably reduced punishment. The courts also said that the common law misdemeanour of inchoate incitement still existed in Canada: see Brousseau v. The King, supra note 12, which was followed in R. v. Gordon, 79 C.C.C. 315, [1937] 2 W.W.R. 455 (Sask. C.A.). Both of these arguments became obsolete when, in the 1953-54 amendments to the Code, common law offences were abolished; counselling and procuring were removed from s. 69 altogether; the phrase "and guilty of" was deleted from s. 69; s. 407 (now s. 422) was enacted, replacing s. 530 and specifically providing for the offence of inchoate counselling, procuring or inciting: J. MARTIN, THE CRIMINAL CODE OF CANADA (1955).