Accessory After the Fact
|This page was last substantively updated or reviewed July 2021. (Rev. # 78974)|
Section 23 defines "accessory after the fact":
An accessory to an offence is not the same as a party to an offence. It is a separate offence that is committed subsequent to the initial offence. An offender under s. 23(1) is an independent substantive offence.
- Mens Rea
The accused must know that that the person they are assisting was a principle or party to an offence, and the assistance must be for the purpose of enabling the person to escape. It is not sufficient that the accused merely do an act that enables the escape.
The accused must have "an ulterior intention or desire to assist for the purpose of an escape".
All evidence that has been found admissible for the principle will be admissible against the accessory.
The conviction of the principle is admissible to prove that the principal committed the offence.
The following actions have been found to amount to the offence of accessory:
- assisting the principle by giving him information or aid.
- hiding the principal offender
- concealing evidence 
- giving false information to authorities including participating in a fake alibi 
- Lesser Included Offences
Accessory after the fact to manslaughter is a lesser included offence to accessory after the fact to murder.
- R v Vinette, 1974 CanLII 165 (SCC),  2 SCR 222, per Pigeon J
- R v Hibbert, 1995 CanLII 110 (SCC),  2 SCR 973, per Lamer CJ, at para 26
- R v McVay, 1982 CanLII 3684 (ON CA), 66 CCC (2d) 512 (ONCA), per Martin JA
- R v Camponi, 1993 CanLII 1163 (BC CA), 82 CCC (3d) 506, per Wood JA, at para 10
- Vinette, supra
- R v Duong, 1998 CanLII 7124 (ON CA), 124 CCC (3d) 392, per Dohterty JA see also s.657.1 relating to criminal records
R v Young, 1950 CanLII 380 (QC CA), 98 CCC 195, per St Jacques JA
R v Campbell, 2002 NSCA 35 (CanLII), 163 CCC (3d) 485, per Bateman JA
- White, supra
- R v Knuff, 1980 ABCA 23 (CanLII), 52 CCC (2d) 523, per Moir JA
- R v French, 1977 CanLII 53 (ON CA), 37 CCC (2d) 201, per MacKinnon JA aff'd  1 SCR 148
- R v Webber, 1995 CanLII 333 (BC CA), 102 CCC (3d) 248, per Legg JA, at para 27
Effect of the Principal or Party Verdict
Under the operation of s. 593, it is not necessary that the principal be convicted to sustain a conviction of accessory after the fact.
It is not necessary for the principle or party to the main offence be charged or convicted for it for an accused to be convicted as an accessory. But if the principle or party is acquitted, then the accused cannot be convicted. However, R v S(FJ), 1998 CanLII 842 (SCC),  1 SCR 88, per Lamer CJ seems to go so far to say that the words "Whether or not the principal is convicted" can include an acquittal.