R. v. Root, 2008 ONCA 869
[83] Counselling includes but is not limited to procuring, soliciting and inciting. What is essential is an active inducement or advocacy, not merely the description of the commission of an offence. R. v. Hamilton, 2005 SCC 47 (CanLII), [2005] 2 S.C.R. 432, at paras. 15, 22 and 23; R. v. Sharpe, 2001 SCC 2 (CanLII), [2001] 1 S.C.R. 45, at para. 56. In other words, the actus reus of counselling requires:
• deliberate encouragement
or
• active inducement
of the commission of a criminal offence. Hamilton at para. 29
[84] The mental element or mens rea in counselling “requires nothing less than an accompanying intent or conscious disregard of the substantial and unjustified risk inherent in the counseling” (emphasis removed): Hamilton at para. 29. Said somewhat differently, the prosecution must prove beyond a reasonable doubt that an “accused either intended that the offence counselled be committed, or knowingly counselled the commission of the offence while aware of the unjustified risk that the offence counselled was in fact likely to be committed as a result of the accused’s conduct”: Hamilton at para. 29.
[85] Counselling by procuring or inciting another does not require that the inciter originate or initiate the transaction. R. v. Gonzague (1983), 1983 CanLII 3541 (ON CA), 4 C.C.C. (3d) 505, at p. 508 (Ont. C.A.). In other words, a person may be convicted of incitement, thus counselling, although the plan originated with the party alleged to have been incited. Gonzague at p. 508; Glanville Williams, Criminal Law (The General Part), 2d ed. (London: Steven & Sons, Ltd., 1961) at p. 612; R. v. Goldman, [2001] EWCA Crim. 1684 (C.C.A.).
[86] The preliminary crime of counselling is complete when the solicitation or incitement occurs, even if the incitee rejects the solicitation or merely feigns his or her assent. Gonzague at p. 508.
