Table of Contents
Under Canadian criminal law, attempts, conspiracies, accessories are ways a person can be held criminally responsible even when the main crime is not completed or when they help someone after the crime. Section 463 of the Criminal Code (Part XIII) sets out how punishment works when a person attempts an offence, conspires to commit an offence, or acts as an accessory after the fact. This violation is tracked under UCR Code 3830 and is generally treated as a hybrid offence, meaning it can proceed either summarily or by indictment depending on the underlying crime. The seriousness of the sentence always depends on how serious the original or “underlying” offence is.
The Legal Definition
“Except where otherwise expressly provided by law, the following provisions apply in respect of attempt, conspiracy or being an accessory after the fact to an offence:
(a) where the maximum punishment for the offence is life imprisonment, every one who attempts to commit or is an accessory after the fact to that offence is guilty of an indictable offence and liable to imprisonment for life;
(b) where the maximum punishment for the offence is imprisonment for fourteen years or more but less than life, every one who attempts to commit or is an accessory after the fact to that offence is guilty of an indictable offence and liable to imprisonment for a term not exceeding one-half of the maximum punishment for that offence;
(c) where the maximum punishment for the offence is imprisonment for less than fourteen years, every one who attempts to commit or is an accessory after the fact to that offence is guilty of an indictable offence and liable to imprisonment for a term not exceeding one-half of the maximum punishment for that offence; and
(d) where the offence is punishable by summary conviction, every one who attempts to commit or is an accessory after the fact to that offence is guilty of an offence punishable on summary conviction.”
This definition, found in section 463 of the Criminal Code, explains how the law treats people who are not the main offender, or who act before a crime is completed. The key idea is that the penalty is tied directly to the maximum sentence of the underlying offence. If the main offence is punishable by life imprisonment, then an attempt or being an accessory after the fact can also carry life imprisonment. If the main offence has a lower maximum, the attempt or accessory liability is usually capped at one-half of that maximum.
In plain English, this means that Canada treats attempts, conspiracies, and accessories as serious forms of participation in crime. You do not need the underlying offence to be completed for you to be charged. For example, you can be charged with attempting a robbery even if the robbery never happens, or being an accessory after the fact to assault even if you were not present when the assault occurred, provided you helped the offender escape knowing what they did.
Penalties & Sentencing Framework
- Mandatory minimum penalty: None for attempts, conspiracies, or accessories under s. 463.
- Underlying offence punishable by life imprisonment: Attempt or accessory after the fact is an indictable offence, maximum penalty of life imprisonment.
- Underlying indictable offence with maximum of 14 years or more but less than life: Attempt or accessory after the fact is indictable, maximum penalty up to one-half of the underlying maximum (capped at 14 years where applicable).
- Underlying indictable offence with maximum of less than 14 years: Attempt or accessory after the fact is indictable, maximum penalty up to one-half of the underlying maximum.
- Underlying offence punishable by summary conviction only: Attempt or accessory after the fact is a summary conviction offence, with the same type of summary-level punishment framework.
- Hybrid nature: Overall severity (summary vs indictable) follows the classification of the underlying offence or the special rules in s. 463.
The sentencing framework for attempts, conspiracies, accessories is unusual because it does not create a standalone fixed penalty. Instead, it borrows the seriousness of the main offence. If the underlying offence is extremely serious, such as murder (maximum life), then attempting that offence or being an accessory after the fact can be just as serious and may also expose you to life imprisonment. By contrast, if the underlying offence carries a five-year maximum, an attempt or accessory charge will generally expose you to a maximum of 2.5 years.
Although section 463 directly addresses attempts and accessories after the fact, similar principles apply to conspiracies, which are dealt with in section 465. Some conspiracies—such as conspiracy to commit murder—also carry maximum penalties as high as life imprisonment. Courts will consider the planning stage, the level of organization, and the potential harm when determining the exact sentence within the available range. Importantly, there are no mandatory minimums specified in s. 463 itself, but some underlying offences have their own mandatory minimums, which may influence how the Crown charges or how the court views overall moral blameworthiness.
The hybrid nature of this category means the Crown has flexibility. If the underlying offence is itself hybrid or summary, an attempt or accessory allegation may be prosecuted summarily, typically leading to lower maximum penalties and different procedural rules (shorter limitation periods, simplified procedures). Where the underlying offence is strictly indictable, the attempt or accessory charge will generally be indictable too, triggering more serious procedural protections (such as jury trials for the most serious matters) and higher sentencing ranges.
Common Defenses
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Lack of intent to assist or attempt the offence
For all forms of liability under attempts, conspiracies, accessories, the Crown must prove a guilty mind (mens rea). For attempts, this means an intention to bring about the underlying offence and steps that go beyond mere preparation. For being an accessory after the fact, section 23(1) requires that the person know someone was a party to an offence and then receive, comfort, or assist that person to help them escape. If the accused did not know about the crime, misunderstood the situation, or had no intention to assist the underlying offence, they may argue lack of intent. For conspiracy, there must be a true agreement to commit an offence. Casual talk, boasting, or vague discussion usually is not enough. Demonstrating that there was no genuine agreement or that any acts taken were not done with the necessary criminal intent can defeat the charge.
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Duress
Duress may be available where the accused was compelled to participate in an attempt, conspiracy, or accessory conduct because of threats of death or bodily harm. For example, a person forced at gunpoint to drive a getaway car or to hide an offender after a crime may raise duress. The law of duress in Canada is technical and requires that the threat be serious, immediate (or nearly so), and that there be no safe avenue of escape. The defence does not excuse all behaviour and has limits, especially for some of the most serious offences. However, for many charges under the attempts, conspiracies, accessories framework, evidence of duress can negate the voluntary nature of the accused’s participation, potentially resulting in an acquittal.
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Wrongful identification or mere preparation
For attempts and conspiracies, courts distinguish sharply between mere preparation and a true attempt. Preparation involves getting ready—buying tools, travelling to a location—while an attempt involves steps that are sufficiently close to committing the offence itself. If police intervene too early, the accused may argue they never went beyond preparation. Likewise, in cases involving accessories after the fact, the Crown must prove the accused actually assisted the offender knowing of the offence. If the wrong person is identified, or if the accused’s actions are consistent with innocent behaviour (for example, giving someone a ride without any knowledge of the crime), then wrongful identification or a failure to prove acts beyond preparation can operate as a powerful defence. The burden remains on the Crown to prove, beyond a reasonable doubt, that the accused’s conduct and state of mind met the legal threshold for attempt, conspiracy, or accessory liability.
Real-World Example
Imagine two individuals planning to rob a bank. They gather supplies, map out the bank’s layout, buy masks and a fake gun, and meet at a parking lot near the bank to finalize the plan. Before they enter the bank or show the fake gun, the police—acting on a tip—arrest them. Even though the robbery never happens and no money is taken, the pair can still face serious charges. Their coordinated planning and agreement may amount to conspiracy to commit robbery. Depending on how far they went, their actions could also be treated as an attempted robbery if the court finds they took steps beyond mere preparation. If a third person later hides one of these would-be robbers from the police, knowing about the planned robbery, that third person might be charged as an accessory after the fact. Under section 463, the maximum penalties for each person will depend on the maximum sentence for robbery in the Criminal Code. The more serious the underlying robbery offence, the more serious the potential sentence for the attempt, conspiracy, or accessory participation.
Record Suspensions (Pardons)
Record suspension eligibility for attempts, conspiracies, accessories follows the rules that apply to the underlying offence and its mode of prosecution. If the underlying offence is prosecuted summarily, the record suspension waiting period is generally shorter (for example, a 5-year wait after completion of sentence under current Parole Board of Canada practices, subject to legislative changes). If the underlying offence proceeds by indictment, the waiting period is typically longer (often 10 years after sentence completion). Because attempts, conspiracies, and accessories mirror the seriousness of the main offence, a person convicted of attempting a life-maximum offence may face the longest waiting periods and the strictest scrutiny for a record suspension. Importantly, some offences linked to life sentences or serious violence may face additional barriers or ineligibility under evolving federal law. Anyone considering a record suspension for a conviction under section 463 should review up-to-date Parole Board guidelines or consult counsel, as the exact eligibility depends on how the original charge was classified (summary vs indictable) and what the underlying offence was.
Related Violations
- Conspiracy to Commit Murder
- Accessory After the Fact to Murder
- Attempted Robbery
