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R v Hamilton, 2005 SCC 47

Facts:

H sent email saying he had confidential information. Files had instructions on how to set bombs and break into houses. Included program to generate credit card #s. Charged with counseling of a crime. No crime committed

Issue(s):

Is recklessness sufficient to meet the 2nd step of MR? – YES it is sufficient – but recklessness is a specific wording not the general meaning as in Sansregret

Ratio:

Recklessness is permissible to satisfy MR for counseling, but as defined as – Conscious disregard of the substantial and unjustified risk inherent in the counseling

Analysis:

The AR for counseling will be established where the materials or statement made or transmitted by the accused actively induced or advocated, and do not merely describe, the commission of the offence (R v Sharpe).

Counseling
**AR: deliberate encouragement or active inducement of the commission of a criminal offence
**MR: accused either intended the offence counseled be committed, or knowingly counseled the commission of the offence while aware of the unjustified risk that the offence counseled was in fact likely to be committed as a result of the accsued’s conduct

Comments:

Now the MR for counseling is just the intent of the accused that the crime be performed – and that can be satisfied with recklessness if it is a conscious disregard of the substantial and unjustified risk inherent in the counseling


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