A VANILLA EXTRACT

AN ALTERNATIVE APPROACH TO PROSECUTING COMPLEX GROUP CRIMES

Abstract

Complex group crimes are often prosecuted using the offence of conspiracy. However, when the conspiracy is entirely co-extensive with the accomplished crime it no longer operates in an inchoate manner. Instead, it functions as a proxy mode of liability. Used in this way conspiracy can introduce unfairness and incoherence into the criminal justice system. This article advocates for the recognition of a new mode of liability referred to as Joint Criminal Enterprise [“JCE”] as an alternative to conspiracy for the prosecution of complex group crimes. JCE functions similarly to conspiracy by focusing primarily on the agreement between the parties. It incorporates conspiracy’s insight that united group intentions have a crime enhancing function. The article begins by describing how conspiracy is presently used to prosecute complex group crimes and evaluates its benefits and weaknesses. It then considers the present alternatives of co-principal perpetration, aiding and abetting, and counselling and whether these modes of liability could adequately solve the complex group crime problem. The article then concludes with a distillation of JCE from historical and international sources to recommend it as the tool of choice to prosecute complex group crimes here in Canada.