Chapter Eleven: Fault – Some Vexing Issues

Chapter Twelve: Secondary Liability

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  Persons, other than the person who directly committed the offence; may be liable.
  
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  Parties “in the first degree:” the people actually committing the offence
  
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  Parties “in the second degree:” people who are also liable because of their participation or involvement with the commission of the offence; they are “secondarily” liable;
  
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  Aiding: the material facilitation of an offence, including the provision of prior aid to a perpetrator (e.x. provision of a vehicle, keeping watch, holding back rescuers, etc.);
  
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    21(1)(b): refers to doing anything for the purpose of aiding; the person must know that he or she is aiding in the commission of an offence;
    
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  Abetting: psychological encouragement during the commission of the offence; has a mental element – the person must intentionally encourage;
  
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  Some factors used to determine whether a person has aided or abetted:
  
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    Presence at material times
    
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    Prior knowledge that the offence was to occur;
    
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    Attendance for the purposes of encouragement;
    
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    Control over the location or the medium through which the principal offender acted (e.g. room, vehicle, etc.)
    
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    Control over the person of the principal offender (e.x. employee)
    
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    Facilitation of offence (e.g. keeping watch, enticing victim)
    
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    Prevention or hindering of interference with performance of a criminal act;
    
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  CC 23.1: a person may be convicted by way of secondary liability, even though the principle offender cannot be convicted;
  
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  CC 21(2): Common Unlawful purpose – a person may be liable for an offence committed by a confederate, even though that offence was not one planner or subjectively expected by the person, if the person and the confederate had formed an intention in common to carry out an unlawful purpose and the person ought to have known that the offence would be committed in carrying out that unlawful purpose;
  
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  To make out an offence under CC 21(2)- “Common Unlawful Purpose” the Crown must prove each of the following elements:
  
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    1. Both parties formed an intention in common to carry out an unlawful purpose;
    
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    2. The principle offender committed an offence, X;
    
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    3. The principle offender committed offence X while carrying out the unlawful purpose;
    
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    4. The accused knew or should have known that the commission of X by the principle offender would be a probable consequence of carrying out the unlawful purpose of committing offence Y;
    
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  The Crown may only establish party liability if the party is proved to have had the constitutionally-required fault under the Charter – this will be discussed later.
  
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  R v Dunlop: appellants were tried twice and convicted on a charge of rape; the judge chose to instruct the jury on s. 21 of the Code; there was no evidence that the appellants had formed any common intention with those involved in the gang rape; the trial judge erred in this respect; a re-trial would have been ordered, however, since this would have been their third trial an acquittal was directed instead;
  
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    S. 21 of the Code: has the general effect of making equally culpable (i) the person who actually commits the offence; (ii) any person who aids or abets in committing the offence and (iii) persons who form an intention to carry out an unlawful purpose leading to the commission of the offence;
    
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    A man’s presence at the scene of the crime does not render him liable as an aider or abettor; he must know the acts are intended and intend to assist the perpetrator;
    
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  R v Jackson: appeal dismissed, conviction affirmed; appellant was convicted at trial for illegally producing marijuana; appeal questions whether the appellant’s conviction amounts to an unreasonable verdict within the meaning of s 686 of the Code; appellant argues that his mere presence at the scene of the crime does not render him guilty; however he was arrested on the grow op site in a tent containing fertilizer; the accused had been there for at least two days; the accused did not give any legal explanation for his presence and it was open to the trial judge to conclude that the appellant’s presence at the scene of the crime was consistent only with his culpable involvement with the production of marijuana;
  
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    Dunlop v the Queen: an accused’s mere presence at the scene of a crime in circumstances consistent with innocence will not support a conviction; relied on by accused;
    
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  R v Greyeyes: appeal on conviction applying s. 21 of the Code on the reliance that “one who assists a purchaser to buy narcotics comes within the definition of aiding or abetting;” here the appellant located the seller, brought the buyer to the site and introduced the parties; here the appellant aided in the trafficking of narcotics; there can be no doubt that the appellant knew he was assisting in the illegal sale of narcotics and that he intended to do so; conviction entered;
  
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    Parliament has specifically excluded purchasers of drugs from being charged as aiding or abetting the trafficking of drugs, although in a sense they do; parliament has chosen to address the culpability of the purchasers in a different fashion (e.x. possession (with intent to traffic))
    
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      There appears to be no legislative intention to exclude middle men;
      
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      “Agency” does not serve to make non-criminal an act which would otherwise be attended by criminal consequences;
      
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    The lower courts held that any act of the person offering assistance to the purchaser, no matter how trivial, can lead to a finding of guilt for this offence; I cannot accept this;
    
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      E.x. bf who driver gf to purchase drugs is not aiding or abetting the trafficker; this is assistance rendered solely to the purchaser;
      
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      The offence of aiding or abetting possession of a narcotic has occurred;
      
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    The definition of trafficking so as to encompass conduct that right-minded people would say is not trafficking is damaging and to be avoided;
    
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  R v Rowley and Currie: the appellants are appealing their convictions for breaking and entering and robbery; the issue at trial was the identity of the robbers; Brian Rowley, a prosecution witness, had pleaded guilty to the involvement in the robbery as a party and testified that the appellants were the principles, however, the judge found that he was not a credible witness; the judge could not conclude which of the three were the intruders; there was sufficient evidence that the three were together before and after the robbery; there is evidence that the non-intruder was a party to the offence; I cannot find that the Crown has proved beyond a reasonable doubt the specific intent to kill,” however he did find both could be convicted as parties to the offence of unlawfully causing bodily harm even accepting that one was a non-intruder; the trial judge was entitled to find that the three participants had an intention in common to carry out an unlawful purpose; appeal dismissed;
  
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    Where evidence of concerted action in the commission of the offence exists, as in the present case, then it is open to a jury to convict all of the accused whether as principals, under s. 229(a) or as aiders and abettors pursuant to s. 21 of the Code, even though the extent of the individual participation in the violence is unclear.
    
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    Included offence: unlawfully causing bodily harm in an included offence to murder; an included offence is part of the main offence – it must contain the essential elements of the offence said to be included; the offence charged must be sufficient to inform the accused of the included offences that he must meet;
    
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    Steinberg v The King: the accused gave no evidence, and while this cannot be commented upon to the jury, it is a factor that must be considered by the appellate court; the failure of the accused to explain in any way facts which place a very heavy onus on his cannot be ignored;
    
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  R v Roach: appellant, Roach, appeals convictions on defrauding the public and conspiring to commit an indictable offence; the main issue on appeal is whether recklessness constitutes a basis for the mental element for an accessory to the commission of the crime; appellant was employed as a meat cutter when Dube offered him a job as a shipper and receiver; appellant opened a bank account and mail box, among other things, in his own name and signed a business agreement; appellant played a large role in the scheme which he contends he thought was legal; the appellant’s state of mind is the sole determinant as to whether or not his conduct should attach criminal liability; because the trial judge erred in not instructing the jury that recklessness would not satisfy the mens rea requirement, a new trial was ordered on both counts and convictions set aside;
  
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    R v Buzzanga and Durocher: general mens rea which is required and which suffices for most crimes where no mental element is mentioned in the definition of the crime, is either the intentional or reckless bringing about of the result which the law seeks to prevent;
    
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    R v Sault Ste. Marie: the doctrine of the guilty mind expressed in terns of intention or recklessness, but not in negligence, is at the foundation of the law of crimes.
    
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    While the authorities are limited and conflicting with regard to the mens rea for party liability for fraud, it is my view that the authorities support the conclusion that recklessness does not satisfy the mens rea of such liability because s. 21(1)(b) refers to the mental element specifically (“for the purpose of aiding another to commit an offence)”
    
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    Purpose is synonymous with intent and does not include recklessness; the accused must have actual knowledge or be willfully blind which is the equivalent of knowledge;
    
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    “With intent” generally excludes lower forms of mens rea such as recklessness;
    
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    “for the purpose” = knowledge + intent
    
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  R v Briscoe: the appellant was charged with kidnapping, aggravated sexual assault, and first-degree murder; at trial, Briscoe was acquitted, however, the CoA overturned his appeals and ordered a new trial; SCC - appeal is dismissed and a new trial ordered; the issue was the extent of Mr. Briscoe’s involvement and whether criminal liability should flow from this involvement; trial judge erred in law by failing to consider willful blindness;
  
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    While it is not thought that Mr. Briscoe participated directly in Nina’s rape and murder, he drove the group to the golf course and stood by and watched the rape and murder; Mr. Briscoe had actual knowledge or was willfully blind to the plan; his actions, carried out with the knowledge of Mr. Laboucan’s plan, made him a party to the offences;
    
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      He aided physically by driving the group to the place; he selected the place which would facilitate the commission of the crimes;
      
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      He told Nina to shutup (abetting?)
      
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      He gave Mr. Laboucan one of the tools;
      
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      He acknowledged that he heard members of the group talk about killing someone earlier that night and knew at west ed he was looking for someone to have sex with;
      
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      He said “whatever you guys wanna do just do it. Don’t do it around me I don’t want to see nothing, I don’t know what the fuck you’re gonna do.” (Willfully blind –recognized need for inquiry – failed to do so)
      
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      Witnessed the two men raping and beating Nina;
      
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    Canadian criminal law does not distinguish between the principal offender and parties to an offence in determining criminal liability (s. 21.1);
    
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    The aider or abettor must have the requisite mens rea however.
    
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    “For the purpose” = knowledge + intent; with regards aiding and abetting:
    
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      Knowledge that the principal offender intends to commit a crime;
      
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      Intent to assist the perpetrator in the commission of this crime;
      
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    Willful blindness can substitute for actual knowledge whenever actual knowledge is a component of the mens rea;
    
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    Recklessness involves knowledge of a danger or risk and persistence anways;
    
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    Willful blindness arises where a person has become aware of the need for inquiry and fails to do so because he wishes to remain ignorant;
    
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  Abandonment: may serve as a defense if there is a clear intention to abandon and there is unequivocal notice (notice not required according to ABCA in Bird – must be considered in context)
  
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  R v Forknall: did not indicate his withdrawl from the plan; a display of queasiness does not constitute intention to abandon, nor can it be said to be unequivocal notice; no air of reality to the defense of abandonment
  
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  R v Bird: woman convicted of manslaughter, aggravated sexual assault, and kidnapping in relation to the murder of Nina Courtepatte; the first-degree murder acquittal/manslaughter charge is at issue in this appeal; because the Crown held that there was no air of reality to the defense of abandonment; respondent hit Nina with a wrench; she left the fairway with KB “taking KB to the car because KB was cold and did not need to see this;” the ‘abandonment’ took place at a time when no force in relation to the murder had taken place yet; majority accepts the defense of abandonment in light of the context arguing she could not have done more without risking her own life; (Costigan, JA dissenting) the evidence in incapable of supporting the conclusion that the respondent unequivocally communicated to the others that she intended to abandon the plan to kill – the effect of the majority decision is to modify the requirements by removing the requirement of unequivocal communication;
  
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    Air of Reality test: is concerned only with whether or not a putative defense should be ‘put in play;’ that is submitted to the jury for consideration; not intended to assess whether the defense is likely, unlikely, or somewhat likely; just asks whether the evidence discloses a real issue to be decided by the jury and not how the jury should decide the issue;
    
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    R v O’Flaherty: a person who unequivocally withdraws from the joint enterprise before the moment of the actual commission of the crime by the principal should not be liable for that crime, although his acts before withdrawing may render him liable for other offences. To disengage from an incident a person must do enough to demonstrate that he or she is withdrawing from the join enterprise. This is ultimately a question of fact for the jury.
    
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    R v Whitehouse: the communication may be through words or actions or both and must be unequivocal.
    
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    Just as a principal can have a change of heart, so may an aider or abettor.
    
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    Respondent bears the evidential burden to show that the defense of abandonment arose on the evidence; the defense would succeed unless it is disproved by the Crown beyond a reasonable doubt.
    
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    Where practical and reasonable there must be timely communication of the intention to abandon the common purpose from those who wish to dissociate themselves from the contemplated crime to those who desire to continue in it;
    
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    Fear does not operate to dispense with the requirement for unequivocal communication as an element of the defense of abandonment, however, context must be considered.
    
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    The depth of prior involvement must be considered in determining whether a change of heart has been communicated in a sufficient and timely fashion.
    
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  Counseling: a person who counsels an offence that is committed is liable under s. 22(1);
  
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  S. 464: holds liable a person who counsels an offence that is NOT committed;
  
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  S. 22(3): “counsel” includes procure, solicit or incite;
  
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  The counseling/procuring/soliciting offence is complete when the solicitation occurs even if the solicitee has no intention of carrying out the matter, rejects the solicitation or renounces solicitation;
  
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  R v Hamilton: offered for sale on the internet a credit card number generator in terms that extolled (praised) its use for fraudulent purposes; he was charged under s. 464 of the Code; he was acquitted at trial because the mens rea of the offence was not made out; Mr. Hamilton actively promoted on encouraged the actions described in them and had subjective knowledge that the use of false credit card numbers is illegal; trial judge had doubt because his motivation was monetary not malevolent, however, this is an error of law; the trial judge’s conclusion that the accused did not intend to induce the recipients to use the numbers for fraudulent purposes is incompatible with the plain meaning of the teaser; new trial ordered
  
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    The actus reus for the offence is the deliberate encouragement or active inducement of the commission of a criminal offence;
    
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    The mens rea consists of nothing less than an accompanying intent or conscious disregard of the substantial and unjustified risk inherent in the counseling;
    
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    Intent: the exercise of a free will to use particular means to produce a particular result;
    
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    Motive: that which precedes and induces the exercise of free will;
    
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  Accessory After the Fact: An accused is liable as an accessory after the fact if the accused knows that a person has been a party to a specific offence, and receives, comforts, or assists that person for the purpose of enabling that person to escape.
  
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    Must prove that the accused knew or was willfully blind to the fact the principle offender committed a specific offence;
    
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    Does not apply to married persons assisting their spouse;
    
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  Disposition of Charges Against Principal Offender:
  
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    S. 23.1: provides that a person who meets that criteria for secondary liability may be convicted even if the principal offender “cannot be convicted of an offence;”
    
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      In proceedings against someone who is secondarily liable, the crown must prove that the principally liable offender committed the offence;
      
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  R v FJS: appeal acquitting the accused on a charge for being an accessory after the fact to murder; issue was whether the respondent can be convicted as an accessory where the principal offender has been acquitted of that offence; since the Crown had proven all elements of the offence a conviction was entered;
  
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    s. 592 of the Code: it is not necessary to convict a principal in order to convict an accessory;