Facts: Dunlop and Sylvester were members of a biker gang. While they were out drinking, other members of the gang picked up the complainant and took her to a secluded area. She was gang raped in the night; she said the appellants took part but it was dark. During the rape, the appellants claimed to have gone to pick up beer, dropped it off, and left; they claimed not to have participated. At trial, the judge charged the jury about section 21 partyship, which includes aiding, abetting, and common unlawful intention.
Issue: was there evidence to support s. 21 going to the jury? The evidence amounted to the complainant’s testimony vs. the appellants’.
Presence during the commission of an offence can be evidence of aiding and abetting if accompanied by other factors. But by itself it’s not sufficient to ground a charge under s. 21 absent evidence of encouragement, nor can failing to stop a crime being committed.
You can’t be charged with aiding or abetting for crimes you don’t know are or may be intended – you have to show or infer that they had prior knowledge.
Dunlop and Sylvester didn’t know that the rape was happening – they knew there was a shindig at the location, and they brought beer. There’s no evidence to support the inference that they knew what was going on.
The judge also erred in intimating that failing to hinder the offence would be sufficient to ground partyship – it requires a positive act.
Since it was impossible to know if they were found guilty because of their alleged participation or their alleged partyship, the verdict was returned in error. But the evidence was too weak to justify a new trial.
R v Jackson 2007 SCC
Facts: appellant was convicted for producing marijuana, and appealed on the grounds that he was “merely present” at the farm.
Presence at the scene of a crime is one of a set of cumulative factors that can add up to an inference of secondary liability. He was at the scene, but that’s not all – he couldn’t explain why he was there, or why there was growing equipment in his tent, or why there were boots in his size on the premises, or why he was at least acquainted with a few of the other people present when the arrest happened.
Presence supplemented by other circumstantial evidence can allow an inference of partyship if it’s consistent with involvement in the crime. It is the cumulative weight of the evidence, along with the nature of the offence and the totality of the circumstances, that is relevant. A reasonable doubt still has to be raised by the defence to destroy that inference.
R v Greyeyes 1997 SCC
Facts: Greyeyes acted as an intermediary for a drug dealer, and purchased some cocaine on the behalf of an undercover police officer. The officer paid him for his service. More than one attempt had to be made before he succeeded.
Aiding and abetting are discrete concepts – assisting vs encouraging.
Merely purchasing narcotics does not mean that you’re participating in trafficking – “purchasing” is not included as part of the crime in the statute. Possession is a separate crime, which while it could (factually) be aiding or abetting the trafficking, does not incur identical legal liability.
But this only applies to the purchaser – Greyeyes was acting as an agent for the dealer, and there’s no need to extend the exception for purchasers to agents for the dealer (even if they are only intending to help the purchaser). Assisting the purchaser is sufficient to trigger secondary liability for trafficking. It makes the sale possible.
Greyeyes may have desired to aid the purchaser. But he intended to facilitate the dealer’s actions, which makes him culpable.
L’Heureux-Dubé (majority) – for policy reasons, there should be a limited exemption for someone who solely aids a purchaser. Trafficking is serious offence, and the punishment is much harsher than for possession. If a person aids solely the purchaser, they can be party to possession, but it’s only if they aid the dealer that trafficking is appropriate (but that’s a really low threshold – only a whiff of evidence of supporting the trafficker is needed). It would be wrong to punish someone for trafficking if all they do is drive the purchaser to the location to avoid a dangerous neighbourhood.
R v Roach 2004 ONCA
Facts: Roach was duped into participating in a telemarketing scam by distributing “prizes” and depositing the money received through the scam. He had no business experience, and he believed that the telemarketing scheme was legal.
Issue: was Roach party to the fraud, aiding the fraudster?
Criminal liability for partyship should only apply to acts intended to further the principal offence. If you don’t know you’re aiding, then you might be stupid, but that’s not criminal.
Recklessness does not satisfy the mens rea requirement for aiding – the accused must have knowledge or be wilfully blind. The actions have to be done purposively, with an intent to aid. This has to be communicated to a jury.
It is not necessary to show that the accused was fully aware of all of the details of the crime – they merely have to know the type of crime being committed and the general circumstances needed to constitute the crime. Where aid is provided for one offence, and a different offence is committed, that can be sufficient to sever the connection between the aid and the offence (e.g. aiding a theft, then a murder is committed by the primary offender).
It doesn’t make sense to charge someone simultaneously with conspiring to commit an offence and aiding that offence – if conspiracy, they’re primarily liable.
Counselling – R v Hamilton 2005 SCC
Facts: Hamilton sold a package of computer files which included a credit card number generator and information on how to commit crimes. The sales were advertised by emphasizing how they could be used to commit fraud.
Anyone who encourages the commission of a crime in a specified way (counsel, advise, recommend, procure, bring about, solicit, invite, incite, urge, persuade, instigate) is secondarily liable for that crime. It involves a “conscious disregard of unjustified and substantial risk”.
Actus reus: deliberate encouragement or active inducement of the commission of a criminal offence.
Mens rea: intending that the offence counseled by committed, or counselling the commission of an offence while aware of the risk that the offence was likely to be committed as a result of the counseling. It’s similar to recklessness but not identical: it’s advertent conduct + an unjustified and substantial risk that the offence be committed.
This high standard applies to “counseling” done online as well as in person.
Remember to keep motive and intent distinct (Lewis) – why you did something isn’t necessarily relevant to the existence of mens rea.
