PARTIES
Criminal Code, s 21
21. (1) Every one is a party to an offence who
actually commits it;
does or omits to do anything for the purpose of aiding any person to commit it; or
abets any person in committing it.
Individuals who assist, aid or abet in the commission of an offence are equally as guilty as the principal offender. Canadian criminal law does not make a distinction between principals and other parties. So if one is a party to a murder, full criminal responsibility will result – in that case, a mandatory life sentence.
POLICY CONSIDERATIONS
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Don't want to reward people who participate slightly less in a crime
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Can create problematic issues with mens rea and parties to serious offences
R v. BRISCOE [2010] SCC
FACTS
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Group of varied ages (from young offenders to eldest, Briscoe, who was 34) randomly targeted an adolescent girl, took her to a golf course where she was sexually assaulted and murdered. Briscoe drove the car to the golf course and opened the trunk to provide weapons. Briscoe said he expected something bad to happen, but did not directly participate in the sexual assault and murder, though he restrained the victim at one point and witnessed the crimes. Trial Judge finds enough evidence for a charge of aiding and abetting murder, but not for a charge of 1st degree murder. Crown appeals, and Court of Appeal finds an error in law in the trial judge's failure to consider willful blindness and orders a new trial. Accused appeals as of right to SCC.
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RULING
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Based on these facts, no debate that the A meets the requirements for the actus reus of the offence of aiding/abetting the murder. The key issue is mens rea. What mental elements attach to doing something for the purpose of aiding someone to commit the offence? The court says that both knowledge and intention are required:
a party has to know what the principal intends to do, and then
do something with the intention of assisting them.
The party doesn't necessarily have to share the principal's intention to commit the offence. Willful blindness is sufficient to constitute knowledge of the offence the principal intends to commit. A new trial was ordered as the TJ had not considered the case on these grounds.
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RATIO
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MR of s 21(1):
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a party has to know what the principal intends to do, and then
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do something with the intention of assisting them.
But the party doesn't have to share the principal's intention to commit the offence.
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A number of the key parties cases involve murder.
R v FRASER [1984] BCCA
FACTS
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Robbery case (assault + intent to steal). Group of men drinking in the park, assault a man and steal his wallet. Acknowledged by the Crown that intoxication is available as a defence because robbery is a crime of specific intent. There is no evidence that Fraser took part in the assault, so the Crown's theory is that he was a party to the assault. A wants to argue intoxication in defence to the included offence of assault - TJ refuses to charge the jury on that point because assault is general intent, and A is convicted.
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RULING
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BCCA overturns this because jury should have been charged on intoxication because being party to an assault is specific intent, even if assault is not. There's no way that intoxication could successfully defend for the specific intent of stealing, but not for the specific intent of being party to the assault.
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RATIO
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Being a party to an offence is always a crime of specific intent, and intoxication is therefore always available as a defence. Intoxication can't negate one specific intent portion of a crime and not the other.
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Q: What degree of participation qualifies as aiding or abetting? How much help is required?
R v DUNLOP & SYLVESTER [1979] SCC
FACTS
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Charged before the reformation of rape law. A are charged with rape of a teenage girl as part of a motorcycle gang rape. Victim meets gang at a bar, accompanies them to a dump site and is separated from her friends. Victim is then raped by 18 different men as part of an initiation. Victim testified that she could identified the A. A testified that they observed but did not participate - it becomes a parties case. TJ charges the jury that they can convict A as parties to the offence if they merely watched, and this is the issue on appeal.
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RULING
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Held for the A. The TJ should not have charged the jury on parties based on the A's testimony, as mere presence at the scene of the crime is insufficient to qualify as aiding or abetting (hardened urbanite ignores crime in the subway station). Conviction is overturned and no new trial is ordered because the A had gone through 2 trials already.
DISSENT
A met the victim earlier in the bar and there is sufficient circumstantial evidence suggests that they helped orchestrate the victim's abduction - this would qualify them as aiders or abettors.
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RATIO
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Being a bystander at the scene of the crime is insufficient to be a party.
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But the A were part of the same gang - doesn't their mere presence disincentivize the victim's escape? Yes.
Or if they knew that a group sexual assault was taking place and they brought beer? That would be assistance!
Or could their mere presence qualify as assistance in creating an audience for the group sexual assault? Yes.
On exam, look to the surrounding evidence to make an argument that mere presence is not being a bystander, but is being part of the team committing the offence, who might not be doing anything but is encouraging, keeping watch or ready to do something.
R v. JSR [2008] ON CA
FACTS
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JSR, the southbound shooter, got into a shootout on Yonge street. Victim was killed in the crossfire, but by a bullet from the northbound shooter. Not clear whether it was first bullet or second or third, etc. JSR's counsel argued it was a reasonable possibility that the first bullet from the northbound shooter's gun killed the victim and therefore it would not be possible to determine beyond a reasonable doubt that JSR was a significant cause of the murder. Further, it may be that the northbound shooter's bullet might have killed the victim before JSR had fired his gun.
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RULING
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Court finds for the Crown - JSR agreed to engage in a gun battle on Yonge St. and so can be found to be engaged in a dangerous joint enterprise that could be a significant and contributing factor to the victim's death. They both caused her death. After causation is settled, the issue is now whether JSR should be convicted with murder or manslaughter. JSR lacks the intention to kill the victim, specifically. The court considers the potential liability as a party to murder based on the Crown's arguments per s 21(1) and s 21(2) (the common intention provision). The ON CA finds that s 21(1) and s 21(2) does not apply because the shooters did not share a common intention - they wanted to kill each other. This isn't a parties case. Court goes on to find that JSR can stand trial for murder under the unlawful object murder provision 221(c).
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RATIO
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The parties provision doesn't apply to two people at cross-purposes, even if they are both participating in the same illegal transaction. Joint activity cannot be equated with common intention for the purposes of s 21(2).
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NOTE: "Ought to have known" in s 21(2) is read down as unconstitutional because it is an objective fault standard.
R v THATCHER [1987] SCC
FACTS
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A is a former cabinet minister from Saskatchewan who is convicted of the murder of his former wife, Wilson. There was a history of domestic abuse and a very rancorous divorce. As the divorce was proceeding, Wilson was shot in the shoulder through her kitchen window. No charges were filed, but in response Wilson gave up custody of their youngest child and accepted a smaller financial settlement. 3 years later, Wilson was murdered by being badly beaten and shot in her garage. Circumstantial evidence suggests that Thatcher was responsible - receipt with his name on it discovered in her, evidence that he had bought a gun, tried to hire someone to kill her, his car spotted staking out the house, and the violence of the beating suggesting that the killing was emotionally motivated. Also evidence to the contrary in Thatcher's alibi - a number of people willing to testify he was playing basketball at the time of Wilson's murder. Some evidence to suggest that Thatcher had hired someone to kill Wilson. Crown argued that Thatcher did the killing or in the alternative had hired someone to kill her. Jury is instructed on these two bases and convicts. Thatcher argues on appeal that the jury had to be unanimous on the material facts and thus the basis for liability, not just the verdict.
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RULING
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The Court rejects this argument - there is no requirement for the jury to be unanimous on the basis for liability. Juries are allowed to differ on the weighting of the evidence - this is similar. Court rejects the argument that fundamental justice requires the jury to agree on this point.
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RATIO
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Juries don't have to be unanimous on the basis of liability in order to convict so long as the basis leads to the same crime.
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R v LOGAN [1990] SCC
FACTS
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The A were convicted as parties to an attempted murder by an accomplice that occurred during the course of a series of robberies. The A argued that to be convicted as a party to an attempted murder, s. 7 of the Charter required proof of subjective mens rea (an intent to kill or knowledge that death was substantially likely).
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RULING
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The majority of the Supreme Court agreed, and held that where a minimum level of mens rea is required for the commission of the substantive offence by a principal offender, that same minimum level of mens rea is required before an accomplice can be convicted of being a party to the offence. The constitutionally minimal level of mens rea for conviction for attempted murder was subjective foresight of death. This meant that the phrase “ought to have known” in s. 21(2) was unconstitutional as it applied to the offence of attempted murder.
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RATIO
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Where a minimum level of MR is required for the commission of the offence by a principal offender, that same minimum is required before an accomplice can be convicted of being a party to the offence.
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