CDN Position on Party Liability

Modes of Party Liability (Section 21) Examinable

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  Person who commits the offence s 21(1)(a)
  
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  Aids in commission of the offence s 21(1)(b)
  
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  Abets the commission of the offence s 21(1)(c )
  
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  Common intention s 21(2)
  
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  Counseling s 22(1)
  

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  He is a party to the offence under s 21(1) because they acted together. They do not need to be parties to every act, but they are in agreement that they will commit the offence.
  
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  Step 1: Are they are Party? If they are in agreement that they will commit the offence.
  
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  Step 2: Was the AR committed? Yes
  
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    Do not need to attach every element of AR to every actor to get them as a “party”
    
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  Step 3: Do they have MR? Yes
  

TH: Ryan Gosling in Drive: Aided in commission of the offence under s 21(1)(b).

 Don’t need to go down path of common intention because you can get him for willfully blind.

Section 21(1)(b): Aiding

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  Limitation: the law of omission has been incorporated into this provision. Only punished for an omission to a party if you had a duty to do something
  
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    Example: case from 1^st term where dad let son grow weed on his land. Dad acquitted, not a party because he had no duty to report his son.
    
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  BUT – not all omission are omission
  
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  Lai, 2006:
  
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    Group of young people enter karaoke bar and beat victim to death. Accused did not beat, but was part of group that entered hallway in threatening way.
    
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    Not an omission.
    
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    Accused acted with goal of crowding the area to “prevent or hinder interference with accomplishment of criminal act”
    
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  For the Purpose: intentionally or with knowledge (including willful blindness)
  
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    Imposes higher MR requirement than some of the crimes for which person is charged
    
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    Roach 2004
    
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      Accused charged with assisting in fraud
      
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      Fraud committed when person dishonest and reckless about whether other will be deprived
      
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      Jury charged that Roach guilty if he was reckless about whether victims would lose
      
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      Conviction overturned. Could not be convicted unless he acted for the purpose of depriving (with full intention)
      
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  Caveat: with predicate offences
  
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    Example: Joe decides to commit a robbery. He does all the work, but his friend Brian helps him out by supplying him with a shotgun, knowing that Joe plans to rob a bank. A bank is robbed and Joe is charged, but he is acquitted. The police then find out about Brian and charge him.
    
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      Under the circumstances: Brian can be convicted.
      
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      Does not matter if the offence ever takes place, or if Joe is acquitted. BUT healthy discount in sentencing because there was no harm.
      

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  Joe could be convicted just for standing outside, so long as he did so for the purpose of aiding the robbery.
  

R v Greyeyes 1997 p 531 [If your assistance is directed to purchaser, person charged is aiding possession, not aiding trafficking]

Issue: Can A be charged with trafficking?

Decision: Greyeyes is guilty of trafficking.

Reasons: (Lheureux Dube J) (Narrow)

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  His assistance was essential to complete the sale – never would have taken place without him.
  
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  Traffic: “sell administer, give, transfer, transport, send or deliver the substance”
  
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  Creative judicial solution: You can either be a party to possession OR trafficking. KEY: whether your assistance is directly incidental to the purchaser.
  
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    If your assistance is more in assisting the purchaser, proper charge would be aiding an abetting the possession of narcotic, not trafficking.
    
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    In this case, he did the negotiating, he accepted money after the fact
    

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  Anyone who buys is helping in the selling = essentially aiding
  
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  The purchaser can be convicted of trafficking.
  
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  Greyeyes was acting not just as a purchaser, but also as an agent
  
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  Anybody except the purchaser is guilty!
  
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  Nuances can be dealt with in sentencing
  

Dunlop and Sylvester v The Queen SCC 1979 p 537 [Mere presence is not enough to ground liability, must HELP and have knowledge about what is going to happen]

Decision: Not guilty of aiding and abetting

Reasons:

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  Mere presence not enough – needs encouragement of principle offender, an act which facilitates commission of the offence
  
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    Ie. Keep watch on enticing victim away
    
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    Ie. Act which tends to prevent or hinder interference with accomplishment of the criminal act  preventing escape, being ready to assist prime culprit
    
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  Presence at commission of offence can be evidence of aiding and abetting if accompanied by other factors, such as prior knowledge of the principal offender’s intention to commit the offence or attendance for the purpose of encouragement.
  
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  Person is not guilty because he is present at the scene and does nothing to prevent it
  
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  One must be able to infer that A had prior knowledge that an offence of the type committed was planned ie. their presence was with knowledge of the intended rape
  

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  It’s for the jury to decide. There was sufficient
  

R v Jackson SCC 2007 p 542 [Mere presence is enough to ground acquittal, but if evidence can show more than mere presence, court can conclude guilty.]

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  Difference btw law of evidence and criminal liability
  

Decision: presence of crime in circumstances consistent with innocent will not = innocence. Evidence finds otherwise, being at crime scene for 5 days, even though not actually caught in act.

R v Salajko 1970 p 539 [Mere presence not enough to convict]

Facts: Girl raped by 15 men in a field. 3 charged. 2 identified as having sex. She admits one guy didn’t rape her, but pleasured himself watching.

Decision: Mere presence is not enough to convict

Today: Sankoff: would be decided differently today. He is essentially part of a gang that has decided to gang rape, he is encouraging and signaling approval.

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