Mr review 6 ignorance of law 6

R v Helsdon ONTCa p 545 [21(1)(b) imposes HIGH MR, A must know or be willfully blind

Issue: whether appeal judge erred in finding that A had necessary MR to make him liable as an aider of abettor under ss 21(1)(b) or (c) of code to the offence of publishing article

Decision: Restore verdict of Acquittal

Reason:

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  S 486(5): offence does not req subjective knowledge of existence on publication ban
  
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  Crown must only establish intent to publish offending info, upon proof of failure to meet an objectively determined standard of care
  
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  Whether the MR necessary to hold A liable as aider or abetter to the offence is the same as that for the principal, or if, as A argues, is higher, requiring an element of subjective MR to the existing of the publication ban
  
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  A’s act in preparing and filing the offending article with the newspaper for publication was sufficient to constitute the AR necessary to make him an aider to Annex’s offence under s 21(1)(b)
  
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  Crown Argues:
  
  • 
    MR for aider  only objective test
    
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    If subjective MR, than all members of media would escape liability for breaching publication bans, since Crown would have to prove they knew ban was in place
    
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  Disagrees with Crown
  
  • 
    21(1)(b) imposes HIGH MR
    
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    Objective mental element inconsistent with expressed requirement of “purpose” which = intent
    
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    Ex. R v Roach rejects that subjective recklessness was sufficient to satisfy MR for party liability
    
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    Crowns argument that when offence does not use full MR, 21(1)(b) should also not use full MR is WRONG. This would require reading down plain language of 21(1)(b)
    
  • 
    Jackson does not stand for proposition that only Objective is necessary, only that importing objective MR element applied solely to consequences of unlawful act
    
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  21(1)(C) does not require “for the purpose” but Crown must prove that A intended his words or acts encourage the principal
  
  • 
    Courts commonly treat MR requirement as the same
    

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  Party liability requires AID or ABET for the purpose
  
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  This means WITH INTENT
  
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  Heldson: where element of offence normally objective, party guilty ony where SUBJECITVELY knew
  
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  True also of reckless elements
  
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  BUT conequens of unlawful acts treated the same way
  
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  IF if know the other person will assault, I can be guilty of manslaughter if victim dies (reasonable foresight of bodily harm) (and elements met)
  

A and G hate Bob. Bob sees A&G start running. A trips Bob to stop him. Greg then beats bob up. Bob dies from injuries. A says he only thought Greg was going to beat Bob up, not kill him.

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  Even though statute says “for the purpose”. He subjectively knew that he was helping Greg assault.
  
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  But helper should not get off bc 21(1)(b) requires subjective MR
  
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  Where a person commits an unlawful act, or assists knowing of the commission of an unlawful act, that has consequences
  
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    That person is liable so long as its reasonably foreseeable
    

R v Popen 1981 p 549 [Must know what is going to happen, must know that you are helping]

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  Wife beat newborn. Husband shocked, or otherwise unable to react. Charged as party to manslaughter.
  
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  Court held: no evidence that A had done or omitted to do anything for the purpose of aiding his wife inflict injuries on child
  
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    Even if his omission to act had effect of aiding, no evidence to prove it was for the purpose of aiding
    
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    The fact that he was shocked gets him off party liability
    
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  Where D has right to control actions of another and deliberately refrains from exercising it, his inactivity may be positive encouragement to other to perform act, and therefore as aiding and abetting
  
  • 
    BUT A was never present during abuse of child
    
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     Could be criminally negligent for failing to protect child
    
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    Necessaries of life in s 197 = duty to protect child from harm (also echoed in CL)
    

R v Palombi 2007 p 550 [Must know what you are doing is going to help, and also intend to help. By omitting to help does not automatically= encourage/intending to help]

Facts: Take newborn home. Unclear who abused the child. A charged with aggravated assault

Issue: Can A be a party to the offence?

Decision: Order new trial

Reason:

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  Party Liability
  
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    He omitted to act while under a duty which helped his wife commit crime
    
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    A, by failing to intervene to protect child, assisted/encouraged co-accused in assault of child
    
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    Jury instructed that Palombi is guilty if “she had knowledge of the type of offence” being committed by partner
    
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    Knowledge of acts not enough
    
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    Where the point was made that knowledge of the principal offender’s acts can be cogent evidence of requisite MR,
    
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      Whether in fact A had requisite intent always remains question for jury
      
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  She Must act or fail to act with intent to help
  
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  Sankoff says: she should be guilty if she knew the act was taking place, and be morally certain that her omission contributed to the act taking place.
  
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  Palombi wants subjective thought of KNOWING you are assisting, is necessary to be criminally guilty.
  
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  Palombi develops Dunlop and Sylvester. Knowing of the act is not enough. Must know you are assisting.
  

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