La règle du fait collatéral

R. v. Prebtani, 2008 ONCA 735

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[129]      The appellant submits that trial counsel did not understand the collateral fact rule and was therefore unable to make appropriate submissions when Crown counsel objected to the evidence of the appellant’s young cousin.  She would have testified to an incident when the complainant apparently swore at the appellant in her presence.  This evidence, if believed, would have contradicted the complainant on her assertion that she would never do any such thing for fear it would “trigger him off”. 

[130]      I agree with the appellant that admission of this evidence would not offend the collateral fact rule.  As this court explained in R. v. P. (G.) (1996), 1996 CanLII 420 (ON CA), 112 C.C.C. (3d) 263, at p. 275, subject to certain exceptions, the collateral fact rule prohibits a party from adducing extrinsic evidence to contradict a witness unless the extrinsic evidence is relevant to some issue in the case other than merely to contradict the witness.  In this case, the cousin’s evidence would not merely contradict the complainant’s assertion that she did not swear at the appellant on the occasion in question.  The evidence, if believed, could undermine the complainant’s assertion that the appellant, rather than she, was the verbally abusive party in the relationship.  It could also undermine her broad assertion that she would never swear at the appellant for fear that he would abuse her.

[131]      However, in considering the impact on the reliability of the verdict, the issue is not simply whether more effective submissions could have been made; clearly they could have been.  The issue, it seems to me, is the impact on the reliability of the verdict because of the absence of this evidence, due to counsel’s failure to make appropriate submissions. I am not persuaded that the appellant has shown that the absence of the cousin’s evidence affected the reliability of the verdict.  The appellant has not produced on appeal any evidence from the cousin, and so the exact nature of her proposed testimony is unknown.  It is not possible to know whether the cousin’s testimony was credible nor how serious the alleged swearing incident was, and therefore the extent to which it would have undermined the complainant’s assertion.  It is theoretically possible that the appellant’s defence at trial would have been better had the cousin’s evidence been admitted, but that is not enough to show that the verdict is unreliable.

[132]      This court dealt with a similar problem in Davies, where it was alleged that defence counsel was incompetent in his defence of the accused on charges of impaired driving causing death and criminal negligence causing death.  A particularly damaging piece of evidence was the results of a blood sample taken from the accused.  On appeal, it was argued that defence counsel was incompetent for failing to challenge the admissibility of this evidence.  This court held that the necessary prejudice was not made out solely on the basis of an assertion that the evidence should have been excluded.  As Moldaver J.A. said at para. 55:

Put differently, absent an evidentiary foundation, it is not enough for the appellant to claim that the blood sample evidence might theoretically have been excluded on the basis of some unidentified Charter breach; nor is it enough to speculate that the hospital staff may have taken the sample improperly or that it somehow became contaminated thereafter and that these hypothetical breaches would have been uncovered by more diligent counsel.

[133]      Similarly, in this case, the evidentiary foundation for the submission is not sufficient for this court to determine that the appellant was prejudiced by counsel’s conduct.

L'état du droit quant au contre-interrogatoire d'un accusé

R. v. J.B., 2019 ONCA 591

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[29]      To begin, like any witness who testifies, an accused may be cross-examined on matters that may impair his credibility: R. v. Davison, DeRosie and MacArthur (1974), 1974 CanLII 787 (ON CA), 20 C.C.C. (2d) 424 (Ont. C.A.), at p. 441, leave to appeal refused, [1974] S.C.R. viii.

[30]      As is the case with an ordinary witness, an accused who testifies may be cross-examined on prior out-of-court statements alleged to be inconsistent with his or her in-court testimony about the same subject-matter. But where the out-of-court statement on which the accused is cross-examined is one made to a person in authority, the Crown must ensure that any applicable admissibility rules have been satisfied, including the common law requirement of voluntariness: R. v. Fischer, 2005 BCCA 265, 197 C.C.C. (3d) 136, at para. 41, leave to appeal refused, [2005] S.C.C.A. No. 308; R. v. Groves, 2013 BCCA 446, 301 C.C.C. (3d) 430, at paras. 33, 42.

[31]      On the other hand, unlike an ordinary witness, whose prior inconsistent statement only becomes substantive evidence if the witness adopts it as true by words, action, conduct or demeanour while testifying, an accused witness’ prior inconsistent statement may be used as substantive evidence by the trier of fact for two purposes. First, as with an ordinary witness, the prior inconsistent statement is relevant to the credibility of the accused as a witness. Second, and unlike an ordinary witness, the prior inconsistent statement of an accused who testifies is admissible as substantive evidence as an admission even without adoption: Groves, at paras. 42-44; R. v. Mannion, 1986 CanLII 31 (SCC), [1986] 2 S.C.R. 272, at pp. 277-78.

[32]      Witnesses in criminal proceedings may be cross-examined on prior statements inconsistent with their trial testimony in a variety of different circumstances. A party’s own witness, for example, under s. 9(2) of the Canada Evidence Act, R.S.C. 1985, c. C-5 (“CEA”). Or an opposite party’s witness under ss. 10(1) or 11 of the CEA. As a general rule, in this province at least, where the purpose of the cross-examination is testimonial impeachment, the prior inconsistent statement, which has no intrinsic value as evidence, is not filed as a trial exhibit: R. v. Rowbotham (1988), 1988 CanLII 147 (ON CA), 41 C.C.C. (3d) 1 (Ont. C.A.), at pp. 53-54; R. v. McShannock (1980), 1980 CanLII 2973 (ON CA), 55 C.C.C. (2d) 53 (Ont. C.A.), at p. 56; R. v. Taylor, 2015 ONCA 448, 325 C.C.C. (3d) 413, at para. 50. Thus, it does not go to the jury room with other exhibits for jury review during deliberations.

Qu'est-ce qu'un participant secondaire à la perpétration d'une infraction?

R. v. Almarales, 2008 ONCA 692

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[64]         As a general rule, a person may commit a crime as a principal or as a secondary party. Participation as a secondary party includes aiding or abetting a principal to commit an offence. This general rule, which permits the commission of a crime through participation as a principal or a secondary party, is not a universal rule. Statutory language may confine liability to certain modes of participation. R. v. Nette, 2001 SCC 78 (CanLII), [2001] 3 S.C.R. 488, 158 C.C.C. (3d) 486 at para. 62.

[65]         Secondary participation by aiding or abetting includes both conduct and fault  requirements. Conduct may include acts, omissions (where there is a legal duty to act), words and gestures. The fault element has to do with the aider’s or abettor’s state of mind when engaged in the conduct.

[66]         Section 21(1)(b) applies to aiders. A person is a party to a crime as an aider if that person:

•        Does (or, in the case of a legal duty, omits to do) something that helps the (or a) principal to commit the offence [the conduct requirement]; and

•        Provides the assistance with the intention of helping the (or, a) principal to commit the offence [the fault requirement].

R. v. Maciel (2007), 2007 ONCA 196 (CanLII), 219 C.C.C. (3d) 516 (Ont. C.A.) at para. 86, leave to appeal to S.C.C. refused (2007), 220 C.C.C. (3d) vi; R. v. Hibbert, 1995 CanLII 110 (SCC), [1995] 2 S.C.R. 973, 99 C.C.C. (3d) 193 at paras. 36-37.

[67]         Section 21(1)(c) governs abettors. Despite its use of the verb “abets”, rather than the more expansive “does or omits to do anything for the purpose of abetting”, abetting includes conduct and fault elements similar to those of aiding. A person is a party to a crime as an abettor if that person:

•        Says or does something that encourages the (or, a) principal to commit the offence [the conduct requirement]; and

•        Offers the encouragement by words or conduct with the intention of encouraging the (or, a) principal to commit the offence [the fault requirement].

R. v. Helsdon (2007), 2007 ONCA 54 (CanLII), 216 C.C.C. (3d) 1 (Ont. C.A.) at paras. 43-44.

[68]         A person may be found guilty of first degree murder as a secondary participant in a planned and deliberate murder. Nothing in s. 231(2), which classifies planned and deliberate murder as first degree murder, eliminates or restricts the secondary participation provisions of ss. 21(1)(b) and 21(1)(c).

[69]         A person may be found guilty of first degree murder as an aider of planned and deliberate murder if that person:

•        Did (or, in the case of a legal duty, failed to do) something that helped the (or, a) principal to commit a planned and deliberate murder [the conduct requirement]; and

•        Provided the assistance with the intention of helping the (or, a) principal to commit a planned and deliberate murder [the fault requirement].

[70]         The fault requirement, as in all cases of secondary participation by aiding, consists of two elements: an intention to help the principal and knowledge of the principal’s intention. Maciel at para. 87. An aider must know that the principal intends to commit a planned and deliberate murder, and intend to help the principal to commit a planned and deliberate murder. The aider may acquire his or her knowledge that the murder is planned and deliberate through actual participation in the planning and deliberation, or by some other means. The means of acquiring knowledge are as irrelevant to culpability as proof of knowledge is essential to it. Maciel at para. 89.

[71]         A person may be found guilty of first degree murder as an abettor of a planned and deliberate murder if that person:

•        Said or did something that encouraged the  (or, a) principal to commit a planned and deliberate murder [the conduct requirement]; and

•        Offered the encouragement, by words or conduct, with the intention of encouraging the (or, a) principal to commit a planned and deliberate murder [the fault requirement].

La présence passive sur les lieux d'une infraction n'entraîne pas complicité de l'accusé

R. v. Gure, 2019 ONSC 4951

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[252]      Passively acquiescing to an ongoing criminal act is not aiding or abetting. As Dickson J. explained in R. v. Dunlop, 1979 CanLII 20 (SCC), [1979] 2 S.C.R. 881, at p. 891:

Mere presence at the scene of a crime is not sufficient to ground culpability. Something more is needed: encouragement of the principal offender; an act which facilitates the commission of the offence, such as keeping watch on enticing the victim away, or an act which tends to prevent or hinder interference with accomplishment of the criminal act, such as preventing the intended victim from escaping or being ready to assist the prime culprit.

And at 896:

 

In the case at bar I have great difficulty in finding any evidence of anything more than mere presence and passive acquiescence. Presence at the commission of an 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. There was no evidence that while the crime was being committed either of the accused rendered aid, assistance, or encouragement to the rape of Brenda Ross. There was no evidence of any positive act or omission to facilitate the unlawful purpose.

[253]      What is necessary beyond “passive acquiescence” has been the subject of much discussion. Helping someone in the context of confinement is not enough. In R. v. Laurencelle, 1999 BCCA 511, 28 C.R. (5th) 157, the wife of a kidnapper brought the victim water, loosened his restraints, and allowed him to smoke. The Court of Appeal acquitted the accused. In R. v. Downey, 2009 CanLII 60682 (Ont. S.C.J.), the accused watched the victim as she was sexually assaulted over several days. At one point, the accused loosened the rope at her feet. He was acquitted on a motion for a directed verdict.

[254]      Co-principals, sometimes called joint principals, actually commit the actus reus of the offence and, necessarily, possess the necessary mens rea when they do. Co-principals need not perform every act that makes up the actus reus of the offence: R. v. Mena (1987), 1987 CanLII 2868 (ON CA), 34 C.C.C. (3d) 304 (Ont. C.A.), per Martin J.A. This common participation need not be a result of pre-planning and could be spontaneous. In R. v. Ball, 2011 BCCA 11, 267 C.C.C. (3d) 532, at paras. 24-25, the Court noted:

So also with an attack by two or more on two (or more) victims - an attacker may strike only one victim while others strike the second, or they may all strike both. The attackers are all actual committers. Again, there is no need to resort to accessorial principles to find a basis for conviction.

Where two persons commit a crime as co-perpetrators it may be the case that they have agreed to do so before embarking on the endeavour. For purposes of liability under section 21(1)(a) of the Code, however, agreement to carry out a common purpose is not necessary. The question is whether there is an indication of common participation, not a common purpose.

Une conduite moralement répréhensible ou lâche n'est pas synonyme de complicité à l'infraction

R. v. Downey, 2009 CanLII 60682 (ON SC)

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[22]        In looking at the pieces of evidence of Mr. Roberts’ involvement, taken individually or as a whole, they are simply insufficient to raise his participation past speculation and into the realm of logical inference that he was a s.21 party.   As utterly morally reprehensible and cowardly was Mr. Roberts’ conduct  in standing by while a young woman was tortured and degraded, I find it does not meet the criterion of s. 21 of the Criminal Code.  As Dickson J. (as he then was), said in R. v. Dunlop, 1979 CanLII 20 (SCC), [1979] 2 S.C.R. 881:

                        Mere presence at the scene of a crime is not sufficient to ground culpability.  Something more is needed: encouragement of the principal offender; an act which facilitates the commission of the offence, such as keeping watch on enticing the victim away, or an act which tends to prevent or hinder interference with accomplishment of the criminal act, such as preventing the intended victim from escaping or being ready to assist the prime culprit…

Des gestes gentils que posent un accusé à l'endroit d'une personne séquestrée n'équivalent pas automatiquement à de l'aide et à de l'encouragement

R. v. Laurencelle, 1999 BCCA 511

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X.                   It is my view, with respect, that the passage which I have quoted from the judge's reasons indicates that she lost sight of the principle that the burden of proving participation was on the Crown.  She appears to have imposed a duty on the appellant to leave the house, and perhaps more importantly, she found that the appellant "allowed" McCandless and Biron to remain.  In my view, the evidence provides no reasonable basis for finding a duty to leave or for finding that the appellant allowed McCandless and Biron to remain and continue the confinement.  The evidence, since it all comes from the victim, is very hazy as to what the appellant's relationship was to the house but, from what little evidence there is, it can be taken that she and Biron were both living there and both, to that extent, had some control over the premises.  There is no basis for asserting that the appellant had sole control, and certainly no basis as a matter of common sense for suggesting that she had any effective way of requiring McCandless and Biron to leave.  This case is quite different from the various cases which have found that control can lead to a person being found a party by allowing premises or automobiles to be used in an unlawful manner.

 

XI.              The judge's observation that she was left to wonder whether the appellant said to the victim that she was afraid in order to instill fear in him is mere speculation.  It would almost seem to imply an assumption that the accused should have given evidence, since it was only the accused who could have "left it open to the Court to wonder" why she said that.  However that may be, it was not an appropriate basis upon which to reject the otherwise contradicted evidence that she had expressed fear.  I will observe finally on that point that the suggestion that she was being devious in saying she was afraid is inconsistent with her other behaviour towards the victim.

 

XII.        The Crown submits that the acts of kindness amounted to aiding and abetting the offence of confinement.  With respect, I can find no adequate basis for making that connection.  For those reasons, I would allow the appeal, set aside the conviction, and direct that an acquittal be entered.

Le fait de filmer le déroulement d'une infraction peut la catalyser au point d'engager sa responsabilité criminelle

R. v. D.W., 2008 SKPC 128

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[1]               On January 23, 2008, D.W. filmed an assault that occurred at a high school playground in Hudson Bay, Saskatchewan.  The facts are not in dispute.  The issue is whether or not, by recording  the assault, D.W. is a party to the offence under s. 21 of the Criminal Code by either aiding or abetting his sister, K.W., who was the main participant in the assault on the young victim.  A second issue is whether or not, in stating “get rid of the knife” during that assault, D.W. is guilty of obstruction of justice. 

[17]           I am unable to conclude that D.W. did any act that could constitute “aiding” in the commission of the offences his sister committed.  He offered no aid while the offences were being  committed, and his comment to get rid of the knife cannot be interpreted as an act of assistance.  In my view, he cannot be said to have helped or assisted K.W. to commit the crimes, the test that Twigge directs me to apply.

[18]           As to the “abetting” issue, it may well be that the act of filming the assault acted as a catalyst, or accelerant, in the mind of D.W.’s sister and the other youth involved in this attack.  I note that it appears that K.W. was the driving force behind this scheme, and it may well be, as Mr. Hill argues, that she was going to commit the offences that she did even if D.W. did not film the attack.  However, I need not be concerned here with what K.W. might or might not have done, nor do I need to be concerned with her motives or state of mind.  My concern, as pointed out in Curran, is whether or not D.W. spoke words of encouragement (or did some act that could constitute encouragement), and whether he had the intention to encourage the principal actors.

 

[19]           On these facts, and dealing firstly with the act of recording the attack, I am not entirely convinced that what D.W. did constitutes an encouragement to either of the principals.  In argument, Mr. Hill suggested the act of recording the fight was for future entertainment of K.W., or perhaps for “braggadocio”, aberrant though those purposes might be, and Mr. Healey suggested it was perhaps recorded for the sake of posterity, an objective I would term equally repugnant.  Although there was no evidence as to the express purpose of making the recording, I suspect each of those suggestions may be true.  However, I cannot conclude that the fact of the recording, in this case, was an act of encouragement.

[20]           Moreover, and although it is open to me to infer that the intention of D.W. was to offer encouragement, the second arm of Curran, I am not prepared to do so in this case.  If I had to hazard a guess, I would say that D.W.’s intention was to record the fight for some perverse purpose, such as entertainment value.  But the facts of this case do not support the making of an inference as to the state of mind of D.W. that would be necessary to ground a conviction.