R. v. King, 2013 ONCA 417 (CanLII)
[21] This argument engages the common law doctrine of innocent agency. Under this doctrine, criminal liability may attach to a person who does not personally commit the elements of the offence where the person intentionally causes some or all of the elements of the offence to be committed by another person innocent of the offence. A finding of criminal liability through innocent agency is contingent on the degree of control the accused has over the various essential elements of the offence.
[22] The classic example of innocent agency is employing unwitting drug mule. In this example, the offender asks a dupe to transport a package into the country. Unbeknownst to the dupe, the package contains illegal narcotics. Once the dupe is caught, neither the dupe nor the offender would be guilty of importing narcotics under the standard rules for principal liability – the dupe lacks the mens rea (assuming no wilful blindness) while the offender has not personally committed the actus reus. Under the innocent agent doctrine, the offender is held liable because he “caused” the innocent agent to commit the actus reus.
[23] Duty counsel, relying on this court’s decision in R. v. Verma 1996 CanLII 606 (ON CA), (1996), 31 O.R. (3d) 622, argues that the innocent agent doctrine does not apply on these facts. In Verma, the accused was a physician who was approached by an undercover officer posing as a patient. The officer requested and received a prescription for codeine. During the following two weeks the officer returned on two occasions and received prescriptions in exchange for $40 each time. The officer then requested prescriptions in the name of his ‘girlfriend’, Ingrid Floyd, who did not exist. Dr. Verma wrote three prescriptions in the name of ‘Ingrid Floyd’ in exchange for $40 per prescription. Dr. Verma was subsequently charged with trafficking in codeine relating to the ‘Ingrid Floyd’ prescriptions. The trial judge acquitted Dr. Verma on the basis that he had not committed the actus reus of trafficking.
[24] This court dismissed the Crown appeal. Finlayson J.A. held, at para. 34, that to be liable under the innocent agent doctrine, “actions of the innocent agent must be controlled by or directly attributable to the acts of the principal.” In Verma, the doctor merely provided the means by which the “patient” was able, at his own discretion, to obtain narcotics from a pharmacist of his choice. Most importantly, the doctor did not, by signing the prescription, “cause” the pharmacist to fill the order. In short, “the intervention of a non-innocent purchaser” disrupted Dr. Verma’s liability.
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