[38] In order to be guilty of any offence as an “aider,” within the meaning of s. 21(1)(b) of the Code, the Crown must prove that the accused: (1) intentionally engaged in some conduct that actually assisted the principal in committing the offence; and (2) intentionally engaged in that conduct for the purpose of aiding the principal in the commission of the offence. Accordingly, as the governing jurisprudence reveals, the mens rea requirement for an “aider,” as reflected in the term “purpose,” has two components: intention and knowledge. The alleged “aider” must have both: (1) intended to assist in the commission of the offence; and (2) known that the perpetrator intended to commit the crime, although the “aider” need not know precisely how the offence will be committed. See R. v. F. W. Woolworth Co. (1974), 1974 CanLII 707 (ON CA), 3 O.R. (2d) 629 (C.A.), at p. 640; R. v. Hibbert, 1995 CanLII 110 (SCC), [1995] 2 S.C.R. 973, at pp. 994-997, 1001-1004; R. v. Maciel, 2007 ONCA 196, at para. 87-89; R. v. Briscoe, 2010 SCC 13, at paras. 14-18
[39] In order to be guilty of an offence as an “abettor,” within the meaning of s. 21(1)(c) of the Code, the Crown must prove that the accused: (1) said or did something that actually encouraged, instigated, promoted or procured the crime to be committed by the principal; and (2) uttered the words or engaged in the conduct with the intention of encouraging, instigating, promoting or procuring the commission of the offence by the principal. In short, the alleged “abettor” must have intentionally acted to encourage the principal in the commission of an offence. See R. v. Greyeyes, 1997 CanLII 313 (SCC), [1997] 2 S.C.R. 825, at pp. 837, 842; R. v. Curran (1977), 1977 ALTASCAD 284 (CanLII), 38 C.C.C. (2d) 151 (Alta.C.A.), at pp. 156-157, leave denied, [1978] 1 S.C.R. xi; R. v. Rochon (2003), 2003 CanLII 9600 (ON CA), 173 C.C.C. (3d) 321 (Ont.C.A.), at paras. 53-61; R. v. Helsdon, 2007 ONCA 54, at para. 43; R. v. Chambers, 2016 ONCA 684, at paras. 36-38.
[40] Mere physical presence at the scene of a crime, and passive acquiescence in its commission, is never enough, standing alone, to justify a conclusion that an accused is a party to the offence as an aider or abettor of that offence. Mere passive physical presence does not establish the culpable participation of an accused in the crime committed by another. Sometimes people are just in the wrong place at the wrong time. However, presence at the scene of the crime can be evidence of aiding and abetting if it is accompanied by other factors, such as prior knowledge of the principal offender’s intention to commit the offence, or attendance at the scene of the crime for the purpose of encouragement of the principal offender. Where it may reasonably be inferred that the accused was acting in concert with the principal offender, then it may also reasonably be inferred that the presence of the accused at the scene of the crime was for the purpose of intentionally aiding or abetting the principal offender in the crime committed. See R. v. Dunlop and Sylvester, 1979 CanLII 20 (SCC), [1979] 2 S.C.R. 881, at pp. 896-897; R. v. Coney, (1882), 8 Q.B. 534, at pp. 539, 557; R. v. Preston, 1949 CanLII 64 (SCC), [1949] S.C.R. 156, at pp. 159-160; D.P.P. v. Maxwell, [1978] 3 All E.R. 1140 (H.L.), at p. 1144; R. v. Sparrow (1979), 1979 CanLII 2988 (ON CA), 51 C.C.C. (2d) 443 (Ont.C.A.), at pp. 457-458; R. v. Thatcher, 1987 CanLII 53 (SCC), [1987] 1 S.C.R. 652, at p. 668; R. v. Wood (1989), 1989 CanLII 7193 (ON CA), 51 C.C.C. (3d) 201 (Ont.C.A.), at pp. 220-221, leave denied, [1990] S.C.C.A. No. 73; R. v. Sauvé and Trudel (2004), 2004 CanLII 9054 (ON CA), 182 C.C.C. (3d) 321 (Ont.C.A.), at para. 136, leave denied, [2005] 1 S.C.R. xv; R. v. Arias-Jackson, 2007 SCC 52, at paras. 3, 9.
[41] For example, in the leading Supreme Court of Canada decision in R. v. Dunlop and Sylvester, the two accused were alleged to have been members of a group of 18 men, members of an outlaw motorcycle club, who gang-raped a young woman in an isolated and remote area by a former dump. The complainant identified the two accused as two of the men who had engaged in this unlawful sexual intercourse with her without her consent, as she was held down by other members of the club. The accused testified that they had attended a meeting of the club at the dump earlier in the evening. They agreed that they were also present in a beverage room where the complainant and her friend spent some time that night. They also testified that, still later, they delivered a quantity of beer to the area of the dump. The accused Dunlop testified that, while they were in the area of the dump, he saw a female engaged in sexual intercourse – he could not say with whom, but he believed that it was another member of the motorcycle club. After some three minutes, he and Sylvester left the area.
[42] The trial judge in Dunlop and Sylvester instructed the jury as to the potential liability of the accused as principal offenders, but also instructed them on the potential application of the parties’ provisions of the Criminal Code. Further, during the course of their deliberations, the jury asked the following question: “If the accused were aware of a rape taking place in their presence and did nothing to prevent or persuade the discontinuance of the act, are they considered as an accomplice to the act under law?” In responding to this question, the trial judge might have left the impression with the jury that “the accused could be parties to the offence if they knew that an offence was being committed and failed to do anything to hinder or prevent it.”
[43] The Supreme Court of Canada ultimately set aside the convictions of the accused. Dickson J., delivering the judgment of the majority of the court, thoroughly reviewed the jurisprudence on party liability and drew the following conclusions, at p. 896:
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 [the complainant]. There was no evidence of any positive act or omission to facilitate the unlawful purpose. One can infer that the two accused knew that a party was to be held, and that their presence at the dump was not accidental or in the nature of casual passers-by, but that is not sufficient. A person cannot properly be convicted of aiding or abetting in the commission of acts which he does not know may be or are intended … One must be able to infer that the accused had prior knowledge that an offence of the type committed was planned, i.e. that their presence was with knowledge of the intended rape. On this issue, the Crown elicited no evidence.
[emphasis added – citations omitted]
[44] There must be some connection between the offence committed by the principal and the alleged acts or aiding or abetting, but that connection need not be a causal connection. Indeed, any act or omission committed by the alleged party to the offence, that occurs before or during the offence, and which “somehow and to some extent furthers, facilitates, promotes, assists or encourages” the principal offender in the commission of the offence is sufficient to establish party liability. Accordingly, for example, an individual performing the role of a “lookout” during the commission of an offence by the principal offender, can properly be viewed as intentionally aiding or abetting the principal offender, if the presence of the “lookout” helps the offender commit the offence, or encourages the offender to commit the offence, and the “lookout” intends to provide that assistance or encouragement, even if the “lookout” is ultimately not required to perform any active role in the commission of the offence. Similarly, any act by an alleged party which, for example, tends to prevent or hinder any interference with the execution or accomplishment of the criminal offence by the principal offender act is also sufficient to establish party liability as an aider or abettor. See R. v. Dooley, 2009 ONCA 910, at para. 118-124, leave denied, [2010] S.C.C.A. Nos. 83 and 179; R. v. Alcantara, 2015 ABCA 258, at paras. 9, 11-15, affirmed, R. v. Knapczyk, 2016 SCC 10; R. v. Mariani, 2007 ONCA 329, at paras. 52-56, 62.
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