R. v. J.(D.), 2009 ONCJ 555
[29] Did the accused engage in conduct which supported Kevin in committing the offence? I have described the accused’s conduct above. The accused was not merely present – the classic hardened urbanite who sees an assault on the subway and passes on without action, referred to by the Supreme Court in Dunlop. Throughout Kevin’s torture of the complainant, the accused followed Kevin, and contributed to the celebratory atmosphere by smiling, casual conversation about ordering pizza, and mugging for the camera that recorded the torture.
[30] Did this conduct have the effect of encouraging the primary perpetrator? Kevin did not give evidence. However, he was undoubtedly aware of the accused and his conduct. The apartment in which the assaults occurred is tiny, and the accused was always in close proximity to Kevin. He faced Kevin as Mr. Saliba was dragged into the bathroom, and then followed him in. The cell phone, held up by JE in order to film, was in plain view.
[31] I am entitled to draw inferences from all the evidence about what the effect of the conduct of the accused was on Kevin. In my view, it is inevitable that the party atmosphere created by both the accused and JE facilitated Kevin’s assaults. A message to a perpetrator from friends that such conduct is not to be sanctioned, but in fact celebrated, must be a powerful sign of approval. It suspends the usual moral code against torture, and gives license to proceed. Filming of the torture (and participating in the filming) puts a further stamp of approval on the crime.
[32] In addition, just the presence of the accused with JE in the apartment had the effect of intimidating the complainant and supporting Kevin. Mr. Saliba said it was “three against one” when explaining why he didn’t resist.
[33] In my view, the accused’s conduct constituted encouragement of Kevin in his actions as much as if the accused had yelled, “hit him”.
[34] The facts in this case are reminiscent of those in R v Black, 1970 BCJ 579 (C.A.). In that case, a man was taken to a private home which functioned as a clubhouse and subjected to a number of humiliating assaults. A number of those present participated directly in the assaults. Others watched, laughing periodically. The court observed that the assaults functioned as entertainment for those present. The Court observed that it was “clear” based on these facts, that “the spectators furnished encouragement to the perpetrators of the outrages and were guilty as abettors.” This case was cited by the Supreme Court in Dunlop as an example of when non-accidental presence can constitute ‘abetting’.
[35] Finally, I consider whether it has been established beyond a reasonable doubt that the accused intended that his conduct support Kevin in his actions. I am persuaded that it has. The accused stayed through the whole series of assaults, making way for Kevin as he pushed Mr. Saliba into the bathroom. He left only when the violence was completed. The accused’s demeanour was approving, smiling. The accused showed himself an enthusiastic participant in the video recording of the torture.
[36] Considering all the evidence, the only reasonable explanation of the conduct of the accused that day is that he intended to support and encourage Kevin in his assaults on the complainant. There are a number of possible motives for his actions—for example, it may be that the accused was gratifying sadistic desires, or that he wanted to conform to activity expected within a certain group. I do not have to consider what motivated the accused, only what he intended the effect of his activity to be.
[37] I am satisfied that the Crown has proved beyond a reasonable doubt that the accused that the accused intentionally supported and encouraged Kevin in the robbery of Mr. Saliba, and thus find the accused guilty of the offence of robbery.
Aucun commentaire:
Publier un commentaire