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.