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.