R. v. Almarales, 2008 ONCA 692
[64] As a general rule, a person may commit a crime as a principal or as a secondary party. Participation as a secondary party includes aiding or abetting a principal to commit an offence. This general rule, which permits the commission of a crime through participation as a principal or a secondary party, is not a universal rule. Statutory language may confine liability to certain modes of participation. R. v. Nette, 2001 SCC 78 (CanLII), [2001] 3 S.C.R. 488, 158 C.C.C. (3d) 486 at para. 62.
[65] Secondary participation by aiding or abetting includes both conduct and fault requirements. Conduct may include acts, omissions (where there is a legal duty to act), words and gestures. The fault element has to do with the aider’s or abettor’s state of mind when engaged in the conduct.
[66] Section 21(1)(b) applies to aiders. A person is a party to a crime as an aider if that person:
• Does (or, in the case of a legal duty, omits to do) something that helps the (or a) principal to commit the offence [the conduct requirement]; and
• Provides the assistance with the intention of helping the (or, a) principal to commit the offence [the fault requirement].
R. v. Maciel (2007), 2007 ONCA 196 (CanLII), 219 C.C.C. (3d) 516 (Ont. C.A.) at para. 86, leave to appeal to S.C.C. refused (2007), 220 C.C.C. (3d) vi; R. v. Hibbert, 1995 CanLII 110 (SCC), [1995] 2 S.C.R. 973, 99 C.C.C. (3d) 193 at paras. 36-37.
[67] Section 21(1)(c) governs abettors. Despite its use of the verb “abets”, rather than the more expansive “does or omits to do anything for the purpose of abetting”, abetting includes conduct and fault elements similar to those of aiding. A person is a party to a crime as an abettor if that person:
• Says or does something that encourages the (or, a) principal to commit the offence [the conduct requirement]; and
• Offers the encouragement by words or conduct with the intention of encouraging the (or, a) principal to commit the offence [the fault requirement].
R. v. Helsdon (2007), 2007 ONCA 54 (CanLII), 216 C.C.C. (3d) 1 (Ont. C.A.) at paras. 43-44.
[68] A person may be found guilty of first degree murder as a secondary participant in a planned and deliberate murder. Nothing in s. 231(2), which classifies planned and deliberate murder as first degree murder, eliminates or restricts the secondary participation provisions of ss. 21(1)(b) and 21(1)(c).
[69] A person may be found guilty of first degree murder as an aider of planned and deliberate murder if that person:
• Did (or, in the case of a legal duty, failed to do) something that helped the (or, a) principal to commit a planned and deliberate murder [the conduct requirement]; and
• Provided the assistance with the intention of helping the (or, a) principal to commit a planned and deliberate murder [the fault requirement].
[70] The fault requirement, as in all cases of secondary participation by aiding, consists of two elements: an intention to help the principal and knowledge of the principal’s intention. Maciel at para. 87. An aider must know that the principal intends to commit a planned and deliberate murder, and intend to help the principal to commit a planned and deliberate murder. The aider may acquire his or her knowledge that the murder is planned and deliberate through actual participation in the planning and deliberation, or by some other means. The means of acquiring knowledge are as irrelevant to culpability as proof of knowledge is essential to it. Maciel at para. 89.
[71] A person may be found guilty of first degree murder as an abettor of a planned and deliberate murder if that person:
• Said or did something that encouraged the (or, a) principal to commit a planned and deliberate murder [the conduct requirement]; and
• Offered the encouragement, by words or conduct, with the intention of encouraging the (or, a) principal to commit a planned and deliberate murder [the fault requirement].
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