R v Abdulkadir, 2018 ABPC 244
[419] Party liability can arise under s. 21(1)(b) or (c) where the individual either aids or abets the party who committed the offence. To understand how that liability could arise it is necessary to explore the relevant jurisprudence related thereto. I will now set out some of that relevant jurisprudence.
[420] In R v Briscoe 2010 SCC 13 (CanLII), [2010] 1 SCR 411 (SCC) (Briscoe), Charron J. reviewed the mens rea and actus reus necessary for an individual to be a party to the offence of another: At paras. 14 to 17 she explained:
The actus reus of aiding or abetting is doing (or, in some circumstances, omitting to do) something that assists or encourages the perpetrator to commit the offence. While it is common to speak of aiding and abetting together, the two concepts are distinct, and liability can flow from either one. Broadly speaking, “[t]o aid under s. 21(1) (b) means to assist or help the actor. . . . To abet within the meaning of s. 21(1) (c) includes encouraging, instigating, promoting or procuring the crime to be committed”: R. v. Greyeyes, 1997 CanLII 313 (SCC), [1997] 2 S.C.R. 825, at para. 26. The actus reus is not at issue in this appeal. As noted earlier, the Crown argued at trial that Mr. Briscoe was both an aider and an abettor. The trial judge’s finding that Mr. Briscoe performed the four acts of assistance described above is not disputed.
Of course, doing or omitting to do something that resulted in assisting another in committing a crime is not sufficient to attract criminal liability. As the Court of Appeal for Ontario wrote in R. v. F. W. Woolworth Co. (1974), 1974 CanLII 707 (ON CA), 3 O.R. (2d) 629, “one does not render himself liable by renting or loaning a car for some legitimate business or recreational activity merely because the person to whom it is loaned or rented chooses in the course of his use to transport some stolen goods, or by renting a house for residential purposes to a tenant who surreptitiously uses it to store drugs” (p. 640). The aider or abettor must also have the requisite mental state or mens rea. Specifically, in the words of s. 21(1) (b), the person must have rendered the assistance for the purpose of aiding the principal offender to commit the crime.
The mens rea requirement reflected in the word “purpose” under s. 21(1) (b) has two components: intent and knowledge. For the intent component, it was settled in R. v. Hibbert, 1995 CanLII 110 (SCC), [1995] 2 S.C.R. 973, that “purpose” in s. 21(1) (b) should be understood as essentially synonymous with “intention”. The Crown must prove that the accused intended to assist the principal in the commission of the offence. The Court emphasized that “purpose” should not be interpreted as incorporating the notion of “desire” into the fault requirement for party liability. It is therefore not required that the accused desired that the offence be successfully committed (Hibbert, at para. 35). The Court held, at para. 32, that the perverse consequences that would flow from a “purpose equals desire” interpretation of s. 21(1) (b) were clearly illustrated by the following hypothetical situation described by Mewett and Manning:
If a man is approached by a friend who tells him that he is going to rob a bank and would like to use his car as the getaway vehicle for which he will pay him $100, when that person is . . . charged under s. 21 for doing something for the purpose of aiding his friend to commit the offence, can he say “My purpose was not to aid the robbery but to make $100”? His argument would be that while he knew that he was helping the robbery, his desire was to obtain $100 and he did not care one way or the other whether the robbery was successful or not.
(A.W. Mewett and M. Manning, Criminal Law (2nd ed. 1985), at p. 112)
The same rationale applies regardless of the principal offence in question. Even in respect of murder, there is no “additional requirement that an aider or abettor subjectively approve of or desire the victim’s death” (Hibbert, at para. 37 (emphasis deleted)).
As for knowledge, in order to have the intention to assist in the commission of an offence, the aider must know that the perpetrator intends to commit the crime, although he or she need not know precisely how it will be committed. That sufficient knowledge is a prerequisite for intention is simply a matter of common sense. …
[421] The other man or men in the apartment were under no legal obligation to intervene to stop the assault so liability pursuant to s. 21(1)(b) cannot arise on that basis. To make the other man or men parties to the sexual assault committed by the accused the other men or man must have done something to aid the accused in a manner to facilitate his sexual assault upon the complainant. The complainant testified that they were trying to have sex with her, they opened her legs, and they told her to open her mouth. It is clear that the accused had sex with her. If a man other than the accused told her to open her mouth, helped to move her legs apart, or tried to have sex with her that man would be a party to the sexual assault committed by the accused. She might have been able to hear or feel that more than one man was involved but that was not clear on the evidence. Therefore, I am unable to conclude beyond a reasonable doubt on the evidence that a man other than the accused was involved in aiding the accused in facilitating his sexual assault upon the complainant.
[422] I turn now to abetting. Again, some jurisprudence as to the meaning of abetting is useful. In R v Greyeyes 1997 CanLII 313 (SCC), [1997] 2 SCR 825 (SCC) (Greyeyes), the Court opined at para. 38:
“Section 21(1)(c) simply provides that any person who abets any person in committing an offence is a party to that offence. In order to secure a conviction, the Crown must prove not only that the accused encouraged the principal with his or her words or acts, but also that the accused intended to do so: R. v. Curran (1977), 1977 ALTASCAD 284 (CanLII), 38 C.C.C. (2d) 151 (Alta. C.A.); R. v. Jones (1977), 65 Cr. App. R. 250 (C.A.). It is the establishment by the Crown of that intention which satisfies the mens rea or guilty mind requirement of s. 21(1) (c).”
[423] In R v Almarales (2008), 2008 ONCA 692 (CanLII), 237 CCC (3d) 148 (Ont CA) at para. 67 the Court observed:
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].
[424] In Vu, the Court opined at paras. 58-9:
Under s. 21(1), a person is criminally liable, as a party to an offence, if that person, having the requisite intent, plays one of the three enumerated roles in the offence — principal, aider or abettor. An individual will bear the same responsibility for the offence regardless of which particular role he or she played: R. v. Thatcher, 1987 CanLII 53 (SCC), [1987] 1 S.C.R. 652, at pp. 689-90. As this Court recently explained in R. v. Briscoe, 2010 SCC 13, [2010] 1 S.C.R. 411, a person becomes a party to an offence when that person — armed with knowledge of the principal’s intention to commit the crime and with the intention of assisting the principal in its commission — does (or, in some circumstances, omits to do) something that assists or encourages the principal in the commission of the offence (paras. 14-18).
In my view, the well-established principles of s. 21(1) criminal liability apply with equal force to continuing offences that have been completed in law but not in fact. In particular, where an accused — with knowledge of the principal’s intention to see a continuing offence through to its completion — does (or omits to do) something, with the intention of aiding or abetting the commission of the ongoing offence, party liability is established.
Aucun commentaire:
Publier un commentaire