La doctrine du tiers innocent impliqué dans la perpétration de l'infraction

R. v. Verma, 1996 CanLII 606 (ON CA)

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Both parties appear to agree that the doctrine of innocent agency is properly and succinctly summarized by Glanville Williams in his treatise Criminal Law , The General Part, 2nd ed. (London: Stevens & Sons, 1961). Paragraph 120 is devoted to innocent agency, and states as follows:

The principal in the first degree need not commit the crime with his own hands; he may commit it by a mechanical device, or through an innocent agent, or in any other manner, otherwise than through a guilty agent. An innocent agent is one who is clear of responsibility because of infancy, insanity, lack of mens rea and the like. In law he is a mere machine whose movements are regulated by the offender.

The parties further agree that this doctrine has survived the codification of Canadian criminal law, and that a person who employs an innocent agent to commit a crime may be convicted as the person who "actually" commits the crime as required by s. 21(1)(a) of the Criminal Code, R.S.C. 1985, c. C-46: R. v. Berryman (1990), 1990 CanLII 286 (BC CA), 57 C.C.C. (3d) 375 at pp. 385-86, 78 C.R. (3d) 376 (B.C.C.A.), per Wood J.A.

(i) Must the Innocent Agent be Activated?

The respondent's first objection to the application of innocent agency is that, in the absence of any evidence that a pharmacist ever filed the prescriptions, the doctrine is irrelevant to this case.

I have been unable to find any authority directly on this issue. Of the six cases on innocent agency referred to the court, five involved facts in which the innocent agent or agents was or were activated: see R. v. MacFadden (1971), 1971 CanLII 1260 (NB CA), 5 C.C.C. (2d) 204, 16 C.R.N.S. 251 (N.B.C.A.); R. v. Berryman, supra; Bell v. R., 1983 CanLII 166 (SCC), [1983] 2 S.C.R. 471, 8 C.C.C. (3d) 97; R. v. Ali (1990), 1990 CanLII 13291 (ON CJ), 79 C.R. (3d) 382 (Ont. Prov. Ct.); R. v. Stringer (1991), Cr. App. Rep. 13 (C.A.). As to the sixth case, R. v. Rousseau, supra, the evidence described by Dubé J.A. at pp. 457-58 suggests that the innocent agents were activated at least with respect to Counts 3 and 5.

The Crown responds that, in any event, Verma's act of giving the prescription could constitute an offer to sell a narcotic via his innocent agent, the pharmacist. The innocent agent doctrine must therefore be analyzed to see if it applies to the facts of this appeal.