L'aide ou l'encouragement en matière de trafic de drogues

R v Alcantara, 2015 ABCA 258 

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[8]               Party liability arises under s 21 of the Criminal Code. Section 21(1) provides:

21(1)   Every one is a party to an offence who

(a)   actually commits it;

(b)   does or omits to do anything for the purpose of aiding any person to commit it; or

(c)   abets any person in committing it.

[9]               To aid means to assist or help the person who commits the offence. To abet includes encouraging, instigating, promoting or procuring the offence to be committed: R v Greyeyes 1997 CanLII 313 (SCC), [1997] 2 SCR 825, 214 NR 43, para 26. The act of aiding or abetting must be provided to a person: Criminal Code, s 21. “Person” includes an organization: Criminal Code, s 2 (“every one”, “person” and “owner”, and similar expressions, include Her Majesty and an organization).

[10]           The relevant offence in this case is trafficking in cocaine. “Traffic” means “to sell, administer, give, transfer, transport, send or deliver”, and the definition of “sell” includes “offer for sale, expose for sale, have in possession for sale and distribute”: Controlled Drugs and Substances Act, SC 1996, c 19, s 2(1). The trial judge found that Mr. Caines operated a cocaine distribution business (paras 513, 932, 1000) and that there was evidence of instances of trafficking by Mr. Caines and his group within the definition of trafficking (para 944).

[11]           While there must be a connection between the offence and the acts of aiding or abetting, the connection need not be causative. “Any act or omission that occurs before or during the commission of the crime, and which somehow and to some extent furthers, facilitates, promotes, assists or encourages the perpetrator in the commission of the crime will suffice, irrespective of any causative role in the commission of the crime.”: R v Dooley, 2009 ONCA 910, 257 OAC 150, para 123, leave den 410 NR 393n (SCC).

[12]           A lookout can aid or abet an offender if the lookout’s presence helps the offender commit the offence, even if the lookout is not required to perform any active role: Dooley, para 124. Similarly, “an act which tends to prevent or hinder interference with accomplishment of the criminal act” may be sufficient to establish party liability: Dunlop and Sylvester v The Queen 1979 CanLII 20 (SCC), [1979] 2 SCR 881, 891, 27 NR 153, para 12.

[13]           The respondents argue on appeal, as they did at trial, that party liability can only attach to them if they are proven to have aided or abetted a specific instance of trafficking by Mr. Caines or his group. The trial judge adopted that argument in acquitting the respondents. However, that proposition reveals an unnecessarily narrow and incorrect application of the legal principles to the facts as found by the trial judge.

[14]           The trial judge found that both respondents took steps to facilitate the smooth operation of Mr. Caines’ cocaine distribution business (paras 908, 909). They provided protection and solved problems in order to allow the business to operate (para 1033). The business was cocaine distribution. Distribution is trafficking: Greyeyes, para 23; Marino and Yipp v The King 1931 CanLII 39 (SCC), [1931] SCR 482, 483, 56 CCC 136, 138-9; R v Christiansen (1973) 1973 CanLII 2365 (NB CA), 6 NBR (2d) 810, 13 CCC (2d) 504 (CA). Indeed, the trial judge found that actual instances of trafficking had occurred.

[15]           On the correct application of the legal principles to the facts found by the trial judge, it is an inescapable conclusion that the respondents aided and abetted the offence of trafficking through distribution. Their acts prevented or hindered interference with the accomplishment of a criminal act. In this way, the respondents provided assistance and encouragement to Mr. Caines in the commission of the offence of trafficking. There is a clear link between the respondents’ acts and the commission of the offence.

[16]           The respondents argue that if they contributed to the activities of a criminal organization, their culpability would arise under Criminal Code s 467.11 and not under s 21. The respondents were not charged with an offence under s 467.11. However, there is no prohibition against liability arising under more than one provision of the Criminal Code: Kienapple v R 1974 CanLII 14 (SCC), [1975] 1 SCR 729, 748-52, 1 NR 322, paras 11-17; Criminal Code, s 12.