La doctrine du tiers innocent

R. v. Toma, 2000 BCCA 494 

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[18]   Although not identified as such in the trial judge's reasons, the foundation for the Crown's case against the appellants rested on the doctrine of innocent agency.  The common law history of that doctrine and its applicability in Canada in light of the codification of the criminal law was considered by Wood J.A. in R. v. Berryman (1990), 1990 CanLII 286 (BC CA), 48 B.C.L.R. (2d) 105, 57 C.C.C. (3d) 375, 78 C.R. (3d) 376, at 110-111 (B.C.L.R.):

     In English common law, the person who caused a felony to be committed by means of the act of an innocent agent, was considered to be a principal in the first degree.  The most common examples of such cases were in connection with the crimes of forgery and false pretences. ... [I]n R. v. Palmer & Hudson (1804), 2 Leach 978, 168 E.R. 586, ... the judges, ... took the opportunity, as noted at p. 588 of E.R., to reaffirm:

...the doctrine of Mr. Justice Foster (Foster's Crown Law, 349; 1 Hale, 616), that when an innocent person is employed for a criminal purpose, the employer must be answerable...

* * *

     In R. v. Bleasdale (1848), 2 Car. & K. 765, 175 E.R. 321, the accused was convicted of stealing coal which had actually been mined and removed by his employees, Erle J. having instructed the jury that:

...if a man does, by means of an innocent agent, an act which amounts to a felony, the employer, and not the innocent agent, is the person accountable for that act.

[19]   As to whether the doctrine had survived the codification of the criminal law in Canada, Wood J.A. said, at 112-115:

     For these authorities to have application in this country, a hundred years later, it must be demonstrated that the doctrine of innocent agency survived the codification of our criminal law.

* * *

     The sole authority in which the doctrine of innocent agency has been applied in Canada is the decision of the New Brunswick Supreme Court (Appeal Division) in R. v. MacFadden (1971), 1971 CanLII 1260 (NB CA), 16 C.R.N.S. 251, 5 C.C.C. (2d) 204, 4 N.B.R. (2d) 59.  There the court held that he who employs an innocent agent for the purposes of transporting narcotics is himself guilty of the resulting trafficking.  A number of the ancient authorities discussed above were referred to and relied upon in reaching that decision, however, the effect of codification of the criminal law in this country does not appear to have been considered by the court.

* * *

... Glanville Williams has to say at the beginning of para. 120 of Criminal Law: The General Part, which is entitled "Innocent agents":

     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.     [emphasis [of Wood J.A.]]

     It is my view, supported by the authorities just referred to, that a person who commits an offence by means of an instrument "whose movements are regulated" by him, actually commits the offence himself. Thus there is no variance between the doctrine of innocent agency and the plain meaning that would seem to attach to s. 61(a) of the Criminal Code, 1892. While there have been substantial changes to that section over the years, none has affected the language used which is relevant to this issue, and I therefore conclude that what is today s. 21(1)(a) of the Criminal Code can and should be construed so as to give effect to the doctrine of innocent agency.

[20]   Section 21(1)(a) of the Criminal Code, which Wood J.A. concluded may be construed as giving effect to the doctrine of innocent agency, provides:

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

     (a)  actually commits it;

[21]   In the case at bar, the Crown's case was that the appellants had caused damage to the property of the complainants by means of an innocent agent, Chisholm, and, by s. 21(1)(a) of the Criminal Code, the appellants were parties to the offence and accountable for the wrongful act.

L'aide ou l'encouragement d'une personne lors d'une manifestation ou d'un blocage assimilable à un méfait

R. v. Hockaday, 2025 ONSC 1764

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[54]           The leading case in party liability in the context of protests, blockades, or picketing is R. v. Mammolita.[31]  In that case, the accused was part of an illegal picket line and was one of a group of people who stood shoulder to shoulder blocking access to the employer’s premises.  In discussing party liability, the Court noted,

In order to incur liability as an aider or abettor:

(i)                 there must be an act or omission of assistance or encouragement;

(ii)              the act must be done or the omission take place with the knowledge that the crime will be or is being committed;

(iii)            the act must be done or the omission take place for the purpose (i.e., with the intention) of assisting or encouraging the perpetrator in the commission of the crime.

However, the act of assistance or encouragement may be the presence of the accused at the scene of the crime during its commission, if the aider or abettor is there for that purpose.  The strength of numbers may at times be an important source of encouragement.[32]

[55]           In R. v. Romlewski,[33] the summary conviction appeal judge engaged in a comprehensive review of the law of party liability, particularly as it relates to protests or blockades.  From that analysis the following principles respecting party liability in this context can be derived:

•         there must be an act or omission that constitutes assistance or encouragement and is done with knowledge that the assistance or encouragement is for the purpose of aiding a criminal offence;[34]

•         an essential aspect of the analysis is whether the protest, blockade, or picket line is lawful.  If so, then acts in aid of the event may not be criminal depending on the acts themselves;[35]

•         if the purpose of presence is to assist the principals in carrying out their objective and if that objective is unlawful, then presence may be sufficient.[36]   There are situations where ‘strength in numbers’ is important to the unlawful objective.  In that case,  presence also may be sufficient to establish party liability.[37]

•         As noted in R. v. Colford (L.G.) et al., “the acts constituting the actus reus must be such as to lead one to the conclusion that they equate with and tend towards showing a sense of unity or “one-ness” with the acts of the principals so that a definite contribution to the events complained of is proven or necessarily inferred”;[38]

L'aide ou l'encouragement peut découler de la présence de l'accusé sur les lieux de l'infraction si ce dernier est là à cette fin

R. v. Mammolita, 1983 CanLII 3563 (ON CA)

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However, the act of assistance or encouragement may be the presence of the accused at the scene of the crime during its commission, if the aider or abettor is there for that purpose: Dunlop and Sylvester v. The Queen (1979), 47 C.C.C. (2d) 93, 99  D.L.R. (3d) 301, [1979] 2 S.C.R. 881, per Dickson J. at p. 106 et seq.; R. v. Clarkson et al., [1971] 3 All E.R. 344. The strength of numbers may at times be an important source of encouragement: R. v. Snarch, [1969] 4 C.C.C. 284 at pp. 294-5, 7 D. L. R. (3d) 62, 7 C. R. N. S. 42 at pp. 59-60 sub nom. Re A.C.S

Il n'y a pas de seuil déterminer quelles paroles peuvent entraîner complicité; c'est le contexte et les circonstances de la discussion qui sont les plus importants. L'analyse sera donc très spécifique aux faits.

R v Ouellette, 2022 ABCA 40

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[132]      Section 21(1) of the Criminal Code states:

Parties to offence

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.

[133]      Although the liability of principal offenders and parties is the same, the essential elements of aiding and abetting are different, with parties having a distinct actus reus and mens rea: Regina v Briscoe, 2010 SCC 13 at para 13. The actus reus for abetting has been defined as “encouraging, instigating, promoting or procuring the crime to be committed”: R v Greyeyes, [1997] 2 SCR 825, 1997 CanLII 313 at para 26. Or put another way, “doing something or omitting to do something that encourages the principal to commit the offence”: R v Cowan, 2021 SCC 45 at para 32.

[134]      The mens rea of abetting requires both intent and knowledge: Cowan at para 32. Intent requires that the abettor intended to assist the principal in committing the offence; however, it does not require the abettor to actually desire that the offence be committed: Briscoe at para 16. As for knowledge, the abettor must subjectively know that the principal intends to commit the offence but is not required to know the precise details of how the offence will be committed: Briscoe at para 17. Wilful blindness will also suffice to meet the mens rea requirement in the absence of actual knowledge: Briscoe at para 25.

[135]      It has been consistently held that mere presence at the scene of an offence, or passive acquiescence to the commission of an offence, is insufficient to establish liability under s. 21: Dunlop and Sylvester v The Queen, 1979 CanLII 20 (SCC), [1979] 2 SCR 881 at 891, 99 DLR (3d) 301. There must be something more in order for liability to be established. In his text, V. Gordon Rose, Parties to the Offence, (Toronto: Carswell, 1982) suggests at page 23 that this “something more” must be something showing the party’s desire to associate themselves with the principal’s acts.

[136]      This “something more” is also explained by the fact that conduct constituting aiding or abetting is “coloured by the mental state accompanying the act”, meaning the conduct must have been for the purpose of aiding or abetting: R v Dooley, 2009 ONCA 910 at para 118, leave to appeal to SCC refused 2010 CanLII 56575 (SCC).

[137]      There does not need to be a causal connection between the conduct of aiding or abetting and the commission of an offence, so long as the conduct in some way “furthers, facilitates, promotes, assists or encourages” the principal or is “conduct that ‘has the effect’ of aiding or abetting”: Dooley at paras 121, 123. As such, there must be some factual nexus between the conduct and the offence, but it does not need to be causative. For example, if an individual were to shout words of encouragement from such a distance that the principal could not hear them, they would not be guilty of abetting the principal: Dooley at para 120.

[138]      In sum, any act, gesture or words spoken before or during an offence, which have the effect of encouraging the principal will constitute the actus reus of abetting. This conduct will establish criminal liability where it is accompanied by the requisite mens rea of intent and knowledge: Cowan at para 32.

b.      Words alone as the basis of criminal liability

[139]      Although abetting can be established both by actions or words, this appeal concerns abetting through the use of words alone. As such, it is worthwhile to review the relatively few cases where words established liability.

[140]      In R v Black, 1970 CanLII 1022, [1970] 4 CCC 251 (BC CA), Black and a number of people stood by watching, laughing and yelling while a victim was confined and assaulted by multiple others. Black and the other spectators were convicted of abetting the offences against the victim. On appeal, the British Columbia Court of Appeal accepted that the spectators’ laughing and yelling constituted encouragement, and further, their presence at the scene prevented the escape of the victim.

[141]      In R v G(DJ), 1986 CanLII 7026 (NS CA), 1986 CarswellNS 239, 74 NSR (2d) 33 (CA), a young offender was found guilty of abetting the conveyance of false information by encouraging the principal, his friend, to call a local radio station and make a false report of a bomb at their school. The words which created liability in this case were telling his friend that “you have an hour or a half-hour left”.

[142]      In R v Poitras, 1992 CarswellQue 194 (CA), Poitras was convicted by a jury of second degree murder following an armed robbery of the victim’s home. During the robbery, one of the home’s occupants attacked Poitras, who then yelled to his accomplice “Come on, come on!”[1] The accomplice and other occupants joined the altercation before the accomplice shot and killed one of the occupants. The Quebec Court of Appeal upheld the conviction, finding the jury instructions on party liability were correct and that Poitras could have been found criminally liable as either an abettor under s. 21(1)(c) or based on his participation in the unlawful common purpose of armed robbery under s. 21(2).

[143]      In R v Monkman, Tavares and Ponce, 2010 MBQB 72, upheld on appeal, cited as R v Ponce, 2012 MBCA 87, the trial judge accepted that a jury had found two defendants guilty of manslaughter as either aiders or abettors by relying on the words spoken by each. Neither defendant was involved in the physical act of killing the victim, but both had been in a vehicle with the principal shortly before and made statements to the effect of “we're going to fix him up” or “get it done and we'll fix you up”. The trial judge accepted the jury must have considered those words as being words of encouragement to the principal offender to commit the offence.

[144]      In R v RMF, 2014 ABCA 139, this Court upheld the sentence of a young offender who was found guilty of aiding and abetting arson. The young offender in this case provided instructions over the phone to the principal offender, apparently explaining to the principal “what to do and how to escape”.

[145]      Further in Cowan, the Supreme Court set aside Cowan’s acquittal for armed robbery and ordered a new trial. Cowan provided explicit instructions on how to carry out a robbery to a number of individuals and the Crown theorized he was either a principal offender or alternatively a party by abetting or counselling the offence.

[146]      Although the above cases demonstrate how words may create liability as abetting, many of these cases are distinguishable from the present appeal. In both Black and Poitras it was not solely the abettor’s words that made them liable. In Black, the spectators’ presence at the scene was held to have prevented the victim from escaping, and in Poitras, Poitras had broken into a home before becoming involved in an altercation with the victim. Neither of these circumstances are present in this appeal.

[147]      Additionally, the level of involvement of Delaire was unlike the involvement of the abettors in RMF and Cowan. In RMF the abettor provided real time instructions on how to commit the offence. Similarly, in Cowan the instructions given were described as an “explicit” description of how to complete a robbery.

[148]      The general principle, if any, that may be gleaned from the above cases is that there is no threshold for what types of words might constitute abetting; it is the context and circumstances of the discussion that is most important. As such, the analysis will be highly fact specific.

La connaissance de l'intention d'autrui de commettre une infraction et la présence sur les lieux d'une infraction peut, selon les circonstances, être un élément d'aide ou d'encouragement

R. v. Carrington, 2017 ONCA 2 

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[23]      We disagree. While knowledge of another’s intent to commit a crime and mere presence at the scene do not lead automatically to a finding of aiding and abetting, such factors can be evidence of aiding and abetting: R. v. Dunlop, 1979 CanLII 20 (SCC), [1979] 2 S.C.R. 881, at p. 896; R. v. McKay, 2012 ABCA 310, 84 Alta. L.R. (5th) 404, at paras. 21-22. Here, by getting into the victim’s car, at a minimum, the appellant both abetted, and demonstrated an intention to abet, the other men in robbing the victim of his car. This is not a case where the appellant was a mere bystander. He took an active step of getting into the victim’s car that supported the other men in their endeavor, namely, depriving the victim of his car through the use of threats. To be guilty as an aider or abettor, all that is necessary is that the accused intended the consequences that flowed from his or her aid to the principal offender; it is not necessary to show that he or she desired or approved of the consequences: R. v. Greyeyes, 1997 CanLII 313 (SCC), [1997] 2 S.C.R. 825, 8 C.R. (5th) 308, at para. 37. The fact that the appellant’s conduct would aid the other men in their endeavour was patent; nothing in the evidence rebuts the conclusion that he intended the consequences of his actions.

L’aveuglement volontaire & la mens rea de l'article 21 (1) b) Ccr

Deblois c. R., 2021 QCCA 1093

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[65]      Les appelants estiment que le juge de première instance aurait commis une erreur en concluant à leur aveuglement volontaire. Selon eux, ils auraient tout au plus fait preuve d’insouciance.

[67]      La mens rea de l’aide, au sens de l’alinéa 21(1)b) C.cr., comporte deux éléments : l’intention d’aider et la connaissance[67]. Ce dernier élément peut être démontré directement par la preuve de la connaissance réelle de l’accusé ou indirectement par son aveuglement volontaire[68].

[68]      La différence entre la preuve de l’un et de l’autre « est que la première est la connaissance d’un fait tandis que la seconde est la connaissance de circonstances qui impliquent inexorablement l’existence d’un fait que l’acteur choisit délibérément d’ignorer »[69]. Dans ce dernier cas, l’accusé « a des doutes au point de vouloir se renseigner davantage, mais […] choisit délibérément de ne pas le faire »[70]. Il est possible de conclure à l’aveuglement volontaire (ou l’ignorance volontaire, selon le terme utilisé) « lorsqu’on peut presque dire que le défendeur connaissait réellement le fait »[71]. L’aveuglement volontaire repose donc sur une probabilité[72].

[69]      Les éléments constitutifs de l’aveuglement volontaire doivent être évalués de manière subjective, c’est-à-dire selon le comportement de l’accusé à la lumière de la preuve circonstancielle[73]. Le seul défaut de se renseigner n’est pas suffisant pour prouver qu’il y a aveuglement volontaire : « [t]he issue is not whether the accused should have been suspicious but whether she in fact was suspicious »[74].

[70]      Le seuil de preuve nécessaire pour conclure à l’aveuglement volontaire peut être atteint par le témoignage de l’accusé : « [a]s for example, where his or her testimony discloses inherently suspicious events characterized by unclear details and at odds with common sense and human experience »[75]. L’aveuglement volontaire peut également être démontré par l’effet cumulatif de plusieurs éléments de preuve circonstancielle[76].