[38] Crown counsel sets the bar too low when he implies that an accused must be found guilty if “the purchase would not have taken place without the assistance of the accused” or by asking “whether the drug transaction could have proceeded without Machushek’s assistance.” In my respectful view, these statements do not completely reflect the majority’s opinion in R v Poitras, 1973 CanLII 156 (SCC), [1974] SCR 649 [Poitras] and in Greyeyes. For the most part, Poitras stands for the proposition that once it is determined that an accused did not commit an act of trafficking, the issue is whether he or she is guilty of being a party to trafficking by virtue of s. 21(1)(b) or s. 21(1)(c) of the Criminal Code and the burden is on the Crown to prove all of the elements of the offence it has alleged. The issues are not resolved by having recourse to the civil law of “agency” alone: Poitras at 653 and Greyeyes at para 34.
[39] Greyeyes is part of the legal history of this province. It was an appeal from a decision of this Court (R v Greyeyes (1996), 1996 CanLII 5030 (SK CA), 144 Sask R 241), resulting in three sets of reasons (Wakeling J.A. and Bayda C.J. concurring as to the result only, which was to set aside an acquittal and enter a conviction, with Vancise J.A. in dissent). The common denominator among the two concurring opinions in this Court was a finding that Mr. Greyeyes had acted as a party so as to aid the seller to traffic drugs to an undercover police officer in Saskatoon.
[40] In the Supreme Court of Canada, Cory J., writing for the minority, stated the issue this way: can someone acting either as an agent for a purchaser of narcotics or assisting a purchaser to buy narcotics be found to be a party to the offence of trafficking under s. 21(1) of the Criminal Code by aiding or abetting in the sale of narcotics? Cory J. said yes to this question. L’Heureux-Dubé J., writing for the majority agreed, but where the majority and the minority divided was with respect to how the law should be stated.
[41] Cory J., for the minority in Greyeyes, would have stated the law thus:
[32] … Quite simply there is no reason to extend the exception for purchasers to those who assist or encourage purchasers in an illegal sale. The activities of an agent for a purchaser or one who assists a purchaser to buy narcotics certainly come within the definition of “aiding” or “abetting” under s. 21(1) of the Code. By bringing together the source of supply and the prospective purchaser, these persons obviously assist in the sale of narcotics. Acting as a spokesperson for a purchaser has the effect of assisting both the purchaser and the vendor to complete the transaction. It follows that an agent for a purchaser or one who assists the purchaser to buy the drugs can properly be found guilty as a party to the offence of trafficking under s. 21(1) of the Code.
…
[35] In summary, someone who acts on behalf of a purchaser of narcotics can be found to be a party to the offence of trafficking under s. 21(1) of the Code. This is so because such a person assists in the commission of the offence by bringing the purchaser to the seller. Without that intervention or assistance, the sale would never occur. There is nothing in the provisions of the Narcotic Control Act [now the Controlled Drugs and Substances Act], in any applicable principles of criminal law, or in reasons of policy which indicates that any special status should be granted to those assisting purchasers of drugs so as to exempt them from the clear provisions of s. 21 of the Code.
…
[37] Next it must be determined whether the appellant had the requisite mens rea or guilty mind to satisfy s. 21(b).
…
In other words, in order to satisfy the purpose requirement under s. 21(1)(b), the Crown is required to prove only that the accused intended the consequences that flowed from his or her aid to the principal offender, and need not show that he or she desired or approved of the consequences.
(Emphasis added)
[42] In her majority reasons, L’Heureux-Dubé J. disagreed with this interpretation of the law, saying that it meant “any act of the person offering assistance to the purchaser, no matter how trivial, can lead (assuming the requisite knowledge and intent are also present) to a finding of guilt for this offence” (emphasis in original, at para 2). The majority resiled from the creation of such a wide net of culpability for trafficking, and emphasized the intent with which the accused acted:
[6] It should not be forgotten that the offence of trafficking is taken extremely seriously by both the courts and the public and a conviction brings along with it a great deal of social stigma. It goes without saying that someone branded as a “trafficker” is held in extremely low regard by the public. Additionally, sentencing for these offences tends to be quite high. I am reluctant to sanction an approach which encourages convictions in cases where the assistance rendered is solely to the purchaser.
[7] Moreover, I am of the view that in such a case, a charge of trafficking would actually be the incorrect legal result. …
[8] … In situations where the facts reveal no more than incidental assistance of the sale through rendering aid to the purchaser, it stands to reason that these persons should be treated as purchasers, and not as traffickers. The proper charge in these circumstances would be aiding or abetting the possession of a narcotic, and not trafficking.
…
[11] Perhaps more importantly, I believe this approach benefits from a certain symmetry. It is clear that someone whose acts are designed to aid a purchaser, yet incidentally benefit the seller, has assisted much more in the purchase of the narcotic than in the sale. As such, it is only fitting that this person share the culpability and stigma of the purchaser rather than that of the vendor.
(Italic emphasis in original, underline emphasis added)
[43] It was of some significance for the majority in Greyeyes that the Crown is not without a remedy when the accused renders aid solely to the purchaser or provides no more than incidental assistance of the sale through rendering aid to the purchaser. The Crown can charge an accused who aids a buyer of drugs with aiding or abetting the possession of a drug and not trafficking. A charge of aiding or abetting the possession of a drug was found to be a more proportionate response than trafficking:
[9] The offence of aiding or abetting possession of a narcotic is a permissible legal result and has occurred on many occasions: see for example, R. v. Miller (1984), 1984 CanLII 637 (BC CA), 12 C.C.C. (3d) 54 (B.C.C.A.), at p. 87; Re Chambers and The Queen (1985), 1985 CanLII 169 (ON CA), 20 C.C.C. (3d) 440 (Ont. C.A.); Zanini v. The Queen, 1967 CanLII 16 (SCC), [1967] S.C.R. 715.
[10] In my view, this approach also offers a number of advantages. First, I believe it accords with the general notion that the “punishment” should be in accord with the crime: Eric Colvin, Principles of Criminal Law (2nd ed. 1991), at p. 28. A trafficking conviction, in the circumstances indicated above, is quite harsh, carries with it considerable stigma and has negative consequences for the repute of justice. In this regard, it is also worth noting that the sentencing structure for these offences is rather disparate. A trafficking conviction is punishable by up to life imprisonment, while a possession conviction carries a maximum seven-year sentence.
[44] Admittedly, L’Heureux-Dubé J. refers to the idea of bringing the buyer to the seller in the following passage:
[13] In the case at bar, however, I have no difficulty concluding that the appellant did far more than act as a purchaser. My colleague has described the nature of the appellant’s participation in the sale in detail, and these facts demonstrate a concerted effort on his part to effect the transfer of narcotics. The appellant located the seller, brought the buyer to the site and introduced the parties. It is clear that without this assistance, the purchase would never have taken place. Moreover, he acted as a spokesperson, negotiated the price of the drugs, and passed the money over to the seller. He also accepted money for having facilitated the deal. As my colleague points out, without the appellant’s assistance, the buyer would never have been able to enter the apartment building and contact the seller. These are not the acts of a mere purchaser, and as a result it is clear that the appellant aided the traffic of narcotics.
(Emphasis added)
[45] In my view, however, this passage does not state any particular test to be applied. Rather, at this point in her reasons, L’Heureux-Dubé J. applies the law to the facts, which in Greyeyes overwhelmingly indicated the culpability of the accused. In so far as L’Heureux-Dubé J. develops a test to be applied, it should be broken into two parts. First, with respect to the actus reus, where the facts reveal no more than incidental assistance of the sale through rendering aid to the purchaser, the majority suggests the proper charge is not trafficking, regardless of intent. Second, with respect to the mens rea, the majority took a different view than the minority. For the majority, the test is whether the assistance is rendered solely to the purchaser or, cast in different terms, but arriving at the same result, whether the “acts are designed to aid the purchaser” (para 11).
[46] Any doubt as to whether s. 21(1)(b) requires the Crown to prove the mens rea as well as the actus reus of the offence is laid to rest by the Supreme Court of Canada’s decision in R v Briscoe, 2010 SCC 13, [2010] 1 SCR 411 [Briscoe]. Briscoe provided needed clarification as to what the Crown must prove in order to convict someone of aiding or abetting the commission of an offence.
[47] In general terms, the Court in Briscoe clarified that the actus reus and the mens rea are different for the aider or the abettor than they are for the principal offender. In specific terms, the Court made it clear that it is not the doing of the act of aiding or abetting alone that renders one criminally liable, but rather the trier of fact must consider the purpose with which the act was done:
[15] 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.
(Emphasis added)
[48] The Court in Briscoe adopted the formulation of what “purpose” means in this context from its earlier decision in R v Hibbert, 1995 CanLII 110 (SCC), [1995] 2 SCR 973 [Hibbert] at para 31: “purpose” in s. 21(1)(b) should be understood as essentially synonymous with “intention.” With respect to intention, the Crown must prove that “the accused intended to assist the principal in the commission of the offence” (Briscoe at para 16). As part of the proof of intention, the Crown is not required to prove that the accused desired that the criminal act occur (although that particular aspect of mens rea is not particularly relevant in most cases where the crime is trafficking). Charron J. stated in Briscoe the knowledge component requires that “the aider must know that the perpetrator intends to commit the crime” (at para 17).
[49] Briscoe concerned s. 21(1)(b), but subsequent case authority applies this same rationale to s. 21(1)(c). In R v Pickton, 2010 SCC 32, [2010] 2 SCR 198, the Court summarized its analysis by stating the following:
[76] The main focus of s. 21(1)(b) and (c) is on the intention with which the aid or encouragement has been provided. The act or omission relied upon must in fact aid or abet, and it must also have been done with the particular intention to facilitate or encourage the principal’s commission of the offence, with knowledge that the principal intends to commit the crime … .
(Emphasis added)
See also, R v Vu, 2012 SCC 40 at para 58, [2012] 2 SCR 411; R v Helsdon (2007), 2007 ONCA 54 at paras 43–44, 216 CCC (3d) 1; and R v Almarales, 2008 ONCA 692 at para 67, 237 CCC (3d) 148.
[50] Unlike other offences that Parliament has created, the offence of being a party to an offence under s. 21(1)(b) and s. 21(1)(c) of the Criminal Code requires the Crown to prove not only the doing of the act but also that the accused acted with the intention of aiding or abetting the principal offender. The Supreme Court of Canada has referred to this as a “specific mens rea” attached to the offence of being a party (see La Souveraine, Compagnie d’assurance générale v Autorité des marchés financiers, 2013 SCC 63 at para 45, [2013] 3 SCR 756). See also, R v M.R., 2011 ONCA 190 at para 40, 277 OAC 99. The specific mens rea for the offence of being a party requires the Crown to prove both intention and knowledge.
[51] The authors of E.W. Ewaschuk, Criminal Pleadings & Practice in Canada, loose-leaf (Rel 124, February 2016) 2d ed, vol 1 (Toronto: Canada Law Book, 2016) at para 15:2010 synthesize the case law well:
The fault element in aiding and abetting arises from the phrase “for the purpose of,” which is expressly stated in s. 21(1)(b) and is implied in s. 21(1)(c). The “fault element” includes both “intent and knowledge.” The aider or abettor must intend to help or encourage the principal to commit the offence and must know that the principal intends to commit that offence though the aider or abettor need not share the intent of the principal to commit the offence.
(Emphasis in original)
[52] The minority in Greyeyes stated, “in order to satisfy the purpose requirement under s. 21(1)(b), the Crown is required to prove only that the accused intended the consequences that flowed from his or her aid to the principal offender, and need not show that he or she desired or approved of the consequences” (at para 37). Briscoe, however, confirms that the proof of the act of aiding or abetting does not fulfill the mens rea requirement of s. 21(1)(b) and s. 21(1)(c).
[53] As part of the reasoning process of determining whether someone has aided or abetted the seller of drugs, the question to ask is not whether the purchase would have taken place without the assistance of the accused – as suggested by the Crown. The formulation of the test in these terms would catch the very transaction that concerned the majority in Greyeyes: the friend who drives the buyer to the risky part of town for the purposes of protecting the buyer.
[54] Shortly put, the trial judge did not misinterpret the case law or set the “bar” too high in deciding whether Mr. Machushek’s actions constituted aiding or abetting a trafficker. He quoted the same passages that I have quoted from Greyeyes and referred to all of the relevant case law applying that decision. There is no reason to say he misunderstood the law.
