Pour être reconnu coupable par le biais de la complicité, le participant doit avoir l'intention d'aider ou d'encourager la perpétration de l'infraction

R v Machushek, 2016 SKCA 41

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[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)

Filmer le déroulement d'une infraction peut entraîner la responsabilité pénale de ce participant selon les circonstances de l'affaire

R. v. J.(D.), 2009 ONCJ 555

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[29]                  Did the accused engage in conduct which supported Kevin in committing the offence? I have described the accused’s conduct above.  The accused was not merely present – the classic hardened urbanite who sees an assault on the subway and passes on without action, referred to by the Supreme Court in Dunlop.  Throughout Kevin’s torture of the complainant, the accused followed Kevin, and contributed to the celebratory atmosphere by smiling, casual conversation about ordering pizza, and mugging for the camera that recorded the torture.

[30]                   Did this conduct have the effect of encouraging the primary perpetrator? Kevin did not give evidence. However, he was undoubtedly aware of the accused and his conduct. The apartment in which the assaults occurred is tiny, and the accused was always in close proximity to Kevin. He faced Kevin as Mr. Saliba was dragged into the bathroom, and then followed him in. The cell phone, held up by JE in order to film, was in plain view. 

[31]                   I am entitled to draw inferences from all the evidence about what the effect of the conduct of the accused was on Kevin. In my view, it is inevitable that the party atmosphere created by both the accused and JE facilitated Kevin’s assaults.  A message to a perpetrator from friends that such conduct is not to be sanctioned, but in fact celebrated, must be a powerful sign of approval. It suspends the usual moral code against torture, and gives license to proceed.  Filming of the torture (and participating in the filming) puts a further stamp of approval on the crime.

[32]                  In addition, just the presence of the accused with JE in the apartment had the effect of intimidating the complainant and supporting Kevin. Mr. Saliba said it was “three against one” when explaining why he didn’t resist.

[33]                   In my view, the accused’s conduct constituted encouragement of Kevin in his actions as much as if the accused had yelled, “hit him”.

[34]                  The facts in this case are reminiscent of those in R v Black, 1970 BCJ 579 (C.A.).  In that case, a man was taken to a private home which functioned as a clubhouse and subjected to a number of humiliating assaults.  A number of those present participated directly in the assaults. Others watched, laughing periodically.  The court observed that the assaults functioned as entertainment for those present.  The Court observed that it was “clear” based on these facts, that “the spectators furnished encouragement to the perpetrators of the outrages and were guilty as abettors.” This case was cited by the Supreme Court in Dunlop as an example of when non-accidental presence can constitute ‘abetting’.

[35]                  Finally, I consider whether it has been established beyond a reasonable doubt that the accused intended that his conduct support Kevin in his actions. I am persuaded that it has.  The accused stayed through the whole series of assaults, making way for Kevin as he pushed Mr. Saliba into the bathroom. He left only when the violence was completed. The accused’s demeanour was approving, smiling. The accused showed himself an enthusiastic participant in the video recording of the torture.

[36]                  Considering all the evidence, the only reasonable explanation of the conduct of the accused that day is that he intended to support and encourage Kevin in his assaults on the complainant.  There are a number of possible motives for his actions—for example, it may be that the accused was gratifying sadistic desires, or that he wanted to conform to activity expected within a certain group.  I do not have to consider what motivated the accused, only what he intended the effect of his activity to be.

[37]                  I am satisfied that the Crown has proved beyond a reasonable doubt that the accused that the accused intentionally supported and encouraged  Kevin in the robbery of Mr. Saliba, and thus find the accused guilty of the offence of robbery.

Pourquoi il est inapproprié de questionner un accusé d'expliquer pourquoi un témoin vient mentir à la barre

R. v. L.L., 2009 ONCA 413

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[14]         Questions in cross-examination that ask an accused person to explain why a complainant would fabricate his or her allegations are improper for two reasons.

[15]         First, as a general matter, it is improper to invite one witness to comment on the veracity of another: R. v. Brown (1982), 1982 ABCA 292 (CanLII), 1 C.C.C. (3d) 107 (Alta. C.A.) affirmed 1985 CanLII 3 (SCC), [1985] 2 S.C.R. 273. This principle has particular application to an accuser and the accused. As noted by Charron J.A. in R. v. Rose, (2001), 2001 CanLII 24079 (ON CA), 53 O.R. (3d) 417 (C.A.) at para. 27, this court “has held repeatedly that it is improper to call upon an accused to comment on the credibility of his accusers”.

[16]         Second, questions of this type create a risk of shifting the burden of proof because they may mislead the trier of fact into focussing on whether the accused can provide an explanation for the complainant’s allegations instead of focussing on the central issue of whether the Crown has proved beyond a reasonable doubt that the allegations are true: R. v. S.(W.) (1994), 1994 CanLII 7208 (ON CA), 18 O.R. (3d) 509 (C.A.), leave to appeal to the S.C.C. refused, [1994] S.C.C.A. No. 290. ; R. v. Ellard (2003), 2003 BCCA 68 (CanLII), 172 C.C.C. (3rd) 28 (B.C.C.A.). As this court said in R. v. F.(C.), [1996] CanLII 623 (Ont. C.A.), such questions create a risk that the jury may draw an adverse inference if the accused fails to provide a “reasoned or persuasive” response.

Comment apprécier la pertinence des antécédents judiciaires d'un témoin

R. v. Guthrie, 2014 ONSC 3269

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[3]               Prior convictions are admitted in relation to credibility on the theory that the character of a witness, as evidenced by prior convictions, is a relevant fact in assessing the testimonial reliability of the witness.

[4]               There are, however, limitations to that theory.  Dickson C.J.C. went on to state that the trial judge has a discretion to exclude prejudicial evidence of previous convictions if their admission would make the trial unfair, and he adopted as useful the catalogue of factors listed by La Forest J. (in dissent) to which reference may be had in determining how this discretion is to be exercised.  That catalogue of factors includes:

• the nature of the previous conviction(s);
• remoteness or proximity in time of the previous conviction(s) to the current offence;
• the similarity of the previous conviction(s) to the current charge(s); and
• fairness to the trial process.[3]

[5]               In regard to fairness, both Dickson C.J.C. and La Forest J. highlighted that it would not be fair to prohibit cross-examination of the accused in regard to previous convictions if a deliberate attack had already been made by the Defence upon the credibility of a Crown witness, especially when the attack had been based on the prior criminal record of the Crown witness.[4]

[7]               As a general rule, certain types of convictions are not held to be relevant to credibility.  As an example, assault convictions are not considered to be relevant to credibility, nor are crimes involving drugs, or impaired driving offences. On the other hand, thefts and frauds or obstructing justice convictions are considered to be very relevant.[5]  However, a criminal record – whether for crimes of dishonesty or other types of crimes – is considered to be relevant to show that the accused is someone who has demonstrated contempt for law that he is legally and morally bound to obey.[6]

Le droit relatif au contre-interrogatoire, plus particulièrement en ce qui concerne au contre-interrogatoire de l'expert

R. v. Evans, 2019 ONCA 715 

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[97] Despite their differences about the result their application should yield, the parties are not at odds about the principles that control our response to this ground of appeal. Some of those principles have to do with the permissible scope of cross-examination, others with the limits on judicial intervention in counsel's conduct at the trial.

[98] The right of an accused to cross-examine witnesses called by the Crown, whether of fact or of opinion, without significant and unwarranted constraint is an essential component of the common law and the constitutional right to make full answer and defence: R. v. Lyttle, [2004] 1 S.C.R. 193, [2004] S.C.J. No. 8, 2004 SCC 5, at para. 41, citing R. v. Seaboyer, 1991 CanLII 76 (SCC), [1991] 2 S.C.R. 577, [1991] S.C.J. No. 62, at p. 608 S.C.R. Cross-examination is of essential importance in determining whether a witness is credible and his or her evidence is reliable: Lyttle, at para. 42, citing R. v. Osolin, 1993 CanLII 54 (SCC), [1993] 4 S.C.R. 595, [1993] S.C.J. No. 135, at p. 663 S.C.R. And, in some circumstances, it may be the only way to get at the truth: R. v. V. (R.), [2019] S.C.J. No. 41, 2019 SCC 41, at para. 39.

[99] It follows ineluctably from what I have said that not only must the right of cross-examination be jealously protected, but also that it must be broadly construed: Lyttle, at para. 44. On the other hand, the right must not be abused. Cross-examining counsel are bound by the rules of relevance. They are "barred from resorting to harassment, misrepresentation, repetitiousness or, more generally, from putting questions whose prejudicial effect outweighs their probative value": Lyttle, at para. 44.

[100] Cross-examination must conform to the general principles of the law of evidence. Questions put, in addition to having a good faith basis, must elicit evidence that is relevant, material and admissible under the adjective law of evidence. The popular courthouse folklore "But this is cross-examination" is simply that. It is not a lifetime pass around and through the thicket of the fundamental principles of the law of evidence: Osolin, at pp. 665-66 S.C.R., citing R. v. Morris, 1983 CanLII 28 (SCC), [1983] 2 S.C.R. 190, [1983] S.C.J. No. 72, at p. 201 S.C.R.

[101] Relevance and probative value are determined in cross-examination, as they are in examination-in-chief and in re-examination, in the context of each case and with respect to the purpose for which the evidence is being tendered: Osolin, at para. 162. [page601]

[102] The proper procedure to be followed in examining, or cross-examining, an expert witness on other expert opinions found in papers or books is to first ask the witness whether he or she knows the work. If the witness answers "no", or denies the work's authority, the matter ends there. Examining counsel cannot read from the work, for to permit counsel to do so would be to countenance introduction of the work as evidence, thus contravening both the hearsay and opinion rules. If the answer is yes, and the witness acknowledges the work's authority, then the witness has confirmed it by his or her testimony. Counsel may then read parts of the admittedly authoritative work to the witness. To the extent, but only to the extent, that the witness confirms their accuracy, the passages become evidence for the trier of fact to consider: R. v. Marquard, 1993 CanLII 37 (SCC), [1993] 4 S.C.R. 223, [1993] S.C.J. No. 119, at p. 251 S.C.R. And if the witness disagrees with the authoritative work, his or her explanation may be considered in assessing the credibility of his or her expert opinion.

[103] The authorities make it clear that the right of cross-examination is not absolute. But it is equally so for the limitations on that right. Trial judges enjoy, as in connection with other aspects of the trial, a broad discretion to ensure fairness and to see that justice is not only done, but also that it is seen to be done. As a result, on some occasions at least, a trial judge may think it right to relax the requirement of relevance or a rule of admissibility: Lyttle, at para. 45; see, also, R. v. Kimberley (2001), 2001 CanLII 24120 (ON CA), 56 O.R. (3d) 18, [2001] O.J. No. 3603, 157 C.C.C. (3d) 129 (C.A.), at para. 80, leave to appeal to S.C.C. refused R. v. Clancey, [2002] S.C.C.A. No. 29.

[104] As a necessary incident of the trial management power, a trial judge has the authority to control the conduct of cross-examination. Interventions must be exercised with caution so as to leave unfettered the right of the accused, through his counsel, to subject any witness' testimony to the test of cross-examination. We permit interventions to disallow questions ruled improper, for example, because they invite the introduction of hearsay or other inadmissible evidence, or because the answers are irrelevant or immaterial, or in order to protect the witness from repetitious questioning or unwarranted harassment: R. v. Bradbury, 1973 CanLII 1442 (ON CA), [1973] O.J. No. 859, 14 C.C.C. (2d) 139 (C.A.), at pp. 140-41 C.C.C. The ultimate question to be answered is whether, as a result of the number and nature of interventions, the accused might reasonably consider that he had not had a fair trial, or whether a reasonably minded person, who had been present throughout the trial, would consider that the accused had not had a fair trial: R. v. Hungwe [page602] (2018), 142 O.R. (3d) 22, [2018] O.J. No. 2618, 2018 ONCA 456, 361 C.C.C. (3d) 534, at para. 43, citing R. v. Valley,  1986 CanLII 4609 (ON CA), [1986] O.J. No. 77, 26 C.C.C. (3d) 207 (C.A.), at p. 232 C.C.C., leave to appeal to S.C.C. refused [1986] 1 S.C.R. xiii, [1986] S.C.C.A. No. 298.