Monday, 23 April 2012

Think Twice Before Helping-Out A Fugitive - Aiding & Abetting - An Introduction


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In Dunlop and Sylvester v. Rthe appellants were twice tried and convicted on a charge of rape. The indictment alleges that they did unlawfully have sexual intercourse with the victim without her consent. The appellants contend that they did no such thing, but rather, they were merely spectators at an event of which they had no prior knowledge. On appeal to the Manitoba Court of Appeal, the court found an error in the trial judge’s charge to the jury when he instructed them on the meaning of sec. 21(1)(b) of the CC. The trail judges read the following charge in response to a question by the jury:

“Intentionally omitting to do something for the purpose of aiding another to commit an offence, that if it had been done, would have prevented or hindered the person from committing an offence amounts to aiding and abetting”

However, the Court of Appeal applied sec. 613(1)(b)(iii), that the verdict would have been the same even in the absence of the error by the trial judge. The majority of the Supreme Court disagreed. Their definition of what amounted to aiding or abetting is summarized in the following way:

… Presence at the commission of an offence can be evidence of aiding and abetting if accompanied by other factors, such as prior knowledge of the principle offender’s intention to commit the offence or attendance for the purpose of encouragement… A person cannot properly be convicted of aiding or abetting in the commission of acts which he does not know may be or are intended.”

As such, the Supreme Court found no evidence on which a properly instructed jury could have found beyond a reasonable doubt that the appellants were guilty of aiding or abetting the rape. Thus, did not agree with the Court of Appeal for Manitoba that the error by the trial judge could be saved under sec. 613(1)(b)(iii).

In R v. Laurencellethe appellant was charged and convicted of aiding and abetting the unlawful confinement of the victim. Two men robbed and kidnapped the victim and brought him back to the home where the appellant lived with one of the men. During the four day confinement of the victim, the appellant, on several occasions, demonstrated acts of kindness to the victim, such as providing him with water and untying him to smoke a cigarette. At first instance, the trial judge found her guilty on the basis that she allowed the victim and the two men to remain in her home, which, the trial judge thought, amounted to more than passive acquiescence. She allowed her home to be used as a place of confinement, thereby encouraging the other co-accused in their venture. On appeal to the B.C. Court of Appeal, the justices stated the following:

“There is no basis for asserting that the appellant had sole control, and certainly no basis as a matter of common sense for suggesting that she had any effective way of requiring the co-accused to leave

They distinguished the instant case from earlier cases where it was shown that the accused exercised a degree of control over the premises, or automobile used in the commission of the crime, that their acquiescence amounted encouragement. They also went on to state that they disagreed with the Crown’s submission that the acts of kindness shown by the accused amounted to aiding and abetting.

In R v. Loganthe appellant was convicted of attempted murder during the course of a robbery in which he was a party, but did not fire the weapon which seriously wounded the victim. He was convicted under sec. 21(2) of the CC, which imposes criminal liability on joint-venturers who form a common unlawful purpose (in this case, the robbery) and later a collateral crime results from one or more of their actions. The test imposes an objective standard of foreseeability on the joint-venturer (the non-principal). The appellant sought the leave of the Supreme Court for his conviction of attempted murder on the basis that the requisite degree of Mens Rea required for the principle for a charge of attempted murder was higher than that required for a party to the offence. The Supreme Court started off by saying that they cannot completely exclude the possibility that for certain crimes Parliament could not set different degree requirements of Mens Rea for the principle and the party. However, in the decision of Vaillancourt the Supreme Court held that for few offences the principles of fundamental justice require that a conviction cannot stand unless there is proof beyond a reasonable doubt of a minimum degree of Mens Rea. In other words, that decision established that for crimes of murder, a subjective assessment of intent is required. Therefore, they instituted a two-step test to assess whether a party to the offence had the requisite Mens Rea to found a conviction pursuant to sec. 21(2):
  1. Is there a minimum degree of Mens Rea required by the principles of fundamental justice before one can be convicted as a principal for the offence in question?
  2. If the principles of fundamental justice do require a minimum degree of Mens Rea, then that minimum degree is constitutionally required to convict a party to that offence.

The requisite Mens Rea required for a conviction of attempted murder was established in the case of Ancio – that of specific intent to kill. However, that case did not deal with Charter arguments relating to sec. 7. In R v. Martineau, Charter considerations were at the fore of that case, where it was held that subjective foresight of death was the minimum Mens Rea requirement for murder – not attempted murder. In reconciling the two decisions relating to two different charges, the Supreme Court, in this case, held that the only difference between a murderer and an attempted murderer is “consequence” component of the Actus Reus. Both are equally morally blameworthy. However, the underlying penal consequences for the two offences are dissimilar – attempted murder having a lower minimum sentence than that of murder. In responding to the perceived disparity, the Supreme Court held that as a basis for a constitutionally required minimum degree of Mens Rea, the social stigma associated with a conviction is the most important consideration, not the sentence. In other words, the sentencing range available to the Judge is not conclusive of the level of Mens Rea constitutionally required. As such, the Supreme Court concluded that the inclusion of the objective standard test for parties to an offence of attempted murder would violate sec. 7 of the Charter since it imposes an objective standard on the party and a subjective standard on the principle, while both are equally morally blameworthy. On an attempt to save the section as it applies to attempted murder via sec. 1 of the Charter, the Supreme Court held that it does not satisfy the proportionality test in Oakes because it unduly impairs an accused’s rights under sec. 7.


In R v. Portillo, which was argued before the Ontario Court of Appeal, established two important points:
  • First, it defines participation as “doing something that caused the death of the deceased or doing something for the purpose of helping another person to do something that caused the death of the deceased.” Additionally, “if the jury is satisfied that an accused participated in the killing as described above, it is unnecessary for the jury to determine the exact nature of that participation.”
  • Second, in regards to the application of sec. 21(2) – joint venturers in a common unlawful purpose – while the minimum requisite Mens Rea for murder is subjective intent, for manslaughter the objective test applies, in that “if a reasonable person would have foreseen the risk of harm to the deceased as a result of carrying out the common design, then he is as guilty as the principle.”


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