Criminal law has recognized that a person who acts as a lookout or drives a getaway car may still be found guilty of an offence even though they are not the principal offender. But what about a person who aids or counsels the primary offender? In R. v. Cowan, the Supreme Court considered party liability to a criminal offence.
Accused Denies Participating in a Robbery but Admits to Counselling Others
In R. v. Cowan, two masked individuals entered a Subway restaurant and demanded all the money in the register. One of the masked individuals stood watch at the door while the other, holding a knife, told the Subway employee to put the money in the bag.
In reviewing the security footage, the police were able to identify Cowan because of his distinctive running shoes. While Cowan denied participating in the robbery, he admitted to counselling the others on how to commit a robbery.
The Crown argued at trial that either Cowan was the masked robber and therefore a principal offender “or he was a party in that he abetted or counselled the commission of the offence.”
The trial judge acquitted Cowan finding he was not a principal offender in the commission of the offence.
The Crown appealed this conviction, and the Court of Appeal ordered a new trial.
Supreme Court of Canada Analysis
The majority of the Supreme Court found that the trial judge made an error in law in assessing Cowan’s liability as a party for having abetted or counselled the commission of the offence and agreed with the Court of Appeal that a new trial should be ordered.
Section 21 and 22 of the Criminal Code set out the various ways in which an accused may participate in and be found guilty of a particular offence. The provisions codify both liability for an accused who participates in an offence by actually committing it, under s. 21(1)(a) (principal liability); and liability for an accused who participates in an offence by, for example, abetting or counselling another person to commit the offence, under s. 21(1)(c) or s. 22(1) (party liability).
Specifically, the provisions state:
Parties to offence
21(1) Everyone is 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.
Person Counselling Offence
22 (1) Where a person counsels another person to be a party to an offence and that other person is afterwards a party to that offence, the person who counselled is a party to that offence, notwithstanding that the offence was committed in a way different from that which was counselled.
Therefore, for the purposes of determining criminal liability, the Criminal Code does not distinguish between principal offenders and parties to an offence. An individual is guilty regardless of the way in which they participated in the offence. “The person who provides the gun,” the court noted, “is guilty of the same offence as the person who pulls the trigger.”
In reviewing the actus reus and mens rea of abetting, the court noted that these essential elements of abetting are well established. The actus reus of abetting is doing something or omitting to do something that encourages the principal to commit the offence. The mens rea of the offence has two components: intent and knowledge. That is, the abettor must have intended to abet the principal in the commission of the offence and known that the principal intended to commit the offence.
The court noted that both the actus reus and the mens rea could have been made out from the statement that Mr. Cowan made to the police.
Where an accused is tried alone, as was Cowan, and there is evidence that more than one person participated in the commission of the offence, the Crown is not required to prove the identity of the other participants, or the precise role played by each, in order to prove an accused’s guilt as a party. This principle applies where an accused is prosecuted as either an abettor or counsellor. This is true even though the jurisprudence setting out the elements of abetting refers to encouraging “the principal”, intending to abet “the principal”, and knowing that “the principal” intended to commit the offence.
While the Court recognized that “acquittals are not overturned lightly,” for a Crown to meet this high threshold on a legal error, there must be “a material degree of certainty that the impugned error of law might have had a material bearing on the acquittal.” The majority of the Court was satisfied that this was achieved through Cowan’s statements to the police that he abetted and counselled the accused on how to commit a robbery.
The dissenting justices held that issue estoppel precluded the Crown from relitigating an issue that has been determined in the accused’s favour in a prior criminal proceeding. The Court of Appeal’s order was not contrary to what justice requires and therefore in order to promote fairness, the efficient use of the court’s resources, and the integrity of the criminal justice process, Cowan’s acquittal should be restored.
This Supreme Court decision lowers the evidentiary bar for Crowns in trying cases for aiding and abetting by stating that when it comes to party liability the Crown is not required to prove the identity of the principal offender or their specific role in the commission of the offence. We will continue to monitor this case and how the Supreme Court’s ruling impacts the law in this area.
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