E. Aiding and Abetting

Author:Kent Roach
Profession:Faculty of Law and Centre of Criminology. University of Toronto

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Section 21(1) of the Criminal Code provides that everyone is a party to an offence who "actually commits it; or does or omits to do anything for the purpose of aiding any person to commit it; or abets any person in committing it." A person who either aids or abets an offence is a party to that offence and guilty of the same offence as the person who actually commits the offence, often known as the principal. It is not necessary for the Crown to specify whether a person is guilty as the principal offender or as an aider or abettor of the offence. In the famous Colin Thatcher case, the Crown was able to argue that the accused was guilty of murder on the alternative theories that he actually killed his ex-wife or he assisted others to do the killing.97In the Robert Pickton serial murder case, the jury was initially instructed according to the Crown’s theory of the case that Pickton personally shot his multiple victims. The Supreme Court, however, upheld a subsequent jury instruction that left open the possibility that Pickton would be guilty if he was "otherwise an active participant" in the killings and indicated that it was not necessary that he be the actual shooter to be guilty of murder. Relying on the Thatcher case, the Court stressed that section 21(1) was designed to put the aider or abettor on the same footing as the person who actually committed the crime.98A number of accused

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could be convicted of murder if they all knowingly assisted in causing the victim’s death even though it was unclear which one of the accused actually killed the victim.99Imposing the same liability and maximum penalty on a person who has knowingly assisted an offence as on the person who actually committed the offence may seem harsh in some cases. Limited participation in a crime may, however, be a mitigating factor in sentencing though the mitigating factor may be limited by the existence of a mandatory minimum penalty.

1) The Actus Reus of Aiding and Abetting

It is common to speak of aiding and abetting together, but the two concepts are distinct, and liability can flow from either one. Broadly speaking, "[t]o aid under s. 21(1)(b) means to assist or help the actor. . . . To abet within the meaning of s. 21(1)(c) includes encouraging, instigating, promoting or procuring the crime to be committed."100Abetting has been held to include intentional encouragement whether by acts or words.101A person who distracts a security guard so that his or her friend can shoplift may aid a theft, whereas a salesclerk who encourages or allows a customer to shoplift would abet the theft. Both people would be guilty of theft, even though they did not themselves steal the merchandise. The terms aiding and abetting are generally used together, but they remain distinct forms of liability for being a party to an offence.

In Dunlop v. R.,102Dickson J. stated that a person is not guilty of aiding or abetting a rape merely because he is present at the scene of a crime and does nothing to prevent it . . . . If there is no evidence of encouragement by him, a man’s presence at the scene of the crime will not suffice to render him

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liable as aider and abettor. A person who, aware of a rape taking place in his presence, looks on and does nothing is not, as a matter of law, an accomplice. The classic case is the hardened urbanite who stands around in a subway station when an individual is murdered.

In the case, the accused were acquitted of rape on the basis that there was no evidence that they "rendered aid, assistance, or encouragement" to the gang rape of a young woman. Dickson J. did indicate, however, that presence at the commission of an offence can be evidence of aiding and abetting if accompanied by other factors such as prior knowledge that the crime was going to be committed. Similarly, presence at a crime that prevents the victim’s escape or prevents the victim receiving assistance is a sufficient actus reus.103Some members of the Supreme Court have disapproved of a case in which an accused was found not to be a party to a rape, despite having witnessed the crime with his pants down.104At the same time, the Court has recently affirmed as sound the proposition in Dunlop that "an accused’s mere presence at the scene of a crime in circumstances consistent with innocence will not support a conviction."105In that case it upheld a conviction of a man producing marijuana, on the basis that there was evidence beyond his mere presence to convict him because he was found sleeping in a camouflaged tent with fertilizer at a remote marijuana plantation. Two judges dissented, however, on the basis that there was no evidence of anything beyond the accused’s presence at the site.

The position that mere presence and passive acquiescence in a crime is not sufficient to make a person an aider or abettor mirrors the criminal law’s traditional reluctance to penalize omissions. As with omissions, however, courts recognize exceptions to this principle in cases where the person who stands by is under a specific legal duty to act. Owners of cars who do nothing while others engage in dangerous driving have been held to have abetted the dangerous driving because they did not exercise their power to control the use of their vehicle.106

A senior officer in charge of a police lock-up has also been found to have aided and abetted an assault on a prisoner by failing to exercise

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his statutory duty to protect a prisoner in his charge.107The conclusion in these cases that a failure to act can amount to aiding and abetting is strengthened by the fact that section 21(1)(b) provides that one who omits to do anything for the purpose of aiding any person to commit an offence may be charged as a party to that offence.

2) The Mens Rea for Aiding and Abetting

The broad definition of the actus reus of aiding and abetting is balanced with a requirement that the act or omission of assistance be committed for the purpose of assisting in the commission of the offence. To be convicted as an aider or abettor, the accused must not only knowingly assist the principal, but...

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