Dunlop and Sylvester v. The Queen, [1979] 2 SCR 881

SUPREME COURT OF CANADA

Dunlop and Sylvester v. The Queen, [1979] 2 S.C.R. 881

Date: 1979-05-31

Randy James Dunlop and Graham Stanley Sylvester Appellants;

and     

Her Majesty The Queen Respondent.

1978: December 6; 1979: May 31.

Present: Laskin C.J. and Martland, Ritchie, Spence, Pigeon, Dickson, Beetz, Estey and Pratte JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR MANITOBA

Criminal law — Parties — Aiding and abetting — Gang rape — Complainant identifying accused as two of her attackers — Charge denied — No evidence accused formed common intention with those involved to commit rape — Whether any evidence accused aided and abetted commission of offence — Criminal Code, s. 21(1) and (2).

The appellants were twice tried and convicted on a charge of rape. It was alleged that they unlawfully had sexual intercourse with the complainant without her consent. They were sentenced to serve six years in penitentiary. In an appeal taken following the second trial, the Manitoba Court of Appeal found error on the part of the trial judge, but by a three to two majority sustained the conviction by applying s. 613(1)(b)(iii) of the Code. From that judgment an appeal was taken to this Court.

A gang rape of the complainant occurred late at night in an isolated area, the site of a former dump, where members of a motorcycle club were having a party. Some eighteen men had intercourse with the complai­nant while she was being held by two other members of the group. She identified the accused as two of the men who attacked her. The accused denied the charge. They testified that they had attended a meeting of the club at the dump earlier in the evening in question, and later were present in a beverage room where the complainant and a friend were spending some time. Still later, the accused delivered a quantity of beer at the dump. Dunlop saw a female having intercourse; with whom, he could not say, but he believed the person to be a member of the motorcycle club. After three minutes he and his co-accused left.

The issue for the jury was a simple one—did the two accused have intercourse with the complainant? She said that they had, and they denied it. The judge chose,

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however, to instruct the jury upon parties to an offence under s. 21 of the Code, and it was in this respect that the convictions were challenged.

Held (Martland, Ritchie and Pigeon JJ. dissenting): The appeals should be allowed.

Per Laskin C.J. and Spence, Dickson and Estey JJ.: It was common ground that the trial judge erred in charg­ing the jury on s. 21(2) of the Code, common intention, when there was no evidence that the appellants had formed any common intention with those involved in the gang rape to commit rape upon the complainant.

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 principal offend­er's intention to commit the offence or attendance for the purpose of encouragement. In this case there was no evidence that while the crime was being committed either of the accused rendered aid, assistance, or encour­agement to the rape of the complainant. There was no evidence of any positive act or omission to facilitate the unlawful purpose. One could infer that the two accused knew that a party was to be held, and that their presence at the dump was not accidental or in the nature of casual passers-by, but that was not sufficient. A person cannot properly be convicted of aiding and abetting in the commission of acts which he does not know may be or are intended. One must be able to infer that the accused had prior knowledge that an offence of the type committed was planned, i.e. that their presence was with knowledge of the intended rape.

The evidence failed to disclose any facts as distin­guished from surmise or suspicion, upon which a jury could conclude beyond reasonable doubt that the accused had assumed a role which would qualify them as aiders and abettors under s. 21(1) of the Code.

In these circumstances, the trial judge erred in charg­ing the jury on the alternative bases of (i) principal offender and (ii) aider and abettor.

The error, unfortunately, was compounded when the jury, which had retired at 3:15 p.m., returned at 5:40 with the following question: "If the accused were aware of a rape taking place in their presence and did nothing to prevent or persuade the discontinuance of the act, are they considered as an accomplice to the act under law?"

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That question should have been answered in one word—"No." However, the judge, who initially intended to respond with a "No" answer, was persuaded, during argument, to the point of view, advanced for the first time on behalf of the Crown, that the accused might be guilty as parties to the offence under s. 21 of the Code.

The recharge was in error in three respects: (i) it was not responsive to the question asked; (ii) on the facts of the case, it might leave the jury with the impression that the accused could be parties to the offence if they knew that an offence was being committed and failed to do anything to hinder or prevent it; and (iii) the jury received no help in applying the instruction given; no act or omission was identified as providing a possible factual underpinning to the operation of s. 21.

The difficulty now faced by this Court was that it did not know, and would never know, whether the jury found the appellants guilty because they had had intercourse with the complainant, or by reason of the opera­tion of subss. (1) or (2) of s. 21 of the Code. The Court did know from the question of the jury, and its timing, that after two hours and twenty-five minutes of deliber­ation the jury had not accepted the evidence of the complainant as to direct participation by the appellants. Fifteen minutes after resuming deliberation, following the recharge, the guilty verdict was returned.

This was not an appropriate case for the application of s. 613(1)(b)(iii). One could not say that the verdict would have been the same in the absence of error. In the circumstances a verdict of acquittal should be directed, rather than have the applicants undergo a third trial.

Per Beetz and Pratte JJ.: With respect to subs. 21(2), there was agreement in the Court of Appeal—and it was not challenged here—that the trial judge had erred in charging the jury in, that respect. The difference in the Court of Appeal was solely as to the application of subpara. 613(1)(b)(iii) to such error. This was not a dissent on a question of law.

As to subs. 21(1), for the reasons given by Dickson J., the reply of the trial judge to the question of the jury was inadequate and amounted to a misdirection in law. One could not say, in the light of the evidence, that this error on the part of the trial judge caused the appellants no substantial wrong or miscarriage of justice. Therefore,

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subpara. 613(1)(b)(iii) should not be invoked in respect to such error.

Per Martland, Ritchie and Pigeon JJ., dissenting: The third ground of dissent in the Court of Appeal did not constitute a dissent on a question of law. Paragraph (iii) of subs. 613(1)(6) gives to a court of appeal a discre­tionary power to dismiss an appeal from conviction, even where there has been a wrong decision by a trial court on a question of law if there has been no substantial wrong or miscarriage of justice resulting from that error. A disagreement by a dissenting judge regarding the exercise of that discretion is not a dissent on a question of law.

The first ground of dissent was that there was no evidence upon which the appellants could have been found to be parties to the offence under subs. 21(2) of the Code. Matas J.A., who delivered the main reasons of the majority, and with whom Freedman C.J.M. con­curred, did not disagree on this point with the reasons of Hall J.A., who delivered the reasons of the minority. As stated by Matas J.A., with respect to the grounds of appeal on common intention, there was merit in the argument that the comments of the trial judge were inappropriate in the circumstances of the case. But it was apparent from the juror's question that the mem­bers were not troubled by the concept of common inten­tion. In any event, no substantial wrong or miscarriage of justice occurred.

With respect to the second ground of dissent, it was noted that whereas ground one referred to "no evi­dence," which is an issue of law, the second ground referred to "insufficient evidence in law" to make the appellants parties to the offence. Sufficiency of evidence is a matter for the jury. Dissent on this point was not a dissent on a question of law.

However, as the point had been thoroughly canvassed in argument, it was considered. The gist of the reasons of Hall J.A. was found in his statement that the pres­ence of the accused at the dump, and their passive observation of a girl having sexual intercourse was not sufficient in law to make them parties to an offence under s. 21(1) of the Code. But the statement that the appellants were merely present at the dump and were passive observers of an act of sexual intercourse had to be based upon the evidence of the appellants. It was for the jury to decide whether or not to accept that evi­dence. The statement overlooked entirely other evidence on which the jury could conclude that the appellants had aided and abetted the commission of the offence. The

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jury had been properly instructed as to what was neces­sary in order to establish aiding and abetting, The sufficiency of that evidence was solely a matter for the determination of the jury and was not a matter to be decided by the Court of Appeal.

As to the criticism of the trial judge for his response to the question asked by the jury, the reasons of Matas J.A. for his view that the Crown had satisfied the onus of showing that the trial judge did not err in either the instructions or the answer on the question of the applica­bility of s. 21(1) were adopted.

[The Queen v. Warner, [1961] S.C.R. 144; The Queen v. Coney (1882), 8 Q.B. 534; Preston v. R., [1949] S.C.R. 156; R. v. Dick (1947), 2 C.R. 417; R. v. Hoggan (1965), 47 C.R. 256; R. v. Salajko, [1970] 1 C.C.C. 352; R. v. Black (1970), 10 C.R.N.S. 17; R. v. Clarkson, [1971] 3 All E.R. 344; D.P.P. v. Maxwell, [1978] 3 All E.R. 1140, referred to.]

APPEALS from a judgment of the Court of Appeal for Manitoba[1], dismissing an appeal by the accused from their conviction for rape following a second trial. Appeals allowed, Martland, Ritchie and Pigeon JJ. dissenting.

J. J. Gindin, for the appellants.

J. G. Dangerfield, for the respondent.

The judgment of Laskin C.J. and Spence, Dickson and Estey JJ. was delivered by

DICKSON J.—The appellants were twice tried and convicted on a charge of rape. The indictment alleges that on June 26, 1975, they did unlawfully have sexual intercourse with Brenda Ross without her consent. They were sentenced to serve six years in penitentiary. In an appeal taken following the second trial, the Manitoba Court of Appeal found error on the part of the trial judge, but by a three to two majority sustained the conviction by apply­ing s. 613(1)(b)(iii) of the Code. It is from that judgment that the present appeal is taken.

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The Facts

A rather detailed recital of the facts is essential to an understanding of the issues. In June 1975, Brenda Ross was sixteen years of age. On the night of the alleged offence, accompanied by a friend, Anne McGibney, she went to the Waldorf Hotel in the City of Winnipeg to listen to a band and drink beer.

A number of members of a motorcycle club known as the Spartans were present at the hotel. The two girls were joined at their table by two members of the club, one Hawryluk and the appel­lant Dunlop, and by a prospective member, one Douglas. During the evening the complainant con­sumed five or six glasses of beer. At about 11:30 p.m. she, riding on the back of Douglas' motorcy­cle, and Anne McGibney, riding on the back of Hawryluk's motorcycle, went briefly to the Balmoral Hotel. Leaving there, they proceeded on the motorcycles to an isolated area, the site of a former dump, located on Elmwood on the outskirts of Winnipeg. The Elmwood dump was favoured as a rendez-vous by motorcyclists because of the hillocks. After arrival, the four sat on the grass and talked for about five minutes, following which McGibney and Hawryluk went for a walk. The complainant and Douglas remained for three or four minutes, then Douglas left to repair his bike, leaving the complainant alone.

Lonely, she arose and went looking for McGib­ney and Hawryluk. At this moment four men in black leather jackets bearing the Spartan emblem arrived on motorcycles. They approached the com­plainant, picked her up by the arms and legs, carried her to a nearby area bordering a creek and threw her on the ground. By this time, quite a few other men, similarly dressed, arrived. The complai­nant's clothes were torn from her, and each of the men, about eighteen in number, had intercourse with her while she was being held by two of the others. On direct examination the complainant was asked whether she was able to recognize any of the men who had had intercourse, to which she replied "Yes, those two right there", looking at the appel­lants Dunlop and Sylvester. The night was very dark, but the complainant explained that after the men had laid her down a bonfire had been lighted, and she could see by the light of the fire. At one

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point she was threatened with a knife. There are more unpleasant details, but they need not be here recounted.

The following day the complainant picked Dunlop from a police lineup as one of the men who had attacked her. Sylvester was identified in a second lineup later the same day. Asked by Crown counsel what it was about them that made it possible for her to recall the two men so clearly, the complainant answered "Well, not really that much, but I seen their faces as they were getting on top of me." Later, she testified that she remem­bered very clearly the two accused, and that she was positive in her identification. She conceded on cross-examination that neither of the two accused was among the four men who first approached her, nor had either of them pinned her arms or pro­duced a knife. Her sole testimony implicating the two accused was to the effect that each of them had performed the physical act of intercourse with her during the course of the sexual attack. The case for the Crown was put forward on that footing.

Each of the accused gave evidence. Dunlop testified that he had attended a meeting of the Spartan Motorcycle Club at the Elmwood dump early in the evening in question, at which time Douglas had been introduced as a prospective member. Later, according to his evidence, Dunlop went to the Waldorf Hotel, joined the two girls at a table for a while, and then played pool until he left the hotel at about 1:00 a.m. He explained that Sylvester had been asked to bring beer to the dump for a party. He, Dunlop, accompanied Sylv­ester in the latter's car to the Vibrations disco­theque, where they remained about half-an-hour and then proceeded to the dump, arriving at 2:15 a.m. Upon arrival, he said, he and Sylvester "grabbed the beer which was four cases," walked over to the top of a knoll and set down the beer. Douglas was there. He told Sylvester that everyone was angry over the delay in delivering the

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beer. Dunlop walked to the other side of the knoll and noticed a few people down near the creek bed about twenty-five yards distant. Some of them displayed their ire at the delay in fetching the beer, by yelling at Dunlop and Sylvester. Dunlop saw a female having intercourse; with whom, he could not say, but he believed the person to be a Spartan. After three minutes he and Sylvester left. Dunlop denied having intercourse with Brenda Ross, or in any way assisting anyone else to have intercourse with her. Sylvester's evidence was to the same effect as that of Dunlop.

The issue for the jury was a simple one-did the two accused have intercourse with Brenda Ross? She said that they had, and they denied it. The issue was well formulated by the trial judge just before the conclusion of his summing up, in these words:

If you accept the evidence of Brenda Ross, and if after weighing all the evidence you come to the conclu­sion that you are satisfied beyond a reasonable doubt that the two accused did have sexual intercourse with Brenda Ross without her consent, then you may find them both guilty as charged.

If, on the other hand you have reasonable doubt that either one or both accused participated in this way, then you must give that particular accused the benefit of that reasonable doubt and acquit the accused on the charge.

That is all the case was about. The judge chose, however, to instruct the jury upon parties to an offence under s. 21 of the Code, and it is in this respect that the convictions are challenged. The general effect of s. 21 is to make equally culpable

(i) the person who actually commits the offence,

(ii) any person who aids or abets in committing the offence, and (iii) persons who form an intention in common to carry out an unlawful purpose leading to the commission of the offence.

Section 21(2) of the Criminal Code

The first ground of appeal is that the trial judge erred in charging the jury on s. 21(2) of the Code, common intention, when there was no evidence

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that the appellants Dunlop and Sylvester had formed any common intention with those involved in the gang rape to commit rape upon Brenda Ross. It is common ground that the trial judge erred in this respect. Crown counsel concedes as much. There was no evidence that the appellants participated in a plan or scheme to lure the com­plainant to the dump as part of the initiation proceeding. In the Court of Appeal for Manitoba, Mr. Justice Matas, writing for the majority of the Court, considered that there was "merit in the appellants' argument that the comments were inappropriate in the circumstances of the case." Mr. Justice Hall, writing the minority opinion, said:

In my respectful opinion, there was no evidence upon which a jury, properly instructed, could find or infer that the accused were parties to an offence under that subsection. In my view, it was a pure invitation to the jury to resort to surmise, speculation and conjecture, as opposed to proper legal inference, against which they were cautioned not to do in the general charge.

Section 21(1) of the Criminal Code

The second ground of appeal was set out in the formal judgment of the Court of Appeal in this manner:

2. That the Learned Trial Judge erred in charging the Jury with respect to Section 21(1) of the Criminal Code, as there was insufficient evidence in law to make the Appellant ... a party to the offence.

In ascertaining the real ground upon which dissent is based, if the formal judgment fails to make that clear, this Court may look to the written reasons of the dissenting judges: Roy v. The King[2], at p. 43, per Crocket J. and Savard and Lizotte v. The King[3], at p. 23, per Taschereau J.

Mr. Justice Hall in his dissenting judgment left no doubt that the "insufficient evidence in law," of which he spoke, was insufficient in the sense that the trial judge ought not to have charged the jury at all with respect to s. 21(1):

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The presence of the accused at the dump, and their passive observation of a girl having sexual intercourse is not sufficient in law to make them parties to an offence under s. 2I (1) of the Code.

The case for the Crown should have been allowed to stand or fall on the issue of whether the Crown had proved beyond a reasonable doubt that the accused were two of the Spartans who had sexual intercourse with Ross against her will ... The charge should have stopped there.

As I read this passage, there is no suggestion that the evidence was insufficient to support a convic­tion, which is a question of fact or, at best, a question of mixed fact and law. That was the situation in The Queen v. Warner[4]. The error alleged in the dissent here is that there was insuffi­cient evidence to go to the jury under s. 21(1), as opposed to insufficient evidence to support the jury's verdict. The question of whether there is sufficient evidence to go to the jury, i.e. any evidence upon which a jury, properly instructed, could find the appellants guilty as parties to the offence under s. 21(1), is a question of law, which can found an appeal to this Court under s. 618(1)(a): The King v. Décary[5], at p. 83, and Calder v. The Queen[6], at pp. 896-7, per Cart­wright J.

On s. 21(1) of the Code, the jury was instructed as follows:

Secondly, I should also instruct you on the law relat­ing to parties to an offence. Section 21(1) of the Crimi­nal Code, reads as follows:

Everyone is a 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.

Abets, that word abets means encourages, supports, upholds. It is another way of expressing a person giving assistance to someone committing the offence. Everyone who aids and encourages the person in the commission of the offence is as guilty as the person who commits the actual criminal act.

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To find that the accused is guilty of aiding or abetting the commission of an offence by another person, it is only necessary to show that he understood what was being done and by some act on his part assisted or encouraged the attainment of that act.

Mere presence at the scene of a crime is not sufficient to ground culpability. Something more is needed: encouragement of the principal offender; an act which facilitates the commission of the offence, such as keeping watch on enticing the victim away, or an act which tends to prevent or hinder interference with accomplishment of the criminal act, such as preventing the intended victim from escaping or being ready to assist the prime culprit. Thus, in an early work, Foster's Crown Law, p. 350, we read:

... in order to render a person an accomplice and a principal in felony, he must be aiding and abetting at the fact, or ready to afford assistance if necessary, and therefore if A. happeneth to be present at a murder, for instance, and taketh no part in it, nor endeavoureth to prevent it, nor apprehendeth the murderer, nor levyeth hue and cry after him, this strange behaviour of his, though highly criminal, will not of itself render him either principal or accessory.

The leading case of R. v. Coney[7] decided that non-accidental presence at the scene of the crime was not conclusive of aiding and abetting. The accused were present at a prize fight, then illegal, though taking no part in the management of the fight. It did not appear that the accused said or did anything. The chairman of the quarter sessions directed the jury that, prize fights being illegal, all persons who went to a fight to see the combatants strike each other, and being present when they did so, were guilty of assault unless they were casually passing by. If they stayed at the place, they encouraged it by their presence although they did not say or do anything. Eight of the eleven judges hearing the case reserved were of opinion that the direction was not correct. Two passages from the judgment of Cave J. at p. 539 bear repeating:

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Now it is a general rule in the case of principals in the second degree that there must be participation in the act, and that, although a man is present whilst a felony is being committed, if he takes no part in it, and does not act in concert with those who commit it, he will not be principal in the second degree merely because he does not endeavour to prevent the felony, or apprehend the felon.

and,

… Where presence may be entirely accidental, it is not even evidence of aiding and abetting. Where pres­ence is prima facie not accidental it is evidence, but no more than evidence, for the jury.

Hawkins J. in a well-known passage had this to say, p. 557:

In my opinion, to constitute an aider and abettor some active steps must be taken by word, or action, with the intent to instigate the principal, or principals. Encour­agement does not of necessity amount to aiding and abetting, it may be intentional or unintentional, a man may unwittingly encourage another in fact by his pres­ence, by misinterpreted words, or gestures, or by his silence, or non-interference, or he may encourage inten­tionally by expressions, gestures, or actions intended to signify approval. In the latter case he aids and abets, in the former he does ont. It is no criminal offence to stand by, a mere passive spectator of a crime, even of a murder. Non-interference to prevent a crime is not itself a crime. But the fact that a person was voluntarily and purposely present witnessing the commission of a crime, and offered no opposition to it, though he might reason-ably be expected to prevent and had the power so to do, or at least to express his dissent, might under some circumstances, afford cogent evidence upon which a jury would be justified in finding that he wilfully encouraged and so aided and abetted. But it would be purely a question for the jury whether he did so or not. So if any number of persons arrange that a criminal offence shall take place, and it takes place accordingly, the mere presence of any of those who so arranged it would afford abundant evidence for the consideration of a jury of an aiding and abetting.

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In this Court the question of aiding and abetting was canvassed in Preston v. R.[8] The appellant and another were accused of having set fire to a school. Mr. Justice Estey delivered the majority judgment in this Court, in the course of which he stated (p. 159) that in order to find the appellant guilty of aiding, abetting, counselling or procuring, it was only necessary to show that he understood what was taking place and by some act on his part encouraged or assisted in the attainment thereof. Later he said (p. 160) that mere presence does not constitute aiding and abetting, but presence under certain circumstances may itself be evidence thereof. He proceeded to review the evidence and concluded, p. 161:

If appellant's explanation was not believed by the jury there was evidence in addition to his mere presence upon which they might well conclude that he was guilty of aiding, abetting, counselling or procuring. (Emphasis added.)

Two Canadian cases make the distinction be­tween presence with prior knowledge, and acciden­tal presence. In R.v. Dick[9], the accused was charged with the murder of her husband. Accord­ing to her own statement, she met her husband and Bohozuk, a friend, and they went with her in a borrowed car, her husband in the front seat and Bohozuk in the back. The two men began to quarrel, both were drinking; Bohozuk pulled a gun and shot Mr. Dick. It was not a happy marriage, nor were Mr. Dick and Bohozuk on best of terms. There was some surrounding evidence casting doubt upon the non-involvement of the accused. As Chief Justice Robertson noted, she did not admit that there was any design, nor that she knew Bohozuk intended to shoot Dick, nor even that she knew Bohozuk had a weapon with him. Yet the trial judge gave only general directions on aiding and abetting to the jury. Robertson C.J.O. concluded at pp. 432-3:

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Now, while it may be that a jury might infer from the evidence a good deal that is not expressly admitted, it is not at all certain that this jury did infer that the appellant knew more than she admits knowing of Boho­zuk's then present purpose. This jury should have been instructed that if they found that the appellant was no more than passively acquiescent at the time of the shooting and that she had no reason to expect that there would be any shooting until it actually occurred, then s. 69 did not apply.

In the result, a new trial was ordered.

In R. v. Hoggan[10], the charge was that the accused aided and abetted in wilfully attempting to defeat the course of justice by attempting to dissuade a witness from giving evidence. Johnson J.A. concluded at p. 260:

There are two things that must be proved before an accused can be convinced of being a party by aiding and abetting. It must be proved that he had knowledge that the principal intended to commit the offence and that the accused aided and abetted him. Where there is no knowledge that an offence is to be committed, the presence of an accused at the scene of the crime cannot be a circumstance which could be evidence of aiding and abetting.

The basis for Johnson J.A.'s approach to aiding

and abetting is found in Preston and Coney, both of which he cites.

The case of R. v. Salajko[11] is like the instant case in many respects. A girl was raped by fifteen young men in a lonely field. Three were charged. Two of these were identified as having had inter-course with the girl. She admitted, however, that the third accused, Salajko, though seen to be near the girl with his pants down while she was being raped by others, did not have intercourse with her. The Crown placed its case against him on s. 21(1)(b) and (c) of the Criminal Code. One might be forgiven for thinking that it was open to the jury to infer encouragement by conduct, but the

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Ontario Court of Appeal thought otherwise. Chief Justice Gale, delivering the judgment of the Court, stated that in the absence of evidence to suggest something in the way of aiding, or counselling, or encouraging on the part of the accused with respect to that which was being done by the others, there was simply no evidence upon which a jury could properly arrive at a verdict of guilty against the particular accused. The learned Chief Justice also found error in the trial judge's charge which seemed to indicate that a person could abet another in the commission of an offence if, know­ingly, he stood by while the offence was being committed

Finally, there are the cases of R. v. Black[12] and R. v. Clarkson[13]. The victim in Black's case was conveyed to a clubhouse where he was subjected to various sordid indignities. Many of the accused took an active part in torturing the victim while others stood around laughing and yelling. The British Columbia Court of Appeal confirmed the convictions, being of the view that the spectators furnished encouragement to the perpetrators of the outrages and their mere presence in the cir­cumstances of the case ensured against the escape of the victim. There was thus something more than "mere presence", as in R. v. Coney, supra. Most important, the trial judge directed the jury in language drawn from the judgment of Hawkins J. in Coney and reviewed the evidence relating to the presence of the accused in clear terms.

In contrast to R. v. Black is the case of R. v. Clarkson, a decision of the Courts-Martial Appeal Court. A girl was raped in a room in a barracks in Germany by a number of soldiers. Another group of soldiers clustered outside the door and later "piled in" to the room. They remained there for a considerable time while the girl was raped. There was no evidence that the appellants had done any physical act, or uttered any word which involved

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direct physical participation or verbal encouragement. There was no evidence that they touched the girl, or did anything to prevent others from assist­ing her or to prevent her from escaping. The Appeal Court held that it was not enough that the presence of the accused, in fact, gave encouragement. "It must be proved that the accused intended to give encouragement; that he wilfully encouraged." (p. 347) There must be, the Court held, an intention to encourage and encouragement in fact. The convictions were quashed.

The Case at Bar

In the case at bar I have great difficulty in finding any evidence of anything more than mere presence and passive acquiescence. 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 principal offender's intention to commit the offence or attendance for the purpose of encouragement. There was no evi­dence that while the crime was being committed either of the accused rendered aid, assistance, or encouragement to the rape of Brenda Ross. There was no evidence of any positive act or omission to facilitate the unlawful purpose. One can infer that the two accused knew that a party was to be held, and that their presence at the dump was not accidental or in the nature of casual passers-by, but that is not sufficient. 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: per Viscount Dilhorne in D. P. P. v. Maxwell[14], at p. 1144. One must be able to infer that the accused had prior knowledge that an offence of the type committed was planned, i.e. that their presence was with knowledge of the intended rape. On this issue, the Crown elicited no evidence.

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In concluding that there was evidence of a nature which would permit the jury to draw an inference that the accused were more than merely present at a crime and had done nothing to prevent it, Mr. Justice Matas referred to the earlier meet­ing of the Spartans at the dump (with Sylvester and Dunlop present) when Douglas was introduced as a prospect, the presence of members of the group at the Waldorf beverage room where the complainant and her friend were spending some time, the bringing of the complainant by Douglas to the dump, the reappearance of a group of Spartans at the same location (where the gang rape took place), the arrival of the accused with a substantial quantity of beer, and the observation by both accused of intercourse taking place by the complainant and one male, but with other men nearby.

The activities of Douglas are twice mentioned by Mr. Justice Matas, but it must be recalled that Douglas was not one of the accused. Dunlop and Sylvester bear no responsibility for what he may or may not have done. Apart from presence earlier in the evening at the dump and at the Waldorf beverage room, the evidence Mr. Justice Matas marshalls against Dunlop and Sylvester is (i) their arrival at the dump with a substantial quantity of beer, and (ii) their observation of intercourse. In my view, for the reasons I have earlier sought to express, neither of these facts is capable in law of affording evidence that the appellants aided and abetted the commission of the crime of rape. They go only to mere presence and not to complicity.

With great respect, I am unable to find in the evidence to which Mr. Justice Matas alludes, or elsewhere, any facts as distinguished from surmise or suspicion, upon which any jury could conclude beyond reasonable doubt that the accused had assumed a role which would qualify them as aiders and abettors under s. 21(1) of the Code.

In these circumstances, in my view, the trial judge erred in charging the jury on the alternative bases of (i) principal offender and (ii) aider and abettor.

[Page 898]

Question by the Jury

The error, unfortunately, was compounded when the jury, which had retired at 3:15 p.m., returned at 5:40 with the following question:

If the accused were aware of a rape taking place in their presence and did nothing to prevent or persuade the discontinuance of the act, are they considered as an accomplice to the act under law?

That question should have been answered in one word—"No."

A person is not guilty merely because he is present at the scene of a crime and does nothing to prevent it: Smith & Hogan, Criminal Law (4th ed., 1978), p. 117. 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 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.

The judge here initially intended to respond to the jury's question with a "No" answer, but during argument, he was persuaded to the point of view, advanced for the first time on behalf of the Crown, that the accused might be guilty as parties to the offence under s. 21 of the Code. As a result, the judge recharged in these words:

Now, I have decided that the best way to reply to your query is to refer again to a portion of the law that I gave you in respect to parties to an offence, and to make one or two further comments on it.

Under Section 21(1) of the Criminal Code, everyone is a 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—and I will come back to that, or (c) abets any person in committing it. And abets, I told you before means encourages, supports, upholds, is another form of giving assistance to a person committing the offence.

Everyone who aids and encourages another person in the commission of a criminal offence is as guilty as the

[Page 899]

person who actually commits the criminal act. To find that an accused is guilty of aiding or abetting in the commission of an offence by another person, it is only necessary to show that he understood what was being done, and by some act on his part, assisted or encouraged in the attainment of what was being done.

But when you are considering what I have said, going back to that middle section of the definition I read, everyone is a party to an offence who does or omits to do anything for the purpose of aiding another person to commit it, I should say the phrase omitting to do anything, that phrase, omitting to do anything means intentionally omitting to do something for the purpose of aiding another to commit an offence, that if it had been done, would have been prevented or hindered the person from committing an offence. Intentionally omitting to do something for the purpose of aiding another to commit the offence, that if it had been done, would have prevented or hindered the person from committing the offence.

So that if you find an accused person knew that an offence was being committed and intentionally omitted to do something, for the purpose of aiding another to commit the offence, that if he had done it might have hindered or actually prevented the offence, then presum­ably you can find that the person was a party to the offence. But unless it reaches that level, then you cannot find him a party.

I think, with respect, that this recharge is in error in three respects: (i) it is not responsive to the question asked; (ii) on the facts of the case, it might leave the jury with the impression that the accused could be parties to the offence if they knew that an offence was being committed and failed to do anything to hinder or prevent it; and (iii) the jury received no help in applying the instruction given; no act or omission is identified as providing a possible factual underpinning to the operation of s. 21.

Conclusion

If the trial judge was in error in charging upon s. 21(2), which is admitted and, as I believe, in error in his recharge on s. 21(1), what disposition is to be made of the case? The majority view in the Manitoba Court of Appeal was that the trial judge had not erred in his answer to the jury's question.

[Page 900]

As to the admitted error in charging as to common intention under s. 21(2), Mr. Justice Matas said:

But it is apparent from the juror's question that the members were not troubled by the concept of common intention. In any event, in light of all the evidence and the whole charge, I am satisfied that no substantial wrong or miscarriage of justice occurred.

The difficulty one faces is that we do not know, and will never know, whether the jury found the appellants guilty because they had had intercourse with the complainant, or by reason of the opera­tion of subss. (1) or (2) of s. 21 of the Code. We do know from the question of the jury, and its timing, that after two hours and twenty-five minutes of deliberation the jury had not accepted the evidence of the complainant as to direct par­ticipation by the appellants. Fifteen minutes after resuming deliberation, following the recharge, the guilty verdict was returned.

I do not think this is an appropriate case for the application of s. 613(1)(b)(iii). I am unable to say that the verdict would have been the same in the absence of error. For the following reasons given by Mr. Justice Hall, I would direct a verdict of acquittal, rather than have the applicants undergo a third trial:

The accused have been subjected to two trials and a Iike number of appeals. They have been in custody over a year. The doubt raised on their innocence or guilt should be resolved now. The substance of the case is their denial against the testimony of Ross, without much more. In the circumstances, the needs of justice would be met by directing a verdict of acquittal, rather than having the accused submit to a trial for the third time.

I would allow the appeals, set aside the judg­ment of the Manitoba Court of Appeal, and direct a verdict of acquittal in respect of each appellant.

[Page 901]

The judgment of Martland, Ritchie and Pigeon JJ. was delivered by

MARTLAND J. (dissenting)—The appellants were convicted by a jury on a charge of rape. The facts giving rise to this charge are stated in the reasons of my brother Dickson.

Their appeal to the Court of Appeal for Manito­ba was dismissed, Hall and O'Sullivan JJ.A. dis­sented. Their appeal to this Court is founded upon para. (a) of subs. 618(1) of the Criminal Code, which permits an appeal by a person convicted of an indictable offence, whose conviction is affirmed by the court of appeal on any question of law on which a judge of the court of appeal dissents.

Section 606 of the Code requires that where an appeal is dismissed by the court of appeal arid a judge of that court dissents from the judgment of the court, the formal judgment of the court shall specify any grounds of law on which the dissent is based. The formal judgments in the present case specified the grounds of dissent in the following way:

1. That the Learned Trial Judge erred in charging the Jury on Section 21(2) of the Criminal Code when there was no evidence upon which a Jury, properly instructed, could find or infer that the Appellant ... was a party to the offence.

2. That the Learned Trial Judge erred in charging the Jury with respect to Section 21(1) of the Criminal Code, as there was insufficient evidence in law to make the Appellant ... a party to the offence.

3. That Section 613(1)(b)(iii) of the Criminal Code should not be applied in order to dismiss the Appeal.

I do not think that the third ground constitutes a dissent on a question of law. Paragraph (iii) of subs. 613(1)(b) gives to a court of appeal a discre­tionary power to dismiss an appeal from convic­tion, even where there has been a wrong decision by a trial court on a question of law if there has been no substantial wrong or miscarriage of justice resulting from that error. A disagreement by a

[Page 902]

dissenting judge regarding the exercise of that discretion is not a dissent on a question of law.

The first ground of dissent is that there was no evidence upon which the appellants could have been found to be parties to the offence under subs. 21(2) of the Code. Matas J.A., who delivered the main reasons of the majority, and with whom Chief Justice Freedman concurred, did not disagree on this point with the reasons of Hall J.A., who delivered the reasons of the minority. Matas J.A. said:

With respect to the grounds of appeal on common intention (grounds 5 and 6 of notice of appeal, sec. 21(1) (sic) of the Code), I think there is merit in the appel­lants' argument that the comments were inappropriate in the circumstances of the case. But it is apparent from the juror's question that the members were not troubled by the concept of common intention. In any event, in light of all the evidence and the whole charge, I am satisfied that no substantial wrong or miscarriage of justice occurred.

I agree with this statement.

The main issue in argument before this Court was with respect to the second ground of dissent. It will be noted that whereas ground one refers to "no evidence," which is an issue of law, the second ground refers to "insufficient evidence in law" to make the appellants parties to the offence. Suffi­ciency of evidence is a matter for the jury. (The Queen v. Warner[15].) I do not think that the dissent on this point is a dissent on a question of law.

However, as this point was thoroughly can­vassed in argument before the Court, I will go on to consider it. Hall J.A. dealt with this matter as follows:

On sec. 21(1) of the Code, the jury was instructed as follows:

[Page 903]

" Secondly,. I should also instruct you on the law relating to parties to an offence. Section 21(1) of the Criminal Code, reads as follows:

'Everyone is a party to an offence who;

(a) actually permits 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.'

Abets, that word abets means encourages, supports, upholds. It is another way of expressing a person giving assistance to someone committing the offence. Everyone who aids and encourages the person in the commission of the offence is as guilty as the person who commits the actual criminal act.

To find that the accused is guilty of aiding or abetting the commission of an offence by another person, it is only necessary to show that he understood what was being done and by some act on his part assisted or encouraged the attainment of that act."

After the jury retired to consider their verdict, they posed a quetion [sic] to the trial judge. It reads: "If the accused were aware of a rape taking place in their presence and did nothing to prevent or persuade the discontinuance of the act, are they considered as an accomplice to the act under law?"

The trial judge responded to that question in these terms:

" Gentlemen, I have received a question from you in writing, which I will endeavour to respond to. I will read it again, I have discussed it already with counsel. But you have asked, 'If the accused were aware of a rape taking place in their presence, and did nothing to prevent or persuade the discontinuance of the act, are they considered as an accomplice to the act, under the law'.

Now, I have decided that the best way to reply to your query is to refer again to a portion of the law that I gave you in respect to parties to an offence, and to make one or two further comments on it.

Under Section 21(1) of the Criminal Code, everyone is a 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—and I will come back to that, or c) abets any person in committing it. And abets, I told you before means encourages, supports, upholds, is another form of giving assistance to a person committing the offence.

[Page 904]

Everyone who aids and encourages another person in the commission of a criminal offence is as guilty as the person who actually commits the criminal act. To find that an accused is guilty of aiding or abetting in the commission of an offence by another person, it is only necessary to show that he understood what was being done, and by some act on his part, assisted or encouraged in the attainment of what was being done.

But when you are considering what I have said, going back to that middle section of the definition I read, everyone is a party to an offence who does or omits to do anything for the purpose of aiding another person to commit it, I should say the phrase omitting to do anything, that phrase, omitting to do anything, means intentionally omitting to do something for the purpose of aiding another to commit an offence, that if it had been done, would have been (sic) prevented or hindered the person from committing an offence. Intentionally omitting to do something for the purpose of aiding another to commit the offence, that if it had been done, would have prevented or hindered the person from committing the offence.

So that if you find an accused person knew that an offence was being committed and intentionally omit­ted to do something, for the purpose of aiding another to commit the offence, that if he had done it might have hindered or actually prevented the offence, then presumably you can find that the person was a party to the offence. But unless it reaches that level, then you cannot find him a party."

The question itself is indicative that, at the very least, some one or more members of the jury were of a mind to base their decision on the answer they were given.

The response of the trial judge was, with respect, too general and abstract. It was out of context with the facts of the case. Does it mean, for example, that if the two accused were aware of the rape taking place in their presence, and intentionally stood by and did nothing, they would be guilty as a party? If that is the principle sought to be established, I have doubt that it is an accurate statement of law. But what evidence is there, supportive of that proposition? At the very worst, the accused observed a girl in the nude having sexual intercourse with a Spartan, while others were nearby.

The presence of the accused at the dump, and their passive observation of a girl having sexual intercourse is

[Page 905]

not sufficient in law to make them parties to an offence under Sec. 21(1) of the Code.

It is not disputed that mere presence at the scene of a crime is not, in itself, sufficient to establish aiding or abetting the commission of an offence, but the trial judge did not instruct the jury that it was. He charged the jury that "it is only necessary to show that he understood what was being done and by some act on his part assisted or encouraged the attainment of that act."

This instruction is in exact accordance with the principle stated on behalf of the majority in this Court by Estey J. in Preston v. The King[16], at p. 159.

The gist of the reasons of Hall J.A. is found in his final paragraph as quoted above. But the statement that the appellants were merely present at the dump and were passive observers of an act of sexual intercourse has to be based upon the evi­dence of the appellants. It was for the jury to decide whether or not to accept that evidence. The statement overlooks entirely the other evidence which was before the jury and which is summa­rized in the following passage from the reasons of Matas J.A.:

Appellants' argument is made on the basis of accept­ing the accuseds' evidence that they were merely deliv­ery men for a quantity of beer, they arrived late, saw intercourse taking place and left within a few minutes without investigating the incident. But it is impossible for this court to base its decision solely on acceptance of appellants' version of the night's events.

The jury was entitled to consider all the evidence, including the earlier meeting of the Spartans at the dump (with Sylvester and Dunlop present) when Douglas was introduced as a prospect, the presence of mem­bers of the group at the Waldorf beverage room where the complainant and her friend were spending some time, bringing of the complainant by Douglas to the dump, the reappearance of a group of Spartans at the same location (where the gang rape took place), the arrival of the accused with a substantial quantity of beer, the observation by both accused of intercourse taking place by the complainant and one male but with other men nearby.

[Page 906]

The evidence, of which the above constitutes a bare outline, was of a nature which would permit the jury to draw an inference that the accused were more than merely present at a crime and had done nothing about it. The jury could conclude, beyond a reasonable doubt, that the accused had assumed a role which would quali­fy them as aiders or abettors under sec. 21(2) (sic) of the Code.

In my opinion there was evidence on which the jury could conclude that the appellants had aided and abetted the commission of the offence. The jury had been properly instructed as to what was necessary in order to establish aiding and abetting. The sufficiency of that evidence was solely a matter for the determination of the jury and was not a matter to be decided by the Court of Appeal.

The trial judge has been criticized for his response to the question asked by the jury, which is referred to in the passage from the reasons of Hall J.A. which I have cited. It is said that the answer to that question should have been a flat "no."

In answer to that criticism I would adopt what was said by Matas J.A. as follows:

Counsel for appellants argued that at one stage, in the absence of the jury, during discussion of the ques­tion put by the jury, Crown counsel and the trial judge seemed to think that a simple "no" would suffice as an answer to the juror's question. But a reading of the entire discussion discloses that Crown counsel thought this would not meet the case and that the trial judge on consideration decided, correctly in my opinion, that he would have to expand his answer.

Wright, J., was not being asked a question as part of an academic exercise but in the context of the evidence of the events of that evening. We must assume that the jury were reasonably intelligent and understood the definitions which had been given to them. They were not asking of a casual passerby, who by coincidence was delivering beer and observed a girl having intercourse with one man while other men were in the vicinity, would become a party. The question was asked in the light of all the evidence which the jury had heard and it

[Page 907]

is in this light that the question and answer must be examined.

As well, the final paragraph of the answer deals specifically with knowledge and intention. For conveni­ence I repeat it here:

"So that if you find an accused person knew that an offence was being committed and intentionally omit­ted to do something, for the purpose of aiding another to commit the offence, that if he had done it might have hindered or actually prevented the offence, then presumably you can find that the person was a party to the offence. But unless it reaches that level, then you cannot find him a party."

It seems to me that this comment put the situation fairly to the jury.

In my view the Crown has satisfied the onus of showing that the learned trial judge had not erred in either the instructions or the answer on the question of the applicability of sec. 21(2) (sic) of the Code.

Before concluding these reasons, I might point out that, practically at the end of his charge, the trial judge put to the jury the following proposition which was highly favourable to the position of the appellants:

If you accept the evidence of Brenda Ross, and if after weighing all the evidence you come to the conclu­sion that you are satisfied beyond a reasonable doubt that the two accused did have sexual intercourse with Brenda Ross without her consent, then you may find them both guilty as charged.

If, on the other hand you have reasonable doubt that either one or both accused participated in this way, then you must give that particular accused the benefit of that reasonable doubt and acquit the accused on the charge.

In my opinion the appeals should be dismissed.

The judgment of Beetz and Pratte JJ. was deliv­ered by

PRATTE J.—I have had the advantage of read­ing the reasons of my brothers Martland and Dickson; I agree that this appeal should be disposed of in the manner proposed by my brother Dickson, but I reach this conclusion on grounds that are somewhat narrower than those expressed in his reasons.

[Page 908]

The appeal turns on the legality of the instruc­tions given by the trial judge to the jury as to subss. 21(1) and 21(2) Cr. C.

With respect to subs. 21(2) Cr.C., there was agreement in the Court of Appeal—and it was not challenged here—that the trial judge had erred in charging the jury in that respect. The difference of opinion in the Court of Appeal was solely as to the application of subpara. 613(1)(b)(iii) to such error and I agree with my brother Martland that this is not a dissent on a question of law.

As to subs. 21(1), it was submitted by appellants that the trial judge erred in his instructions to the jury in two respects: (i) he should not have charged them at all on subs. 21(1) because there was no evidence to support a verdict of guilt under that subsection and (ii) he failed to respond ade­quately to the question posed by the jury as to the precise meaning of that subsection of the Code.

This last point which appears clearly as a ground of dissent in the reasons for judgment was not however specifically mentioned as such in the formal judgment of the Court of Appeal. This does not affect the jurisdiction of this Court: Warkentin et al. v. The Queen[17].

I agree with my brother Dickson, for the reasons that he gives, that the reply of the trial judge to the question of the jury was inadequate and amounted to a misdirection in law. I cannot say, in the light of the evidence, that this error on the part of the trial judge caused the appellants no substan­tial wrong or miscarriage of justice; I would not therefore be prepared to invoke subpara. 613(1)(b)(iii) in respect to such error.

In view of this conclusion there is no need for me to express any opinion on the question as to whether there was evidence to justify the trial judge charging the jury on subs. 21(1).

[Page 909]

Appeals allowed, MARTLAND, RITCHIE and PIGEON B. dissenting.

Solicitors for the appellants: Walsh, Micay & Co., Winnipeg.

Solicitor for the respondent: Deputy Attorney General of Manitoba, Winnipeg.