R. v. Cowan

R. v. Cowan
Collection
Supreme Court Judgments
Date
2021-11-05
Neutral citation
2021 SCC 45
Report
[2021] 3 SCR 323
Case number
39301
Judges
Wagner, Richard; Moldaver, Michael J.; Côté, Suzanne; Brown, Russell; Rowe, Malcolm; Martin, Sheilah; Kasirer, Nicholas
On appeal from
Saskatchewan
Subjects
Criminal law
Notes
Case in Brief SCC Case Information
Decision Content
SUPREME COURT OF CANADA
Citation: R. v. Cowan, 2021 SCC 45, [2021] 3 S.C.R. 323
Appeals Heard: May 12, 2021 Judgment Rendered: November 5, 2021 Docket: 39301
Between: Jason William Cowan Appellant
and
Her Majesty The Queen Respondent
And Between: Her Majesty The Queen Appellant
and
Jason William Cowan Respondent
Coram: Wagner C.J. and Moldaver, Côté, Brown, Rowe, Martin and Kasirer JJ.
Reasons For Judgment: (paras. 1 to 74)
Moldaver J. (Wagner C.J. and Côté, Martin and Kasirer JJ. concurring)
Dissenting Reasons: (paras. 75 to 93)
Rowe J. (Brown J. concurring)
Note: This document is subject to editorial revision before its reproduction in final form in the Canada Supreme Court Reports.
Jason William Cowan Appellant
v.
Her Majesty The Queen Respondent
‑ and ‑
Her Majesty The Queen Appellant
v.
Jason William Cowan Respondent
Indexed as: R. v. Cowan
2021 SCC 45
File No.: 39301.
2021: May 12; 2021: November 5.
Present: Wagner C.J. and Moldaver, Côté, Brown, Rowe, Martin and Kasirer JJ.
on appeal from the court of appeal for saskatchewan
Criminal law — Parties to offence — Abetting — Counselling — Accused acquitted of armed robbery as party or principal — Court of Appeal holding that trial judge erred in law in assessing accused’s liability as party for having abetted or counselled commission of offence by requiring Crown to prove that two specific individuals were principal offenders — Court of Appeal determining that error had material bearing on acquittal, setting aside acquittal and ordering new trial limited to theory of party liability — Whether trial judge erred in assessment of accused’s guilt as party on basis of abetting or counselling — If so, whether error had material bearing on acquittal such that new trial warranted — Criminal Code, R.S.C. 1985, c. C‑46, ss. 21(1)(c), 22(1).
Criminal law — Appeals — Powers of Court of Appeal — Accused acquitted of armed robbery as party or principal — Court of Appeal setting aside acquittal and ordering new trial limited to theory of party liability — Whether Court of Appeal erred in restricting scope of new trial to question of whether accused was guilty as party on basis of abetting or counselling — Criminal Code, R.S.C. 1985, c. C‑46, s. 686(8).
Two individuals robbed a Subway restaurant. One wore a mask and brandished a knife, while the other stood watch at the front door. C was arrested in relation to the robbery and provided police with a statement denying involvement in the robbery but admitting that he had told a group of individuals — including his friends T and L — how to commit the robbery. C was subsequently charged with armed robbery and tried by a judge alone. At trial, the Crown advanced two alternative theories of liability: that C was the masked robber and guilty as a principal offender under s. 21(1)(a) of the Criminal Code, or that C was guilty as a party to the armed robbery in that he either abetted the commission of the offence under s. 21(1)(c), or counselled its commission under s. 22(1). The trial judge rejected both theories of liability and acquitted C. In his view, the evidence fell short of proving that C was one of the principal offenders. Regarding party liability, he found that C could only be convicted as a party if the Crown established that C’s friends T and L had committed the robbery, but he concluded that the evidence also fell short in this regard.
A majority of the Court of Appeal allowed the Crown’s appeal, set aside C’s acquittal and ordered a new trial. It found no error in the trial judge’s analysis concerning C’s role as a principal but held that the trial judge made a serious error on the issue of party liability, which may have affected the verdict. Accordingly, it ordered that the new trial be limited to the question of C’s guilt as a party, on the basis of abetting or counselling. The dissenting judge would have dismissed the appeal in its entirety. C appeals as of right to the Court from the setting aside of his acquittal, and the Crown appeals with leave from the order of the Court of Appeal limiting the scope of the new trial.
Held (Brown and Rowe JJ. dissenting): C’s appeal should be dismissed and the Crown’s appeal should be allowed.
Per Wagner C.J. and Moldaver, Côté, Martin and Kasirer JJ.: There is agreement with the majority of the Court of Appeal that the trial judge erred in law in his analysis of party liability, which had a material bearing on the acquittal. However, the appropriate remedy is to set aside the acquittal and order a full new trial. While appellate courts have broad powers under s. 686(8) of the Criminal Code to make any order that justice requires, this does not include the power to limit the scope of a new trial to a particular theory of liability on a single criminal charge.
For the purposes of determining criminal liability, the Criminal Code does not distinguish between principal offenders and parties to an offence. Sections 21 and 22 codify both liability for an accused who participates in an offence by actually committing it (principal liability), and liability for an accused who participates in an offence by abetting or counselling another person to commit the offence (party liability). Where an accused prosecuted as an abettor or counsellor is being tried alone 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 participant(s) or the precise part played by each in order to prove the accused’s guilt as a party. The actus reus of abetting is doing something or omitting to do something that encourages the principal to commit the offence. As for the mens rea, 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 actus reus of counselling is the deliberate encouragement or active inducement of the commission of a criminal offence. The person encouraged or induced by the counsellor must also actually participate in the offence. As for the mens rea, the counsellor must have either intended that the offence counselled be committed, or knowingly counselled the commission of the offence while aware of the unjustified risk that the offence counselled was likely to be committed as a result of the accused’s conduct. Whether the person counselled is a principal or party is irrelevant since the focus on a prosecution for counselling is only on the counsellor’s conduct and state of mind.
In the instant case, the trial judge erred in law in assessing C’s liability as a party for having abetted or counselled the commission of the offence. By reasoning that the Crown was required to prove that T and L were the principals as a prerequisite to establishing C’s guilt as a party, the trial judge misdirected himself on the law and failed to correctly assess the relevant evidence. The Crown was only required to prove that any one of the individuals encouraged by C went on to participate in the offence either as a principal offender — in which case C would be guilty as both an abettor and a counsellor — or as a party — in which case C would be guilty as a counsellor. C could still have been found guilty of being a party to the offence even if the precise identity or part played by each individual who participated in the commission of the offence was uncertain, so long as C had committed the necessary act with the requisite intent. There was therefore no need for the trial judge to focus on the identity of a given principal, whether or not the Crown identified specific individuals as principals to the offence.
To have an acquittal set aside due to a legal error, the Crown must satisfy an appellate court to a reasonable degree of certainty that the impugned error might have had a material bearing on the acquittal. In the present case, the Crown has met its burden. The trial judge structured his analysis of the evidence based on the erroneous premise that the Crown had to prove T and L were the principals before C could be convicted. He failed to recognize that the evidence before him was reasonably capable of establishing that C committed the prohibited act with the requisite intent for party liability on the basis of abetting or counselling. The verdict may well have been different if the trial judge had considered the evidence in light of the correct legal principles.
Where an appellate court allows an appeal and sets aside an acquittal, it has the power, under s. 686(4)(b)(i) of the Criminal Code, to order a new trial and to make any order, in addition, that justice requires under s. 686(8). Three conditions must be met for s. 686(8) to apply. First, the appellate court must have exercised one of the triggering powers conferred under s. 686(2), (4), (6) or (7). Second, the order issued must be ancillary to the triggering power in that it cannot be at direct variance with the court’s underlying judgment. Third, the order must be one that justice requires. In the instant case, the second and third conditions were not met. In separating the Crown’s theories of liability in its ancillary order, the Court of Appeal bifurcated the offence of armed robbery into two separate offences: robbery as a principal and robbery as a party, be it as an abettor or counsellor. The effect was to uphold C’s acquittal on the single charge of armed robbery in part. This is at odds with the underlying judgment allowing the Crown appeal and setting aside the verdict rendered on that charge as a whole. The ancillary order was also not one that justice required as it threatens the integrity of the criminal process by distorting the truth‑seeking function of the courts. A trier of fact must be able to consider all theories of liability that have an air of reality based on the evidence adduced at the new trial. To prospectively deny a trier of fact the ability to consider a viable theory of liability would be to undermine their ability to carry out their core function: to determine whether the Crown has proven that the accused committed the offence(s) charged.
Finally, the doctrine of issue estoppel does not prevent the relitigation of the Crown’s theory that C is guilty of armed robbery as a principal offender. No issue can be said to have been finally decided in the first trial because the result of that trial has been entirely set aside.
Per Brown and Rowe JJ. (dissenting): C’s acquittal should be restored for the reasons of the dissenting judge at the Court of Appeal. It is not necessary to deal with the Crown’s appeal; however, there is concern with what the majority has written in this regard.
Issue estoppel precludes the Crown from relitigating an issue that has been determined in the accused’s favour in a prior criminal proceeding. There are three requirements for its application: the issue must have been decided in a prior proceeding; the decision must be final; and the parties to the two proceedings must be the same. The Court of Appeal found no error as to the acquittal based on C having committed the robbery as a principal. This finding should not be set aside. Preventing the Crown from relitigating issues resolved in favour of the accused during the first trial is a question of fairness to the accused, integrity and coherence of the criminal process, and finality. An accused should not have to mount a second defence in the absence of a relevant reversible error. There is also disagreement with the majority’s conclusion relating to the exercise by courts of appeal of their powers under s. 686(8) of the Criminal Code. In the present case, no error in principle has been shown and the Court of Appeal order is not clearly wrong. First, the order is not at direct variance with the underlying judgment. There is no rule that a charge as a whole must be retried if a new trial is ordered on a count alleging an offence which may be committed in different ways. Rather, whether or not a full new trial should be ordered depends on the degree to which counts, and modes of committing offences charged as a single count, are interconnected. The question is one of being able to isolate the legal error. Second, the Court of Appeal’s order was not contrary to what justice requires. The order promoted fairness to C, the efficient use of the court’s resources, and the integrity of the criminal justice process.
Cases Cited
By Moldaver J.
Applied: R. v. Briscoe, 2010 SCC 13, [2010] 1 S.C.R. 411; R. v. Huard, 2013 ONCA 650, 302 C.C.C. (3d) 469; R. v. Pickton, 2010 SCC 32, [2010] 2 S.C.R. 198; R. v. Isaac, [1984] 1 S.C.R. 74; R. v. Thatcher, [1987] 1 S.C.R. 652; R. v. R.V., 2021 SCC 10, [2021] 1 S.C.R. 131; R. v. MacKay, 2005 SCC 79, [2005] 3 S.C.R. 725; considered: R. v. Ekman, 2006 BCCA 206, 209 C.C.C. (3d) 121; R. v. Ekman, 2004 BCSC 900; referred to: R. v. Graveline, 2006 SCC 16, [2006] 1 S.C.R. 609; R. v. Sparrow (1979), 51 C.C.C. (2d) 443; R. v. Hamilton, 2005 SCC 47, [2005] 2 S.C.R. 432; R. v. Sutton, 2000 SCC 50, [2000] 2 S.C.R. 595; R. v. Morin, [1988] 2 S.C.R. 345; R. v. Thomas, [1998] 3 S.C.R. 535; R. v. Warsing, [1998] 3 S.C.R. 579; R. v. Beaulac, [1999] 1 S.C.R. 768; R. v. M. (P.S.) (1992), 77 C.C.C. (3d) 402; R. v. Owen, 2003 SCC 33, [2003] 1 S.C.R. 779; R. v. Last, 2009 SCC 45, [2009] 3 S.C.R. 146; R. v. Bernardo (1997), 105 O.A.C. 244; R. v. Barton, 2019 SCC 33, [2019] 2 S.C.R. 579; R. v. Guillemette, [1986] 1 S.C.R. 356; R. v. Alec, [1975] 1 S.C.R. 720; R. v. Cook (1979), 47 C.C.C. (2d) 186; R. v. Ruptash (1982), 36 A.R. 346; R. v. Druken, 2002 NFCA 23, 211 Nfld. & P.E.I.R. 219; R. v. Mahalingan, 2008 SCC 63, [2008] 3 S.C.R. 316; Gray v. Dalgety & Co. Ltd. (1916), 21 C.L.R. 509; R. v. Duhamel (No. 2) (1981), 131 D.L.R. (3d) 352, aff’d [1984] 2 S.C.R. 555; Welch v. The King, [1950] S.C.R. 412.
By Rowe J. (dissenting)
R. v. Mahalingan, 2008 SCC 63, [2008] 3 S.C.R. 316; R. v. Punko, 2012 SCC 39, [2012] 2 S.C.R. 396; R. v. R.V., 2021 SCC 10, [2021] 1 S.C.R. 131; R. v. MacKay, 2005 SCC 79, [2005] 3 S.C.R. 725.
Statutes and Regulations Cited
Criminal Code, R.S.C. 1985, c. C‑46, ss. 21, 22, 265(1)(a), (b), 343(d), 344, 351(2), 686(2), (4), (6), (7), (8).
Authors Cited
Sopinka, Lederman & Bryant: The Law of Evidence in Canada, 5th ed. by Sidney N. Lederman, Alan W. Bryant and Michelle K. Fuerst. Toronto: LexisNexis, 2018.
Spencer‑Bower, George. The Doctrine of Res Judicata, 2nd ed. by Sir Alexander Kingcome Turner. London, U.K.: Butterworths, 1969.
Vauclair, Martin, et Tristan Desjardins, avec la collaboration de Pauline Lachance. Traité général de preuve et de procédure pénales, 27e éd. Montréal: Yvon Blais, 2020.
APPEALS from a judgment of the Saskatchewan Court of Appeal (Jackson, Ottenbreit and Kalmakoff JJ.A.), 2020 SKCA 77, 389 C.C.C. (3d) 258, [2020] S.J. No. 251 (QL), 2020 CarswellSask 325 (WL Can.), setting aside a decision of Zarzeczny J., 2018 SKQB 75, [2018] S.J. No. 102 (QL), 2018 CarswellSask 118 (WL Can.). Appeal by Jason William Cowan dismissed, appeal by Her Majesty the Queen allowed, Brown and Rowe JJ. dissenting.
Thomas Hynes, for the appellant/respondent Jason William Cowan.
Pouria Tabrizi‑Reardigan, for the respondent/appellant Her Majesty the Queen.
The judgment of Wagner C.J. and Moldaver, Côté, Martin and Kasirer JJ. was delivered by
Moldaver J. —
I. Overview
[1] Two individuals robbed a Subway restaurant in Regina, Saskatchewan, on July 7, 2016. One wore a mask and brandished a knife, while the other stood watch at the front door. The robbers made off with $400 and a coin dispenser.
[2] A police investigation led to the arrest of the accused, Jason William Cowan. He was subsequently charged with armed robbery, contrary to ss. 343(d) and 344 of the Criminal Code, R.S.C. 1985, c. C‑46.
[3] Mr. Cowan was tried by a judge alone. At trial, the Crown advanced two theories of liability: first, that Mr. Cowan was the masked robber and was therefore guilty as a principal offender; second, and in the alternative, that Mr. Cowan was guilty as a party to the armed robbery in that he either abetted the commission of the offence under s. 21(1)(c) of the Criminal Code, or counselled its commission under s. 22(1).
[4] The trial judge rejected both theories of liability and acquitted Mr. Cowan. In his view, the circumstantial evidence fell short of proving that Mr. Cowan was one of the principal offenders. As for party liability, he found that Mr. Cowan could only be convicted as a party if the Crown established that two of Mr. Cowan’s friends — Matthew Tone and a man known as “Littleman” — had committed the robbery. Once again, he found that the evidence relied upon by the Crown fell short in this regard.
[5] The Crown appealed from Mr. Cowan’s acquittal. A majority of the Court of Appeal for Saskatchewan allowed the appeal. In doing so, it found no error in the trial judge’s analysis or conclusion concerning Mr. Cowan’s role as a principal offender. On the issue of party liability, the majority took a different view. In its opinion, the trial judge erred in holding that it was incumbent on the Crown to prove that Mr. Tone and Littleman were the persons who committed the robbery in order to find Mr. Cowan guilty of abetting or counselling the commission of the offence. According to the majority, this error was serious and it may well have affected the verdict. Hence, the majority allowed the appeal, set aside the acquittal and ordered a new trial. However, because the error related solely to the issue of party liability, the majority ordered that the new trial be limited to the question of “whether Mr. Cowan is guilty of robbery, as a party, on the basis of abetting or counselling” (C.A. reasons, 2020 SKCA 77, 389 C.C.C. (3d) 258, at para. 50). Writing in dissent, Jackson J.A. would have dismissed the appeal in its entirety.
[6] This case involves an appeal by both Mr. Cowan and the Crown. On his appeal, Mr. Cowan relies upon the view of the dissenting judge at the Court of Appeal that the trial judge did not err in his analysis of party liability and that there was no basis in fact or law for the majority to interfere with the verdict of acquittal. Moreover, he agrees with the dissenting judge that even if the trial judge did err in his analysis of party liability, the error was not material and did not meet the high test required for setting aside an acquittal. For its part, the Crown appeals, with leave, from the order of the Court of Appeal, on the issue of whether the majority erred in limiting the scope of the new trial to a single theory of liability. The Crown contends that the majority did not have the power to place any limits on the scope of the new trial; rather, it should simply have ordered a full new trial on the charge of armed robbery.
[7] For the reasons that follow, I would dismiss Mr. Cowan’s appeal and allow the Crown’s appeal. I am in agreement with the majority of the Court of Appeal that the trial judge committed an error of law in his analysis of party liability, which had a material bearing on the acquittal. The appropriate remedy is therefore to set aside the acquittal and order a new trial. However, in my respectful view, the new trial must be a full retrial. While appellate courts have broad powers under s. 686(8) of the Criminal Code to “make any order, in addition, that justice requires”, this does not include the power to limit the scope of a new trial to a particular theory of liability on a single criminal charge.
II. Facts
[8] The events giving rise to these appeals occurred between approximately 9:00 and 9:30 p.m. on July 7, 2016. The sole employee working at the Subway restaurant at the time of the robbery was in the back area of the restaurant when he heard the front door open. He came out and saw that two individuals had entered — one was standing watch by the front door, while the other was approaching the counter with his face masked and a knife in his hand. The masked robber proceeded to jump over the counter and instruct the employee to place the money from the cash register, totalling $400, into a Subway sandwich bag. He then noticed a coin dispenser and demanded that the employee give it to him. The employee complied. The robbers left, taking the cash and coin dispenser with them.
[9] While the robbers could not be identified by the employee, the masked robber could be seen in the restaurant’s security camera footage wearing distinctive running shoes.
[10] A few days later, the police received an anonymous tip implicating Mr. Cowan in the robbery and placed him under surveillance. As part of the surveillance operation, the police took photographs of Mr. Cowan showing him wearing a pair of running shoes that closely resembled those worn by the masked robber.
[11] Some weeks later, on August 11, 2016, the police arrested Mr. Cowan, in relation to the robbery, at a residence on McDonald Street located a few blocks away from the Subway restaurant. He was taken to the police station, where he provided a recorded statement denying having any involvement in the robbery and claiming he had an alibi. He explained that he was at the McDonald Street residence on the day of the robbery, but that he had left around 5:00 p.m. to go to the house of a friend named Jenna‑Lee Tiszauer. He then went on to admit that while he was not directly involved in the robbery, on that same day, a group of individuals at the McDonald Street residence were talking about “how they needed money” and that he told them “how to do a robbery what to say how to do it how long to be in there” (trial reasons, 2018 SKQB 75, at paras. 24-25 (CanLII)). Initially, he said this conversation occurred with Mr. Tone and an individual named Dustin Fiddler. Later, he added that Littleman and an individual named Bradley Robinson were also present.
[12] When shown photographs of the robbery from the Subway restaurant security camera footage, Mr. Cowan identified Littleman as the robber standing watch at the door and Mr. Robinson as the masked robber. Later, he told the police that Mr. Fiddler and Mr. Tone had driven Littleman and Mr. Robinson to the restaurant and had waited in Mr. Fiddler’s vehicle during the robbery.
[13] Mr. Cowan was subsequently charged with “steal[ing] Canadian currency and a coin dispenser from Subway while armed with an offensive weapon, contrary to section 343(d) . . . of the Criminal Code” (armed robbery) (A.R., vol. I, at p. 2).[1] At trial, the Crown advanced two alternative theories of liability to establish Mr. Cowan’s guilt — either he 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.
[14] In support of its main theory — that Mr. Cowan was a principal offender — the Crown relied on the available circumstantial evidence, including that Mr. Cowan’s statement revealed a degree of knowledge regarding the robbery which supported his direct involvement; that the robbery had been committed in a manner consistent with the way Mr. Cowan described it in his statement; and that Mr. Cowan’s shoes matched those worn by the masked robber. The Crown also tendered evidence from Ms. Tiszauer to challenge Mr. Cowan’s alibi. She testified that Mr. Cowan had approached her and asked if she would provide him with an alibi, even though they had not been together on the evening of the robbery. Finally, the Crown called an individual named Tara Regan, who testified that at some point in the summer of 2016, Mr. Cowan told her that he committed the robbery with Littleman.
[15] As for its alternative theory — that Mr. Cowan was a party to the robbery because he abetted or counselled the commission of the robbery — the Crown primarily relied on Mr. Cowan’s statement in which he admitted to having told Mr. Fiddler, Mr. Tone, Mr. Robinson, and Littleman “how to do [the] robbery and what to say exactly” (A.R., vol. II, at p. 47).
[16] For its part, the defence called an individual named Nicole Miller, who testified that in July 2016, Mr. Tone told her that three people had committed the robbery, “him, his friend Littleman and his other buddy” (A.R., vol. III, at pp. 116 and 120). She did not know who the “other buddy” was. Mr. Cowan did not testify.
III. Decisions Below
A. Court of Queen’s Bench for Saskatchewan, 2018 SKQB 75 (Zarzeczny J.)
[17] The trial judge acquitted Mr. Cowan. He found that the Crown had failed to establish Mr. Cowan’s guilt beyond a reasonable doubt on either theory of liability.
[18] With respect to Mr. Cowan being the principal offender, the trial judge rejected Ms. Regan’s evidence that Mr. Cowan had confessed to his involvement in the robbery. According to the trial judge, she was an unsavoury witness, whose evidence was neither reliable nor trustworthy. He then reviewed the remaining circumstantial evidence and concluded that Mr. Cowan’s guilt as a principal offender was not the only rational inference that could be drawn from it.
[19] Having rejected the Crown’s theory of principal liability, the trial judge turned to consider whether Mr. Cowan was guilty as a party on the basis of abetting or counselling. He explained that in Mr. Cowan’s statement, he “clearly admits that he told the persons, which he claimed committed this robbery, namely [Mr. Tone and Littleman] how to do it” (para. 44). While this evidence confirmed that the instructions given by Mr. Cowan closely compared to the manner in which the robbery was carried out, the trial judge reasoned that he was unable to find Mr. Cowan guilty, as the evidence did not satisfy him that Mr. Tone and Littleman were the individuals who participated in the commission of the offence as principal offenders. This was essential, in his view, to convict Mr. Cowan as a party on the basis of abetting or counselling.
B. Court of Appeal for Saskatchewan, 2020 SKCA 77, 389 C.C.C. (3d) 258 (Jackson (Dissenting), Ottenbreit and Kalmakoff JJ.A.)
[20] The Crown appealed from the acquittal on the charge of armed robbery. It did so on the basis that the trial judge committed legal errors in relation to both the principal and party theories of liability.
[21] The Court of Appeal unanimously agreed that the trial judge did not commit any legal errors in rejecting the Crown’s theory that Mr. Cowan was a principal offender. The court was divided, however, on whether he erred in assessing Mr. Cowan’s guilt as a party on the basis of abetting or counselling.
[22] The majority was of the view that the trial judge erred in law by “instructing himself that, as a prerequisite to establishing Mr. Cowan’s culpability on either the basis of abetting the commission of the robbery, under s. 21(1)(c) or on the basis of counselling the commission of that offence under s. 22(1) the Crown was required to prove that Mr. Tone and [Littleman] were the principal offenders” (para. 25). In its opinion, to establish Mr. Cowan’s guilt as an abettor, the Crown was not required to prove that the individual he had abetted was “the principal offender”, as long as Mr. Cowan committed the prohibited act with the intention of abetting “a principal offender”, an individual who “participate[d] in the offence as an aider or abettor”, or an individual who “was involved in the commission of the offence in a way that would, on its own, attract criminal liability” (paras. 28‑30 (emphasis in original)). Similarly, for counselling, the Crown was not required to prove that the individual counselled by Mr. Cowan was the principal offender, as long as that individual participated in the offence, either as a principal or party.
[23] Applying the test from R. v. Graveline, 2006 SCC 16, [2006] 1 S.C.R. 609, the majority found that the error had a material bearing on the acquittal because it led the trial judge to mischaracterize the Crown’s position in relation to party liability and overlook important evidence. Nowhere in the trial record did the Crown assert that it could only have been Mr. Tone or Littleman who committed the robbery. Rather, there was evidence in Mr. Cowan’s statement that Mr. Fiddler and Mr. Robinson were also present when Mr. Cowan was providing instructions on how to carry out a robbery. Moreover, in his statement, Mr. Cowan described how the robbery had been committed by Mr. Robinson and Littleman, while Mr. Tone and Mr. Fiddler were waiting in the getaway car. Collectively, this evidence was “capable of supporting a conviction on the basis of abetting or counselling if the trial judge had accepted it as fact and applied the correct legal analysis to it” (para. 42 (emphasis in original)).
[24] Accordingly, the majority allowed the appeal, set aside the acquittal, and ordered a new trial. In directing the new trial, however, it held that since the court had rejected the Crown’s grounds of appeal concerning Mr. Cowan’s liability as a principal, the scope of the trial should be limited to “whether Mr. Cowan is guilty of robbery, as a party, on the basis of abetting or counselling” (para. 50).
[25] The dissenting judge would have dismissed the appeal entirely and upheld the acquittal. In her opinion, the trial judge did not err by limiting himself to considering Mr. Tone and Littleman as being the principals to the offence. The trial judge named those two individuals because “they were the only . . . likely candidates seriously put forward by anyone as having had any role in the commission of the robbery and their suggested role was as principals only” (para. 62). The trial judge was therefore merely responding to the evidence and submissions before him.
[26] The dissenting judge went on to note that even if the trial judge did err, the error was not sufficiently material to have had a bearing on Mr. Cowan’s acquittal. This was because the trial judge discounted Mr. Cowan’s statement, which was the only evidence that could have supported the possibility that someone other than Mr. Tone or Littleman was a principal. If Mr. Cowan’s statement was not sufficient to permit the trial judge to draw the inference that Mr. Tone or Littleman were principals, it would not have supported the “less obvious” inference that anyone else was a principal.
IV. Issues
[27] I would state the issues in these appeals as follows:
(1) Did the trial judge err in his assessment of Mr. Cowan’s guilt as a party on the basis of abetting or counselling?
(2) If so, could the error reasonably be thought to have had a material bearing on Mr. Cowan’s acquittal such that a new trial is warranted?
(3) If a new trial is required, did the Court of Appeal err in restricting the scope of the new trial to the question of whether Mr. Cowan is guilty as a party on the basis of abetting or counselling?
V. Analysis
A. The Trial Judge Erred
[28] In my respectful view, the trial judge erred in law in assessing Mr. Cowan’s liability as a party for having abetted or counselled the commission of the offence. Specifically, as I will explain, by reasoning that the Crown was required to prove that Mr. Tone and Littleman were the principals in the commission of the armed robbery as a prerequisite to establishing Mr. Cowan’s guilt as a party, the trial judge misdirected himself on the law and, as a result, failed to correctly assess the relevant evidence.
(1) The Law
[29] For the purposes of determining criminal liability, the Criminal Code does not distinguish between principal offenders and parties to an offence (R. v. Briscoe, 2010 SCC 13, [2010] 1 S.C.R. 411, at para. 13). An accused’s guilt is the same regardless of the way in which they participated in the offence –– the person who provides the gun is guilty of the same offence as the person who pulls the trigger (ibid.; R. v. Huard, 2013 ONCA 650, 302 C.C.C. (3d) 469, at para. 59).
[30] Sections 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. Those 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) (R. v. Pickton, 2010 SCC 32, [2010] 2 S.C.R. 198, at para. 51).
[31] Where, as here, an accused is being tried alone 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 participant(s) or the precise part played by each in order to prove an accused’s guilt as a party (R. v. Isaac, [1984] 1 S.C.R. 74, at p. 81, citing R. v. Sparrow (1979), 51 C.C.C. (2d) 443 (Ont. C.A.), at p. 458). This principle applies where an accused is prosecuted as either an abettor or counsellor.
[32] The 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 (Briscoe, at paras. 14‑15). As for the mens rea, it has two components: intent and knowledge (para. 16). 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 (paras. 16‑17).
[33] Although 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, the Crown is not required to prove the identity of “the principal” or their specific role in the commission of the offence for party liability to attach (R. v. Thatcher, [1987] 1 S.C.R. 652, at pp. 687‑89).
[34] In Thatcher, the accused was charged with first degree murder. To establish his guilt, the Crown presented two alternative theories of liability. It argued that the accused was either the principal offender, in that he personally murdered the victim, or a party to the offence, in that he had the victim murdered by someone else. The trial judge instructed the jury that the Crown’s inability to adduce evidence of another specific, identified individual as the person who actually committed the murder did not preclude the jury from finding the accused guilty as a party. The jury returned a verdict of guilty on the offence of first degree murder. The accused appealed on the basis that the trial judge erred in instructing the jury that the Crown was not required to prove the identity of the principal offender. His appeal was dismissed by the Court of Appeal for Saskatchewan. On further appeal, this Court agreed with the Court of Appeal, holding that the trial judge’s instructions were “perfectly proper”, because “[t]here is, of course, no burden on the Crown to point to a specific, identified person as the personal assailant of the victim” (pp. 687‑88).
[35] Similar principles apply to counselling, which is defined in the Criminal Code to include “procur[ing], solicit[ing] and incit[ing]” (s. 22(3)). The actus reus is the “deliberate encouragement or active inducement of the commission of a criminal offence” (R. v. Hamilton, 2005 SCC 47, [2005] 2 S.C.R. 432, at para. 29 (emphasis deleted)). The person deliberately encouraged or actively induced by the counsellor must also actually participate in the offence (para. 63, per Charron J., dissenting on other grounds; Criminal Code, s. 22(1)). As for the mens rea, the counsellor must have “either intended that the offence counselled be committed, or knowingly counselled the commission of the offence while aware of the unjustified risk that the offence counselled was in fact likely to be committed as a result of the accused’s conduct” (Hamilton, at para. 29).
[36] While one of the requisite elements of counselling is the actual participation in the offence by the person counselled, that person can participate not only as a principal, but also as a party. This is reflected by the wording of s. 22(1), which states that an accused is a party if they “counse[l] another person to be a party to an offence and that other person is afterwards a party to that offence”. The precise manner of participation is irrelevant, since whether the person counselled is a principal or a party, “[t]he focus on a prosecution for counselling is on the counsellor’s conduct and state of mind, not that of the person counselled” (Hamilton, at para. 74).
(2) Application
[37] Applying these principles to the case at hand, it is clear that to establish Mr. Cowan’s guilt as a party on the basis of abetting or counselling, the Crown was not required to prove the identity of Mr. Tone and Littleman as the principal offenders or the precise role played by them in the commission of the offence. The Crown was only required to prove that any one of the individuals encouraged by Mr. Cowan went on to participate in the offence either as a principal offender — in which case Mr. Cowan would be guilty as both an abettor and a counsellor — or as a party — in which case Mr. Cowan would be guilty as a counsellor.[2]
[38] Despite this, the trial judge reasoned that Mr. Cowan could not be convicted of either abetting or counselling the commission of the robbery because the Crown had not met its burden of proving “that Matthew Tone and [Littleman] were involved as principals in the commission of this robbery” (para. 48). He repeated this point, explaining that “before the accused can be convicted of aiding, abetting or counselling the commission of this Subway robbery . . . I must be satisfied, beyond a reasonable doubt, that it was Matthew Tone and [Littleman] who participated as principals in the commission of this crime” (para. 49).
[39] With respect, it is clear from these passages that the trial judge misdirected himself on the applicable legal principles underlying ss. 21(1)(c) and 22(1). He then assessed the evidence in light of these incorrect principles, concluding that “there is not sufficient evidence implicating or proving, beyond a reasonable doubt, that Matthew Tone and [Littleman] were the persons involved in committing this robbery”(para. 45).
[40] On this issue, I am unable to endorse the dissenting judge’s opinion in the Court of Appeal that the trial judge did not err in singling out Mr. Tone and Littleman, because he was simply responding to the evidence and submissions before him. With respect, the record illustrates that other individuals were put forward as potentially being involved in the robbery. For instance, in closing submissions at trial, defence counsel began his remarks by explaining that the defence’s theory was that “Tara Regan, Matthew Tone and Dustin Fiddler” had “committed the robbery that is the subject matter of this proceeding” (A.R., vol. III, at p. 131). Defence counsel also suggested that “Matthew Tone, Tara Regan or any number of robbers [could] have worn [the] pair of shoes” seen on the security camera footage of the robbery (p. 137). Further, he noted that the robbers had likely escaped using a vehicle, and that “Dustin Fiddler owned a vehicle” (p. 138).
[41] The Crown suggested a similarly broad lens on the party theory, noting in closing submissions that Mr. Cowan had instructed all of his “friends” how to commit the robbery:
So in my respectful submission when Mr. Cowan, according to his testimony, again this is in our subsidiary argument, when — if he said to his friends, when he know[s] that they’re in need of money, just go — just go do a robbery, it’s easy and then give[s] them further advi[c]e about how to do it, is committing an offence by the