R. v. Cowan, 2020 SKCA 772021 SCC 45 (39301)

“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.”

The SCC (5:2) dismissed Mr. Cowan’s appeal and allowed the Crown’s appeal. 

Justice Moldaver wrote as follows (at paras. 6-7, 29-36, 47, 57, 61, 64-65, 67-68, 73):

“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.

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.

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).

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).

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.

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).

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).

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).

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).

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).

Here, I am satisfied that the Crown has met its burden of showing that the legal error had a material bearing on the acquittal. The trial judge structured his analysis of the evidence based on the erroneous premise that the Crown had to prove that Mr. Tone and Littleman were the principals before Mr. Cowan could be convicted as an abettor or counsellor.

As I have explained, ss. 21 and 22 do not create multiple offences; rather, they merely provide alternative paths to the same destination by setting out different ways in which an accused may participate in and be found guilty of an offence. Yet, 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. Thus, the effect of the ancillary order restricting the scope of the new trial was to uphold Mr. Cowan’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. Put simply, the ancillary order gave rise to a partial acquittal on a single criminal charge — a two‑headed hydra‑like creation unknown to Canada’s criminal law.

Accordingly, just as subss. 265(1)(a) and (b) do not create separate offences, the party liability provisions at issue here also do not; rather, they define different ways of committing the same offence. And, as in MacKay, the Court of Appeal here erred in treating modes of committing an offence as if they were distinct verdicts in themselves that could be severed.

As one of the purposes of the criminal process is to foster a search for truth, justice cannot require that a trier of fact be restricted in their ability to determine how, if at all, an accused participated in a given offence. Rather, a trier of fact must be able to consider any and all theories of liability that have an air of reality based on the evidence adduced at the new trial (Huard, at para. 60). 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. This approach is consistent with the Court’s reasoning in MacKay, where Charron J. held that the “scope of the appropriate instruction on the definition of assault at the new trial [could] only be determined on the basis of the evidence adduced at th[at] new trial” (para. 4).

As a practical matter, upholding the Court of Appeal’s ancillary order would mean that if, at the new trial, the defence adduced evidence showing that Mr. Cowan did not abet or counsel anyone because he was, in fact, the principal offender, and the trier of fact believed that evidence or it raised a reasonable doubt, the trier of fact would have no option but to acquit Mr. Cowan of the charge of armed robbery. Such a result would make a mockery of the justice system and cannot be what justice requires.

Before concluding, I wish to briefly address the matter of issue estoppel. Mr. Cowan has argued that this Court cannot order a full new trial because the doctrine of issue estoppel prevents the re‑litigation of the Crown’s theory that he is guilty of armed robbery as a principal offender. Specifically, he argues that the requirements of issue estoppel are satisfied, since the trial judge’s finding that the Crown had not met its burden of proving that he was a principal offender was: (1) a final decision; (2) made in a prior proceeding; (3) that involved the same parties (citing R. v. Mahalingan, 2008 SCC 63, [2008] 3 S.C.R. 316, at paras. 52 and 55-56). Respectfully, I would reject Mr. Cowan’s submissions on this point. While the doctrine of issue estoppel is available to an accused in the criminal law context, it is not available to Mr. Cowan here to preclude this Court from ordering a full retrial on the charge of armed robbery. Issue estoppel does not apply simply by virtue of the fact that a trial has been held. As the Court in Mahalingan explained, the decision that forms the basis for the issue estoppel must have been made in a prior proceeding that was final (paras. 52‑55). That case, however, concerned two separate proceedings and not, as here, a trial and a retrial of the same case following a successful appeal. There is no final decision made in a prior proceeding where an appellate court finds that a verdict of acquittal on a single criminal charge was tainted by legal error and, accordingly, renders that verdict invalid as a whole by setting it aside and ordering a new trial on the relevant charge. This premise was succinctly summarized more than a century ago in the case of Gray v. Dalgety & Co. Ltd. (1916), 21 C.L.R. 509 (H.C.A.), at p. 521, where Griffith C.J. stated: “I never before heard it suggested that a grant of a new trial was a final decision upon any point except that the matter should be further investigated”.

…in the present case, no issue can be said to have been finally decided in the first trial because the result of that trial — the acquittal on the single charge of armed robbery — has been entirely set aside. As the trial judge committed a legal error that had a material bearing on Mr. Cowan’s acquittal, the verdict is necessarily invalid. The findings in the first trial that led to his acquittal must therefore be set aside and cannot form the basis of a claim of issue estoppel.”