R. v. Kirkness

Party Liability

At the conclusion of the trial Scollin J. refused to deliver what is known as a "boiler plate" charge to the jury. It has been noted by my colleague that while this practice is not inherently wrong, trial judges must exercise great caution in delivering such charges. When a jury untrained in the law is called upon to deal with extremely complicated legal rules, I would consider it his or her duty to set out the law in the most detailed and coherent way possible. The rules respecting the liability of parties to an offence are notoriously complex. I propose therefore to set out those rules and deal with their application to the facts of this particular case.

The concept of liability for those who assist in the commission of crime has long been part of our criminal law. This concept springs from the notion that those who assist others to commit crimes are fully as blameworthy as the actual perpetrators.

At common law a complex body of rules evolved in order to determine criminal complicity. Participants in crime were classified according to the time at which they participated and whether they were present at the commission of the crime by the principal offender. The categories which developed included accessories before the fact, accessories after the fact, principals in the first degree and principals in the second degree.

A related doctrine of accessorial liability also developed called the doctrine of common purpose. The doctrine applied to those situations where the principal offender, having been assisted in some way by a party to commit an agreed upon offence, went beyond the terms of the agreement and committed some other offence. With certain limitations, accessories and principals in the second degree were considered to be in the eyes of the law equally responsible for the crime that was eventually committed.

These common law rules are now codified, with some modification, in various sections of the Criminal Code . Specifically, section 21 of the Code provides:

21. (1) Every one 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.

(2) Where two or more persons form an intention in common to carry out an unlawful purpose and to assist each other therein and any one of them, in carrying out the common purpose, commits an offence, each of them who knew or ought to have known that the commission of the offence would be a probable consequence of carrying out the common purpose is a party to that offence.

Before turning to the elements of liability under s. 21(1) and (2), I think it would be helpful to add a few comments on the intricacies of party liability in the murder context.

Murder and Party Liability

At common law an accessory could only be guilty of the same offence as that committed by the principal. That view has now been modified so that a party may be found guilty of either a more serious offence than the principal's or a less serious offence. Particularly with respect to the latter, this change in the common law is a welcome one.

In keeping with this spirit of reform several courts have held that it is possible to find a party liable of the lesser included offence of manslaughter where the principal has committed an act of murder: see R. v. Kent, Sinclair and Gode (1986), 40 Man. R. (2d) 160 (Man. C.A.); R. v. Hartford and Frigon (1979), 51 C.C.C. (2d) 462 (B.C.C.A.), and R. v. Trudeau and Toulouse (1985), 12 O.A.C. 189. Other common law jurisdictions have adopted the same approach: see Murray v. The Queen, [1962] Tas. S.R. 170 (C.C.A.).

This approach makes excellent sense. For party liability to obtain the accessory must also possess the requisite degree of subjective foresight before he or she may be found criminally responsible. The different degrees of mental awareness that a party must possess in the homicide context were described by Twaddle J.A. in Kent, supra, at pp. 167-68:

In the case of one who aids or abets the commission of a murder, the intent necessary for a conviction of murder is the same as that required of the person who actually does the act causing death. The person aiding or abetting the commission of the crime must intend that death ensue or that bodily harm of a kind likely to cause death be caused, he being reckless whether death ensues or not. If the intent of the aider or abettor is insufficient to support a conviction for murder, he still might be convicted of manslaughter if the unlawful act he aids or abets is one he knows likely will cause some harm short of death.

I conclude that in the murder context it is open to a jury to find an accused guilty of the lesser included offence of manslaughter where he or she aided or abetted a principal who is found guilty of murder. When dealing with crimes of personal violence the mens rea for manslaughter will often be present in a party who has assisted. Thus, the possibility of convicting an accessory for manslaughter as opposed to murder must be included in the Court's analysis in this case.

Aiding and Abetting

As with any other criminal offence an accused may not be held criminally responsible unless the essential elements of the offence have been proved by the Crown. In the context of party liability these elements take a somewhat different form from the form they take in the case of principal offenders. The reason for this is that the acts and intent of a party must be examined in relation to the acts and intent of the principal.

The leading case on the elements of s. 21(1) is the decision of this Court in Dunlop and Sylvester v. The Queen, [1979] 2 S.C.R. 881. In that case two accused had been charged with the rape of a teenage woman. They had been present at a party held by a motorcycle club of which they were members when a gang rape took place. The victim testified that the two accused had intercourse with her against her will, an accusation which both accused denied. The trial judge charged the jury on the application of subss. (1) and (2) of s. 21.

Dickson J. (as he then was) held that there was no evidence that either Dunlop or Sylvester had any prior knowledge of the planned rape. In his view, it was entirely inappropriate for the trial judge to have charged the jury on s. 21(2). The issue, rather, was whether the accused had aided and abetted the rape within the meaning of s. 21(1). He dealt with the requirements of s. 21(1) as follows at p. 896:

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.

Distinguishing between acts amounting to "mere acquiescence" and acts amounting to "encouragement" is often difficult. Indeed, in Dunlop and Sylvester judicial opinion as to whether the accused had in fact encouraged the commission of the rape was deeply divided. The four judges constituting the majority found that the evidence did not support a finding that the accused had abetted the rape. Two members of the Court refrained from expressing an opinion on the matter. Martland J.'s dissent, in which Ritchie and Pigeon JJ. concurred, turned on his view that the sufficiency of the evidence going to the s. 21(1) issue was purely for the jury.

A reference to other circumstances in which courts and juries have had to confront this difficult determination may be useful. For instance, in R. v. Cunningham (1937), 68 C.C.C. 176 (Ont. C.A.), the accused was convicted as a party to the offence of keeping a disorderly house. The house was being operated as a gambling establishment and the accused acted as a "look out". The Ontario Court of Appeal held that the stationing of the accused at the entrance to the house served not only the purpose of alerting the keepers to the coming of the police so that they might avoid apprehension, but also the purpose of alerting the keepers early enough that they might destroy or conceal evidence indicating the sort of activity in which the occupants of the house were engaged. Given these functions the amount of participation in the crime by the look out satisfied the requirements for aiding or abetting. See also R. v. Lloyd (1890), 19 O.R. 352 (C.A.).

An absence of affirmative participation in the criminal activity of others (not dissimilar to that in the present case) was held to be sufficient in R. v. Black, [1970] 4 C.C.C. 251. In that case the accused had laughed and shouted at the victim who was being indecently assaulted by a group of men. The British Columbia Court of Appeal held that Black had aided and abetted the offence because his "mere" presence in fact prevented any realistic possibility of the victim's escape, thus permitting the continuation of the offences being committed against him.

In R. v. Cosgrove (1975), 29 C.C.C. (2d) 169 (Ont. C.A.), the accused was convicted at trial as a party to a gang rape. The accused along with four of his companions drove their female passenger to a remote place, dragged her into a corn field and took turns raping her. Cosgrove claimed that he remained asleep in the car while the assault took place. The trial judge left the jury with the impression that Cosgrove was under a duty to prevent the offence which he knew was being committed. The Court of Appeal overturned the conviction and ordered a new trial on the basis that the trial judge's charge to the jury was erroneous and misleading on this point.

Similarly in R. v. Clarkson, [1971] 3 All E.R. 344, the Courts-Martial Appeal Court acquitted the accused who had been present at the gang rape of a young woman in an army barracks. Aware that the rape was taking place, the accused along with several others piled into the room where the assault occurred and watched the attack. As there was no evidence that the accused had committed any physical act or encouraged the rape by their words, there was no foundation upon which to ground liability.

Perhaps the most troubling case on this issue to date is the decision of the Ontario Court of Appeal in R. v. Salajko (1970), 9 C.R.N.S. 145, in which the accused was held to have no criminal responsibility in a gang rape at which he was present. The accused had stood by and witnessed the rape take place with his pants down. Salajko has been the subject of some criticism in this Court. In Dunlop and Sylvester, supra, Dickson J. commented at p. 894 that: "One might be forgiven for thinking that it was open to the jury to infer encouragement by conduct." I agree with the statement of Professor Stuart in his text Canadian Criminal Law: A Treatise (Toronto 1982) that "This is surely the better view." (at p. 493). I find it difficult to view such behaviour as "passive acquiescence". In my view, the decision in Salajko is anomalous and should not be followed.

To be convicted as an aider or abettor one must also possess the necessary state of mind. Dickson J. addressed this issue also in Dunlop and Sylvester. He found that there must be evidence supporting an inference that the accused had prior knowledge that an offence of the type committed was planned.

How similar must the anticipated crime and the actual crime be before the requisite mental element is satisfied? The case law on this issue seems to indicate that the two crimes must be substantially similar. For example, in R. v. Yanover and Gerol (1985), 20 C.C.C. (3d) 300, Martin J.A. of the Ontario Court of Appeal said at p. 329:

For liability to attach under s. 21(1)(b) or (c) it is unnecessary that the person supplying the instrument for the commission of the intended crime know the precise details of the crime intended to be committed such as the particular premises intended to be blown up or the precise time when the offence is intended to be committed, provided that he is aware of the type of crime intended to be committed.

Martin J.A. relied for this proposition on Director of Public Prosecutions for Northern Ireland v. Maxwell, [1978] 1 W.L.R. 1350 (H.L.), in which the accused was a member of an organization which, with the use of weapons, engaged in attacks against Roman Catholics and their property. Maxwell was asked to drive his car to an inn and during the drive became aware that he was acting as a guide for another vehicle which was following him. From his knowledge of the organization Maxwell knew that when he acted as a guide he was taking part in an attack that would involve weapons. The House of Lords held that while knowledge of a general criminal intention would be insufficient to establish party liability, a conviction could follow as long as the offence actually committed was of the type that the accused aided or abetted.

This approach has been adopted by other Canadian authors and courts. For example, Rose, in his text on parties (Parties To An Offence (Toronto 1982)) states at pp. 10-11:

One of the facts a person must know, in order to be susceptible to conviction as an aider and abettor, is the principal's intention to commit the offence. It is not, however, essential to prove that an alleged aider or abettor knew the precise crime which would be committed; it will suffice that he actually knew that the principal planned on committing a certain type of offence, that a crime of that type was in fact committed, and that the accused had intentionally aided or abetted its commission. [Emphasis in original.]

This passage was relied upon by the Nova Scotia Court of Appeal in R. v. Stevenson (1984), 11 C.C.C. (3d) 443. In that case the principal offender had been charged and convicted of causing bodily harm with intent to wound. His conviction arose out of a fight he had engaged in with a man who had insulted his wife. The principal had asked the accused to come with him to the fight so as to prevent the victim's friends from participating. Macdonald J.A., who wrote the decision for the court, held that it was not necessary that the accused know that the principal would only commit a common assault as opposed to an assault causing bodily harm. It was enough that he knew that a "crime of personal violence" would be committed.

Applying these elements to the case at bar, I agree with my colleague that the accused neither aided nor abetted the murder of Elizabeth Johnson. In my view, Kirkness' liability for the death of the victim turns solely on the question whether he aided or abetted the sexual assault of this woman. The issue therefore is whether the evidence is capable of supporting such a finding.

Kirkness stated to the police that he and Snowbird broke into the house and then began looking around. They saw Elizabeth Johnson lying on the bed in the bedroom. Snowbird entered the room and Kirkness watched in the doorway. Snowbird commenced his assault against the victim. Kirkness watched. Snowbird told Kirkness to wait outside. Kirkness then placed a chair beneath the doorknob thereby blocking ingress to and egress from the house. He sat in a chair outside the room and waited. He again tried to look into the room and Snowbird informed him that he was not finished. Snowbird then dragged the naked victim out into the hallway.

In my view, it was open to the jury to find that the actions of the accused while in the home of the deceased amounted to more than "mere acquiescence". Kirkness' initial presence in the room at the time the sexual assault began was transformed into active involvement with his placing of the chair beneath the door handle and his leaving of the room only at the request of Snowbird. These acts are unlike those of the accused in both Dunlop and Sylvester and Cosgrove. Kirkness did not sleep through the assault nor did he merely remain to observe the spectacle of an eighty‑three‑year‑old woman being raped. His actions could therefore be considered akin to those of a "look-out" and therefore as assisting and encouraging the behaviour of Snowbird.

Moreover, Kirkness may be viewed as having continued to encourage and assist Snowbird after the sexual assault in the bedroom had been completed. When the victim was dragged out into the hallway and choked, Kirkness witnessed what was taking place. Even although the level of violence in the house was to his knowledge escalating, the appellant did not alter his behaviour in any significant respect. He remained in the house. He did not remove the chair from under the door handle. He persisted in his plan to rob the house. Can these actions be described as passive acquiescence?

Turning to the accused's state of mind during this period, Kirkness stated to the police that he told Snowbird to stop choking the victim because he might kill her. This statement is completely inconsistent with any intent to aid in the killing. Since the accused did not have the specific intent to assist in bringing about the death of the victim, conviction for murder as an aider or abettor is foreclosed.

However, lack of intent to do anything or to omit to do anything for the purpose of causing death does not end the inquiry into Kirkness' liability under subs. (1). As I indicated earlier, an accused may still be held criminally responsible in manslaughter for the death of the victim where it has not been established that he had the requisite intent for murder.

The actions of the accused are, in my view, capable of supporting an inference that he intended to assist Snowbird in the commission of the sexual assault which he knew was taking place. I personally find it hard to accept his argument that his actions were performed solely for the purpose of protecting himself. When the police questioned him about the chair, his response was:

Yeah, I did that because I thought someone would come in while we were in the house. Alex was [sexually assaulting] her in the bedroom when I was doing that.

This is, however, a matter for the jury to determine.

The mental element of the offence of aiding and abetting in the commission of a criminal offence is doing an act for the purpose of assisting the principal in the commission of the offence. The question thus becomes whether Kirkness placed the chair under the door handle specifically for the purpose of aiding in the crime of sexual assault or for aiding more generally in a crime of personal violence. In other words, was the crime committed by Snowbird of a similar type to that which the accused believed he was aiding and abetting?

There was a time when the violent aspect of the crime of rape was thought to be unduly underplayed by the law. The Criminal Code was amended to reflect the emerging view that rape is essentially a crime of violence. The offence accordingly is now known as the crime of sexual assault and not the crime of rape. This reconceptualization of the law has had an important influence on the way in which crimes of sexual violence are viewed by the courts.

The law now recognizes that sexual assault is often accompanied by other forms of violence. Thus, the Criminal Code contains a number of offences of sexual violence rated in severity by the degree of violence which accompanies the sexual assault. The scale in ascending order of severity runs from sexual assault (s. 246.1, now s. 271) to sexual assault with a weapon, sexual assault accompanied by threats of bodily harm and sexual assault causing bodily harm (s. 246.2, now s. 272), and finally to aggravated sexual assault (s. 246.3, now s. 273).

Given this background and the legislative changes which resulted, it may be somewhat artificial to draw a sharp line between the act of sexual assault and the act of suffocation in a case such as this where the violence inherent in the sexual assault escalated in a maniacal way to the violence accompanying suffocation. The sexual assault and the suffocation could be viewed as offences of the same type in the sense that together they combine to form the offences proscribed by either s. 246.2 or s. 246.3 of the Code. Moreover, they are offences which could cause bodily harm short of death. Even if the appellant intended only to assist in the commission of a sexual assault simpliciter, it would be open to the jury to find that in law he aided and abetted a crime of a type involving personal violence and hence a risk of bodily harm short of death.

Applying each of these elements to the behaviour of Kirkness leads me to the conclusion that there was evidence on which a jury properly instructed could have convicted him of manslaughter. Before considering whether the trial judge did properly instruct the jury on the application of s. 21(1) in the circumstances of this case, I believe it will be helpful to address the application of s. 21(2).

Common Intender

The common law is replete with examples of persons who, having assisted other people in the commission of a crime, are held criminally responsible for the criminal acts of the people they assisted. According to Rose "The common unlawful purpose provisions of the criminal law seem to have developed under the common law as a doctrine of constructive murder -- a sort of "constructive aiding and abetting" in murder cases." (See Rose, supra, at p. 64). The law's imposition of responsibility in such circumstances dates back to at least the time of Hale. He recorded that in Lord Dacre's Case (1543), 1 Hale H.P.C. 439:

The lord Dacre and divers others came to steal deer in the park of one Pelham, Rayden one of the company kild the keeper in the park, the lord Dacre and the rest of the company being in other parts of the park, it was ruled, that it was murder in them all, and they died for it.

Foster, writing in 1809, explained that the special intent required for murder was relaxed in such cases. At page 351 of Foster's Crown Law (London 1809) he said:

But if a fact amounting to murder should be committed in prosecution of some unlawful purpose, though it were but a bare trespass, to which A. in the case last stated had consented, and he had gone in order to give assistance, if need were, for carrying it into execution; this would have amounted to murder in him, and would in every person present and joining with him... .

It is true, here might be no special malice against the party slain, nor deliberate intention to hurt him; but if the fact was committed in prosecution of the original purpose, which was unlawful, the whole party will be involved in the guilt of him who gave the blow. For in combinations of this kind the mortal stroke, though given by one of the party, is considered in the eye of the law, and of sound reason too, as given by every individual present and abetting. [Emphasis in original.]

The common purpose rule cast a very wide net in terms of accessorial responsibility. In order to attenuate the harshness of the rule the common law developed certain limitations to this broad principle. In order to ground liability for the crime committed as opposed to the crime contemplated the crime committed must have been considered by the accessory as a possible incident of the planned venture.

This limiting principle dates back to Plummer's Case, Kel J. 109, 84 E.R. 1103, in which a gang set out to transport wool illegally to France. They were intercepted by the police and a scuffle ensued. A gun was discharged by one of the gang killing not the police but another member of the gang. The question was whether the remaining members of the gang were guilty of the murder of one of their own.

It was agreed by the court that had one of the police been killed by the shot it would have been murder by all the gang. Similarly, if the shot had been intended for the police but had by accident struck one of the gang, that too would have been murder by each member of the gang. On the facts, however, the shot was not fired in furtherance of the purpose for which the gang had assembled. Rather, the inference was that the shot was fired at the deceased because it was believed that he had informed the police of the plan.

In my view, the common intent rule was specifically designed to determine liability in the kind of situation before the Court in the present appeal. Applying each of the constituent elements of s. 21(2) to the present case leads, in my view, to the conclusion that it was open the jury to find that Kirkness was a party to the culpable homicide of the victim.

(a)Intention in Common

The first step in establishing liability under s. 21(2) is to show that the accused formed an intention in common with others to carry out an unlawful purpose and to assist them in achieving that purpose. This common intention need not be pre-planned in any way. It is sufficient, and the case law supports this proposition, that such intention arise just prior to or at the time of the commission of the offence. Indeed, the common design is usually implied from the facts. For example, in R. v. Rice (1902), 5 C.C.C. 509 (Ont. C.A.), leave to appeal refused (1902), 5 C.C.C. 529, the accused were being transported by cab from the courthouse to the jail during the course of their trial on charges of burglary. An unknown person threw a package into the cab which contained at least two revolvers. A struggle ensued and one of the prisoners shot a police officer, killing him. In upholding the jury's finding that the accused was guilty of the murder as a party Osler J.A. remarked at p. 523:

The common design might certainly be formed as soon as the prisoners found that weapons suitable as means of effecting an escape were in their possession; and the evidence, as reported in the case, supports the inference that there was a common design to effect an unlawful purpose by violent means.

In my opinion, there is no question that a common purpose was shared by Snowbird and Kirkness in this case. Where one has aided or abetted in the commission of an offence, there can be little doubt that a shared intention to effect an unlawful purpose existed. In this case Kirkness was a principal in the break and enter. By his own admission Snowbird asked him to come along in the plan to rob the house. He agreed. Moreover, it was he who effected the break and enter by prying open a window at the back of the house with a handle off a garden tool. It was he who first entered and let Snowbird in through the back door. There is not a scintilla of evidence to suggest that the accused did not share an intention in common with Snowbird. The more troublesome question to my mind is the nature of the unlawful purpose to which they had agreed.

(b) Unlawful Purpose

The nature of the unlawful purpose will often be determinative of whether an accused will be held responsible for the subsequent acts of the principal. Suppose, for instance, that the original unlawful purpose agreed upon by the common intenders was a robbery of a store without the use of violence or weapons Unbeknownst to the others, the principal suddenly produces a pistol and kills the shopkeeper. When the finder of fact comes to determine whether the killing of the shopkeeper was a probable consequence of the robbery about which the alleged accessories knew or ought to have known, the original plan not to use violence is obviously key.

In determining the contours of the unlawful purpose the propensity for violence of each or any of the common intenders is relevant. In R. v. Govedarov, Popovic and Askov (1974), 16 C.C.C. (2d) 238 (Ont. C.A.), Martin J.A. indicated that if during the course of a robbery one of the participants is informed that another of the participants is an extremely violent person, the failure of the first person to withdraw may be taken as an indication that he intended that resort to violence, if necessary, was part of the intended unlawful purpose. See also: R. v. Viger (1985), 36 C.C.C. (3d) 18 (H.C.).

Was there any indication in this case that resort to violence might occur in carrying out the common purpose? I think there was. First, Kirkness told the police that he had effected entry into the dwelling of Mrs. Johnson with the use of a garden tool handle. Kirkness brought the broken handle into the house with him and gave it to Snowbird when he let him inside. The retention of this weapon provides some indication that violence could have been contemplated by these two men.

The behaviour of Snowbird himself is relevant to this determination as well. What started out as a "simple" break and enter immediately escalated into a crime of personal violence the moment Snowbird discovered a female person in the house. If this horrific behaviour on the part of Snowbird was not initially contemplated by Kirkness when the break and enter first began, it certainly was understood by him to be part of the overall purpose once it started. For the reasons already discussed, it is arguable that Kirkness not only acquiesced, he assisted in the commission of this crime. While the issue is of course a matter for the jury, it seems hard to believe that the perpetration of acts of physical violence were not part and parcel of the unlawful purpose in the minds of both accused.

(c)Knew or Ought to Have Known of the Probable Commission of the Offence

Section 21(2) of the Code deems a party criminally liable for the acts of the principal offender when the accused knew or ought to have known of the probable commission of the acts which constitute the offence. There are two elements to this last branch of s. 21(2): (i) the commission of the ultimate offence has to be probable; and (ii) the accused must know or ought to have known of this probability.

The first question to be asked is whether the killing of the victim was a probable consequence of the unlawful purpose. If the jury determined that the unlawful purpose encompassed only the breaking and entering it would be hard to justify a finding that the death of the occupant was a probable consequence of that purpose. If, however, the jury determined that the unlawful purpose encompassed also acts of physical violence against the occupant, then the route to party liability on the part of Kirkness is much clearer. Apart from the particular circumstances surrounding this series of events, it seems to me that violence so often accompanies sexual crimes that it is implicit in the very nature of the offence that some harm short of death is probable. This is so, in my opinion, whenever the common unlawful purpose contemplates physical interference with a person. There may, of course, be situations where the level of physical violence contemplated is so minimal that serious bodily harm is merely a possibility rather than a probability. And it may indeed be the case that this observation would hold true even in some situations where the unlawful purpose is an assault of a sexual nature. While I personally would not have thought that what occurred in this case is one of those instances, the question whether the causing of bodily harm short of death was a probable consequence of the sexual offence committed against Elizabeth Johnson was for the jury to decide.

Did the accused Kirkness know, or ought he to have known, that this consequence of bodily harm was probable? As the accused did not testify, his awareness has to be gleaned from his actions. Setting aside the standard of objective foreseeability, the question becomes whether Kirkness did not know that Elizabeth Johnson would suffer bodily harm from the assault. While he objected to Snowbird's strangling the victim, he did not appear to be shocked or appalled at the spectacle. He merely indicated that the attack had gone too far. His behaviour in this regard, coupled with the fact that he was aware that the victim was old and frail, leaves it an open question for the jury as to whether or not this branch of the s. 21(2) test was met.

Abandonment

As with other criminal offences, an accused whose liability is established under the provisions applicable to parties will still have open to him a number of defences. In the context of accomplice liability, however, the defence of abandonment is particularly crucial. According to this defence an accused may absolve himself of criminal liability for the acts of the principal if he can show that he abandoned his purpose to assist in the commission of a criminal offence. Because of my conclusion respecting the appropriate disposition of this appeal, I include here a discussion of the elements of this defence.

While the defence of abandonment is available to an accused charged under either subs. (1) or (2), the defence has usually been applied in Canada to the common intent provision. For instance, this Court considered the availability of this defence in Henderson v. The King, [1948] S.C.R. 226. In that case, the trial judge had not adequately put the accused's defence of abandonment to the jury and a new trial on a charge of murder was ordered. In the course of his reasons Taschereau J. referred to the test of abandonment as stated by Sloan J.A. in R. v. Whitehouse (1940), 55 B.C.R. 420, at p. 425:

After a crime has been committed and before a prior abandonment of the common enterprise may be found by a jury there must be, in my view, in the absence of exceptional circumstances, something more than a mere mental change of intention and physical change of place by those associates who wish to disassociate themselves from the consequences attendant upon their willing assistance up to the moment of the actual commission of that crime. I would not attempt to define too closely what must be done in criminal matters involving participation in a common unlawful purpose to break the chain of causation and responsibility. That must depend upon the circumstances of each case but it seems to me that one essential element ought to be established in a case of this kind: where practicable and reasonable there must be timely communication of the intention to abandon the common purpose from those who wish to dissociate themselves from the contemplated crime to those who desire to continue in it. What is "timely communication" must be determined by the facts of each case but where practicable and reasonable it ought to be such communication, verbal or otherwise, that will serve unequivocal notice upon the other party to the common unlawful cause that if he proceeds upon it he does so without the further aid and assistance of those who withdraw. The unlawful purpose of him who continues alone is then his own and not one in common with those who are no longer parties to it nor liable to its full and final consequences.

In that case three young men arranged to hold up one Ingram, a local merchant. One of the men approached Ingram with an iron pipe which was covered with a piece of hose. Just as he got near him the other two young men ran away. The pipe was later found with human blood on it. Ingram died some time later. At the trial the judge instructed the jury that they must consider only two elements in order to find abandonment: (1) a change of mental intention; and (2) quitting the scene before the crime was finally consummated. Sloan J.A. held that the trial judge erred for the reasons I have quoted above.

Whitehouse was followed by this Court in Miller v. The Queen, [1977] 2 S.C.R. 680, in which two accused were charged with the murder of a police officer. They had been out drinking and were discussing their animosity towards the police. They talked of shooting a police officer. They then left the tavern with a loaded rifle and proceeded to drive around in an erratic manner so as to attract the attention of the police. Miller was at the wheel. Cockriell threw a beer bottle at the local court house. The pair were subsequently stopped by the police. As the officer approached the car Cockriell pulled the trigger on the rifle which had been sitting in Miller's lap.

The Court found that there was no evidence to support a defence of abandonment. Ritchie J. followed the words of Sloan J.A. in Whitehouse and held that there was no clear evidence that the intention to abandon the common purpose had been communicated. Ritchie J. also referred with approval to the decision of the Court of Criminal Appeal in R. v. Becerra and Cooper (1975), 62 Cr. App. R. 212, in which the appellant had broken into a house with two other men. When they entered the house Becerra was carrying a knife. Cooper, one of the other accused, knew that Becerra was in possession of this weapon. He had asked to borrow it to cut the telephone wires leading to the house. The three men entered by the window. The occupant of the house, an elderly lady, began switching the bedroom light on and off, presumably to attract attention so that help might arrive. Cooper punched her and covered her head with a pillow. Becerra cut the wires of the telephone at the bedside.

Cooper then took the knife and went into the kitchen. Mr. Lewis, a neighbour, upon hearing the commotion below came downstairs. Becerra and the third man heard him, climbed out the window, and ran away. A struggle between Cooper and Lewis ensued. Lewis was stabbed four times and died as a consequence. Becerra was indicted for the murder of Lewis and convicted. He appealed his conviction on the ground that the trial judge erred in failing to properly put the defence of abandonment to the jury. The gist of his complaint was that the trial judge instructed the jury that the defence was not available to an accused who, in providing a weapon which he knows is for the purpose of at least occasioning bodily harm, merely quits the scene. The trial judge in fact went further and suggested that there was some obligation on Becerra to physically intervene in order to dissociate himself from Cooper's act.

The Court of Appeal unanimously upheld Becerra's conviction. Drawing upon the words of Sloan J.A. in Whitehouse the Court found that Becerra was legally responsible for the acts of Cooper. The Court of Appeal did not find it necessary to decide whether the accused needed to physically intervene. Roskill L.J. said at p. 219:

On the facts of this case, in the circumstances then prevailing, the knife having already been used and being contemplated for further use when it was handed over by Becerra to Cooper for the purpose of avoiding (if necessary) by violent means the hazards of identification, if Becerra wanted to withdraw at that stage, he would have to "countermand", to use the word that is used in some of the cases or "repent" to use another word so used, in some manner vastly different and vastly more effective than merely to say "Come on, let's go" and go out through the window.

Commentators on the defence of abandonment appear to agree that a defendant will be held to a different standard depending upon the degree of his participation in the crime. Glanville Williams has suggested that where a defendant has acted positively to assist a crime beyond merely inciting or encouraging it, he must do his best to prevent its commission in order to escape liability. He says that the defendant must warn the victim or do something short perhaps of going to the police. This restriction upon the right of withdrawal is, he contends, an exception to the usual requirement that mens rea and actus reus be contemporaneous. "In effect the defendant is made liable for negligence in failing to prevent the crime": Textbook of Criminal Law (London 1983), at p. 364. This distinction has also been recognized by Professor Lanham ("Accomplices and Withdrawal" (1981), 97 L.Q. Rev. 575). He too states as a principle that "Where the act [of] participation goes beyond encouragement, mere countermand may not be sufficient to exculpate the accused" (at p. 591).

Certain factors have been recognized as relevant to the determination of whether an accused's intention has been legally abandoned. Professor Lanham lists the questions to be considered by the court as follows at p. 575:

1. Must withdrawal be voluntary?

2. Is countermand necessary?

3. Is countermand sufficient?

4. Must countermand be express?

5. Must withdrawal be timely?

Is attempted withdrawal sufficient?

Must countermand be communicated to all principals?

Put more succinctly, the issue is, as Professor Manson says, the quality of the withdrawal. In "Re‑codifying Attempts, Parties, and Abandoned Intentions" (1989), 14 Queen's L.J. 85, he put the matter this way at p. 95:

Looking at the defence of abandoned intention in respect of parties, the key issues relate to the quality of withdrawal from the original plan and whether more is required to exculpate. These questions take on different significance depending on the form of accomplice liability in issue and the particular circumstances of a given case.

I agree that it would not only be impossible but also inadvisable for the Court to attempt to set down precisely what should be required of an accused in order to demonstrate that he or she has withdrawn as an accomplice to an offence. I agree with Professor Manson that the issue is the quality of the withdrawal in relation to both the offence and the type of criminal participation in which the party has engaged. Of course, attempts to stop or prevent the commission of a crime which are insufficient to exculpate an accused may always be taken into consideration on sentencing: see Wasik, "Abandoning Criminal Intent", [1980] Crim. L. Rev. 785.

In this case it was open to the jury to find that the participation of Kirkness went beyond mere encouragement. He had physically placed a chair in front of the door to prevent their activities in the house from being discovered. What evidence could the jury have relied upon to support a conclusion that he had effectively withdrawn himself? Kirkness took no steps to remove the chair or to otherwise intervene in Snowbird's domination of the victim. The only action upon which the accused relies to demonstrate his withdrawal is his act of saying to Snowbird, "stop that, you'll kill her". The question for the jury is whether this statement, if believed, is sufficient to negate Kirkness' participation in the crime.

6. Distinguishing Subs. 21(1) From Subs. 21(2)

The foregoing summary of the relevant law indicates, I believe, that there were two avenues along which the jury could have reached a conclusion that Kirkness was responsible in law for the death of Elizabeth Johnson. I wish to add a few remarks concerning the difference between the subs. (1) and subs. (2) routes.

According to Gillies on Criminal Law (Sydney 1985), at p. 140, the common intender rule was developed to simplify the rules of accessorial liability for juries and was not created as an additional basis upon which to ground criminal liability. On the other hand, this Court has stated that subss. (1) and (2) of s. 21 are conceptually distinct. The essential difference between them was explained by McIntyre J., writing for the Court, in R. v. Simpson, [1988] 1 S.C.R. 3. He said at p. 15:

The two subsections of s. 21 deal with different circumstances. Subsection (1) applies to make everyone a party to an offence who commits it or who aids and abets in its commission. Subsection (2) covers the case where, in the absence of aiding and abetting, a person may become a party to an offence committed by another which he knew or ought to have known was a probable consequence of carrying out an unlawful purpose in common with the actual perpetrator.

Rose put the matter similarly at p. 65:

[Section 22(2)] is quite plainly intended to provide liability in the case of consequential offences which were not committed nor aided or abetted by the accused, but which resulted from the prosecution of the original offence.... [Emphasis in original.]

It is my view that since aiders and abettors have been treated differently from common intenders by Parliament, some difference between these two subsections must be recognized.

On the other hand, circumstances may undoubtedly arise in which it will be difficult to distinguish the applicability of the two subsections. Where an accused has aided or abetted the commission of some crime, party liability under subs. (1) follows where the crime which is ultimately committed is of the same type as the one in which the accused has assisted. Under subs. (2), on the other hand, party liability follows upon a finding that the offence actually committed was one which the accused knew or ought to have known would be a probable consequence of the commission of the contemplated offence in which he assisted. The difficult task for the jury in such cases is to distinguish between when the crime actually committed is of a similar type to that contemplated and when the crime actually committed is a probable consequence of the crime contemplated.

In my view, the difference between the two is that the doctrine of similarity was not intended to include situations where the principal committed another offence, even a probable one, in order to cover up his crime or to facilitate his escape. I believe that, in order to be an offence "of the type" within the meaning of s. 21(1), the committed offence must not only be similar but must be sufficiently contemporaneous with the contemplated offence. Section 21(2) is, in my view, reserved for those instances where there has been a break in time between the two offences and the offence actually committed follows after but as a consequence of the offence originally planned.

7. Did the Trial Judge Err in His Charge?

Contrary to the view expressed by my colleague Cory J., I do not believe that the trial judge adequately instructed the jury with regard to the possibility of convicting the appellant of manslaughter. The most telling evidence of this, in my view, is that the jury twice asked for clarification of the charge. Clearly, confusion existed.

Beyond the fact of the jury's obvious confusion, it is also my opinion that the charge was misleading. As I hope I have demonstrated, the appellant could be held responsible for the death of the victim in either of two ways. In explaining these bases of liability, several fundamental errors were made by the trial judge.

First, with respect to the application of s. 21(1), the trial judge said:

Now, I instruct you that you may, not necessarily must, but you may consider that act [of placing the chair under the doorknob] as an act of aiding Snowbird in the commission of the offence of sexual assault on this old woman. You will then have to go on and consider whether Kirkness's state of knowledge was such that he was aware that death would ensue. If he was not, the act would not amount to aiding in either murder or manslaughter. [Emphasis added.]

This was the sum total of Scollin J.'s charge on the application of s. 21(1). While I agree with Cory J. that the trial judge did adequately instruct the jury on the distinction between first degree murder, second degree murder and manslaughter elsewhere in his charge, the portion of his charge that I have quoted was not only inadequate but clearly erroneous. First, it would have been preferable for Scollin J. to have defined the legal meaning of aiding and abetting. Second, the trial judge made no mention of the "type of offence" rule which I have set out. Third, and more importantly, if the jury found that Kirkness had aided the sexual assault, the question for the jury was not whether Kirkness was aware that death would ensue, but rather whether he was aware that bodily harm would have been the result. Scollin J. was, in my view, quite wrong in his explanation of the mental element to be established for a conviction of manslaughter. I believe that had these errors and omissions not been made, the verdict might not necessarily have been the same.

With respect to the application of the common intent section, it is also my view that the charge was erroneous and misleading. My colleague has set out the portion of the charge dealing with the applicability of s. 21(2) if the jury were to find that the common purpose consisted only of the breaking and entering. I have no quarrel with this. However, later in the trial the jury asked for clarification. A discussion between counsel and the court ensued. Two matters were addressed.

First, a question arose respecting the defence of withdrawal. Scollin J. disagreed with the suggestion of Crown counsel that if Kirkness was a party to the sexual assault then he had some legal duty to extricate himself. The trial judge refused to place the issue before the jury. While I am loath to cast the issue in terms of there being a legal duty on Kirkness, it is my opinion that the abandonment defence needed to be explained to the jury and that the trial judge was in error in failing to do so.

The second question revolved around the common intent issue. Whether the common purpose could have consisted of the sexual assault as opposed to only the break and enter was discussed with counsel. The jury was brought back in and Scollin J. charged them as follows:

... was an implied or implicit common intention then formed by these two to help each other in the carrying out of the sexual assault? Was that the net result of it? Was that the result in reality? You will have to ask yourself that. If it was, then the consequence is:

"Where two or more persons form an intention in common ... "

and it needn't be by written agreement, it can be by conduct,

" ... to carry out an unlawful purpose ... "

and here the unlawful purpose, in that situation, is the sexual assault by Snowbird. If they form this intention in common to carry out this unlawful purpose,

" ... and to assist each other ... "

is that also implicit and you draw that conclusion,

" ... therein and any one of them, in carrying out the common purpose ... "

of sexual assault,

" ... commits an offence ... "

Now, this would be if death resulted from the sexual assault.

" ... commits an offence ..."

or whatever it would be, murder, first degree; murder, second degree; or manslaughter. If the death occurs right and directly because of that sexual assault, ought Kirkness to have known, in those circumstances, that the killing, ... would be a probable consequence of the sexual assault?

...

If you dismiss the sexual assault, itself, that bodily harm applied at that point, if you dismiss that as the cause of death, if you are not satisfied beyond a reasonable doubt that that was how death occurred but it occurred later on because of suffocation, then if you dismiss that as the cause of death, the actual sexual assault, itself, then there can be no liability for murder or manslaughter on the part of Kirkness simply because he placed a chair against the door. [Emphasis added.]

Liability under s. 21(2) does not require the accused to assist directly in the act causing the death. It is sufficient, with certain limitations, that manslaughter was a probable consequence of the offence in which the accused aided or abetted. The trial judge, by posing the question in terms of whether the sexual assault caused the death, improperly implied that if Kirkness did not directly assist in the act which caused the death of the victim, i.e., the suffocation, then he could not be held responsible for the death of the victim.

My colleague appears to agree with this. I do not. In my respectful view, the question for the jury never was whether the sexual assault caused the death. Rather the question was whether Kirkness aided or abetted Snowbird in a crime which was of the type which could have caused bodily harm or whether bodily harm could have resulted as a consequence of carrying out the sexual assault. This is a point of fundamental importance which I believe was lost on the jury because of the trial judge's misdirection.

Disposition