Keeping Up Is Hard to Do:
A Trial Judge’s Reading Blog


R. v. Ouellette, 2022 ABCA 40, February 3, 2022, at paragraphs 33, 134, 148, 158 and 159:

The actus reus for abetting has been defined as “encouraging, instigating, promoting or procuring the crime to be committed”…Or put another way, “doing something or omitting to do something that encourages the principal to commit the offence”: R v Cowan, 2021 SCC 45 at para 32.

The mens rea of abetting requires both intent and knowledge: Cowan at para 32. Intent requires that the abettor intended to assist the principal in committing the offence; however, it does not require the abettor to actually desire that the offence be committed: Briscoe at para 16. As for knowledge, the abettor must subjectively know that the principal intends to commit the offence but is not required to know the precise details of how the offence will be committed: Briscoe at para 17. Wilful blindness will also suffice to meet the mens rea requirement in the absence of actual knowledge: Briscoe at para 25.

…there is no threshold for what types of words might constitute abetting; it is the context and circumstances of the discussion that is most important. As such, the analysis will be highly fact specific.

When examining words as the basis of establishing abetting, there does not appear to be a threshold of what type of words will constitute encouragement. Rather, the caselaw seems to demonstrate that the context of the situation is most significant for determining liability. A wide range of words may establish liability. For example, courts have imposed liability for abetting based on laughing and yelling while present at the scene of an offence, such as in Black, as well as calling an accomplice to action while engaged in an altercation, such as in Poitras. This appears to demonstrate that courts have long since considered the surrounding circumstances when determining whether conduct constitutes abetting, though this analysis has not always been done explicitly.

As a result, the question of whether the actus reus of abetting is established should not be limited to an assessment of the words alone, but should also include a consideration of the surrounding circumstances, such as the manner in which the words were communicated and the relationship between the speaker and receiver. This may include any actions accompanying the words, the tone and vernacular of the words, the literal or figurative meaning of the words and other indications of what the speaker meant to convey.  For example, a parent who implores a child not to take illegal street drugs, but if they do they should carry the life-saving, opioid-overdose medication Narcan, should not be charged with abetting possession of a controlled substance.  We can think of many situations where criminal liability would be imposed if these types of equivocal statements alone were sufficient.