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


In R. v. Cowan, 2021 SCC 45, November 5, 2021, the accused was charged with the offence of robbery. The evidence led at the trial indicated that the robbery was committed by two individuals. The Crown argued that the accused should be convicted on the basis that he was one of the principals (section 21) or on the basis of having counselled the commission of the offence (section 22).

The trial judge rejected both proportions and the accused was acquitted.  On appeal, a majority of the Saskatchewan Court of Appeal set aside the acquittal and ordered a new trial.  The accused appealed from conviction.  The Supreme Court indicated that the primary issue raised was: “Did the trial judge err in his assessment of Mr. Cowan’s guilt as a party on the basis of abetting or counselling?”

The appeal was dismissed.

The Supreme Court indicated that “[f]or the purposes of determining criminal liability, the Criminal Code does not distinguish between principal offenders and parties to an offence…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)” [at paragraphs 29 and 30].

The Supreme Court indicated that 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”.  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…As for the mens rea, it has two components: intent and knowledge…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” (at paragraphs 31 and 32).

Section 22(1) of the Criminal Code:

In relation to this provision, the Supreme Court stated (at paragraphs 35 and 36):

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”.

Application to this Case:

The Supreme Court concluded that the trial judge erred in focusing “on the identity of a given principal, whether or not the Crown identified specific individuals as principals to the offence. Rather, all that was required was for him to find that Mr. Cowan had encouraged at least one of the individuals who participated in the commission of the offence, be it as a principal (abetting or counselling) or a party (counselling). Respectfully, the trial judge erred in failing to recognize this” (at paragraph 44).