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Home , Complicity, Willful blindness

S.C.C. File No. 32912 IN THE SUPREME OF CANADA (On Appeal from the Court of Appeal of Alberta)

Between:

MICHAEL ERIN BRISCOE Appellant (Respondent)

- and -

HER MAJESTY THE QUEEN Respondent (Appellant)

FACTUM OF THE CROWN RESPONDENT ATTORNEY GENERAL OF ALBERTA PURSUANT TO RULE 42 OF THE RULES OF THE SUPREME COURT OF CANADA

JAMES C. ROBB, Q.C. and HENRY S. BROWN, Q.C. TAMARA FRIESEN Cowling Lafleur Henderson LLP Appeals Branch, Alberta Justice Suite 2600, 160 Elgin Street 3rd Floor North Bowker Bldg. Ottawa, ON 9833 - 109 Street KIP lC3 Edmonton, AB Tel: (613) 233-1781 T5K 2E8 Fax: (613) 563-9869 Tel: (780) 427-5042 email: i~ewy.bro~vn@,~li~igs.c.om Fax: (780) 422-1 106 email: james.robb~gov.ab.ca

Counsel for the Respondent Ottawa Agent for the Respondent ALEXANDER D. PRINGLE, Q.C. JEFFREY BEEDELL Pringle, Peterson, MacDonald & Bottos Lang Michener LLP Barristers & Solicitors Barristers & Solicitors 100 Street Place 300, 50 O'Connor Street 300, 10150 - 100 Street Ottawa, ON KIP 6L2 Edmonton, AB T5J OP6 Tel: (613) 232-7171 Phone: (780) 424-8866 Fax: (613) 231-3191 Fax: (780) 426-1470 email: jbeedellG$lanm~ichener.ca email: apringle($p&leandassociates.coin

Counsel for the Appellant Ottawa Agent for the Appellant TABLE OF CONTENTS

PAGE

PART I: STATEMENT OF FACTS ...... 1

(0 Overview of Case ...... 1 .. (11) at Trial ...... 2 (a) Introduction ...... 2

(b) Prior to leaving for the golf course ...... 3

(c) Driving to the Golf Course ...... 4

(d) At the Golf Course Fairway ...... 5

(e) The Appellant's Statement ...... 7

(iii) Findings of Fact ...... 10 PART 11: POINTS IN ISSUE ...... 12

PART 111: ARGUMENT ...... 12

Ground 1 ...... 12

(i) Standard of Review In Relation to the Three Grounds ...... 12

(ii) Introduction and Overview ...... 13

(iii) General Principles re and Concurrency ...... 13

(iv) Parties ...... 15

(v) Wilful Blindness ...... 17

(vi) The Charge of ...... 25

(a) Overview ...... 25

(b) Murder Elements ...... 26

(c) Elements ...... 27

(d) Application to Facts ofthe Case ...... 28 Ground II ...... 3 1

6) Introduction ...... 31

(ii) Legal Elements ...... -32

(iii) Application to Case ...... 34

Ground III ...... 35

(i) Introduction ...... 35

(ii) Aggravated Sexual Elements ...... -36

(iii) Application to tlze facts of the case ...... 37

CONCLUSION ...... 38

PART IV: SUBMISSION ON COSTS ...... 39

PART V: NATURE OF RELIEF DESIRED ...... 39

PART VI: TABLE OF AUTHORITIES ...... 40

PART VII ARTICLES AND ANNOTATIONS REFERRED TO ...... 44

PART VIII LEGISLATION ...... 44 PART I: STATEMENT OF FACTS (i) Overview of Case

1. This case concerns the luring of a 13 year old female victim to a dark and remote golf fairway by a group comprised of two adults (the Appellant, who was 34, and Laboucan) and three young persons (MW, SB, and DT). There she was raped, brutally assaulted and murdered.

2. The Appellant and Laboucan were tried jointly on 3 charges: first degree murder, (s. 235(1)); aggravated (s. 273(2)(b)); and (s. 279 (1 .l)(b)), Criminal Code of Canada. Laboucan was convicted, the Appellant acquitted, on all charges. Laboucan's convictions became the subject of a defence appeal with the Alberta Court of Appeal directing a new trial. That decision is now the subject of a further appeal to this court.'

3. The Appellant's acquittals were the subject of a Crown appeal, a separate panel of the Alberta Court of Appeal also ordering a new trial which brings us before this Court. At the Court of Appeal level, the Crown Appellant advanced four grounds of appeal:

Ground 1 The trial judge erred in by failing to consider the doctrine of wilful blindness, a valid form of mens rea for these offences. In the alternative the trial judge erred in law by failing to provide adequate reasons with respect to the application of that doctrine thereby preventing appellate review. Ground 2 The trial judge erred in law by examining individual pieces of evidence and subjecting them piecemeal to the criminal standard rather than considering the evidence as a whole. Ground 3 The trial judge erred in law by failing to properly explain the meaning of the phrase "seriously scare" used in the context of the Respondent's knowledge of what was to happen to the victim and accordingly his reasons are inadequate andprevent appellate review. Accompanying that error was his error of law in misdefining and misapplying the elements of the offence of manslaughter. Ground 4 The trialjudge erred in law in misdefining and misapplying the elements of the ofence of aggravated sexual assault. Or in the alternative he erred in law in applying the of fact defence in relation to that offence when there was no air of reality to it. 4. The Court of Appeal dealt only with the first ground. Having concluded that a new trial was warranted on that ground, they found it unnecessary to deal with the remaining three.2 Therefore, the remaining three grounds are unresolved and must be addressed.

1 R. v. Laboucan, SCC Case No. 33010 * Alberta Court of Appeal, Reasons for Decision, Joint Record (JR), Vol. I, p. 8 1, para. 10 5. Wilful blindness was in issue at trial. The Crown posited that the victim was lured to a golf course just outside Edmonton to be sexually assaulted and killed. The plan was formulated by Laboucan but communicated to the others, including the Appellant who became responsible for the subsequent , either as a , or as an aider andlor abettor pursuant to s. 21(b) and (c). It was argued that his knowledge of the plan and subsequent crimes committed could be proved either by a finding of actual knowledge or a finding of wilful blindne~s.~Appellant's counsel argued that wilful blindness was not a valid form of mens rea for murder, as a finding of actual knowledge was required, implying that wilful blindness could not withstand constitutional scrutiny.' The Crown replied in reb~ttal.~In his final decision, the trial judge did not address the issue.

(ii) Evidence at Trial

(a) Introduction

6. Evidence was provided chiefly by witnesses who were part of the group who lured the victim to the golf course, plus a young girl who had been similarly lured (KB). The Appellant did not testify, but two statements made by him were admitted at trial. One was a formal statement to the police, and the other a statement made to an undercover officer. The Appellant, commenting to the undercover officer about his own formal statement, said he only told 80% of the truth to the police, and was keeping 20% to him~elf.~

7. The trial judge concluded that the Appellant was not a principal to the crimes committed and, therefore, if there was liability, it would be as a party. While concluding that four acts had been committed (to be more fully discussed below) by the Appellant that could make him a party, he acquitted on the basis that the Appellant lacked actual knowledge of the intentions of the other persons present and, therefore, lacked the requisite mens rea. Since knowledge and its relationship to the mental is a key issue, it is necessary to provide more detail as to the evidence than that offered by the Appellant. There are three key periods of time that must be considered: (a) prior to leaving for the golf course; (b) the drive to the golf course; (c) and events at the golf course.

Crown submissions, JR, Vol. XIII, p. 43114-45; 160114-164135; 167118-37; 170125-174117; 172134-17314 Defence submissions, JR, Vol. XIV, p. 2114-22128; 8811-6; 170132-43 Crown reply, JR, Vol. XIV, p. 160136-161138; 16413-30 6 Evidence of Cst. L. McCoshen, JR, Vol. IX, p. 1817-25 (b) Prior to leaving for the golf course 8. DT (a young person separately charged) testified that she and her boyfriend (MW) met the Appellant, Laboucan, and SB at a restaurant. After doing a "dine and dash," the Appellant drove them to the mall, and then to a re~idence.~Laboucan and MW talked in the vehicle about killing people.8 At that point she thought it was a joke. The Appellant drove to an area where there was a sort of dugout with trees. The Appellant and Laboucan went to it and ". . .they got some stu@" She believed the Appellant and Laboucan were getting the weapons used later, but did not actually see weapons at that time. The two males put whatever was obtained in the trunk of the ~ehicle.~She later learned the location was by the hotel where the Appellant and SB lived."

9. Subsequently, the Appellant drove the group back to the mall. The Appellant, Laboucan and SB went into the mall to find someone to kill. DT described this as a "hunch" based on what Laboucan had previously said, and putting "two and two together"." They were looking for a female as Laboucan wanted to "get laid'. The Appellant, Laboucan and SB then came back as a group, Laboucan saying "we found someone". Everyone, including the Appellant, was present.'2 The group then went for a meal and at midnight returned to the mall to pick up a girl or girls.'3 The Appellant, Laboucan and SB went into the mall and after 10 minutes came out with two girls, who entered the car, with the Appellant once again driving. l4

10. SB was in a relationship with the adult Appellant, and also knew KB.'~She and the Appellant were living together at a motel. Laboucan had stayed with them prior to the night of the killing.16 On the day in question she, Laboucan and the Appellant drove around, ending up at West Edmonton Mall. After spending some time at the mall the Appellant drove them to a restaurant, where they met DT and MW. After the "dine and dash" the group re-entered the

7 It was not in dispute that throughout the entire course of events it was the Appellant's vehicle used, and he did all the driving. * DT's evidence, JR, Vol. 4, p. 137136-45; 13811-5 Ibid., p. 143123-14415 10 Ibid., p. 144112-145110 Ibid., p. 141135-14215; 146143-46 Ibid., p. 142110-46 l3Two girls were selected - the victim and another young girl named KB 14 Evidence of DT, JR, Vol. IV, p. 130118-37; 132132-13313; 133140-135/10,27-45; 147125-47 l5Evidence of SB, JR, Vol. VI, p. 3115-46; 7121-47 l6Ibid., p. 11110-45 vehicle, and the Appellant drove them to the ma11.17 After spending time at the mall she, the Appellant and Laboucan started to drive to another restaurant during which Laboucan communicated his ideas for the rest of the evening, saying he wanted to kill someone "$or fun." The Appellant said nothing in response, and no questions were asked.I8

1 1. After a meal, the group returned to the mall, Laboucan again talking to her and the Appellant about killing someone. He indicated he was going to randomly pick a victim, and had made his choice. With the Appellant and SB present, he picked someone out of the crowd. With her, the victim, KB, MW, the Appellant, and DT present, Laboucan invited two girls (the victim and KB) to a rave party, and both accepted. The Appellant drove the now enlarged group out of the city.19 When they arrived at the golf course SB knew the rave party story to be a lie." She became aware of his choice of victim at the golf course.21

12. JS (a male youth) was with the group for 6 to 8 hours. He met MW and DT outside the mall, and then the Appellant, who was driving, Laboucan and SB arrived by car. They offered JS a ride to his sister's house during which MW talked (he believed jokingly) about chopping people's heads off, others in the group agreeing that was what they were going to do. He heard MW say they were going to pick up a bat and a machete, and heard the name NC (the 13 year old victim) mentioned by more than one member of the group in the car.22

(c) Driving to the Golf Course 13. KB, one of the two girls lured to the party, testified that Laboucan invited her and the victim to a rave party where there would be about 200 people. They were told that some people had to be dropped off and then they would come back and take them to the party. She and the victim sat waiting to be picked up. They were eventually taken to a vehicle driven by the Appellant. He drove for 30 or 45 minutes during which people were kissing, and talking about the party, and laughing.23

14. DT testified that the two girls were in the back seat and seemed "happy and cheerful like young girls should be." On the drive she said that she was giving the victim "hickeys." The

17 Ibid., pp. 2515-27146 I*Ibid., p. 3311-34117 Ibid., p. 44114-4 1 20 Ibid., p. 39125-40117; 41119-26 21 Ibid., p. 3611-37130 22 Evidence of J.S., JR, Vol. IV, p. 80129-40; 8315-13; 84/27-36; 87117-46; 8818-43; 91/22-47 Appellant drove for between 15 minutes and half an hour. She had no idea where they were going, no one was giving directions, nor did the Appellant ask for directions. During the drive there was no further talk of killing anyone.24 They stopped and everyone but the Appellant got out. Laboucan went to the back of the vehicle and, she believed, the Appellant opened the trunk, but she could not see what was obtained.25 Everyone but the Appellant proceeded through the gate and started walking. The Appellant was not with them as he said that he was supposed to pick up more people, but he didn't. She did not believe him when he said that because there was just something not quite right about it. They finally reached the grass, together with the victim.26

(d) At the Golf Course Fairway 15. KB testified Laboucan led the way to a grassy area, about a 10-15 minute walk. At that point she could not see either the Appellant or SB, and did not see SB again until the group arrived at the grassy area. SB then re-joined them, and the Appellant arrived about 2 minutes later. At the grassy area SB and Laboucan were talking about rituals involving bringing people back from the dead. The Appellant arrived after that.27

16. After the Appellant rejoined the group SB struck the victim with a wrench. The Appellant was present. The victim asked what she had done to make SB mad, and ran to Laboucan. He whispered something in her ear causing her to scream. She asked him to let her go and not to do "this." The others were present when this happened. The victim was screaming and KB knew they were going to hurt her in some way. The Appellant then held the victim on the ground by putting his hands on her arms, telling her to shut up and be quiet in an angry tone of voice. When she wouldn't stop screaming, he put his hands over her mouth. At that point SB took KB back to the vehicle but, as they were about to leave, the Appellant showed her his belt and told her that if she screamed he would have "to do it" - which she believed meant strangling her. He told SB to take her back to the car. When the group returned without the victim, the Appellant drove the car to the Appellant's motel room.28

23 KB's evidence, JR, Vol. 111, p. 6511-2; 66140-47; 67115-3 1; 71125-41; 7711 1-16; 80120-43 24 DT's evidence, JR, Vol. IV, p. 148128-34; 149115-44; 15119-1 1 25 Ibid., p. 151136-41; 152125-42 26 Ibid., p. 155114-3 1; 157125-57 27 KB's evidence, Vol. 111, p. 84136-38; 8512-5,23-35; 8615; 23-46; 87133 28 Ibid., p. 87112-40; 88137-89144; 90135-91147; 92119-44; 9311-10; 97/25-30; 98110-28 17. DT testified that upon reaching the grassy area she knew there was not going to be a party. Laboucan told a story about killing people and bringing them back from the dead, and the two girls lured to the site started to freak out. Laboucan gave the two girls the choice as to who would be killed and whispered something in the victim's ear, causing her to cry out. SB hit the victim a couple of times. It was at that point when the victim cried out that the Appellant arrived. The victim started begging for her life. Laboucan started talking to the victim, with the Appellant standing there.29

18. The Appellant told SB to take the other girl back to the car without saying DT, the victim, the Appellant and Laboucan remained; everyone near the victim. She was told that they were going to have sex with her and her pants and underwear removed, with sexual intercourse performed on her by Laboucan and Williams, the latter claiming his turn after Laboucan finished. The Appellant was there.31 Laboucan then told the girl she would be beaten to death prompting begging from the victim that they make it fast. The Appellant was there but said nothing. DT gave Laboucan one of the knives she carried who unsuccessfully tried the victim's throat, so then choked her with the wrench. No one tried to stop it. DT put her foot on the victim's stomach while MW hit her with a hammer. The Appellant was present for this as After more choking and beating the victim stopped moving and was making gurgling sounds DT believing that at that point the victim was dead. The witness testified that when they arrived at the field she knew someone was going to be killed.

19. The group was then driven away by the el ell ant,^^ first leaving KB and another at the motel and; then driving her, Laboucan and MW around, eventually going back to the Appellant's room where KB was. During the time that KB was there she was not free to come and go because every single moment someone was with them and wouldn't let her out of their sight. This included the el ell ant.^^

20. SB testified that at the golf course, the Appellant initially stayed by the car. Laboucan pulled tools out of the trunk, which she later identified as the Appellant's tools. At the grassy area the victim asked where everyone was, but no one responded. Laboucan directed SB to

29 DT's evidence, JR, Vol. IV., p. 16013-40; 16112 1-47; 162120-30 30 Ibid., p. 163123-36 31 Ibid., p. 16415-16612620 32 Ibid., p. 16711-46; 16811-170123; 17213 1-41 33 Ibid., p. 17311-27; 174121-40 strike the victim with the wrench, which she did. She testified that the Appellant showed up after she struck the victim.35 DT pulled down the victim's pants and Laboucan had sex with her after which the Appellant showed up. She then decided to take the other girl back to the vehicle, and could hear the victim's screams as they walked back to the vehicle. When they returned, the Appellant again took the position of driver.36

21. The Respondent notes that the evidence of MW and Laboucan is not summarized above. Their evidence was largely disbelieved but it is clear that they (particularly Laboucan) ascribed a far more active role in the entire process to the Appellant. MW indicated that the Respondent was part of the group that went into the mall to get the girls.37 Laboucan7stestimony was to the effect that the Appellant was the leader, duped him into believing there was a party, took the entire group to a remote golf course, and led the group to the fairway. He said that the Appellant struck the victim with the mallet a number of times.38

(e) The Appellant's Statement

22. The Appellant initially denied knowing or recognizing the victim and asserted that her murder had nothing to do with him. All that he knew came from the radio - something about a missing Shortly after that, his version was that he was staying with a bunch of people and then everyone disappeared and he didn't know what happened, and wanted to know how the girl had been stabbed, but didn't know the people in~olved.~'After some questioning his version became that a girl who had a drug problem needed his help and started to live with him. Then he met a "dude" and right away he was afraid for the girl because the dude was weird and talked about killing 180 people, and then, that there was to be a bush party that night. Everyone then took off. He asked the officer whether that was anything like what the officer had heard.41

23. Once he knew that the authorities had spoken to the others, his version again changed. It became that they went for a ride to where there was supposed to be a party. They came to a spot but he did not know where because it was not daytime. Everybody got out to go for a walk and

34 Ibid., p. 188140-4; Vol. V, p. 6130-711 1 35 SB's evidence, JR, Vol. VI, p. 46116-46; 47/1-19; 55/24-26; 56/35-57; 59112-61/40; 63125-32; 75/35-7613 36 Ibid., p. 64125-66125; 69/3-40; 7211-6 37 MW7sevidence, JR, Vol. VII, pp. 149113-150125; 155140-156144; 157125-158134; 15918-163144 38 J. Laboucan's evidence, JR, Vol. XI, p. 88128-10214; 102113-106122; 110131-111143; 112146-113141; 116111- 117116; 160117-26 39 Appellant's statement, JR, Vol. XV, pp. 68-70,72-73 40 Ibid., p. 78,94 the other male asked him to open the trunk which he did but "there was no booze or nothing" so he thought they were going to smoke crack. He wanted to stay by the vehicle but he "got scared for her" and walked closer and started hearing stuff - "No, no, no" and was pretty sure "that's what was going on." His only part was driving the vehicle.42 Subsequently he said he and the guy staying with them went out for smokes and they met two other people and then he saw this "couple blades" and he thought he was going to be the one to die. He knew they had the knives and it was scaring him but he would stick with "her.7743

24. According to this version, he was waiting and waiting and nothing was happening and "they" started talking about "what ifwe do this to this person." "They" pull up at the mall and pick up a "chick." He started to drive the group to hsplace but decided against it so "I went this way and went for a ride." He told them 'ffuck it, kay everybody out whatever you guys wanna do just do it. Don't do it around I don't want to see nothing I don't know what the fuckyou 're gonna do. And the w..basically what I did is when I got out I made sure I stood way way back 'cause I did not want to be attacked, right? "Cause I thought their gonna do me. I thought they were just some kind of big thing happening." He said he thought he was going to be the person hurt, and then that he didn't have any idea anybody was gonna hurt anybody."4

25. He heard somebody yell "don 't, don 't, why did you do that to me. And and after that it just got really nasty. Like I know some.. (unintel) I wanna fuck her or something like that. And then Ijust my coat was got involved that's the main thing." - meaning someone was wearing his coat.45 He heard "tink ahh ahh ahh oh my god ahh ahh, screaming, yelling real loud." He said that his girlfriend told him that if he didn't help her he was going to die and that he didn't want to be responsible for what was happening to the girl. He thought "theyjust wanted to scare the shit out of this person" but he didn't know anything because the music was loud and people were in the back, and he didn't remember much. According to him, the others had really deserved it and that his mistake was not coming home in the first place.46 He then provided the detail that he was asked for a pair of pliers from the back of his car.47

41 Ibid., p. 96-97 42 Ibid., p. 99 43 Ibid. p. 102 44 Ibid., p. 106 45 Ibid. p. 107 46 Ibid., p. 108 47 Ibid., p. 109 26. Under further questioning he said that from where he was standing he could see somebody "begging not to die ...Please don 't hurt me, please don 't hurt me, what did I do, what did I do?" Somebody was hanging on to her.48 A couple of times he got close to the girl, and told her to calm down. He could see one of the other males with a pipe and a guy and girl with "blades."49 Subsequently he said "Shit happened. When I came up there I seen that basically being tossed around form side to side." He figured "that 'sJine their just gonna do that and its gonna be cool. Right? No. Then the yelling and screaming after starts, "help me no don't don't don 't. And then he's choked the life out of her. "" He could see one of the guys hitting the victim with something, with a blunt object of some type, striking the girl in the head.51 At a subsequent point he said that pliers and some kind of pipe were taken from the trunk.52

27. He said "That's the way I got to it and when Igot down when they when the shit really happened. That's what I seen. And I was like aah fuck I don't wanna know. I gotta do something, what can I do?53 He had figured that the other male wanted his girlfriend but that "screwing kids is not my piece ~f~ie."~~AS he put it: "I think it might be that girl there and that taller one, Cat or whatever her name and some other chick. They liked him"; and "So they were after him and I was more than happy to provide him with a chick so he don't take mine right?"55

28. After it was over the other male cleaned himself with something from the trunk of the car. Briscoe checked for his tools but could not find the hammer in the trunk. With respect to the victim he said that he did not physically assault her but "Maybe, verbally, I did," as he might have yelled at her to shut up. He did see two guys having sex with the victim.56 There was no to give the victim medical assistance because it "J%stdidn 't matter anymore." He went and looked at the body.57 Before leaving the scene he told one of the girls to pick up candy wrappers, because "what was happening," and so the girl wouldn't get in trouble.58 He said he

48 Ibid., p. 117, 121 49 Ibid., p. 118-119 50 Ibid., p. 122 51 Ibid., and atp. 124-125, 131 52 Ibid., p. 162 53 Ibid., p. 123 54 Ibid., p. 126 55 Ibid., p. 128 56 Ibid., p. 140, 142-43, 146-147 57 Ibid., p. 148, 169 58 Ibid., p. 168, 174 Page 10 drove the group back to his motel room, where everybody went to sleep.59 Subsequently asked about his knowledge about what was going on when they were driving out to the golf course, the Appellant said: "Like definitely, for sure?" and then "I didn 't know exactly what was goin on."60

(iii) Findings of Fact

29. The key findings of fact in this case were:6'

That Laboucan directly caused the death by striking the victim in the head with a sledgehammer.

There was no party. Laboucan invited the victim to a fictional party to get her into the Appellant's car with the of confining, sexually assaulting and murdering her, making it a planned and deliberate murder.

The Appellant chose to stop at a remote, dark location several miles outside the city.

The Appellant was aware of the intention to "seriously scare" the victim, and that Laboucan and the others were dangerous enough that he was afiaid and wary of them.

Laboucan and MW sexually assaulted the victim prior to her death and the beating of the victim was part of the same transaction or series of events.

As to KB's evidence that she saw the Appellant hold the victim down, there was the possibility that she was mistaken. Therefore, the Appellant's statement left the trial judge with a reasonable doubt that the Appellant was a principal offender in the death, kidnapping or sexual assault of the victim.

That the Appellant went to the trunk of the car with Laboucan and SB is significant, supporting the conclusion that he facilitated obtaining the weapons from the trunk. Laboucan asked the Appellant for pliers who supplied them from the trunk of his car.

While there was evidence of 12 different ways that the Appellant may have assisted, the trial judge concluded that the following had been proven by the Crown: (a) the Appellant was present at the trunk when the weapons used to murder the victim were taken from it and in opening the trunk he facilitated obtaining the

59 Ibid., p. 149 60 Ibid., P. 191-92 Trial Decision, JR, Vol. I, p. 2, para. 216-17; 220; 226; 231-234; 236,238,242,252-257; 266; 271-277; 280; tools although it was possible he did not know the mallet and wrench had been taken from the trunk;

(b) the Appellant, after SB had struck the victim, but before the sexual assault commenced, put his hand on her or hugged her and admonished the victim in a sufficiently angry tone that the Appellant described it as "verbal abuse", which made it possible that the victim decreased her screaming. This improved Laboucan's ability to carry out the crimes and may have prevented her distress from becoming known to others; (c) in driving the group to the golf course he provided aid; and (d) the Appellant chose to stop at a relatively isolated and dark location several miles outside of the city.

While those were acts of , in order to have the intention to assist, the Appellant needed to know that Laboucan intended to kidnap, sexually assault, or murder the victim.

The Appellant had to know at the time of returning to the mall to pick up the two girls, the intention was to take them somewhere to seriously scare them and that the people with that intention were dangerous.

His knowledge that the party was fictional had not been proven as his statement indicated that he expected a party, not that NC was being lured by and; therefore, did not have knowledge that a kidnapping was to be committed.

The evidence did not support that the Appellant knew of the intention to sexually assault the victim although he understood Laboucan intended to be sexually intimate

with her - nothing indicated he understood the intention to sexually assault her.

* The evidence did not support the conclusion that the Appellant had the requisite intent for murder or aided in the commission of an unlawful act which a would foresee was inherently dangerous and likely to cause harm. He did not know that his acts would assist. PART 11: POINTS IN ISSUE

Ground I: Did the Court of Appeal err in holding that wilful blindness can constitute the mens rea for aiding or abetting murder?

Ground 11: Did the Court of Appeal err in concluding that wilful blindness can constitute the mens rea for aiding or abetting kidnapping and even if this is the case did the Court of Appeal err in directing a new trial on the count of kidnapping?

Ground 111: Did the Court of Appeal err in directing a new trial on the count of aggravated sexual assault.

PART 111: ARGUMENT Ground I: Did the Court of Appeal err in holding that wilful blindness can constitute the mens rea for aiding or abetting murder? (i) Standard of Review In Relation to the Three Grounds

30. Whether wilful blindness can have, under any circumstances, application to charges of murder and/or kidnapping is a question of law, for which the standard of review is correctness. Error of law, to which the correctness standard applies, includes: the interpretation of stat~tes;~' the misapplication of a correct legal standard to facts;63defining the elements of an offence (or a legal ~tandard);~~and incorrect appreciation of the legal significance of facts premised upon an erroneous approach to, or treatment of evidence adduced at trial, particularly when coupled with misapprehension of a legal principle.65

3 1. A further key principle is that a trial judge must consider the evidence as a whole and not examine evidence separately and in i~olation.~~It is well settled that the criminal standard of

62 Housenv. Nikolaisen, [2002] 2 S.C.R. 235, para. 8,31,36, Respondent's Authorities (RA), Tab 1 63 R. V. Wild [I9711 S.C.R. 101; 1970 CarswellAlta 70, para. 22,31-32,41, RA, Tab 92; Housen v. Nikolaisen, supra, at para. 27, RA, Tab 1 64 R. V. Ewanchuk, [I9991 1 S.C.R. 330, RA, Tab 24, para. 21; R. v. Araujo, [2000] 2 S.C.R. 992, para. 18, RA, Tab 3 " R. v. G.(B.), [I9901 2 S.C.R. 3,1990 Carswellsask 156, para. 3, 17-19, RA, Tab 29; R. v. Morin (No. 2), [I9921 3 S.C.R. 286, 1992 CarswellAlta 276, para. 16-19, RA, Tab 62 R. V. Morin, [I9881 2 S.C.R. 345; 1988 CarswellOnt 82, para. 46,71, RA, Tab 61; R. v. Morin (No. 2), supra, RA, Tab 62, para. 20-21 proof does not apply to individual pieces or categories of evidence but applies only to the final determination of guilt or inn~cence.~~

(ii) Introduction and Overview

32. The Appellant essentially argues that wilful blindness cannot have application to charges of murder and kidnapping as: (a) murder demands a higher standard of ; (b) wilful blindness is a form of which cannot suffice; (c) it is ill-suited to crimes requiring the of consequences; (d) law and policy militates against using the doctrine for murder; (e) any other interpretation may violate constitutional norms, although no constitutional question has been stated in this case; and (0kidnapping is a specific intent for which recklessness, including wilful blindness, cannot suffice.68Effectively, by defining wilful blindness as a species of recklessness, the Appellant would limit its application to general intent crimes.

33. The Respondent's position is that the Appellant misapprehends the role and scope of wilful blindness. To properly assess the conceptual role and scope of wilful blindness requires that other related principles be discussed while keeping the distinctions between them clear. They are: (a) the general principles in relation to mens rea, (b) the key legal principles in relation to parties to offences - both principals and those complicit in crimes; (c) the relationship between the party rules and the mens rea of each of the three charges; and (d) the proper scope and role of wilful blindness. The Respondent will delineate the law with respect to each and how the law defines their inter-relationship. This analysis applies to all three charges and will not be repeated, but relied upon for Grounds I1 and I11 as well.

(iii) General Principles re Mens Rea and Concurrency 34. Proof of the mental element is a constitutional requirement for true crimes.69 The required mental element will vary depending on the definition of the particular crime, and may be subjective or objective, depending again on the particular crime.70 However, a sharp

67 R. v. Morin, ibid.; R. v. White, [I9981 2 S.C.R. 72, para. 39, RA, Tab 91 68 Appellant's Factum, paras. 23, 25,27-30,49-51,60 R. V. Hundal, (19931 1 S.C.R. 867, 1993 CarswellBC 489, para. 14, Tab 39; R. v. Martineau, [I9901 2 S.C.R. 633, 1990 CarswellAlta 143, para. 12-14, RA, Tab 55; R. v. Vaillancourt, [I9871 2 S.C.R. 636, para. 9-10, RA, Tab 89; R. v. Rodney, [I9901 2 S.C.R. 687, 1990 CarswellBC 98, para. 8, RA, Tab 74; R. v. Sit, [I9911 3 S.C.R. 124,1990 CarswellOnt 120 para. 7, RA, Tab 80 70 Ewaschuk, Criminal Pleadings and Practice in Canada, Vol. 2, p. 21-89, RA, Tab 98; R. v. Logan, [I9901 2 S.C.R. 73 1, 1990 CarswellOnt 110, para. 15-16, RA, Tab 48 distinction is to be drawn between intention versus motive, desire or subjective wish. Being indifferent or, indeed, opposed to the result does not exculpate an accused:71 The problems associated with the 'Ipurpose equals desire" interpretation are several. First, incorporating the accused's feelings about the desirability of the commission of an offence by the principal into the definition of the mens rea for "aiding" can result in distinctions being made which appear arbitrav and unreasonable in light of the policy underlying s. 21 (l)(b). As Professor Colvin notes, under the "purpose equals desire" interpretation a person would not be guilty of aiding in the commission of an offence if he or she were "genuinely opposed or indifferent to it" (p. 123). The reason for the aider's indifference or opposition would be immaterial. The perverse consequences that .flow from this are clearly illustrated by the following hypothetical situation described by Mewett and Manning: Ifa man is approached by a friend who tells him that he is going to rob a bank and would like to use his car as a getaway vehicle for which he will pay him $100, when that person is ... charged under s. 21 .for doing something for the purpose of aiding his friend to commit the offence, can he say "My purpose was not to aid the but to make $loo"? His argument would be that while he hew that he was helping the robbery, his desire was to obtain $100 and he did not care one way or the other whether the robbery was successful or not. [emphasis added] 35. The acts must be accompanied by the requisite mental element. But, as summarized by ~waschuk,~~a crime may involve several steps so that the physical and mental elements of the crime need not strictly coincide, be concurrent, contemporaneous or simultaneous, so long as the crime may be described as having consisted of one continuous series of acts or one continuous transaction. Criminal liability is established if the requisite intent coincides during a continuing act or a series of wrongful acts forming a single transaction.

36. The Privy Council in R. v. ~eli~~dealt with a case in which the accused, mistakenly thinking they had already killed the victim, threw a body off a cliff. The court rejected the argument that there was a lack of concurrency. Meli was adopted by this Court in R. v. ~oo~er~~affirmin~the principle that: The determination of whether the guilty mind or mens rea coincides with the wrongfiul act will depend to a large extent upon the nature of the act. For example, if the accused shot the victim in the head or stabbed the victim in the chest with death ensuing a few minutes after the shooting or stabbing, then it would be relatively easy to infer that the requisite intent or mens rea coincided with the wrong;ful act () of shooting or stabbing. As well, a series of acts may form part of the same

71 R. v. Hibbert, [I9951 2 S.C.R. 973, 1995 CarswellOnt 117, para. 24-25, 31-32, RA, Tab 36 72 Ewaschuk, supra, Tab 98, p. 21-88 to 21-89 73 [I9541 1 All E.R. 373 (PC) (not duplicated) 74 [I9931 1 S.C.R. 146, 1993 CarswelINfld 11, para. 19-22, RA, Tab 12 - a charge of murder transaction. For example the repeated blows of the baseball bat continuing over several minutes are all part of the same transaction. In those circumstances if the requisite intent coincides at any time with the sequence of blows then that could be suficient to found a conviction. 37. Cooper was cited with approval by this Court in R. v. Williams in dealing with a charge of aggravated assault, committed through non-disclosure of HIV positive status.75 The accused in Williams was convicted of attempted aggravated assault because there was a lack of concurrency: prior to the critical date he did not know he had HIV; after the critical date he had the required knowledge but the actus reus may have been completed prior to that date. The Court confirmed that wilfbl blindness is applicable to the question of knowledge.76

38. The concept of a continuous transaction has been recognized and given effect by appellate involving a wide variety of offences including murder,77aggravated assault^,^' thefthonesty cases,79and kidnappingiabduction cases." Colvin and ~nand~'acknowledge this wide acceptance. They point out that it embraces a series of acts that culminate in death and the effort to cover up the crime. stuart8' is more emphatic, stating that it would be pedantic and ludicrous to insist that criminal responsibility can only arise if conduct is commenced at exactly the same time as the formation of the mind set. Conduct which creates a dangerous situation, or which consists of a series of acts culminating in offences should be captured. In short, the offences in this case may have to be considered in light of this principle and the question of knowledge (and therefore wilful blindness) must be part of the analysis.

(iv) Parties

39. In this case the Crown asserted liability pursuant to s. 21(1) in any or all of the three forms captured by that sub-section. Section 21 (2) was not argued at trial nor advanced at the appellate stage. The Crown Respondent will confine its remarks, therefore, to s. 21(1).

40. Section 21 does not distinguish, for the purpose of criminal liability, between those who are principals and those complicit in the crimes as aiders or abettors. The point of s. 21 is to put

75 R. v. Williams, [2003] 2 S.C.R. 134, RA, Tab 93, para. 35 76 Ibid., para. 27 77 R. v. Frizzell, 1993 CarswellBC 503 (CA), para. 25-29, RA, Tab 27, and see Cooper, supra, RA, Tab 12 78 Williams, supra, Tab 93 79 R. v. Fischer, 1987 Carswellsask 249 (CA), para. 15,34, RA, Tab 26 R. V. Hammerbeck, 1993 CarswellBC 597 (CA), para. 20-21,24-25, RA, Tab 32; R. v. Bigelow 1982 CarswellOnt 279 (Ont. CA), para. 13-14, RA, Tab 4 81 Colvin and Anand, Principles of (3rd.ed.), pp. 167-168, 177, RA, Tab 97 Stuart, Canadian Criminal Law (5thed.), pp. 375-377, RA, Tab 102 each on the same footing.83 In the course of a sequence of events being committed by two or more persons, it is possible to offend as a principal, co-principal, aider or abettor.84

41. Principals commit the acts constituting the offences charged. Co-principals are participants who take part, in concert with other co-principals, in the actus reus; for instance, a person who participates with others in a "group assault." A person may be found to be a principal or co-principal even though the extent of individual participation in the violence is unclear or uncertain.85

42. While the trial judge in this case used the terms "aiding" and "abetting" interchangeably they are distinct concepts.86"Aiding," pursuant to s. 21(l)(b) requires an act facilitating the commission of a crime, including furnishing the means to commit the crime. Aiding requires the accused to have knowledge that the principal intended to commit an offence.87 "Abetting" means to encourage, instigate, promote or procure the commission of an offence. As with aiding, abetting requires knowledge that the principal intended to commit an offence. It is not essential to prove that the aider or abettor knew the precise crime.881n ~aciel~~it was stated that the principal's intent must be known but not the details of the crime. Cribbin held that for murder an must know of the intent to kill, but such is not necessary for manslaughter.90 Knowledge is the key consideration.

43. The physical manifestation of aiding or abetting can include any act, gesture, or words spoken or made, before or during the commission of the ~ffence.~'Although R. v. Dunlop & Sylvestery2is often cited for the proposition that mere presence and passive acquiescence is an

83 R. v. Thatcher, [I9871 1 S.C.R. 652, para. 64-68, RA, Tab 87; R. v. H.(L.I.), 2003 CarswellMan280 (CA), para. 17, RA, Tab 38; R. v. Maciel, 2007 CarswellOnt 1612 (CA), para. 85, RA, Tab 50, leave refused 2007 CarswellOnt 5638; R. v. Rojas, 2006 CarswellBC 948 (CA), para. 36-42, RA, Tab 75; conviction affirmed on other rounds, 2008 SCC 56 (not duplicated) 'R. v. Rojas, ibid., para. 41; R. v. H. (L.I.), supra, para. 17-20, RA, Tab 38; R. v. Bigras, 2004 CarswellOnt 3527 CA), para. 16, RA, Tab 5 85 R. v. Mammolita, 1993 CarswellOnt 1235 (CA), para. 13, RA, Tab 52; R. v. Isaac, [I9841 1 S.C.R. 74, p. 81, RA, Tab 40; R. v. Thatcher, supra, RA, Tab 87, para. 69-70; R. v. Wood, 1989 CarswellOnt 804 (CA), para. 59-61, RA, Tab 95; R. v. Miller, 1994 CarswellAlta 602 (CA), para. 17-30, RA, Tab 59; R. v. Alexis, 2002 CarswellBC 222 (CA), para. 33-34, RA, Tab 2 86 R. v. Stevenson, 1984 CarswellNS 202 (CA), para. 25, RA, Tab 84; R. v. Cribbin (1994), 89 C.C.C. (3d) 67; 1994 CarswellOnt 57 (Ont. CA), para. 11, RA, Tab 14; R. v. Greyeyes, [I9971 2 S.C.R. 825, para. 26, RA, Tab 31 87 R. V.Marnmolita, supra, para. 17, RA, Tab 52; R. v. Roan, 1985 CarswellAlta 450 (CA), para. 17-19, RA, Tab 73 88 R. v. Stevenson, supra, Tab 84, para. 25,27 89 R. V. Maciel, supra, para. 88-89, supra, RA, Tab 50 R. v. Cribbin, supra, RA, Tab 14, para. 24,26 R. v. Twigge, [I9961 S.J. No. 854; 1996 Carswellsask 747 (CA), para. 40, RA, Tab 88 92 [I9791 2 S.C.R. 881, p. 891-896, RA, Tab 21 insufficient basis for liability that is an oversimplification.Dunlop clearly discusses accidental attendance as opposed to attendance knowing a crime is to be committed: the former is insufficient, the latter is evidence of abetting. Presence, plus knowledge or positive act committed, may bring someone within the party section as aiding or abetting.

44. Subsequent cases have understood the import of this distinction. As one case noted, strength of numbers plus knowledge can at times be an important source of evidence of encouragement.93 This should not change for murder and manslaughter. The difference between them is the mental element on which the trier of fact must make a determinati~n?~requiring that presence plus knowledge as evidence of abetting be considered. This is even more apparent where the accused does something positive during the sequence of events.95 Again, knowledge is a key component.

45. The mental element for is contained in s. 21(1) itself, derived fi-om the words "for the purpose" and means the intent to encourage, counsel, instigate or promote the commission of the offence, but again distinguishng intention &om desire or approval of the consequence^.^^

(v) Wilful Blindness

46. In Sault Ste. Marie it was stated that true crimes require proof of a mental element of intention or recklessness (dependent upon the offence). True crimes cannot be committed through mere ; therefore, an accused who committed a prohibited act must have done so intentionally or recklessly, with knowledge of the facts constituting the offence, or with wilful blindness towards them.97

47. Wilful blindness, correctly delineated, does not define the level of mens rea, for that is determined by the offence. Once defined for a particular offence it does not change, whether or not wilful blindness is in issue. Rather, wilful blindness is directed at the issue of knowledge. That was made clear in Sansregret in which this Court was emphatic that:98 Wilful blindness is distinct from recklessness because, while recklessness involves knowledge of a danger or risk and persistence in a course of conduct which creates a risk that the prohibited result will occur, wilful blindness arises where a person who has

93 R. V. Marnrnolita, supra, RA, Tab 52, para. 14, 17. And see also R. v. Stevenson, supra, RA, Tab 84, para. 26; R. v. Nixon, 1990 CarswellBC 149 (CA), para. 65-68, RA, Tab 65; R. v. Twigge, supra, RA, Tab 88, para. 54-55; R. v. L.R.I., 1991 CarswellBC 975 (CA), para. 29, RA, Tab 49 94 R. v. Jackson & Davy, [I9931 4 S.C.R. 573,1993 CarswellOnt 136, para. 17, RA, Tab 41 95 R. v. Cutarm,2007 CarswellAlta 732 (CA), para. 12-14 is an example, RA, Tab 16 96 R. V. Hibbert, supra, RA, Tab 36, para. 26; R. v. Greyeyes, supra, RA, Tab 31, para. 37 97 R. v. Sault Ste. Marie, [I9781 2 S.C.R. 1299, p. 1303, 1309, RA, Tab 78 98 R. v. Sansregret, [I9851 1 S.C.R. 570, para. 22, RA, Tab 77 become aware of the need for some inquivy declines to make the inquiry because he does not wish to know the truth. He would prefer to remain ignorant. The culpability in recklessness is justiJied by consciousness of the risk and by proceeding in the face of it, while in wilful blindness it is justiJied by the accused's fault in deliberately failing to inquire when he knows there is reason for inquiry. Cases such as [several cases cited by the court, omitted] among others illustrate these principles. The textwriters have also dealt with the subject, particularly Glanville Williams (Criminal Law: The General Part, 2nd ed., 1961, atpp. 157-160). He says, atp. 157: Knowledge, then, means either personal knowledge or (in the licence cases) imputed knowledge. In either event there is someone with actual knowledge. To the requirement of actual knowledge there is one strictly limited exception. Men readily regard their suspicions as unworthy of them when it is to their advantage to do so. To meet this, the rule is that fa party has his suspicion aroused but then deliberately omits to make further enquiries, because he wishes to remain in ignorance, he is deemed to have knowledge. [emphasis added] 48. Ever mindful of the need to keep the concepts of recklessness and wilful blindness separate and distinct, the Court cited the key restriction on the concept:99 Glanville Wi'lliams, however, warns that the rule of deliberate blindness has its dangers and is of narrow application. He says, atp. 159: The rule that wilful blindness is equivalent to knowledge is essential, and is found throughout the criminal law. It is, at the same time, an unstable rule, because judges are apt to forget its very limited scope. A court can properlyJind wilful blindness only where it can almost be said that the defendant actually knew. He suspected the fact; he realized its probability; but he refrained from obtaining the Jirtal confirmation because he wanted in the event to be able to deny knowledge. This, and this alone, is wi&id blindness. It requires in effect a Jirtding that the defendant entended to cheat the administration of justice. Any wider deJinition would make the doctrine of wilful blindness indistinguishable ?om the civil doctrine of negligence in not obtaining knowledge. [emphasis added] 49. In R. v. ~illiams,'~~the same distinction was driven home: Wilful blindness is distinct from recklessness because, while recklessness involves knowledge of a danger or risk andpersistence in a course of conduct which creates a risk that the prohibited result will occur, wilful blindness arises where a person who has become aware of the need for some inquiry declines to make the inquiry because he does not wish to know the truth. He wouldprefer to remain ignorant. [Emphasis added.] 50. An even more visually evocative description is provided by Posner, J, who stated, when discussing the American "ostrich" principle:lO'

99 Ibid. looSupra, RA, Tab 93, para. 27 '01 U.S. v. Giovannetti 919 F.2d 1223 (U.S. Court of Appeals, 7thCircuit), p. 1228, para. 3, RA, Tab 96 The most powerful criticism of the ostrich instruction is, precisely, that its tendency is to allow juries to convict upon a finding of negligence for crimes that require intent. United States v. Ramsey, supra, 785 F.2d at 190; Robbins, The Ostrich Instruction: Deliberate Innorance as a Criminal Mens Rea, 81 J.Crim.L. & Criminolom 191 (1990). The criticism can be deflected by thinking carefully about just what it is that real ostriches do (or at least are popularly supposed to do). They do not just fail to follow through on their suspicions of bad things. They are not merely careless birds. They bury their heads in the sand so that they will not see or hear bad things. They deliberately avoid acquiring unpleasant knowledge. The ostrich instruction is designed for cases in which there is evidence that the defendant, knowing or strongly suspecting that he is involved in shady dealings, takes steps to make sure that he does not acquire full or exact knowledge of the nature and extent of those dealings. A deliberate effort to avoid guilty knowledge is all the guilty knowledge the law requires. United States v. Josefik, 753 F.2d 585, 589 (7th Cir.1985). 'yT]o know, and to want not to know because one suspects, may be, if not the same state of mind, the same degree offault." [citations omitted] A good example of a case in which the ostrich instruction was properly given is United States v. Diaz, 864 F.2d 544, 550 (7th Cir.1988). The defendant, a drug traficker, sought "to insulate himselffrom the actual drug transaction so that he could deny

knowledge of it, " which he did sometimes by absenting- himselffrom the scene of the actual delivery and sometimes by pretending to be fussing under the hood of his car. [emphasis added]

51. Specifically in relation to wilful blindness and parties the same case went on to say: lo2 Although we think it was an error to give the ostrich instruction in this case, we do not agree with the further suggestion that such an instruction has no possible place in an aider and abettor case. It is true that to be guilty the alleged aider and abettor must want to make the principal's venture succeed, which may seem to imply that he must know what that venture is. But we think not, for the reasons stated in United States v. Kehm, supra, 799 F.2d at 362, in rejecting the parallel argument that the ostrich instruction should never be given in a case. We have already given an example, based on the facts of this case, of how an aider and abettor can be an ostrich. IfJanis strongly suspected that his house was being used as a wireroom, and to avoid confirming his suspicions he expended resources on avoiding a confrontation with the facts (as by taking a circuitous route to work), then his actions, far from showing that he was not an aider and abettor under Judge Hand's formulation, would show that he was-would show that he wanted the gambling enterprise to succeed so badly that he expended time and effort to avoid acquiring proof of the enterprise's character and with it indisputably guilty knowledge that might compel him to withdraw for fear of being prosecuted with no chance of avoiding conviction by pleading ignorance of what the enterprise was up to. [emphasis added] 52. Similarly, the N.S.W. Law Reform Commission, in discussing the liability for in crimes observed:lo3

'02 Ibid., para. 6 Page 20

3.14 The "necessary mental element" is present when the seconda ry participant intentionally participates in the criminal act in some way, either by committing the agreed crime itself or by intentionally assisting or encouraging the other participant@) to commit the crime." To achieve this, the secondary participant must have knowledge of the essential facts and circumstances of the principal offence, including the primary participant's state of mind, and with this knowledge provide intentional assistance or encouragement.52 Any "wilfU1 blindness" of the secondary participant is treated as equivalent to knowledge of the offence, but neither "negligence" nor "recklessness" is suficient to constitute the requisite knowledge.

3.34 The classic statement of intention in this area is that ofLord Chief Justice Goddard in Johnson v. ~ouden:~~ Before a person can be convicted of aiding and abetting the commission of an offence he must at least know the essential matters which constitute that offence. He need not actually know that an offence has been committed ...If a person knows all the facts and is assisting another person to do certain things, and it turns out that the doing of those things constitutes an offence, the person who is assisting is guilty of aiding and abetting that offence, because to allow him to say, "I knew of all those facts but I did not know that an offence was committed," would be allowing him to set up ignorance of the law as a defence. [emphasis added] 3.35 However, the need not have actual knowledge of all the essential facts constituting the offence in order to establish secondary participation. It is enough ifthe accessory has deliberately shut his or her eyes to a relevant fact, or has deliberately abstained from making an inquiry for fear that he or she may learn the truth.80 " [emphasis added] 53. The same view is expressed by Parsons in his discussion of accessory liability:lo5

A joint enterprise does not arise in what are known as 'shopping list' cases, where the secondary party assists or encourages the principal to commit one of a list of crimes. The secondary party cannot avoid liability by maintaining that although he was aware that the principal had a 'shopping list', he did not inquire as to what particular crime or crimes were intended, because awareness or knowledge of the %hoppinglist' is enough to satish the mens rea requirernent.13 54. The two common threads from the above are: (a) wilful blindness refers to knowledge, where that is a component or element of the offence and; (b) it is a subjective test. In ~or~enson*~~this Court made it clear that the essential concept revolves around the question of

'03 NSW Law Reform Commission, Consultation Paper 2, Complicity (Jan., 2008), para. 3.14, RA, Tab 99 '04 Ibid., para. 3.34 Io5Simon Parsons, C~,iminalLiability for the Act ofAnother: Accessorial Liability and the Doctrine of Joint Entevpvise, [I9981 62 J. Crim. L. 352, p. 354, RA, Tab 101 R. V. Jorgenson, [I9951 4 S.C.R. 55, para. 102-103, RA, Tab 43 Page 21 whether the accused shut his eyes because he knew or strongly suspected it would fix him with knowledge and wanted to avoid being contaminated by that knowledge. That wilful blindness is about subjective knowledge has been repeated time and again by appellate courts across Canada. For example, the Que. CA, dealing with importation of cocaine and conspiracy, after referring to Sansregret, supra, the Court went on to say:Io7 McIntyre J. also refers to the discussion of wilful blindness by Professor Stuart (Canadian Criminal Law, 1982, The Carswell Company Ltd., p. 130 et seq.). Professor Stuart observed (p. 13 7):

Our courts have generally insisted that the concept of wilful blindness is of narrow scope and involves no departure from the subjective focus on the workings of the accused's mind. It involves deliberate ignorance or an actual process of suppressing a suspicion. Where, for example, a second-hand goods dealer buys goods he actually suspects are stolen, but refrain from making inquiries, he is wilfully blinding himself to the circumstance which would make his act of possession unlawful. The expression "deliberate ignorance" seems more descriptive than the "wilfulblindness" metaphor, but the latter is already widely used. (emphasis added) In R. c. Rathod (supra, p. 6), Mr. Justice Proulx underlined the subjective nature of the test to be applied: Quand en conclusion sur ce sujet, et je me rtifere au troisikme extrait des directives ci- haut reproduites, le premier juge soumet au jury que la question a dicider est de savoir si (( les circonstances sont telles que lfaccusk devait savoir que cfitait un stupipant et puis il s lest bouchi les yeuxpour ne pas le savoir N, cette directive impose a nouveau un standard purement object$ comme l'avait soulignk le juge A. Martin dans Rigina c. Currie (19 75),24 C.C. C. (2d) 292, p. 296: The fact that a person ought to have known that certain facts existed, while it may, for some purposes in civil proceedings, be equivalent to actual knowledge, does not constitute knowledge for the purpose of criminal liability, and does not by itselfform a basis for the application of the doctrine of wilful blindness. Ce passage a &tiapprouvk par le juge McIntyre dans Ifarre^tSansregret, supra, p. 585.

55. Stuart, as cited in the above case, is completely correct in asserting that the concept of wilful blindness does not depart fiom the subjective element whatsoever. In dealing with a charge of murder (as an accessory after the fact) the Ont. CA stated:'08 These authorities make it clear that where the Crown proves the existence of a fact in issue and knowledge of that fact is a component of the fault requirement of the crime

lo' R. V. Corntois-Barbeau (1996), 110 C.C.C. (3d) 69; 1996 CarswellQue 318 (Que. CA), para. 78-82, and see also ara. 85 in which it is emphasized that wilful blindness is totally subjective, RA, Tab 11 R. v Duong, 1998 CarswellOnt 1'784 (CAI, para. 20-24, RA, Tab 22 charged, wilful blindness as to the existence of that fact is suficient to establish a culpable state of mind. Liability based on wilful blindness is subjective. Wilful blindness refers to a state of mind which is aptly described as "deliberate ignorance" (D. Stuart, Canadian Criminal Law, 3rd ed. (1995) at p. 209). Actual suspicion, combined with a conscious decision not to make inquiries which could confirm that suspicion, is equated in the eyes of the criminal law with actual knowledge. Both are subjective and both are suficiently blameworthy to justzjj the imposition of criminal liability. [emphasis added] 56. Wilful blindness does not define the mens rea offence. It arises where there is a knowledge component in which case the test is always subjective. The apt phrase "deliberate ignorance" captures its essence and the reason for the moral culpability that is attached to it. Consequently, the same point has been repeatedly made in the context of a wide variety of cases involving different levels of mens rea. In a wide array of cases wilful blindness has been held to be applicable to offences requiring knowledge, though not always found to have been established in the context of a particular case. They include: importation of narcotic^,'^^ trafficking in narcotic^,"^ proceeds of crime,'" ~orru~tiodfiaud/bribes,"~sexual a~sault,"~murder as an accomplice,114bawdy house cases,115driving offences,lt6 ,117wilful promotion of hatred (specific intent offence),It8stolen property offences,'" attempted aggravated sexual assault (specific intent offence),'" aggravated a~sault,'~'fraud as an aider or abettor (specific

logR. v. Sandhu, 1989 CarswellOnt 112 (CA), para. 15 -16, RA, Tab 76 (emphasis is given that recklessness will not suffice); R. v. Morales, 2006 CarswellOnt 3537 (CA), para. 23,26-31- question is whether the failure to inquire was motivated by a desire to shielf eyes and ears from the guilty truth, RA, Tab 60; R. v. Rashidi-Alavije, 2007 CarswellOnt 6677 (CA), para. 19-24, RA, Tab 71 'I0R. v. Malfara, 2006 CarswellOnt 3164 (CA), para. 2-3, RA, Tab 51 111 R. v. Tejani, 1995 CarswellOnt 2860 (CA), para. 8; leaved refused 94 O.A.C. 80 (SCC), RA, Tab 86 'I2R. V.Hinchey, [I9961 3 S.C.R. 1128; 1996 CarswellNfld 253, para. 71-72, RA, Tab 37 (it emphasizes that it is a conscious decision that is the issue); R. v. Lagace, 2003 CarswellOnt 4509 (CA), para. 25-29 - culpability rests on a finding of deliberate ignorance, RA, Tab 46. These are crimes requiring dishonest state of mind. 113 R. v. Esau, [I9971 2 S.C.R. 777, para. 34,79, RA, Tab 23; R. v. Ewanchuk, supra, RA, Tab 24, para. 51-52; R. v. M.(B.S.), 2001 CarswellAlta 115 (CA), para. 14-19, RA, Tab 56 114 R. v. Duong, supra, RA, Tab 22 'I5R. V.Potts, 1999 CarswellOnt 4088 (CJ), para. 44-45,52, RA, Tab 69 'I6R. V. Gauntley, 1999 CarswellOnt 4654 (CJ), para. 7, 13, RA, Tab 28 R. V. Mara and East, [I9971 2 S.C.R. 630, para. 51 at which it was clearly stated that criminal intent includes wilful blindness, RA, Tab 53 'I8R. V. Harding, 2001 CarswellOnt 4398 (CA), para. 58,61-63 - actor must deliberately avoid actual knowledge, RA, Tab 34 l9R. v. Vinokurov, 200 1 CarswellAlta 622 (CA), para. 8- 13, 17-18,21 - wilful blindness is the equivalent of actual knowledge and distinct from recklessness, RA, Tab 90 R. V. Williams, supra, RA, Tab 93, para. 22, 27 - emphasis on distinction from recklessness 121 R. v. S.(F.), 2006 CarswellOnt 1539 (CA), para. 19-21,28, RA, Tab 79 intent),12' and; being a party (specific intent) to breach of publication order or other court order. 123

57. Properly understood and articulated, the concept of wilful blindness does not detract one iota from the moral culpability necessitated by requiring proof of a mental element. Only by stirring together, as the Appellant does, concepts of parties and principals, the various and varying levels of mens rea that may be required, and wilful blindness does the latter appear to be muddled. Understood, as the cases demonstrate, as a deliberate decision to subjectively preclude knowledge so that actual, literal knowledge (if required) cannot be proven, it serves to preclude an offender from immunizing himherself from liability through a literal and semantic lack of actual knowledge.

58. The Appellant effectively suggests that we should make an offence by offence determination as to whether wilful blindness has application. He suggests that two of the three offences in issue here should be immunized froin its application. The third he cannot credibly suggest should be immunized as this Court has repeatedly held that the concept has application to sexual assault. This is a chaotic approach that does not properly conceptualize the role of wilful blindness.

59. The better approach, indeed, the established and principled approach, is to ask the following question in every case. Where knowledge is a component of the offence, and actual knowledge has not been proven, is the lack of actual knowledge the result of a deliberate decision by the Accused to remain ignorant so that a court can properly infer or conclude that the accused wished to remain ignorant to shield hirnlherself from ? If so, then it is the legal equivalent of actual knowledge, because it is the result of a deliberate decision.

60. The Appellant implies that wilful blindness is simply a higher form of recklessness. The above cases, including those from this Court, belie that assertion. Indeed, as Colvin and Anand point out, the wilful blindness doctrine is not necessary for general intent offences because they are crimes of reckles~ness.'~~The Appellant asserts that Roach has concluded that the line between recklessness and is elusive. Roach's fourth edition is more expansive than the edition relied upon by the Appellant. Reading further into the passage cited by the

R. V. Roach, 2004 CarswellOnt 2912 (CA), para. 3,27,29,32, 34-36 - it is deliberate ignorance, RA, Tab 72 R. V. Heldson, 2007 CarswellOnt 336 (CA), para. 37,41, RA, Tab 35; R. v. Smith, 2008 CarswellOnt 691 (CA), para. 5 - requires a deliberate decision not to inquire, RA, Tab 82 Appellant it is apparent that Roach was not saying anything more than this Court itself indicated in Jorgenson. He concludes that wilful blindness can be fully compatible with the subjective theory of mens rea.'25

61. The Appellant, while not posing a constitutional question, suggests that certain offences must be immunized from wilful blindness lest it run afoul of constitutional requirements. Again, the mens rea requirement is defined by the Code and case law, whether the offence is murder or dangerous driving. Knowledge is one component that may have to be addressed, dependent upon the circumstances of the case. With the highly subjective test enunciated for wilful blindness there is no principled basis to immunize offences under the guise of interpretation.

62. As was held in R. v. ~ardin~,'~~in dealing with a charge of wilfully promoting hatred, a specific intent crime: In Keegstra , supra , Dichon C.J.C. upheld the constitutionality of the offence of wilfully promoting hatred under s. 1 of the Charter because in his view the provision possesses a stringent mens rea requirement. The appellant submits that wilful blindness cannot satis& the stringent mens rea requirement of an offence that limits freedom of expression. That is not so. The offence of knowingly selling obscene material without lawful justiJication under s. 163(2) of the Criminal Code limits freedom of expression, but, like Keegstra , supra, it is saved by s. 1. See R. v. Butler, j1992 J 1 S. C.R. 452 (S.C. C.) . Although s. 163(2) limits freedom of expression, the Supreme Court held in R. v. Jorgensen, /I9951 4 S. C.R. 55 (S.C. C.) , that wilful blindness satisJies the mens rea requirement for this offence. Sopinka J. held at pp. 97-98 that in including the word "knowingly" in the offence, Parliament chose to set an onerous standard of proof that was beyond the minimum constitutional requirement for the offence. He further held at p. 110 under the heading "Wilful Blindness": Deliberately choosing not to know something when given reason to believe further inquiry is necessary can satis& the mental element of the offence. As Glanville Williams wrote in Criminal Law: The General Part (2nded. 1961), at pp. 157-58: [TJhe rule is that fa party has his suspicion aroused but then deliberately omits to make further enquiries, because he wishes to remain in ignorance, he is deemed to have knowledge...... In other words, there is a suspicion which the defendant deliberately omits to turn into certain knowledge. This is frequently expressed by saying that he "shut his eyes" to the fact, or that he was '"wilfullyblind" ... Wilful blindness is more than mere recklessness. Criminal law treats wilful

124 Colvin and Anand, Principles of Criminal Law (3rded.), supra, RA, Tab 97, p. 208 125 Roach, Criminal Law (4thed), pp. 175-176, and see also pp. 389-90, RA, Tab 100 126 Supra, RA, Tab 34, para. 63-66 blindness as equivalent to actual knowledge because the accused "knew or strongly suspectedffthat inquiry on his part respecting the consequences of his acts wouldJix him with the actual knowledge he wished to avoid. The appellant's submission that wilful blindness is insuflcient to support the stringent mens rea requirement contained in s. 319(2) because it limitsfreedom of expression is not supported by the jurisprudence. Wilful blindness satisfies the stringent mens rea requirement for the offence of wilfully promoting hatred and does no violence to Dickson C.J.C.'s definition of the mental element for the offence in Keegstra , supra . The trial judge did not convict the appellant based on an insupcient mens rea requirement and Dambrot J. did not err in upholding his conviction. [emphasis added]

63. The above principles in relation to mens rea, parties and wilhl blindness must now be looked at in the context of the three charges, and the evidence, in this case.

(vi) The Charge of Murder (a) Overview 64. There are three aspects of that had to be considered in this case: was this a murder, and if a murder, was it a first degree murder; and if not murder, was it mans1a~~hter.l~~ First degree murder is, of course, a sentencing provision which is dependent upon the finding that an accused was a party - as principal or accomplice - to one of the bases enumerated in s. 23 1 Code. It does not create a separate substantive 0ffen~e.l~~In this case, the Crown at trial argued that it was first degree as planned and deliberate; alternatively, as a murder committed during the course of an aggravated sexual assault and kidnappinglforcible confinement.

65. The trial judge clearly determined, based on Laboucan's convictions, that a first degree murder was committed; that it was planned and deliberate; and it was committed during the course of a forcible confinement, and an aggravated sexual a~sau1t.l~~The overwhelming evidence against Laboucan that he was a principal to all three offences rendered the legal analysis easy. In the Appellant's case, there was a particular need to correctly identify the components of the offences, to correctly analyze and apply the party principles and in light of that, to consider the whole of the evidence. In the appellate court below, the Crown, advancing four grounds of appeal, argued that the trial judge failed to do any of these in relation to this Appellant.

127 R. v. Jackson & Davy, supra, RA, Tab 41, para. 17 128 R. v. Nygaard & Schimmens, [I9891 2 S.C.R. 1074, 1989 CarswellAlta 152, para. 42, RA, Tab 66; R. v. Harbottle, [I9931 3 S.C.R. 306, 1993 CarswellOnt 121, para. 32, RA, Tab 33 Reasons for Decision, JR, Vol. 1, p. 69, para. 264 Page 26

(b) MurderElements

66. Obviously, without murder there cannot be a "first degree" murder."' The decision of this Court, in ~o~an,'~'relied upon by the Appellant, determined that no one can be convicted of murder unless the Crown proves beyond a reasonable doubt that the person had subjective foresight of the fact that the death was likely to ensue. That decision, relied upon heavily by the Appellant in his factum, is a s. 21(2) case.132That sub-section was not in issue in the present case. The Crown's position was that the Appellant was either a principal, or an aider or abettor. Offences of domination: kidnapping, forcible confinement and aggravated sexual assault, require proof that the accomplice must have been a party to those underlying 0ffen~es.I~~

67. The trial judge acquitted the Appellant on the basis that he lacked the actual knowledge of the intent to kill. Section 229 requires proof that an accused intended to kill or intended to cause bodily harm that the accused subjectively foresaw was likely to cause death and was reckless whether death ensued or not; in other words, while not necessarily intending death, the accused was indifferent as to the result. While this has been described as a slight distinction in mental element, as the moral culpability is virtually equal, it is a distinction that must be addre~sed.'~~In the context of first degree murder this Court has established that one can have a planned and deliberate death where the underlying murder is premised on the intent to cause bodily harm with the foresight that it is likely to result in death.'35

68. All that is required is knowledge of the principal's intent, not the identity of the victim.'36 Nor, as previously discussed is it necessary that the party desire the victim's death:137 This interpretation is, moreover, consistent with the approach that has been taken on previous occasions by this court in connection with s. 21(l)(b). In R. v. Kirkness, [1990] 3 S. C.R. 74,for instance, Cory J. (writing for a majority of the Court) stated (atp. 88): ... the person aiding or abetting the crime [of murder] must intend that death ensue or intend that he or the perpetrator cause bodily harm of a kind likely to result in death and be reckless whether death ensues or not.

I3O R. V. Droste, [I9841 1 S.C.R. 208, p. 22-21, RA, Tab 20; R. v. Nette, [2001] 3 S.C.R. 488, para. 56, RA, Tab 63 131 R. v. Logan, supra, RA, Tab 48 132 Logan, ibid., RA, Tab 48, para. 13 133 R. v. Harbottle, supra, para. 23, RA, Tab 33 134 R. v. Nygaard & Shimmens, supra, para. 57-58, RA, Tab 66; R. v. Cooper, supra, RA, Tab 12, para. 14-15 135 R. V. Nygaard & Shimmens, ibid., para. 57 136 R. V. Droste, supra, RA, Tab 20, p. 222 137 R. V. Hibbert, supra, RA, Tab 36, para. 37 It is implicit in this statement there is no requirement under s. 21(1)(b) that the person charged as a party "desire" that the victim die (that is, subjectively wish that this result come to pass), just as the principal's intent to kill is not negated even iJ; all other things being equal, he or she regrets the fact that he or she is killing the victim. Similarly, in R. v. Jackson, (19931 4 S.C.R. 573, the court commented on the mental element for conviction of murder as a party under s. 21 (1).. . [emphasis added]

69. What is paramount is that the accused know of the principal's intention and, armed with that knowledge, provided assistance or enc~uragement:'~~ To commit murder as an aider or abettor, an accused must have (and be shown to have) the same state of mind as a principal. See, R. v. Kirkness (1 990), 60 C.C. C. (3d) 97 (S.C. C.), 127per Cory J.; and R. v. Cribbin (1994), 89 C.C. C. (3d) 67 (Ont. C.A.), 77 per Arbour J. A. An aider or abettor commits murder only if she or he knows of the principal's intention to kill or to cause bodily harm that the principal knows is likely to cause death and is reckless whether death ensues or not, and ifthe aider or abettor, intended to help or encourage the principal to do so. See, RA Cribbin, above, atpage 77per Arbour J. A.

70. This was emphasized by the Ontario Court of Appeal in R.v. Maciel discussing first degree murder and planning and deliberation. The Court stated that a party's liability accrues when an accused does something for the purpose of assisting, meaning that helshe knew the murder was planned and deliberate. Whether that knowledge is acquired through actual involvement or through some other means is irrelevant. It is not necessary that the accused participate in the planning and de1iberati0n.I~~

(c) Manslaughter Elements

71. In R. v. Jackson and Davy this Court determined that a person who aids and abets another person may be convicted of manslaughter, where a reasonable person in all the circumstances would have appreciated that bodily harm was a foreseeable consequence of the dangerous act which was being undertaken. The objective test, foresight of the risk of bodily harm, established for a principal offender in R. v. ~rei~hton'~'and R. v. ~e~ousa'"is to be applied to an aider or abettor. '42

138 R. V.Fatima, 2006 CarswellOnt 5195 (CA), para. 59, RA, Tab 25 139 R.v. Maciel, supra, supra, RA, Tab 50, para. 79-80, 87-89 I4O R. V. Creighton, [I9931 3 S.C.R. 3, 1993 CarswellOnt 115 ,para. 12, RA, Tab 13 l4'R. V. DeSousa, [I9921 2 S.C.R. 933, 1992 CarswellOnt 100, para. 28,38, RA, Tab 17 142 R v. Jackson, RA, Tab 41, para. 20- 21; see also R. v. H. (L.I.), supra, para. 29, RA, Tab 38 Page 28

72. However, for a general intent offence, such as manslaughter, it is not necessary that a party know the precise nature of the weapon that the principal has or that the principal intends to use that weapon. Where there is escalating violence, then bodily harm is f0reseeab1e.l~~Nor is it necessary that the precise or specific form of harm be foreseeable; rather, it is the foresight of the risk of ham which is required.144

73. The test is whether, viewed objectively, the acts are inherently dangerous giving rise to reasonably foreseeable harm on the objective basis; including, as in K. (P.), leaving someone in a remote area after a beating.'45 In R. v. Twigge, one of the cases relied upon by the Appellant, it was stated that where the intent was to fi-ighten the victim the jury would be bound to bring in a verdict of man~1aughter.l~~

(d) Application to Facts of the Case 74. The trial judge relied almost exclusively on the Appellant's statement in making his findings as to the lack of the Appellant's precise knowledge as to the offences to be committed. However, in looking at the knowledge base in relationship to all three offences, one must consider the following:

Without direction the Appellant took the group to a remote area, knowing something serious was going to happen, and that the people he was with were armed and dangerous. Just how remote it is can be seen in the site plan showing the location of the golf ~0urse.l~~

Upon arrival at the golf course he knew there was no "booze or nothing" - these people were not carrying chips, or hotdogs, or alcohol. They were carrying weapons. As per his own statement he knew that some carried knives, and he opened the trunk to permit access

to his tools, and specifically gave Laboucan the pliers - there is no claim that he thought they were going to do late night repair work. At the scene he could see a pipe being used by somebody on the girl.

He initially stayed back because he was concerned that the others were dangerous. But, he told the group "I don 't wannna see nothing ...I don 't know what the fuck you 're gonna do."

143 R. v. Cuadra, 1998 CarswellBC 1219 (CA), para. 19-22, RA, Tab 15 (dealing with aggravated assault) 144 R. v. Dewey, 1998 CarswellAlta 1220 (CA), para. 9-13, RA, Tab 18; R. v. Mariani, 2007 CarswellOnt 2745 JCA), para. 54-56, RA, Tab 54 45 R. V. K.(P.), 2006 CarswellAlta 1321 (CA), para. 17-18, RA, Tab 45 146 R. V. Twigge, supra, RA, Tab 88, para. 49 14' JR, Vo1. IV, p. 23 He was happy to provide Laboucan "with a chick" so he would leave the girlfriend alone. He knew the victim was young for as he put it: "screwing kids is not my piece ofpie".

It was a 10-15 minute walk from the main gate of the golf course to the grassy area where the girl was raped and killed. The distances are clearly illustrated by the site plan, and photos of the golf course and murder scene. The grassy area is, as illustrated in the photos, a broad area with no obstructed view.'48 This was not a mere happening or stumbling upon a crime by accident or happenstance. At the grassy area, having chosen to walk the distance, and to join the group, he heard the victim begging for her life. And then it "got really nasty", with someone saying "I wanna fuck her. . ." He thought they were not just going to scare her but "scare the shit out of this person." When he arrived the victim was being tossed around from side to side, and then the yelling and screaming started. When he arrived the "shit really happened'. He knew the assault had commenced. After that, and before the victim was raped, he put his hands on the victim and yelled at her to shut up. He saw the two other males having sex with the girl. The injuries to the girl, leaving her clearly bloody and beaten, were substantial and

evident. '49 He could see the girl being hit in the head, and being choked to death. After viewing the body and seeing the girl was dead, he directed one of the girls to remove candy wrappers because of "what was happening". He drove the others back to Edmonton and helped keep watch over the other girl.

75. The above is based on the Appellant's own statements, and the remainder of the evidence accepted at trial. If anyone understood the import of wilful blindness it was this Appellant who did not want to see, did not want to be told, did not want to know exactly what was happening, so that all that could be attributed to hiin was driving and someone wearing his coat. As was indicated by the Ontario Court of Appeal in ~a~ace,'~'it is not the quantification, as possibility or probability that matters with respect to wilfbl blindness; rather, it is the mindset of the person

148 Site plan, ibid; and photos at JR, Vol. IV, pp. 37-39 14' See photos, JR, Vol. 1V, pp. 1-2,4, 10-12 I5O R. V. Lagace, supra, RA, Tab 46, para. 26 who deliberately decides that they do not want to know. The Appellant's own statement classically defines this.

76. Of course, as wilfully blind as he was at the outset, he then crossed the line by joining up and participating with the group at the grassy area. He knew there were weapons, that someone was going to be "fucked", that she was begging for her life, and that she was being assaulted. At that point he was far beyond the picnicers in Dunlop and Sylvester who just happened to be present. He chose to be present and to join the group torturing the 13 year old girl. As previously indicated, forming part of a group can be encouragement and can assist in preventing escape or discovery of the crime.151He continued to participate up to and through to directing removal of evidence and flight from the scene. The latter two points were not considered at all by this trial judge, notwithstanding that it was relevant evidence to ~0nsider.l~~But then, the continuous nature of the events was not addressed in relation to this Appellant at all.

77. This is not a situation where there are two distinct, separate acts for which the single transaction analysis found in R. v. Kirkness, was discussed in relation to first degree murder in circumstances where the accused had resiled fiom his cohort's activities prior to the acts causing death.ls3 Rather, this was a continuous and uninterrupted sequence of events, in which the accused did the opposite - he joined in and assisted.

78. The trial judge relied on the Appellant's statement without considering the whole of the statement. This error was compounded by other errors in his treatment of evidence provided by others. For example at para. 249 and 248 of his decision he applied the reasonable doubt rule to individual pieces of evidence, examining them in isolation contrary to what is clearly the correct approach to be taken. Individual items are not to be subjected to such an analysis.

79. The trial judge did not consider what the Appellant actually knew versus what he was willfully blind to. There was no consideration given to the concurrency principle or the continuing nature of the transaction and the Appellant's participation in the events and; therefore, that the principle in Dunlop and Sylvester had no application. He did not consider the whole of

15' R. V. Mamrnolita, supra, RA, Tab 52, para. 14-17,22 15' On the issue of flight together, see R. v. Biniaris, [2000] 1 S.C.R. 381, para. 47, RA, Tab 6; R. v. Portillo, 2003, CarswellOnt 2972 (CA), para. 69, RA, Tab 68; R. v. Suchan and Jackson, 1952 CarswellOnt 23 (SCC), para. 21,34, RA, Tab 85; R. v. Williams and Miller, 2007 CarswellAlta 1510 (CA), para. 12-13, RA, Tab 94. On leaving the scene with the group and leaving the victim dead or dying see R. v. Bigras, supra, para. 15-16, RA, Tab 5 153 R. V.Kirkness, [I9901 3 S.C.R. 74, 1990 CarswellMan 15, para. 15-16,22, RA, Tab 44; and see R. v. L.R.I., supra, RA, Tab 49, para. 29 the statement, much less the whole of the evidence. This failure fatally flawed the analysis in relation to murder, whether as principal or accoinplice.

80. The trial judge addressed the issue of manslaughter only briefly and he did not address wilful blindness at all in relation to that lesser and included offence. Even if the Appellant is right about wilful blindness, clearly not conceded, and it is confined to general intent offences, it must then apply to the offence of manslaughter.

81. The trial judge's error was further compounded when he applied the wrong test for manslaughter. Manslaughter is a general intent offence, hinging on objective foresight. While the trial judge in his reasons acknowledged this;lS4in briefly dismissing manslaughter, he applied a purely subjective test, hinging entirely on what the Appellant actually kne~.'~"n applying this subjective test to the offence of manslaughter, he failed to take into account the impact of his own conclusion regarding the Appellant's subjective knowledge of the intent to seriously scare the victim. Had he done so, even applying the wrong test, he may have concluded that the Accused had sufficient subjective knowledge to prove the manslaughter charge.

82. The required objective analysis was entirely missing. lS6 AS previously indicated, the precise details of the unlawful act need not be known. Noticeably absent from the brief discussion of manslaughter is that when the Appellant chose to join the group, he knew serious acts were being committed, that the girl was being raped, beaten and choked, yet chose to remain and participate. How this fails to meet the objective test is simply unfathomable.

Ground 11: Did the Court of Appeal err in concluding that wilful blindness can constitute the mens rea for aiding or abetting kidnapping and even if this is the case did the Court of Appeal err in directing a new trial on the count of kidnapping?

(i) Introduction

83. In arguing the first degree murder charge at trial the Crown asserted that the Appellant was a principal or party to first degree murder as: part of a planned and deliberate murder and; alternatively, a murder committed during the course of a kidnappinglunlawful confinement; or an aggravated sexual assault. Upon appeal the Crown appellant argued its first three grounds in

154 Reasons for Decision, JR, Vol. I, para. 263 Ibid., para. 288 156 And of course, in R. v. McCraw, 1991 CarswellOnt 113 (SCC), para. 25, RA, Tab 57, this Court held that tools of are designed to instill a sense of fear in the recipient; and see also R. v. Clemente (1994) CarswellMan 152 (SCC), para. 7-9, RA, Tab 10 relation to the issues of kidnapping and forcible confinement. It is necessary, therefore, to consider the legal elements of kidnapping and forcible confinement and, consider the evidence in relation to those crimes.

(ii) Legal Elements

84. Kidnapping, pursuant to s. 279 (l)(a) of the Code is committed where an accused kidnaps someone with intent to confine or imprison that person against their will. Forcible confinement, pursuant to s. 279(2) is committed by a person who, without lawful authority, confines, imprisons or forcibly seizes another person. Under neither sub-section is it a defence that the complainant did not resist unless the accused proves that the failure to resist was not caused by threats, duress, force or exhibition of force.

85. Kidnapping is the movement or taking of a person fiom one place to another without . It does not require force; a fraudulent stratagem will be ~ufficient.'~~The act of kidnapping can be a continuing one starting from the usage of a ruse and extending to subsequent usage of force or transportation to a place of c~nfinement.'~~Kidnapping, pursuant to s. 279(1)(a) requires proof that the accused intended to cause the person to be confined or imprisoned against their will. It is in this sense that kidnapping will entail a confinement. However, it is not a part of the mental element that the person intend that other crimes will be committed during the confinement.

86. Forcible confinement does not require total physical restraint nor that the person be confined for an entire period of time as any significant period of time will suffice. The essence of the confinement offence is that it is a restraint of one's liberty or ability to escape contrary to the wishes of the person restrained, and it is not restricted to one ~1ace.l~~As with kidnapping, confinement is not to be defined as a moment frozen in time but rather it is recognized that: 160 Moreover, a state of confinement may develop over time, as LeBel J.A. observed, at 92:

157 R. v. Oakley, 1977 CarswellAlta 224 (CA), para. 49, RA, Tab 67; R. v. Brown, 1972 CarswellOnt 1059 (CA), para. 9, RA, Tab 8; R. v. Metcalfe, 1983 CarswellBC 737 (CA), para. 10-12, RA, Tab 58; leave to appeal refused 54 N.R. 320n; R, v. Johnson, 1984 CarswellNS 345 (CA), para. 12-14, RA, Tab 42; leave to appeal refused 67 N.S.R. (2d) 180 158 See R. v. Oakley, ibid., para. 10,43-44; R. v. Brown, ibid., para. 3,9; R. v. Metcalfe, ibid.; R. v. Johnson, ibid., ara. 13-14 P59 R. v. Gratton, 1985 CarswellOnt 1386 (CA), para. 30,37, RA, Tab 30, leave to appeal refused ,19851 1 S.C.R. vii; R. v. Lemaigre, 1987 Carswellsask 563 (CA), para. 3, RA, Tab 47 I6O R. V. Niedermier, 2005 CarswellBC 30 (CA), para. 47-48, RA, Tab 64, leave to appeal refused 2005 CarswellBC 30 (SCC) The forcible confinement must have lasted a signlJicantperiod of time. However, in order to find forcible confinement, the Crown is not required to show that the victim was prevented from moving from one place to another as of the very first moment that the victim is in the presence of the accused. The existence of initial liberty can be followed by the development of a state of forcible confinement ....

87. The mens rea component of the confinement offence is the intent to confine which may be inferred from the actions of the accused.16' In R. v. B. (S.J.), a majority of the Alberta Court of Appeal described this as:'62 Physical restraint standing alone will satis& the minimum intent to perform the act which constitutes the actus reus of unlawful confinement. Although the serious nature of the crime itself might be suggestive of the of establishing an "ulterior intent", over and above the minimal intent required for general intent offences, I am of the view that the minimal intent to effect deprivation of freedom of movement will suffice. A robber who instructs staff and customers to raise their hands as he empties the till does so in order to hold them captive. The minimal intent associated with unlawful confinement is to prevent the victim from leaving or from being removed. A temporary restraint will suflce fit is a purposeful detention. [emphasis added] 88. The dissent in the B. (S.J.) expanded on the discussion, describing the minimal intent as meaning general intention, and that it must be clearly understood that additional ulterior motive need not be proved nor that the accused knew that the confinement was without lawll authority: 163

The intent to forcibly confine is also an essential element of the oflence, but this can be inferred from all of the accused's actions: Tremblav. There is no requisite further ulterior motive andpurpose. The intent is closely connected with the actus reus; no additional ulterior intent must also be proven. 89. Subsequent cases have construed the above cases, and the requirement of minimal intent, as constituting a crime of general intent.'64 The Que. CA, in R. v. D. (N.) stated:'65 107 Cette inkaction est considirie comme un crime d'intention gknkrale :

Physical restraint standing alone will satisfi the minimum intent toperform the act which constitutes the actus reus of unlawful confinement. Although the serious nature of the

161 R. v. Niedermeyer, ibid., para. 46 16* R. V. B.(S.J.), 2002 CarswellAlta 779 (CA), para. 41, RA, Tab 9 163 Ibid., para. 107 164 See for example, R. v. Snelgrove, 2004 CarswellBC 111 (BCSC), para. 7,225-26,230, RA, Tab 83; R. v. Smalley, 2006 CarswellAlta 1353 (CA, in Chambers), para. 12, RA, Tab 81; R. v. Fatima, supra, RA, Tab 25, ara. 78; R. v. Bottineau, 2006 CarswellOnt 8510 (SCJ), para. 122, RA, Tab 7 "'R. v. D.(N.), CarswellQue 19 (CA), para. 107, RA, Tab 19 Page 34

crime itself might be suggestive of the necessity of establishing an "ulterior intentr\ over and above the minimal intent required for general intent offences, I am of the view that the minimal intent to effect deprivation of freedom of movement will suffice. 90. The case law concerning the relationship of these crimes of domination with first degree murder was exhaustively reviewed by this court in R. v. ~ritchard.'" The following key principles emerged: (a) a higher degree of blameworthiness comes from a murder committed by someone already abusing power by illegally dominating another; (b) if for any period of time a victim is coercively restrained or directed contrary to hislher wishes so that she could not move about according to hislher own inclination and desire, there is a confinement; (c) a temporal and causal relationship must be present; (c) the confinement and murder must be distinct acts; but the fact that another offence is also committed during the course of a confinement does not bar application of the first degree murder provisions - it makes it worse; (d) the purpose of the confinement is irrelevant - the only question is whether there was a confinement; and (e) there need not be exact coincidence in time - it is the continuing illegal domination of the victim which gives continuity to the sequence of events.

(iii) Application to Case 91. The Appellant drove, without directions, to the remote site. On the trial judge's findings he was aware of the intention to at least "seriously scare" the victim. How that did not make him, at the very least, an accomplice to the fraudulent luring constituting a kidnapping, remains a mystery, for it is simply not addressed. Even worse, the trial judge found that Laboucan intended to have intimate sexual relations with a 13 year old child. How that does not make him, at the least a party to the fraudulent scheme is not discussed or explained at all.

92. How initially hanging back from the vehicle because he knew the others were dangerous enough to constitute a threat to himself or his girlfriend, and telling the others to do whatever they wanted, did not make him a party to the fraudulent scheme remains unilluminated by the trial decision.

93. As with the other offences in this case it is as if the trial judge required proof of knowledge, that the factual circumstances would, in law constitute an offence. The Appellant knew there was to be sexual relations with a child (discussed below under Ground 111) but

"'R. V. Pritchard, 2008 SCC 59, para. 20-34, RA, Tab 70 somehow, not that it would be a sexual assault. The Appellant did not have to know or understand the legal ramifications of the actions.

94. Even if one could countenance the conclusion that despite the above the Appellant harbored any illusions about what was going on when first arriving at the golf course, and having facilitated obtainment of weapons, that totally evaporated when arriving at the grassy area. He then heard a girl begging for her life to be spared, and observed the onset of a sexual assault, followed by a brutal and deadly attack. He opted to participate by suppressing the victim from screaming; carrying through to directing removal of the evidence, facilitating the flight, and cover up of the crimes.

95. are not frozen moments in time. One can have a continuation of the kidnapping revealed by proper consideration of the whole of the evidence. The fraud and kidnapping continued to the grassy area where the Appellant directly participated through joining a group, and actively suppressing her screams. At the very least, his actions constituted a forcible confinement. But, the trial judge never addresses forcible confinement at all.

96. In light of what the Appellant saw, heard and did, what more actual knowledge is required is elusive. However, even if the Appellant did not literally and semantically know of the fraud, or the intent to commit the particular crimes at the grassy area, it was because, in his own words, he did not want to see anything and did not want to know what they were going to do. Rather than remain extricated he chose to join in. The trial judge had to consider what knowledge the Appellant had as the continuous sequence of events unfolded, consider his participation at each stage in light of that knowledge, had to consider whether lack of precise knowledge was due to wilful blindness, and then apply principal and accomplice principles to those. He did none of the above.

Ground III: Did the Court of Appeal err in directing a new trial on the count of aggravated sexual assault.

(i) Introduction

97. The Appellant has properly conceded that sexual assault is a crime of general intent and that therefore wilful blindness is applicable.167Nevertheless, he argues that based on the trial

'67 Appellant's Factum, para. 66, citing Sansregret judge's factual finding, the Appellant would have been acquitted of the aggravated sexual assault regardless of the error in not considering wilful blindness.

98. Context to the argument is vital. At trial the Crown argued that the aggravated sexual assault was clearly committed as "Sexual intercourse with a 13-year old girl is sexual assault ".16' The evidence clearly portrays a forcible . However, the trial judge, in his one paragraph dismissal of that charge, does not address this at all. His reasons are shockingly bereft of analysis, and one cannot discern how his conclusion was arrived at. 99. Therefore, the error with respect to this offence was not simply his disregard of wilful blindness, but his errors with respect to the elements of the offence, and his consequential failure to consider the whole of the evidence.

(ii) Aggravated Sexual Assault Elements

100. As stated in Ewanchuk: "the actus reus of assault is unwanted sexual touching. The mens rea is the intention to touch, knowing of, or being reckless of or wilfully blind to, a lack of consent, either by words or actions, from the person being touched."'69 Sexual touching is touching which violates the sexual integrity of the victim. 170 That this test was met in this case was not in dispute.

101. The elements of aggravated sexual assault, as set out by this Court in Williams, are the same as for assault, "plus objective foresight of the risk of bodily harm."17' As noted in Williams "[tlhe "aggravation" in aggravated assault . . . comes from the consequences."'72 That the awful and ultimately fatal injuries suffered by the girl came within this definition was simply not in dispute.

102. The Crown must prove that the party knew the principal intended to touch the victim in a sexual way and that the party was, at a minimum, reckless or wilfully blind to the fact that the victim did not consent to the touching. Further, the Crown must prove that the party's actions assisted the principal in furtherance of the sexual assault.

168 Crown submissions, JR, Vol. XIII, p. 26110-14 '69 Ewanchuk, supra, RA, Tab 24, at para. 23 170 Ibid., at para 24 17' R. v. Williams, supra, RA, Tab 93, para. 22 172 Williams, ibid at para. 45 103. A child under the age of 14 is incapable of consenting to sex with an adult male as per s. 150.1(1) of the Code. Where the Crown relies on s. 150.1(1) to prove lack of consent, an accused may rely on a defence of "mistake of age" pursuant to s. 150.1(4) only where the accused "took all reasonable steps to ascertain the age of the complainant." As per s. 273.1(2)(b) of the Code, no consent is obtained where a victim is incapable of consenting: again, a child under the age of 14 cannot consent to sexual activity with an adult. No claim of consent or mistake as to age was asserted at trial by anyone.

104. Dealing with assault simpliciter, consent is vitiated as per. s. 265(3)(a), where it is obtained through application or threat of force. As per sections 273.1(d) and (e) of the Code dealing with sexual assault, no consent is obtained where a victim expresses a lack of agreement or having initially consented to the activity, expresses a lack of agreement to continue. No one claimed that the child consented to her pants being tom off and two adults having sex with her.

105. One might be forgiven for asking what could possibly be missing that would properly lead to an acquittal.

(iii) Application to the facts of the case 106. As noted above, the trial judge found that the Appellant did several things that assisted Mr. Laboucan in commission of his crimes: he drove the group to an isolated location, opened his trunk to give Mr. Laboucan a tool, and angrily yelled at NC to be quiet when she was screaming before she was sexually assaulted and murdered. 173 The trial judge also found that in returning with Laboucan and the others to pick up NC and her friend from the Mall that the Appellant must have known that the others intended to "seriously scare" NC.

107. Knowing that Laboucan at least intended to have sex with the victim, the Appellant said that he was "...more than happy to provide him with a chick so he don't take mine right? [emphasis added]"174 NC was 13 at the time of these offences. Whlle the Appellant was happy to provide a 13 year old to Laboucan, he himself would not have sex with her because screwing kids is not my piece ofpie". The Appellant's acknowledgment of 'providing a chicll' and his knowledge that she was a "kid' is not once mentioned by the trial judge. But then, the issue of consent was ignored entirely.

'73 Trial decision, J.R., Vol. I, at para. 277 'I4 Appellant's statement, JR, Vol XV, p. 126, 128 108. For his part, the Appellant observed NC being struck and thrown around, he observed her hug Laboucan and then back away, he observed her begging for her life, screaming and crying. He observed these things and then chose to assist Laboucan and the others by telling NC to shut up and be quiet. Then he watched them take turns raping her and eventually, he watched them choke the life out of her. He then directed removal of any potentially incriminatory evidence and facilitated the escape.

109. The evidence before the trial judge was sufficient to prove actual knowledge, much less wilkl blindness. The trial judge disregarded the facts. Whether the Appellant knew what in law constitutes a sexual assault is entirely irrelevant. It is knowledge of the surrounding factual circumstances that gives rise to culpability. Even if the Appellant, by some stretch of the imagination, did not know a sexual assault was unfolding before him, it was only because he literally refrained from asking "what are you doing?"

CONCLUSION 110. The trial judge had to consider what knowledge the Appellant had as the continuous sequence of events unfolded, consider his participation at each stage in light of that knowledge, consider whether lack of precise knowledge was due to wilful blindness, and then apply principal and accomplice principles to those. He did none of the above.

11 1. He seriously misconstrued elements of the offences before him, particularly in light of the applicable principles in relation to mens rea and parties. That resulted in a failure to properly consider the whole of the evidence in relation to each offence. In these circumstances, the ordering of a new trial was fully justified. PART fV: SUBMISSION ON COSTS

I 12. This is a criminal case and costs are no1 being sought,

PART V: NATURE OF RELIEF DESIRED

113. IT IS Itl

ALi, OF WHICH IS RESPECTFULLY SUBMl'nYI3Uthis 16th day of' July, 2009.

Counsel fbr the ~cs~ondcnt

~ounhelfor the Respoi.~dcr~t Page 40

PART VI: TABLE OF AUTHORITIES

PARAGRAPH TAB NO. CASE LAW REFERENCE

Housen v. Nikolaisen, [2002] 2 S.C.R. 235

R. v. Alexis, 2002 CarswellBC 222 (CA)

R. v. Araujo, [2000] 2 S.C.R. 992

R. v. Bigelow, 1982 CarswellOnt 279 (Ont. CA)

R. v. Bigras, 2004 CarswellOnt 3527 (CA) R. v. Biniaris, [2000] 1 S.C.R. 381

R. v. Bottineau, 2006 CarswellOnt 8510 (SCJ)

R. v. Brown, 1972 CarswellOnt 1059 (CA)

R. v. B.(S.J.), 2002 CarswellAlta 779 (CA)

R. v. Clemente, (1 994) CarswellMan 152 (SCC)

R. v. Comtois-Barbeau (1996), 110 C.C.C. (3d) 69, 1996 CarswellQue 3 18 (Que. CA)

R. v. Cooper, [I9931 1 S.C.R. 146, 1993 CarswellNfld 11

R. v. Creighton, [I9931 3 S.C.R. 3, 1993 CarswellOnt 115

R. v. Cribbin (1994), 89 C.C.C. (3d), 67, 1994 CarswellOnt 57 (Ont. CA)

R. v. Cuadra, 1998 CarswellBC 1219 (CA)

R. v. Cutarm, 2007 CarswellAlta 732 (CA)

R. v. DeSousa, [I9921 2 S.C.R. 933,1992 CarswellOnt 100

R. v. Dewey, 1998 CarswellAlta 1220 (CA)

R. v. D.(N.), CarswellQue 19 (CA)

R. v. Droste, [I9841 1 S.C.R. 208

R. v. Dunlop & Sylvester, [I9791 2 S.C.R. 881

R. v. Duong, 1998 CarswellOnt 1784 (CA) Page 4 I

R. v. Esau, [I9971 2 S.C.R. 777 R. v. Ewanchuk, [I9991 1 S.C.R. 330 R. v. Fatima, 2006 CarswellOnt 5 195 R. v. Fischer, 1987 CarswellSask 249 (CA) R. v. Frizzell, 1993 CarswellBC 503 (CA) R. v. Gauntley, 1999 CarswellOnt 4654 (CJ) R. v. G.(B.), [I9901 2 S.C.R. 3, 1990 CarswellSask 156 R. v. Gratton, 1985 CarswellOnt 1386 (CA), leave to appeal refused [I9851 1 S.C.R. vi

R. v. Greyeyes, [I9971 2 S.C.R. 825 R. v. Hammerbeck, 1993 CarswellBC 597 (CA)

R. v. Harbottle, [I9931 3 S.C.R. 306, 1993 CarswellOnt 121 R. v. Harding, 2001 CarswellOnt 4398 (CA) R. v. Heldson, 2007 CarswellOnt 336 (CA) R. v. Hibbert, [I9951 2 S.C.R. 973, 1995 CarswellOnt 117 R. v. Hinchey, [I9961 3 S.C.R. 1128, 1996 CarswellNfld 253 R. v. H.(L.I.), 2003 CarswellMan 280 (CA) R. v. Hundal, [I9931 1 S.C.R. 867, 1993 CarswellBC 489

R. v. Isaac, [I9841 1 S.C.R. 74

R. v. Jackson & Davy, [I9931 4 S.C.R. 573, 1993 CarswellOnt 136 R. v. Johnson, 1984 CarswellNS 345 (CA), leave to appeal refused 67 N.S.R. (2d) 180 R. v. Jorgenson, [I9951 4 S.C.R. 55

R. v. Kirkness, [I9901 3 S.C.R. 74, 1990 CarswellMan 15 R. v. K.(P.), 2006 CarswellAlta 1321 (CA)

R. v. Lagace, 2003 CarswellOnt 4509 (CA)

R. v. Lemaigre, 1987 CarswellSask 563 (CA) Page 42

R. v. Logan, [I9901 2 S.C.R. 73 1, 1990 CarswellOnt 110

R. v. L.R.I., 1991 CarswellBC 975 (CA)

R. v. Maciel, 2007 CarswellOnt 1612, leave refused 2007 CarswellOnt 5638 (CA) R. v. Malfara, 2006 CarswellOnt 3 164 (CA) R. v. Mammolita, 1993 CarswellOnt 1235 (CA)

R. v. Mara and East, [I9971 2 S.C.R. 630

R. v. Mariani, 2007 CarswellOnt 2745 (CA) R. v. Martineau, [I9901 2 S.C.R. 633,1990 CarswellAlta 143

R. v. M. (B.S.), 2001 CarswellAlta 115 (CA) R. v. McCraw, 199 1 CarswellOnt 113 (SCC)

R. v. Meli, [I9541 1 All E.R. 373

R. v. Metcalfe, 1983 CarswellBC 737 (CA), leave to appeal refused 54 N.R. 320n R. v. Miller, 1994 CarswellAlta 602 (CA) R. v. Morales, 2006 CarswellOnt 3537 (CA) R. v. Morin, [I9881 2 S.C.R. 345, 1988 CarswellOnt 82

R. v. Morin NO.^), [I9921 3 S.C.R. 286, 1992 CarswellAlta 276

R. v. Nette, [2001] 3 S.C.R. 488

R. v. Niedermier, 2005 CarswellBC 30 (CA), leave to appeal refused 2005 CarswellBC 30 (SCC) R.v. Nixon, 1990 CarswellBC 149 (CA)

R. v. Nygaard & Schirnrnens, [I9891 2 S.C.R. 1074, 1989 CarswellAlta 152

R. v. Oakley, 1977 CarswellAlta 224 (CA)

R. v. Portillo, 2003, CarswellOnt 2972 (CA)

R. v. Potts, 1999 CarswellOnt 4088 (CJ) Page 43

R. v. Pritchard, 2008 SCC 59 R. v. Rashidi-Alavije, 2007 CarswellOnt 6677 (CA)

R. v. Roach, 2004 CarswellOnt 2912 (CA) R. v. Roan, 1985 CarswellAlta 450 (CA)

R. v. Rodney, [I9901 2 S.C.R. 687, 1990 CarswellBC 98

R. v. Rojas, 2006 CarswellBC 948 (CA), conviction affirmed on other grounds, 2008 SCC 56 R. v. Sandhu, 1989 CarswellOnt 112 (CA) R. v. Sansregret, [I9851 1 S.C.R. 570 R. v. Sault Ste. Marie, (19781 2 S.C.R. 1299 R. v. S.(F.), 2006 CarswellOnt 1539 (CA)

R. v. Sit, [I9911 3 S.C.R. 124, 1990 CarswellOnt 120

R. v. Smalley, 2006 CarswellAlta 1353 (CA, in Chambers)

R. v. Smith, 2008 CarswellOnt 691 (CA) R. v. Snelgrove, 2004 CarswellBC 111 (BCSC) R. v. Stevenson, 1984 CarswellNS 202 (CA) R. v. Suchan and Jackson, 1952 CarswellOnt 23 (SCC) R. v. Tejani, 1995 CarswellOnt 2860 (CA), leaved refused 94 O.A.C. 80 (SCC)

R. v. Thatcher, [I9871 1 S.C.R. 652 R. v. Twigge, [I9961 S.J. No. 854, 1996 CarswellSask 747 (CA) R. v. Vaillancourt, [I9871 2 S.C.R. 636 R. v. Vinokurov, 2001 CarswellAlta 622 (CA)

R. v. White, [I9981 2 S.C.R. 72 R. v. Wild [I9711 S.C.R. 101, 1970 CarswellAlta 70 (SCC)

R. v. Williams, [2003] 2 S.C.R. 134 Page 44

94 R. v. Williams and Miller, 2007 CarswellAlta 1510 (CA)

95 R. v. Wood, 1989 CarswellOnt 804 (CA)

96 U.S. v. Giovannetti 919 F.2d 1223 (U.S. Court of Appeals, 7th Circuit)

PART VII ARTICLES AND ANNOTATIONS REFERRED TO

Paragraph Reference

97 Colvin and Anand, Principles of Criminal Law (3rd.ed.), pp. 166-209

98 Ewaschuk, Criminal Pleadings and Practice in Canada, Vol. 2, p. 21-88-89

99 NSW Law Reform Commission, Consultation Paper 2, Complicity (Jan., 2008)

100 Roach, Criminal Law (4thed), pp. 175-176, and see also pp. 389-90

101 Simon Parsons, Criminal Liability for the Act of Another: Accessorial Liability and the Doctrine of Joint Enterprise, [I9981 62 J. Crim. L. 352

102 Stuart, Canadian Criminal Law (5thed.), pp. 375-377

PART VIII LEGISLATION

Paragraph Reference Page 45