Party Liability and Limits on the Scope of a Re-trial

Another case summary for Canlii Connects. The case dealt with issues of party liability and the scope of a re-trial. The facts are yet another reminder of why it is in an accused’s best interests to exercise their right to silence when arrested or detained.

R. v. Cowan, 2021 SCC 45

Issues: (1) Did the trial judge err in their approach to party liability in relation to counselling an offence and (2) what sort of limitations can an appeal court put on the scope of a re-trial?

Facts: Two individuals robbed a subway. An investigation lead to the arrest of Mr. Cowan. He denied being one of the robbers but said that he told four others “how to do a robbery what to say how to do it how long to be in there”.

At trial, the Crown advanced two alternative theories of liability — either he was the robber and therefore a principal offender, or he was a party in that he abetted or counselled the commission of the offence. In relation to party liability the Crown primarily relied on his statement. 

The trial judge acquitted Mr. Cowan finding that the Crown had not proven either route to liability. In relation to party liability he found that the it was necessary for the Crown to prove that the individuals Mr. Cowan said he told how to do the robbery had actually done so. He found that the Crown had not proven the identity of the robbers as being two of the individuals identified by Mr. Cowan. 

The majority at the Saskatchewan Court of Appeal allowed the Crown appeal finding that the Crown was not required to prove that the individual counselled by Mr. Cowan was the principal offender, as long as that individual participated in the offence, either as a principal or party. That Court, however limited the scope of the new trial to the question of party liability only. 

Ruling: Moldaver J. writing for the majority of the Supreme Court of Canada agreed with the Court of Appeal that the trial judge had erred in relation to party liability. Specifically they reasoned that:

[36] While one of the requisite elements of counselling is the actual participation in the offence by the person counselled, that person can participate not only as a principal, but also as a party. This is reflected by the wording of s. 22(1), which states that an accused is a party if they “course[l] another person to be a party to an offence and that other person is afterwards a party to that offence.” The precise manner of participation is irrelevant, since whether the person counselled is a principal or party, “[t]he focus on a prosecution for counselling is on the counsellor’s conduct and state of mind, not that of the person counselled.  

Applying those principles to Mr. Cowan’s case:

The Crown was only required to prove that any one of the individuals encouraged by Mr. Cowan went on to participate in the offence either as a principal offender — in which case Mr. Cowan would be guilty as both an abettor and a counsellor — or as a party — in which case Mr. Cowan would be guilty as a counsellor.

In relation to possible limitations on the scope of a re-trial, the court held that appellate courts do have the power to limit the scope of a new trial in some circumstances such as to a lesser included offence. What they can not do is remove a form of liability for an offence. 

[57]…in separating the Crown’s theories of liability in its ancillary order, the Court of Appeal bifurcated the offence of armed robbery into two separate offences: robbery as a principal and robbery as a party, be it as an abettor or counsellor. Thus, the effect of the ancillary order restricting the scope of the new trial was to uphold Mr. Cowan’s acquittal on the single charge of armed robbery in part. This is at odds with the underlying judgment allowing the Crown appeal and setting aside the verdict rendered on that charge as a whole. Put simply, the ancillary order gave rise to a partial acquittal on a single criminal charge — a two‑headed hydra‑like creation unknown to Canada’s criminal law. 

In the result the acquittal was set aside and a new trial was ordered.