R.+v.+Dunlop+&+Sylvester

//R. v. Dunlop & Sylvester//


 * Facts:** A 16 year old girl was gang raped by about 18 men. The complainant had identified the two accused in a police line up and her evidence was that they had both raped her. The accused argued that they had just been dropping off beer at the former dump, where the gang rape took place, but left after only a few minutes. While at the former dump the accused had seen a girl having intercourse with one man while others stood nearby.

//At trial:// The accused were found guilty of sexually assaulting the complainant. The jury did not seem to be convinced that the accused actually took part in the rape, but that they were guilty of aiding and abetting the commission of the offence. Aiding and abetting are dealt with under s. 21(1) of the Criminal Code:

21. (1) Every one is a party to an offence who (//a//) actually commits it, (//b//) does or omits to do anything for the purpose of aiding any person to commit it, or (//c//) abets any person in committing it.

‘Abets’ was defined by the court as follows: “’encourages, supports, upholds’. It is another way of expressing a person giving assistance to someone committing the offence. Everyone who aids and encourages the person in the commission of the offence s as guilty as the person who commits the actual criminal act.”

//Court of Appeal//: By a three to two majority, the conviction was sustained. The Court of Appeal found error on the part of the trial judge, but that in light of the evidence, no substantial wrong or miscarriage of justice occurred.

//Supreme Court//:


 * Issue:** Should the accused have been found guilty of sexual assault on the basis of s. 21(1) of the Criminal Code (aiding and abetting)?


 * Held:** Appeal allowed, accused acquitted.

· There is insufficient evidence to prove that the accused are guilty of aiding and abetting the commission of the offense · Mere presence at the scene of a crime is not sufficient to ground culpability: “to constitute an aider and abettor some active steps must be taken by word, or action, with the intent to instigate the principal, or principals.”(para 34) · “Presence at the commission of an offence can be evidence of aiding and abetting, if accompanied by other factors, such as prior knowledge of the principal offender’s intention to commit the offence, or attendance for the purpose of encouragement.”(para 43) · In the case at bar, there is no evidence that the accused had prior knowledge of the intended rape or encouraged the commission of the offence: “A person who aware of a rape taking place in his presence, looks on and does nothing is not, as a matter of law, an accomplice.”(para 50) · The accused should be acquitted rather than made to stand a new trial. They had already been subjected to two trials and have been in custody for over a year.
 * Reasoning of majority given by Dickson J.:**

· There was evidence on which the jury could conclude that the accused had aided and abetted the commission of the offence.
 * Martland J. (dissenting) (Ritchie and Pigeon JJ. concurring)**


 * Ratio:** Mere presence at the commission of an offence, is not sufficient to constitute aiding and abetting. Presence can be evidence of aiding and abetting but must be accompanied by other factors, such as prior knowledge of the intended offence or encouragement of the commission of the offence.