During a jury trial for homicide arising from a restaurant assault, the court considered whether the defence of abandonment should be left with the jury for two accused alleged to be parties to the offence under s. 21 of the Criminal Code.
Applying the Supreme Court’s formulation of the abandonment defence in R v. Gauthier and the “air of reality” test, the court examined whether the evidence could reasonably support findings that the accused intended to withdraw, communicated that withdrawal in a timely and unequivocal manner, and took proportional steps to neutralize their participation.
Evidence from one accused that he attempted to discourage the assault and physically intervened was capable of supporting the defence.
By contrast, the other accused’s single statement discouraging a fight and subsequent inaction did not satisfy the elements of abandonment.
The defence was therefore left with the jury for one accused but not the other.
