Her Majesty the Queen v. Helsdon

[Indexed as: R. v. Helsdon]

84 O.R. (3d) 544

Court of Appeal for Ontario,

O'Connor A.C.J.O., Rosenberg and Cronk JJ.A.

January 29, 2007

Criminal law -- Publication ban -- Breach of publication ban -- Aiding and abetting -- Mens rea -- Neither reporter nor newspaper knowing that publication ban had been made -- Trial judge convicting newspaper on basis that mens rea established as it was proven that it ought to have reasonably foreseen that a ban was in place and its failure to foresee the ban fell markedly below an acceptable standard of care -- Trial judge acquitting reporter on basis that he wasn't principal as he wasn't in position to decide what got published -- Summary conviction appeal judge allowing Crown appeal and convicting reporter on basis of being a party to the newspaper's offence -- Subjective mens rea being required for finding of liability for offence of breach of publication ban as aider or abettor -- Party must know of publication ban and do or omit to do something for purpose of breaching ban or to encourage principal to do so -- Appeal by reporter from conviction allowed and acquittal restored -- Criminal Code, R.S.C. 1985, c. C-46, ss. 21(1), 486(5).

The accused reporter and the newspaper which published his story were charged with breaching a publication ban contrary to s. 486(5) (now s. 486.6(1)) of the Criminal Code. Neither the accused nor anyone else at the newspaper was aware of the publication ban. The trial judge rejected the submission of the accused that the mens rea for publication contempt under the Code is subjectively based. While he held that the Crown must prove that an accused intended to publish the offending article, he concluded that it was not necessary to show that the accused had knowledge of the ban. It was sufficient if those responsible for the publication ought to have reasonably foreseen that there was a ban in place and if the failure to foresee fell markedly below an acceptable standard of care. The newspaper was convicted. The trial judge found that the accused was not a principal or perpetrator of the offence of publishing the offending article. Although the accused submitted the article for publication, there was no evidence that he was in a position to make decisions with respect to what did or did not get published. The summary conviction appeal judge allowed the Crown's appeal and convicted the accused, holding that he was guilty as an aider and abettor under s. 21 of the Code. The accused appealed. [page545]

Held, the appeal should be allowed.

The appeal judge erred in finding that the accused had the necessary mens rea to make him liable as an aider or abettor under ss. 21(1)(b) or (c) of the Code to the offence of breaching a publication ban. The mens rea of aiding or abetting a breach of a publication ban is not the same as the mens rea for the offence of breaching a publication ban as a principle. It is higher, requiring an element of subjective mens rea as to the existence of the publication ban. Section 21(1)(b) requires that an accused do or omit to do something for the purpose of aiding another to commit an offence. On the face of it, a requirement that an accused do something for the purpose of achieving a prohibited result imposes a very high degree of subjective mens rea. The normal meaning of the word "purpose" suggests that a person must subjectively advert to a specific objective and that he or she, therefore, must have knowledge of the facts that constitute that objective. The notion of an objective mental element is completely inconsistent with the expressed requirement of "purpose" in s. 21(1)(b). Given the absence of a finding that the accused had a mens rea with a subjective element, the appeal judge erred in finding him guilty as an aider and abettor under s. 21(1)(b). Unlike s. 21(1)(b), s. 21(1)(c) does not specifically include a requirement that abetting be "for the purpose" of encouraging the commission of an offence. However, it is well-established that in order to found a conviction under para. (c), the Crown must prove that the accused intended that his or her words or acts encourage the principle. Despite the difference in the wording between the two paragraphs, the courts commonly treat the mens rea requirement for aiders and abettors as the same. Thus, the analysis with respect to s. 21(1)(b) applied equally to the appeal judge's finding that the accused was liable as an abettor to the offence committed by the newspaper.

APPEAL from the judgment of the summary conviction appeal judge McGarry J., [2005] O.J. No. 2659, [2005] O.T.C. 541 (S.C.J.), allowing the Crown's appeal from an acquittal on the charge of breach of a publication ban by O'Dea J. of the Ontario Court of Justice, dated August 18, 2003.

Cases referred to

R. v. F.W. Woolworth Co. Ltd. (1974), [3 O.R. (2d) 629], [1974] O.J. No. 1897, 46 D.L.R. (3d) 345, 18 C.C.C. (2d) 23 (C.A.); R. v. Fell (1981), [34 O.R. (2d) 665], [1981] O.J. No. 3176, 131 D.L.R. (3d) 105, 64 C.C.C. (2d) 456 (C.A.); R. v. Jackson, [1993] 4 S.C.R. 573, [1993] S.C.J. No. 134, 109 D.L.R. (4th) 318, 162 N.R. 113, 86 C.C.C. (3d) 385, 26 C.R. (4th) 178 (sub nom. R. v. Davy); R. v. Roach, [2004] O.J. No. 2566, 192 C.C.C. (3d) 557 (C.A.), consd

Other cases referred to

R. v. Curran, [1977 ALTASCAD 284], [1977] A.J. No. 770, [1978] 1 W.W.R. 255, 7 A.R. 295, 38 C.C.C. (2d) 151, 1 W.C.B 597 (C.A.) [Leave to appeal to S.C.C. refused (1978), 38 C.C.C. (2d) 151n]; R. v. Hibbert, [1995] 2 S.C.R. 973, [1995] S.C.J. No. 63, 184 N.R. 165, 99 C.C.C. (3d) 193, 40 C.R. (4th) 141; R. v. Hundal, [1993] 1 S.C.R. 867, [1993] S.C.J. No. 29, 149 N.R. 189, 14 C.R.R. (2d) 19, 79 C.C.C. (3d) 97, 19 C.R. (4th) 169, 43 M.V.R. (2d) 169

Statutes referred to

Combines Investigation Act, R.S.C. 1952, c. 314 [as am.] Criminal Code, R.S.C. 1985, c. C-46, ss. 21(1), (2), 486(3) [now 486.4(1)] [as am.], 486(5) [now 486.6(1)] [as am.]

Authorities referred to

Roach, Kent, Criminal Law, 3rd ed. (Toronto: Irwin Law Inc., 2004) Stuart, Don, Canadian Criminal Law: A Treatise, 4th ed. (Scarborough, Ont.: Thomson Canada Limited, 2001) Williams, Glanville, Textbook of Criminal Law, 2nd ed. (London: Stevens & Sons, 1983) [page546]

Lorne M. Honickman, for appellant. Charmaine Wong, for respondent.

The judgment of the court was delivered by

1O'CONNOR A.C.J.O.: -- This appeal raises the issue of what mens rea is required to find an accused liable as an aider or abettor to an offence of breaching a publication ban contrary to s. 486(5) (now s. 486.6(1)) of the Criminal Code, R.S.C. 1985, c. C-46.

Background

2The appellant is a print journalist employed by the Tillsonburg News.

3On October 24, 2002, the appellant attended at the Ontario Court of Justice in St. Thomas where the verdict in a sexual assault case was announced. He wrote and submitted an article in which he referred to the complainant by name ten times. The article was published on the front page of the newspaper on October 30, 2002.

4Previously, on August 28, 2001, a justice of the peace had issued an order pursuant to s. 486(3) (now s. 486.4(1)) of the Criminal Code directing that the identity of the complainant or any information that could identify the complainant not be published or broadcast in any way.

5At the time the article was published, neither the appellant nor anyone else at the newspaper was aware of the publication ban. The appellant had not attended court on the date the publication ban was ordered, nor on any of the other appearances before the verdict was delivered. When he went to court on October 24, 2002, the appellant identified himself to someone connected to the court and asked for information about the charges. He was not told about the publication ban nor did he ask if there was a ban in place. He assumed there was no ban because he was not told otherwise.

6Shortly after the article was published, the appellant and the publisher, Annex Printing and Publishing Inc. ("Annex"), were alerted to the ban. The editor of the newspaper immediately sent a [page547] letter to the trial judge in the sexual assault case informing her of the article that had identified the complainant by name and expressing deep regret if the paper had breached a publication ban. The letter indicated that if a ban was breached, the breach was "inadvertent" and "without knowledge that [a ban] was in effect".

7Subsequently, the appellant and Annex were jointly charged with failing to comply with the order prohibiting publication of the complainant's identity contrary to s. 486(5) of the Criminal Code. They both pled not guilty.

8In a preliminary ruling, O'Dea J. rejected the accuseds' submissions that the mens rea for publication contempt under the Criminal Code is subjectively based. Instead, he held that the Crown was only required to prove an intent "objectively assessed". While he held that the Crown must prove that an accused intended to publish the offending article, he concluded that it was not necessary to show that the accused had knowledge of the ban. It was sufficient if those responsible for the publication ought to have reasonably foreseen that there was a ban in place and if the failure to foresee fell markedly below an acceptable standard of care.

9After hearing further argument, the trial judge convicted Annex and acquitted the appellant.

10As to the appellant, the trial judge found first that he was not a principal or perpetrator of the offence of publishing the offending article. He concluded that although the appellant submitted the article for publication, there was no evidence that the appellant was in a position to make decisions with respect to what did or did not get published.

11The trial judge then considered the Crown's argument that the appellant was liable as a party to the offence under s. 21 of the Criminal Code. His reasons for rejecting this argument were brief. The trial judge said [at para. 7]:

I don't believe that section 21 applies. You can have two persons commit the same offence. The Crown is still obliged to prove beyond a reasonable doubt that both did. There is no indication here that there was an intention in common, and most definitely, there's no indication that [the appellant] had anything to do with the actual final determination of the publication of that particular story.

12Importantly, the trial judge appears to have considered the potential liability of both Annex and the appellant solely on the basis of an objectively based mens rea as it related to the existence of the publication ban. He did not make a finding that either of them had a subjective mens rea involving elements such as purpose, intent, knowledge, wilful blindness or even recklessness as to the ban. [page548]

13The Crown appealed against the appellant's acquittal, relying on the argument that the trial judge had erred in failing to properly apply s. 21 of the Criminal Code to find the appellant liable as a party to the offence. Significantly, the Crown did not argue on the summary conviction appeal that the trial judge had erred in holding that the appellant was not guilty as a principal of the offence of publishing the offending article.

14On June 27, 2005, McGarry J. allowed the Crown's appeal and entered a conviction. In doing so, he concluded, at paras. 10 and 11:

I agree with the submissions by the Crown as clearly the only reasonable inference that can be drawn was that the reporter accused prepared the story and submitted the same in the expectation that it would be published. Thus this makes him a party to the offence under section 21.

Having found that the accused was an aider and abettor the appeal will be allowed and the conviction entered . . .

15The appeal judge also considered the Crown's argument that the appellant could be found liable under s. 21(2) on the basis that the appellant had formed an intention in common with Annex to carry out an unlawful purpose -- publishing the article in breach of the ban. The Crown's argument was premised on the notion that only an objective mens rea was required to establish "an intention in common to carry out an unlawful purpose". It is not clear from the appeal judge's reasons whether he accepted this argument or not. In any event, the Crown did not pursue the s. 21(2) argument on this appeal and I need not address it further.

16After the appeal judge found the appellant guilty, he remitted the matter back to the trial judge for sentencing. On December 8, 2005, the trial judge rejected the appellant's submission that he order a discharge, entered a conviction and fined the appellant $500. Previously, the trial judge had fined Annex $3,000. The appellant appeals his conviction and sentence.

Issue on Appeal

17The sole issue on the conviction appeal is whether the appeal judge erred in finding that the appellant had the necessary mens rea to make him liable as an aider or abettor under ss. 21(1)(b) or (c) of the Criminal Code to the offence of publishing the article in contravention of the publication ban for which Annex was convicted.

18Consistent with the position it took on the summary conviction appeal, the Crown does not now argue that the appellant, as the author of the offending article, actually committed the offence of publishing the article in contravention of the ban. [page549]

The Mens Rea for section 486(5)

19In concluding that the mens rea for an offence under s. 486(5) involves an objective test, the trial judge reasoned that the mens rea for non-Criminal Code contempt of court, particularly when it relates to a publication by a media outlet, only requires an objective test. He also noted that regulatory offences frequently require a much reduced mens rea with the availability of due diligence as a defence, particularly when the failure to comply with minimum standards harms individuals who are vulnerable. The trial judge recognized that he was dealing with a Criminal Code offence, however, and relying upon the Supreme Court of Canada decision in R. v. Hundal, [1993] 1 S.C.R. 867, [1993] S.C.J. No. 29, 79 C.C.C. (3d) 97, a dangerous driving case, he reasoned that an objective test, if it involved "a marked departure" from accepted standards, could be sufficient for some Criminal Code offences to pass Charter scrutiny.

20The trial judge recognized that newspapers, strictly speaking, are not regulated by government. However, he noted that when a newspaper enters the field, it is subject to self- regulation and should apply appropriate standards so as to not improperly harm the vulnerable.

21The appeal judge adopted the trial judge's formulation of the mens rea required for s. 486(5), as did the Crown and the appellant on this appeal.

22In these circumstances, I will proceed with the analysis of the issue raised by this appeal on the basis that the intent required for the commission of the offence under s. 486(5) does not require subjective knowledge of the existence of the publication ban. A person may be convicted under that section upon the Crown establishing that the person intended to publish the offending information and upon proof of a failure to meet an objectively determined standard of care. Given my conclusion on the mens rea for party liability, I need not decide whether the trial judge correctly held that only objective fault is required and, if so, the applicable standard of care. I should also not be taken as having decided that the appellant could not be convicted as a principal. As indicated, Crown counsel in this court fairly did not press that issue given the position taken in the appeal court.

23The question then becomes whether the mens rea necessary to hold the appellant liable as an aider or abettor to the offence under s. 486(5) is the same as that for the principal, or if, as the appellant argues, it is higher, requiring an element of subjective mens rea as to the existence of the publication ban. [page550]

Sections 21(1)(b)

24Section 21(1) of the Criminal Code reads as follows:

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.

25Unquestionably, the appellant's act in preparing and filing the offending article with the newspaper for publication was sufficient to constitute the actus reus necessary to make him an aider to Annex's offence under s. 21(1)(b).

26The thrust of the Crown's argument as to the appellant's mens rea is along the following lines. The mens rea for the principal offence of publication contempt involves only an objective test. The mens rea for an aider to that offence should not be higher than that for the principal. It would be unreasonable to hold that the appellant's liability as a party could only be established on the basis of a higher, subjective level of mens rea when Annex's liability as a principal could be founded on an objective standard.

27The Crown also argues that if the higher subjective mens rea is adopted for persons in the position of the appellant, "virtually all members of the media would escape liability for breaching publication bans, since the Crown would always be required to show that they specifically knew that a ban was in place but deliberately breached it anyway". This interpretation seriously impairs the protection of the publication ban provisions and diminishes the deterrent effect of the related fail to comply provisions.

28I do not agree with the Crown's submissions. The starting point for determining the mens rea required for s. 21(b) is the language of the paragraph. The language of para. (b) is very specific. It requires that an accused do or omit to do something for the purpose of aiding another to commit an offence. On the face of it, a requirement that an accused do something for the purpose of achieving a prohibited result imposes a very high degree of subjective mens rea. "Purpose" under s. 21(b) is synonymous with "intention": R. v. Hibbert, [1995] 2 S.C.R. 973, [1995] S.C.J. No. 63, 99 C.C.C. (3d) 193. While the Criminal Code does not contain a definition of either "purpose" or "intention", the normal meaning of those words suggests that a person must subjectively advert to a specific objective and that he or she, therefore, must have knowledge of the facts that constitute that objective. [page551]

29It seems to me that the notion of an objective mental element is completely inconsistent with the expressed requirement of "purpose" in s. 21(1)(b). While it may be arguable that the requirement that an accused have a purpose includes any subjectively based mens rea, it would extend the language beyond its normal meaning to import an objectively based fault element into that language.

30The decision of this court in R. v. F.W. Woolworth Co. Ltd. (1974), [3 O.R. (2d) 629], [1974] O.J. No. 1897, 18 C.C.C. (2d) 23 (C.A.), is on point. In Woolworth, the accused was charged with aiding and abetting the making of a misleading representation in contravention of the Combines Investigation Act, R.S.C. 1952, c. 314. Justice Kelly, for the court, explained that even when the principal offence was one of strict liability, as it was in that case, in order for an accused to be found liable as an aider or abettor he must be shown to have had actual knowledge of (or to have been wilfully blind as to) the circumstances necessary to constitute the offence he is accused of aiding or abetting.

31In R. v. Fell (1981), [34 O.R. (2d) 665], [1981] O.J. No. 3176, 64 C.C.C. (2d) 456 (C.A.), this court followed Woolworth. Justice Martin, for the court, said [at p. 671 O.R.]:

The trial judge correctly held that even where the offence is one of strict liability insofar as the liability of the principal is concerned, the liability of an aider or abettor to be convicted of the offence requires the existence of mens rea on the part of the aider or abettor. Mens rea in this context means knowledge of the circumstances which make up or constitute the offence, that is, in this case, knowledge on the part of the respondent that the representations were made and knowledge of the true facts. It was, of course, not necessary for the prosecution to prove that the respondent knew that those circumstances constituted an offence.

(Citations omitted)

32In R. v. Roach, [2004] O.J. No. 2566, 192 C.C.C. (3d) 557 (C.A.), Borins J.A., for the court, rejected an argument that subjective recklessness was sufficient to satisfy the mens rea for party liability under s. 21(1)(b). Relying on Woolworth and other authorities, he concluded that only actual knowledge or wilful blindness of the facts giving rise to the crime being assisted would suffice. ¹ [page552]

33The Crown argues, however, that while interpreting s. 21(1)(b) as requiring a subjective mens rea may generally be the proper approach to interpreting the section, it should not be used when the mens rea for the principal offence is less than full mens rea. Otherwise, the Crown argues that there will be the anomalous situation of requiring a higher mens rea for an aider than for the actual perpetrator.

34I do not agree with this argument. Importing an interpretation that would require a lesser mens rea for an aider so as to mirror the mens rea for the principal offence would require ignoring or reading down the plain language contained in s. 21(1)(b). Moreover, in both Woolworth and Fell, supra, this court did exactly what the Crown now argues against. The courts interpreted s. 21(1)(b) as requiring a subjective mens rea -- knowledge of the circumstances which make up the offence -- even when the offence was one of strict liability insofar as the liability of the principal was concerned.

35In addition, as Professor Kent Roach points out in his book, Criminal Law, 3rd ed. (Toronto: Irwin Law Inc., 2004) at 155, it makes sense to require a high form of mens rea for those charged with offences they do not actually commit. He puts it this way:

Proof of purpose is required under the various parties provisions in the Criminal Code. As examined in the last chapter, these provisions can make a person guilty of an offence even though he or she did not actually commit the offence and thus it makes sense to require a fairly high level of mens rea. Section 21(1)(b) requires a party to do or omit "to do anything for the purpose of aiding any person" to commit an offence, and section 21(2) requires the formation of an "unlawful purpose." Similarly, attempts require "an intent to commit the offence," and an accessory after the fact must act for the purpose of enabling a known criminal to escape. The more peripheral the accused's involvement to the completed crime, the more sense it makes to require a higher form of subjective mens rea.

36In reaching the conclusion that the mens rea under s. 21(1)(b) requires a subjective element, I am mindful that in R. v. Jackson, [1993] 4 S.C.R. 573, [1993] S.C.J. No. 134, the Supreme Court of Canada applied, at least in part, an objective test to the mens rea required for the offence of unlawful act manslaughter. In that case, the accused and Jackson were charged with first degree murder. One of the Crown's theories was that the accused was liable as an aider or abettor under ss. 21(1)(b) or (c). The court held that where an aider or abettor does not have the mens rea for murder, he may be guilty of the lesser offence of manslaughter if he possesses the requisite intent for that offence. Unlawful act manslaughter under ss. 21(1)(b) or (c) does not require a [page553] subjective appreciation of the consequences of the act. The test is objective. A person may be convicted of manslaughter who aids or abets another person in the offence of murder where a reasonable person would have appreciated that bodily harm was the forseeable consequence of the dangerous act that was being undertaken.

37However, I do not read Jackson to stand for the general proposition that only an objective mens rea is required for aiding or abetting all crimes with an objective mens rea. Rather, the language in Jackson importing an objective mens rea element applied solely to the consequences of the unlawful act, not to the facts or circumstances which gave rise to the commission of the principal offence. As I understand Jackson, in order to found a conviction for unlawful act manslaughter, as an aider or abettor to murder, it would still be necessary to establish that an accused did or omitted to do something for the purpose of aiding the principal to commit the offence of which the principal stands charged, which is the actus reus of the offence. In that regard, it would be necessary for an accused to have knowledge of the circumstances or facts that constitute the principal's unlawful act. Only then could it be said that the accused was doing or omitting to do something for the purpose of committing the offence as required by s. 21(1) (b) or (c).

38Finally, I do not accept the Crown's argument that interpreting s. 21(1)(b) to require a subjective mens rea for publication contempt will open the floodgates to the abuse of publication ban orders. Principals, those who publish, are liable on the basis of the mens rea for the principal offence. Those responsible for the actual publication are subject to the deterrent effect of the mens rea that applies to publication contempt. Without principals, there can be no offending publications.

39In addition, reporters such as the appellant are generally subject to supervision, or at least some control from those who actually publish. It is not unreasonable to expect that publishers should assume the ultimate responsibility for determining that information being published does not contravene a publication ban.

40Thus, I am satisfied that an objective mens rea is not sufficient to establish liability under s. 21(1)(b), even for an offence of publication contempt.

41Neither the trial judge nor the appeal judge found that the appellant knew of the publication ban, nor did they find that he was wilfully blind or even subjectively reckless with respect to informing himself about the ban. They considered the issue of mens rea solely on an objective standard -- that he ought to have [page554] reasonably foreseen that there could have been a ban in place and that his failure to make proper inquiries fell markedly below an acceptable standard of care.

42Given the absence of a finding that the appellant had a mens rea with a subjective element, I conclude that the appeal judge erred in finding the accused guilty as an aider under s. 21(1)(b).

Section 21(1)(c)

43Unlike s. 21(1)(b), s. 21(1)(c) does not specifically include a requirement that abetting be "for the purpose" of encouraging the commission of an offence. However, it is well-established that in order to found a conviction under para. (c), the Crown must prove that an accused intended that his or her words or acts encourage the principal: R. v. Curran, [1977 ALTASCAD 284], [1977] A.J. No. 770, 38 C.C.C. (2d) 151 (C.A.), leave to appeal to S.C.C. refused (1978), 38 C.C.C. (2d) 151n (January 24, 1978).

44Despite the difference in the wording between the two paragraphs, the courts commonly treat the mens rea requirement for aiders and abettors as the same: see e.g., Woolworth and Fell, supra. Thus, the analysis set out above with respect to s. 21(1)(b) applies equally to the appeal judge's finding that the appellant was liable as an abettor to the offence committed by Annex.

Disposition

45In the result, I would allow the appeal, quash the conviction and restore the verdict of acquittal.

Footnotes

1. 1Some academic commentators suggest that subjective recklessness may or at least should be sufficient to furnish the mens rea necessary for s. 21(1)(b). See Don Stuart, Canadian Criminal Law: A Treatise, 4th ed. (Scarborough, Ont.: Thomson Canada Limited, 2001) at 606; Glanville Williams, Textbook of Criminal Law, 2nd ed. (London: Stevens & Sons, 1983) at 360.