DATE: 20040603 DOCKET: C38012

COURT OF APPEAL FOR ONTARIO

WEILER, BORINS AND SIMMONS JJ.A.

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

• and -

RONALD WILLIAM ROACH

Appellant

Gregory Lafontaine for the appellant

Christine Tier for the respondent

HEARD: December 8, 2003

On appeal from conviction entered on November 27, 2001, and the sentence imposed on March 27, 2002, by Justice Robert N. Weekes of the Superior Court of Justice, sitting with a jury.

BORINS J.A.:

I

[1] The appellant, Ronald Roach, and Robert Stoangi were tried by a jury presided over by Weekes J. upon an indictment alleging that:

[B]etween the 1st day of January, in the year 1999 and the 27th day of April, in the year 1999, both dates inclusive, at the Town of Midland, in the Central East Region, and elsewhere in the Province of Ontario and in the United States of America, they did by deceit, falsehood or other fraudulent means, to wit: being parties to an enterprise which by telephone misrepresented to persons that they had won valuable prizes, defraud the public of money, property or other valuable security, of a value exceeding five thousand dollars, contrary to the Criminal Code of Canada.

And further that they:

[B]etween the 1st day of January, in the year 1999 and the 27th day of April, in the year 1999, both dates inclusive, at the Town of Midland, in the Central East Region, and elsewhere in the Province of Ontario and in the United States of America, they did conspire with each other and Mark Dube to commit the indictable office, to wit: fraud, contrary to the Criminal Code of Canada.

[2] The appellant was found guilty of both counts and was sentenced to fifteen months imprisonment, three years probation and was ordered to make restitution for the amount of $25,366.62. He appeals his convictions and seeks leave to appeal his sentence. Stoangi was acquitted of both counts.

[3] This appeal raises two narrow issues. The first is whether recklessness constitutes a basis for the mental element, or mens rea, of an accessory to the commission of a crime. In response to the first count, in reliance on s. 21(1) (b) of the Criminal Code, the Crown's position was that the appellant aided Dube by providing assistance to him in the manner that I will describe. In instructing the jury on whether the appellant knew that he was aiding Dube in the commission of a fraudulent telemarketing scheme, the trial judge indicated that they could find that the appellant had the requisite knowledge if they were satisfied that he possessed actual knowledge "or [was] being reckless or wilfully blind as to [the] legality" of the telemarketing scheme.

[4] The appellant contends that the trial judge erred in his direction that recklessness, like wilful blindness, equates with actual knowledge, in constituting a foundation for party liability.

[5] As for the second issue, the appellant contends that the trial judge made a similar error in his instructions to the jury on the conspiracy count.

II

[6] To better understand the issues, an overview of the facts is necessary.

[7] At the centre of this case was a fraudulent telemarketing scheme that was orchestrated by Dube, who pleaded guilty to defrauding the public prior to the appellant's trial, at which he was the Crown's key witness. Dube had purchased a list of residents of the United States who had entered a legal contest. He hired telemarketers to contact these individuals to tell them that they were a contest winner, having won a motor vehicle or $25,000. Subsequently, Dube telephoned such "winners" to confirm that he or she had won a prize. He told the winner that he or she would receive two of the following four prizes: $25,000 cash, a Ford Taurus, a home stereo system or jewellery. To claim the prize, the winner was required to pay state tax and shipping and handling charges up front by sending a money order payable to Jason Leduc, a fictitious person, at a postal box. Winners were asked to send amounts that ranged from $611 US to $9,690 US.

[8] Once the money order was received, an "affidavit of winnings" was sent to the winner. It confirmed that the person had won two of the four prizes referred to earlier. The winner was required to sign and return the affidavit to receive his or her prizes. Inexpensive watches and stereos were the only prizes that were distributed. The amounts paid by the winners far exceeded the value of the prizes. A total of approximately $45,000 US was received in the three months that the scheme was operated until it was closed as a result of complaints to the police from some of the prize winners.

[9] The appellant's role in Dube's scheme began when he met Dube at a time when the appellant was employed as a meat cutter at a local supermarket. Dube, who said that he had experience in the telemarketing business, offered the appellant a position as a "shipper and receiver" in the telemarketing operation. The appellant had no previous experience or knowledge of the telemarketing business. He had never operated any type of business.

[10] Subsequently, Dube and the appellant met again. At this meeting, Dube explained that he and his employees were involved in telephone sales. He instructed the appellant on how to set up a business to distribute merchandise and how to obtain a mail box. He also told the appellant to buy inexpensive radios and jewellery to be distributed as prizes. As the appellant had no business experience, he contacted Stoangi, a paralegal, to assist him with the business venture. With Stoangi's assistance, the appellant opened a business bank account, registered a business known as Upper Lakes Distribution and rented a mailbox at Mail Boxes Etc. Stoangi, at the appellant's request, also prepared an agreement between Upper Lakes Distribution and Dube Enterprizes.

[11] After the agreement was prepared, the appellant, Stoangi and Dube met. During the meeting, Dube described the mechanics of the telemarketing operation as it is described above. On this occasion, the appellant and Dube signed the business agreement. It provided that the appellant's business, Upper Lakes Distribution, as "distributor", would acquire merchandise ordered by Dube's business, Dube Enterprizes, as "marketer". Upper Lakes was then to distribute the merchandise as directed by Dube Enterprizes. Clause 6 of the agreement provided:

The sole responsibility for the placement and payment of orders for merchandise rests with the Marketer. The sole responsibility of the Distributor is to provide and distribute the merchandise in accordance with the instructions of the Marketer.

[12] The appellant collected mail containing money orders from the mailbox. From each money order, $100 US was deposited into a prize fund that was to be used to purchase prizes to be sent to the contest winners. The balance of each money order was then deposited into the bank account opened by the appellant. Dube received about fifty per cent to sixty per cent of the funds obtained from the prize winners, while the appellant's share was about thirty per cent. About a month after the contest winners started to send money orders, the appellant purchased ten watches for $9.99 each and four "ghetto blaster" radios for $64.87 each, for a total for $413.40 CDN. On instructions from Dube, the appellant sent between four and six of these prizes to the contest winners.

[13] It was the appellant's testimony that he believed that Dube's telemarketing operation was legal. He pointed out that had he believed it was illegal, he would not have opened the business bank account or mailbox in his own name. Although he knew that there was no motor vehicle or $25,000 cash available for prizes, he understood that the fund that had been set aside for prizes would grow and that when there were 1400 prize winners a cash prize and a car would be awarded. He said that he was neither reckless, nor wilfully blind, to the true nature of Dube's activities.

III

[14] Although the language of the first count in the indictment suggests that the appellant and Stoangi were charged with participation in a joint enterprise to commit telemarketing fraud, the trial progressed on the basis that under s. 21(1) (b) of the Criminal Code the appellant was a party to telemarketing fraud engaged in by Dube. To that end, the Crown's position was that the appellant assisted Dube to commit fraud by opening a bank account, obtaining a mailbox, collecting the mail, depositing the money orders in the bank account, purchasing merchandise and distributing prizes, and that he did all of these things at Dube's request.

[15] In instructing the jury on the first count, the trial judge explained that the position of the Crown was that Dube was the principal offender and that he was aided or abetted by the appellant in committing the offence of defrauding the public. He then outlined the elements of this count that the Crown was required to prove:

1. First, the Crown must prove that Mark Dube committed the offence of defrauding members of the public of over $5,000.00.

2. Second, the Crown must prove that the accused whom you are then considering did something that actually aided or abetted Mr. Dube in committing the offence of defrauding the public.

3. Third, the Crown must prove that the accused whom you are then considering intended that his acts would aid or abet Mr. Dube in committing the offence of defrauding the public.

The trial judge then instructed the jury on each of these elements.

[16] With respect to the first element, the trial judge instructed the jury on the mens rea of fraud as applied to the principal offender, Dube. In doing so, he told the jury that Dube's knowledge that his conduct would adversely affect the economic interests of the targets could be proved by Dube's actual knowledge thereof, or by "being reckless of or wilfully blind to the facts, circumstances or consequences" relating to the conduct.

[17] The trial judge went on to amplify this instruction in this way:

To prove fraud the Crown must prove an intention to defraud. That involves proving:

1. That the accused acted intentionally with knowledge of the facts and circumstances that make this conduct dishonest in the eyes of reasonable persons, and

2. That the accused acted intentionally knowing that it would create prejudice or a risk of prejudice to the economic interests of members of the public.

The Crown will have proven knowledge on the part of the accused if it proves that the accused had actual knowledge, or that the accused were reckless of or wilfully blind to, the facts, circumstances and consequences which I have mentioned.

"Reckless" is found in the attitude of one who, being aware that there is a danger that his conduct could bring about the prohibited result nevertheless proceeds despite the risk. It is the conduct of one who sees the risk and takes the chance.

"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.

Provided that you are satisfied beyond a reasonable doubt that the accused acted intentionally, knowing, or being reckless of or wilfully blind to, the facts, circumstances and consequences which I have mentioned, the Crown will have proven an intent to defraud even if the accused personally believed that the conduct was not dishonest or did not know that reasonable people would see the conduct as dishonest [emphasis added].

[18] Moving to the second element, the trial judge focused on the conduct necessary to constitute party liability under s. 21(1)(b). Unfortunately, he did not read that section for the jury. Earlier in his charge he said: "The Criminal Code provides that someone who aids or abets a principal offender in committing an offence is a party to that offence." As the language of s. 21(1)(b) necessarily determines what the trial judge must tell the jury, I set it out at this time:

21.(1) Every one is a party to an offence who

(b) does or omits to do anything for the purpose of aiding any person to commit it; [emphasis added].

[19] He told the jury that the appellant could be a party "by aiding". He said:

The word "aiding" means to help or assist. The Crown must prove that the act of the [appellant] in fact helped or aided Mr. Dube in committing the offence of defrauding the public.

The trial judge went on, in summary, to tell the jury that to satisfy s. 21(1)(b) the Crown was required to prove beyond a reasonable doubt that the appellant "did something that actually aided … Mr. Dube in committing the offence of defrauding the public".

[20] The trial judge's instruction on the third element reads as follows:

The third element that the Crown must prove beyond a reasonable doubt is that the accused whom you are then considering intended to aid or abet Mr. Dube in committing the offence of defrauding the public. It is not enough that the accused's acts actually aided or abetted Mr. Dube. It must also be proven that the accused knew or intended that his acts would aid or abet Mr. Dube. If the accused knew that his acts were likely to assist or encourage Mr. Dube then you are entitled to conclude that such accused intended to aid and abet Mr. Dube in committing that offence. A mere suspicion on the part of an accused that Mr. Dube might rely upon such accused's acts in committing an offence is not sufficient to prove an intent to aid and abet. On the other hand, the Crown does not have to prove that the accused knew the precise details of the offence that Mr. Dube would commit. It is sufficient if he had knowledge of the type of offence that Mr. Dube would commit [emphasis added].

[21] After instructing the jury that it would have no difficulty in finding that the Crown had proved that Dube had defrauded the public, that being the first element of the offence, the trial judge reviewed the Crown's position on the second and third elements. In doing so, he stated:

The Crown relies on the evidence of Mr. Dube that there was never any intention of awarding a car or cash as a prize. Mr. Dube said that the idea was to induce victims to part with substantial amounts of cash in exchange for cheap radios and watches. It is the position of the Crown that these Affidavits were a mere sham, no more than an attempt to put a façade of legality on the scheme that everyone knew was fraudulent.

The position of the Crown is that Mr. Roach assisted Mr. Dube in this scheme by obtaining the mailbox, collecting the mail and being the banker. The Crown position is that the only reasonable inference is that Mr. Roach intended to assist Mr. Dube in his activity, knowing that it was fraudulent or being reckless or wilfully blind as to its legality.

In support of its position that Mr. Roach knew this enterprise was fraudulent, or that he was reckless or wilfully blind to that issue, the Crown relies on the evidence of Mr. Roach who said that he made no inquires into Mr. Dube's background, although over the course of one and a half months he passed on to Mr. Dube as much as $20,000.00. Mr. Roach told us that he did not make inquiries about what the telemarketers were saying on the phone. When he saw the demonstration pitch conducted by Mr. Dube, Mr. Dube used a false name. He did not make inquiries about the legality of the pitch that stated that the winner had won two of four prizes when the two valuable prizes did not exist. Mr. Roach knew that there was no ability to pay the big prizes at the outset and, the Crown contends, must have realized that there might never be given that almost all of the money was being distributed as it came in. The Crown also points to the fact that he carried on with the enterprise even though all of the envelopes were addressed to Jason Leduc or Walter Stevens, people he had never met and who were not originally listed to receive mail at box 1218.

It is the position of the Crown that Mr. Roach was reckless or wilfully blind if he did, indeed, accept Mr. Dube's assurances that there was no problem and he would take care of the vacation package that was claimed in one of the Affidavits of Winnings. Moreover, Mr. Roach didn't question what was going on when a cheque for over $9,000.00 came in and a $10.00 watch and a $60.00 radio were sent out in response. He also said that the watches were not even purchased until one month after he went into business [emphasis added].

[22] Thereafter, the trial judge turned to the appellant's position. He began in this way:

The position of [the appellant] is that he did not know that Mr. Dube and the telemarketers were engaging in fraudulent telephone pitches and that he was not reckless nor wilfully blind [emphasis added].

The trial judge then referred in some detail to the appellant's testimony, and other evidence, supporting the appellant's position.

[23] The trial judge then turned to the second count in the indictment that charged the appellant and Stoangi with conspiring with Dube to commit fraud. He gave what I would describe as a very sparse conspiracy instruction which culminated in this way:

You must treat each accused separately when you decide whether the Crown has established membership in the conspiracy charged. The burden of proof rests upon the Crown to prove the guilt of each accused beyond a reasonable doubt. To do so it must satisfy you beyond a reasonable doubt of the following:

1. that a conspiracy existed,

2. that the conspiracy was to commit fraud, as previously explained,

3. that the particular accused was a member of the conspiracy, and

4. that such accused intended to be a member of it.

[24] The trial judge concluded his instructions on count two as follows:

The position of the Crown is that these two men, in conjunction with Mr. Dube, devised and operated a scheme to defraud members of the public in the United States. The scheme involved the representation by persons on behalf of Upper Lakes Distribution that the targeted individuals in the United States had won valuable prizes for which they were required to send money before taking delivery. The money was to be sent to Upper Lakes at the address 111 Dunlop Street East. Although it was merely a post box, the alleged scheme held out that Upper Lakes had an office or suite at number 1218.

The Crown relies on all of those matters which I identified as supporting its position on count one. I will not repeat what I said there. It is the position of the Crown that those matters which I identified as supporting count one are equally supportive of this count as well.

The position of Mr. Roach is that there was no agreement to commit fraud. He has told us that he relied on the representations of Mr. Dube that the enterprise was legal. It is his position that he did not know facts and circumstances that would make this conduct dishonest in the eyes of reasonable persons. His position is that he was neither reckless nor wilfully blind to such facts and circumstances. Likewise, his position is that he did not act knowing that it would create a risk of prejudice to the economic interests of members of the public, nor being reckless or wilfully blind as to this issue [emphasis added].

[25] During their second day of deliberations the members of the jury had two questions respecting count two. These are the two questions and the trial judge's responses:

So the first question is:

"Does reckless or wilful blindness pertain to count two?"

The answer is "YES".

Number two:

"At what point in the alleged scheme do we determine intent to conspire, only at the beginning or later during the alleged scheme?

You must consider whether at any time during the existence of this alleged scheme, either Mr. Roach or Mr. Stoangi agreed with the other or, Mr. Dube, to commit the offence of defrauding the public.

IV

[26] My discussion will focus on the first count in the indictment. As this is a case of aiding, in conformity with s. 21(1)(b) of the Code, to convict the appellant of telemarketing fraud the Crown was required to prove that he did something "for the purpose of aiding" Dube "to commit" that crime. There is no doubt that the appellant's registration of a business, opening a business bank account, rental of a mailbox, banking of the money sent by the contest "winners", and buying and sending inexpensive prizes - all at the request and direction of Dube - enabled Dube to commit telemarketing fraud. The appellant provided a lengthy, innocent explanation for what he did at Dube's behest. Based on what Dube told him, he believed that Dube's telemarketing operation was legal.

[27] The appellant's state of mind is the sole determinant of whether his conduct was criminal. Criminal liability should attach only to acts intended to further crime. This raises the questions, when the appellant followed Dube's instructions, whether he did so having the knowledge that Dube was engaged in a dishonest scheme and, if so, for the purpose of aiding Dube in the commission of the scheme. However, if the appellant genuinely did not know that Dube was engaged in crime, or the jury was left with a reasonable doubt as to his state of mind, it would be wrong to convict him of a serious crime. The appellant might fairly be accused of stupidity or lack of imagination. However, neither failing should expose him to conviction of a serious crime or the risk of punishment. In my view, the appellant's state of mind takes on added significance given his innocent explanation.

[28] As Martin J.A. stated on behalf of this court in R. v. Buzzanga and Durocher (1979), 49 C.C.C. (2d) 369 at 381 (Ont. C.A.): "The general mens rea which is required and which suffices for most crimes where no mental element is mentioned in the definition of the crime, is either the intentional or reckless bringing about of the result which the law, in creating the offence, seeks to prevent …" In R. v. Sault Ste. Marie (City) (1978), 40 C.C.C. (2d) 353 at 357 (S.C.C.) Dickson J. said: "The doctrine of the guilty mind expressed in terms of intention or recklessness, but not in negligence, is at the foundation of the law of crimes." It follows that the trial judge, as set out in para. 16, correctly instructed the jury on the mens rea of fraud as committed by the principal offender, Dube, which constituted the first element of the offence on which the appellant was tried.

[29] However, while the authorities are limited and conflicting with regard to the mens rea for party liability for fraud, it is my view that the authorities together with the opinions of legal scholars support the conclusion that recklessness does not satisfy the mens rea of such liability. This is because s. 21(1)(b) refers to the mental element required for liability for one who provides aid to another in the commission of a crime. The section refers to one who "does or omits to do anything for the purpose of aiding another to commit" an offence. Purpose is synonymous with intent and does not include recklessness: R. v. Hibbert, [1995] 2 S.C.R. 973.

[30] As I read the trial judge's instruction on the mens rea of party liability set out in para. 19, he was correct in saying that the Crown was required to prove that the appellant "knew or intended that his acts would aid … Mr. Dube". However, the trial judge failed to explain what was required to prove the appellant's knowledge that his acts were intended to aid Dube in committing the fraud. It was only when the trial judge turned to a review of the Crown's position that he provided the jury with any assistance in this regard. In doing so, he told the jury that it was the Crown's position that the appellant intended to "assist Dube in his activity, knowing that it was fraudulent or being reckless or wilfully blind as to its legality". Indeed, he repeated this a number of times. From the questions asked by the jury with respect to count two, it is readily inferred that they understood that recklessness was capable of constituting the mens rea of the count one offence.

[31] In my view, it was the trial judge's failure to clearly address the mens rea of party liability and his repeated reference to the Crown's position that recklessness constitutes the mens rea of party liability under s. 21(1)(b) that left the jury with an incorrect understanding of the mens rea of party liability. In the circumstances, it was incumbent on the trial judge to instruct the jury that the Crown's position was incorrect and that it should be ignored by the jury.

[32] Two decisions of this court indicate that only actual knowledge or wilful blindness will suffice for party liability under s. 21(1)(b). In R. v. F. W. Woolworth Co. Ltd. (1974), 18 C.C.C. (2d) 23 at 34 (Ont. C.A.), Kelly J.A. explained that even where the crime assisted is an offence of strict liability, the aider must have actual knowledge or deliberate ignorance (wilful blindness), which is the equivalent of actual knowledge. This would seem to exclude recklessness. In R. v. McDaid (1974), 19 C.C.C. (2d) 572 (Ont. C.A.), the defendant was acquitted of party liability for unlawfully keeping liquor for sale where he was not aware, or wilfully blind, that it was being sold. See, also, R. v. Dunlop (1979), 47 C.C.C. (2d) 93 (S.C.C.) per Dickson J. at 111.

[33] There appears to be consensus among legal scholars that recklessness does not satisfy the mens rea of party liability under s. 21(1)(b). Moreover, neither David Watt, Ontario Specimen Jury Instructions (Criminal) (Toronto: Carswell, 2003) nor G. A. Ferguson and J.C. Bouck, Canadian Criminal Jury Instructions (Vancouver: Continuing Legal Education, 2002)(looseleaf), in their specimen jury charges based on s. 21(1)(b), include recklessness as a means of satisfying the mens rea of party liability.

[34] I have found the analysis of Kent Roach on this subject in Criminal Law, 2d ed. (Toronto: Irwin Law Inc., 2000) to be persuasive. Professor Roach states that recklessness is insufficient to satisfy party liability. At pp. 113-114 he explains the mens rea for aiding and abetting as follows:

To be convicted as an aider or abettor, the accused, must not only assist the principal, but intend to assist the principal….It is not necessary that the aider or abettor know all the details of the crime committed; it is sufficient that he or she was 'aware of the type of crime to be committed' and 'knew the circumstances necessary to constitute the offence he is accused of aiding'.

[35] When discussing the degrees of subjective mens rea, Professor Roach writes at p. 136:

There are important practical differences between the various forms of subjective mens rea. A person who might not be guilty of acting with the purpose or intent to commit a crime might, nevertheless, have acted with subjective knowledge that the prohibited result would occur. Similarly, a person who cannot be said to have acted with subjective knowledge that the prohibited result would occur may, nevertheless, have acted with subjective recklessness in adverting to or being conscious of a risk that the prohibited result would occur or the prohibited circumstances were present. Such a person could also be wilfully blind by not inquiring into the prohibited risk, when he or she knows there is need for further inquiry. References to "subjective mens rea" are unhelpful, and the exact degree of subjective fault must be specified [emphasis added.]

[36] At p. 136, Professor Roach provides a cogent explanation of the distinction between different levels of subjective mens rea and why party liability requires the highest level of subjective mens rea:

The highest level of subjective mens rea is that which requires the accused to act with the intent or purpose to achieve the prohibited result, or to wilfully pursue such a result. An example would be section 229(a)(i) [of the Criminal Code] which prohibits murder where the accused "means to cause…death." This high level of mens rea is used relatively infrequently. Common law presumptions and even constitutional requirements of subjective mens rea that do not require proof of intent are satisfied by lower forms of mens rea such as knowledge and even recklessness. Where Parliament has specifically used the words "with intent" this will generally exclude lower forms of subjective mens rea such as recklessness.

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) [of the Code] 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) [of the Code] requires the information 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 [emphasis added].

As recklessness is a lower form of mens rea than intent, purpose, wilfulness or knowledge, and although it is a common form of subjective mens rea, it does not satisfy the highest level of subjective mens rea required for party liability.

[37] A similar rationale for excluding recklessness as a basis for party liability in the United States can be found in Wayne R. LaFave, Substantive Criminal Law, 2d ed. (St. Paul, MN: Thomson West, 2003) at pp. 351-355. It is important to note, however, as Professor LaFave observes, that there is considerable confusion in American Law as to what the accomplice's mental state must be to hold him or her accountable for an offence committed by another. At p. 344, Professor La Fave observes:

Generally, it may be said that accomplice liability exists when the accomplice encourages or assists, in the sense that his purpose is to encourage or assist another in the commission of a crime as to which the accomplice has the requisite mental state [emphasis added].

This general statement of American law is reflective of the language of s. 21(1)(b) of the Code and entitles the defendant to a jury instruction that he or she should be convicted only if he or she intentionally aided, abetted, helped and assisted the principle.

[38] At p. 346, Professor LaFave provides a hypothetical situation, similar to the facts of this case, where the accessory would not be guilty as an aider of the principal's crime. He posits a situation where the defendant is encouraged by the principal to aid him to break into a person's home by misleading the defendant into believing that he had the owner's permission to enter his home. Professor LaFave states that on these facts the defendant would not be guilty of breaking and entering because he was unaware that he was aiding criminal conduct. In this case, on the basis of the appellant's evidence, it can be said that Dube misled the appellant to believe that Dube's telemarketing operation was legal. In this regard, although not raised by the appellant, it would have been preferable had the trial judge provided the jury with a more comprehensive instruction as required by R. v. W.(D.), [1991] 1 S.C.R. 742, and that the instruction not be given at the end of his instructions, but in the context with his review of the appellant's evidence and the appellant's defence that he believed that Dube was not engaged in the commission of fraud.

[39] Almost twenty years ago, in a seminal article, Professor I. H. Dennis analyzed the British case law on the subject of accessorial liability: I. H. Dennis, The Mental Element for Accessories, in Peter Smith, ed. Essays in Honour of J. C. Smith (London: Butterworths, 1987). Based on his analysis of the mental element for accessories he found that the law was "complex and difficult to state with confidence." However, he concluded at p. 48:

It is sufficient for this element of the intention to aid and abet that at the time of rendering assistance or encouragement to the principal, the putative accessory either:

(i) knows (because he has been so informed) that the principal is intending or contemplating the commission of the acts constituting the offence in fact committed; or

(ii) is aware (because he has inferred it from the circumstantial evidence) that the principal may be intending or contemplating the commission of the acts constituting the offence in fact committed.

He went on to say that knowledge could also be demonstrated by the accessory's wilful blindness.

[40] However, throughout his article Professor Dennis expressed serious doubt that the required mental element could be satisfied by recklessness. His reasoning was similar to that of Professor Roach. In discussing whether an accessory's culpability should be based on something less than knowledge, at pp. 41-42 he stated:

But this point must remain controversial for as long as the accessory is made liable for the offence committed by the principal. The convicted accessory is liable to the same stigma and penalties as the principal despite the fact that he is not the direct cause of the occurrence of the offence. If the justifying theory for this position is that there is an equivalence of culpability between principal and accessory, and if the function of a mens rea requirement is to ensure that stigma and the punishment are applied only to those who deserve them, then it would appear that an accessory should have at least an equivalent blameworthy state of mind to the principal before he can be convicted. Indeed it is arguable that his mental state should be more blameworthy. His causal connection with the offence is less direct and may well appear immaterial. Thus it may not be possible to say with confidence that he brought about or contributed to a prohibited harm in the same way as a principal. Reduced culpability in this respect would then suggest greater culpability in respect of the mental element before the claim for equivalent treatment can be convincingly made out [emphasis added].

I would note that in Canada a convicted accessory is also liable to the same penalties as the principal.

[41] In a more recent British treatise, the view is expressed that "[m]ere recklessness, still less negligence, whether assistance be given, is probably not enough" to establish the mens rea requirement of accessorial liability: Sir John Smith, Smith & Hogan Criminal Law, 10th ed. (Markham, Ontario: Lexis Nexis Butterworths, 2002) at 153.

[42] I would also note that Eric Colvin, Principles of Criminal Law, 2d ed. (Scarborough: Carswell, 1991) at 120 shares Professor Roach's view of the mens rea of party liability:

Another area in which mens rea requirements are commonly restricted is the law of secondary liability. Under the Criminal Code, the liability of an accomplice or accessory is sometimes made dependent upon proof of purpose to assist the principal. In other instances where the Code is silent on the question of mens rea, the courts have tended to speak in terms of intention being required. This approach is in line with that traditionally taken in England. The High Court of Australia has now openly declared that intention but not recklessness is to be the mental element implied by secondary liability. There has been little discussion of why a restrictive approach should be taken to the mens rea for secondary liability. The rationale, however, may be that extensions of liability to persons more remotely connected with the causation of harm should be balanced by narrowing of the mens rea requirement [emphasis added].

[43] Helpful, as well, are two recent cases that consider the mens rea of a related type of criminal conduct, counselling a criminal offence not committed, found in s. 464 of the Code. The Alberta Court of Appeal rejected recklessness as a basis for the mental element of the offence: R. v. Hamilton (2003), 2003 ABCA 255, 178 C.C.C. (3d) 434 (Alta. C.A.), leave to appeal to S.C.C. granted [2003] S.C.C.A. No. 471. In doing so, the court followed the following view of Moldaver J.A., also considering the mens rea of counselling, in R. v. Janeteas (2003), 172 C.C.C. (3d) 97 at para. 28 (Ont. C.A.):

Various reasons are cited for rejecting recklessness as the standard. Chief among them is ensuring that criminal liability does not attach to instances of counselling that may be casual or accidental. The Great Britain Law Reform Commission expresses this concern as follows "…there should be no danger of conduct that merely happens to fortify P in his criminal inclinations, without that being D's intention or purpose…"(p. 129). A second rationale for rejecting the mental element of recklessness recognizes that this lowered standard may catch some legitimate undercover crime investigation techniques that involve encouragement of crime, with no intention that the crime counselled actually be carried out. (LaFave and Scott, Substantive Criminal Law at Ch. 6 §6.11, p. 14; Glanville Williams, Textbook of Criminal Law, 1st ed. (London: Steven & Sons, 1978 at p. 386).

[44] In summary, the mens rea for party liability is contained in s. 21(1) (b) of the Criminal Code that requires that the aid given by the accessory to the principal be "for the purpose of aiding" the principal to commit the crime of which the accessory has been charged. To be convicted as an aider, the defendant must not only assist the principal in the commission of the offence, but must intend to do so, although it is not necessary that the aider know all the details of the crime committed. It is sufficient that the aider was aware of the type of crime to be committed and knew the circumstances necessary to constitute the crime that he or she is accused of aiding. On the basis of Woolworth and McDaid knowledge will include actual knowledge or wilful blindness, but will not include recklessness. This accords with Professor Roach's approach regarding the high level of mens rea required for party liability and with the opinions of the other legal scholars that I have reviewed.

[45] With respect to the crime of aiding Dube to commit fraud, on the application of s. 21(1)(b), the appellant was entitled to a clear instruction in conformity with this analysis. Although the trial judge's instructions on s. 21(1)(b) were generally correct, as I have explained, his failure to instruct the jury on the proof of the appellant's knowledge and intention that he was aiding Dube to commit a crime coupled with his failure to correct the Crown's erroneous position that recklessness satisfies the mens rea of s. 21(1)(b) led the jury to believe that it did. Therefore, the appellant is entitled to a new trial on count one. In addition, because the appellant had provided an innocent explanation for his involvement in the fraudulent telemarketing scheme, and the possibility existed that Dube may have misled him to believe that it was legal, a better W.(D.) instruction more meaningfully situated in the trial judge's instruction would have been preferable. However, this in itself would not have warranted ordering a new trial.

V

[46] As for the instruction on the conspiracy count, I have earlier expressed my concern about the adequacy of this perfunctory instruction. As there is to be a new trial on count one, it is unnecessary to comment extensively on the trial judge's instruction on count two. As I understand the instruction, by telling the jury that it should apply his instruction on count one to count two, the trial judge could have been understood as saying that recklessness would satisfy the mens rea of the substantive offence of conspiracy to commit a criminal act. He made it clear that recklessness would satisfy the mens rea in his answers to the jury's questions that are reproduced in paragraph 25.

[47] In my view, the trial judge erred by leaving to the jury recklessness as a basis for liability for the offence of conspiracy to commit fraud. In R. v. Lessard (1982), 10 C.C.C. (3d) 61 at 86 (Que. C.A.) it was held that the crime of conspiracy cannot be committed by mere recklessness as to the object of the agreement. Lessard was applied in United States of America v. Tavormina (1996), 112 C.C.C. (3d) 563 at 568 (Que. C.A.) and R. v. Lamontagne (1999), 142 C.C.C. (3d) 561 at 576 (Que. C.A.). Consequently, the appellant is also entitled to a new trial on count two.

[48] Considering that there is to be a new trial, I have an additional observation that may be of assistance to the trial judge at the new trial. On the evidence, if there was a conspiracy to commit telemarketing fraud, the co-conspirators could only have been the appellant, Roach, and Dube. Stoangi was acquitted of conspiracy, no doubt because there was no evidence that he was a co-conspirator. If Dube was a member of the conspiracy, Dube could not also be the principal party for the purpose of count one. In addition, the appellant could not at the same time conspire with Dube to commit telemarketing fraud and aid Dube, in Dube's capacity as the principal party, to commit the fraud. Consequently, the jury should be told that if they find the appellant guilty of conspiracy to commit telemarketing fraud, there is no need to consider the other count in which he is charged with aiding Dube in the commission of the same fraud.

VI

[49] For the foregoing reasons, I would allow the appeal, set aside the convictions and order that there be a new trial.

RELEASED: June 3, 2004 ("KMW")

"S. Borins J.A." "I agree K. M. Weiler J.A." "I agree Janet M. Simmons J.A."