Appeal courts may not limit scope of new trial to particular theory, says SCC
Appellate courts cannot limit the scope of a new trial to a particular theory of liability on a single criminal charge, the Supreme Court of Canada ruled on Friday in a decision that will have broad implications for new trials.
In R. v. Cowan, a majority of the Supreme Court found that a trial judge had made an error in law in assessing an accused’s liability as a party to the offence – in this case, armed robbery of a sandwich shop.
It was a warm summer day in Regina when a masked robber, with an accomplice, held up a Subway restaurant in 2016. The accused, Jason William Cowan, denied involvement in the robbery but admitted he had told a group of people, including two friends — how to commit the robbery. At trial, the Crown advanced two theories about the robbery: first, that the accused was the masked armed robber and was therefore guilty as a principal offender; and second, that even if he was not the masked man he was a guilty party in that he had either helped commit the crime or had advised others on how to do it.
For the purposes of determining criminal liability, the Criminal Code does not distinguish between principal offenders and parties to an offence.
The trial judge found that the Crown had to first prove who had committed the robbery before finding Cowan guilty of helping or advising others on how to commit the crime. Finding the evidence fell short to prove either theory, the judge acquitted Cowan.
The Saskatchewan Court of Appeal ordered a new trial to determine whether Cowan was guilty of robbery, as a party, on the basis of abetting or counselling. It dismissed the Crown’s arguments under the principal theory.
But in Friday’s Supreme Court judgment, a majority of the seven-judge panel found that the accused should be sent back to trial on both theories of liability: principal and party.
“The majority of the Supreme Court seems to be saying here that it wasn't final, a retrial is not a separate proceeding, and it starts with a blank slate -- you can't restrict it when you're facing one charge like armed robbery with maybe two theories of liability,” says Thomas Hynes, an associate at Gerrand Rath Johnson LLP in Regina who represented the appellant Cowan. “Both of those theories have to go back” to trial.
Writing for the majority, Justice Michael Moldaver agreed with Saskatchewan’s appellate court ruling that the trial judge had committed an error of law in his analysis of party liability, which had a material bearing on the acquittal.
“The appropriate remedy is therefore to set aside the acquittal and order a new trial. However, in my respectful view, the new trial must be a full retrial,” he wrote, with Chief Justice Richard Wagner and Justices Suzanne Côté, Sheilah Martin and Nicholas Kasirer concurring.
“While appellate courts have broad powers under s. 686(8) of the Criminal Code to ‘make any order, in addition, that justice requires,’ this does not include the power to limit the scope of a new trial to a particular theory of liability on a single criminal charge. …
“As one of the purposes of the criminal process is to foster a search for truth, justice cannot require that a trier of fact be restricted in their ability to determine how, if at all, an accused participated in a given offence, Justice Moldaver wrote for the majority. “Rather, a trier of fact must be able to consider any and all theories of liability that have an air of reality based on the evidence adduced at the new trial.”
Party liability
The majority of the Court of Appeal for Saskatchewan was satisfied that the trial judge made a legal error in the application of s. 21(1)(c) and s. 22(1) of the Criminal Code, R.S.C. 1985, c. C-46, by restricting himself to consideration of whether the Crown had proven that the accused abetted or counselled the principal offender(s). That error, it found, led the trial judge to overlook relevant and probative evidence that strongly supported a finding of guilt. It set aside the acquittal and ordered a new trial.
The majority of the Supreme Court of Canada agreed.
“In my respectful view, the trial judge erred in law in assessing Mr. Cowan’s liability as a party for having abetted or counselled the commission of the offence,” Justice Moldaver wrote. “Specifically, … by reasoning that the Crown was required to prove that [the accused’s friends] Mr. Tone and Littleman were the principals in the commission of the armed robbery as a prerequisite to establishing Mr. Cowan’s guilt as a party, the trial judge misdirected himself on the law and, as a result, failed to correctly assess the relevant evidence. …
“Applying these principles to the case at hand, it is clear that to establish Mr. Cowan’s guilt as a party on the basis of abetting or counselling, the Crown was not required to prove the identity of Mr. Tone and Littleman as the principal offenders or the precise role played by them in the commission of the offence. 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.”
Justice Georgina Jackson of Saskatchewan’s appellate court would have dismissed the Crown’s appeal in its entirety. She agreed that the Crown had not discharged its burden to justify a new trial on the basis that the trial judge made an error of law when he concluded Cowan had not personally committed the offence of robbery. However, she also concluded that the judge did not err by limiting himself to considering two named individuals only – the masked robber and his accomplice inside the sandwich shop -- as being principals only to the offence, as he was responding to the evidence and submissions.
Cowan appealed the Saskatchewan appellate court decision as of right to the Supreme Court from the setting aside of his acquittal, and the Crown appealed with leave from the order of the Court of Appeal limiting the scope of the new trial.
In Friday’s judgment from the Supreme Court, Justice Malcolm Rowe was largely in agreement with Justice Jackson and the trial judge, and would have allowed the appeal.
“Contrary to the position of the majority, there is no rule that a charge as a whole must be retried if a new trial is ordered on a count alleging an offence which may be committed in different ways,” Justice Rowe wrote, with Justice Russell Brown concurring. “Rather, whether or not a full new trial should be ordered depends on the degree to which counts, and modes of committing offences charged as a single count, are ‘interconnected.’
“Even if an offence can be committed in several different ways,” he wrote, “if it is clear, as in this case, that it cannot be proven that it was committed in one of those ways, there is no reason why an appellate court should not be able to limit the issues on new trial.”
The appellant’s counsel had argued that issue estoppel should apply – a doctrine which precludes the re-litigation of issues previously decided in court in another proceeding.
“The issue of the accused being the principal robber was conclusively decided in his favour by reason of his acquittal,” says Hynes. “So should he be going back to a new trial where that issue gets relitigated? Courts typically want consistent results and finality.”
The dissenting justices addressed the application of issue estoppel to criminal proceedings such as this, says Hynes. “The Crown prosecutors are running two theories; if one of them is unsuccessful, that seems to be pretty conclusive, [the court has] decided against them as an issue. So how [the Crown is] able to resurrect that at a new trial, we were arguing, seems to be unfair, because he's been acquitted,” he says, noting that the court of appeal didn’t interfere with the acquittal on the principal issue.
“It's the type of decision that can play out fairly regularly in appeal courts, where the Crown is advancing multiple theories of liability and doesn't make them out,” he adds. “This case is effectively saying the Crown's entitled to bring all those theories, again, at a new trial, even if some of the theories are not decided in their favour.”
“This case raised a number of issues relating to party-liability theories that may be advanced at a trial,” Pouria Tabrizi-Reardigan of the Ministry of Justice and Attorney General of Saskatchewan, who acted for the respondent Crown, said in an email to Canadian Lawyer. “The Supreme Court has clarified the law which will be of great assistance in this as well as future trials.”
