Robbery, Abetting, Actus Reus, and R. v. Cowan - Booker Zhang
It is common sense that people who abet others in committing a crime may also be criminally liable. For example, your friend Tom comes to you for suggestions because Jerry ate his ice cream. You then hand a pistol over to Tom and tell him to shoot Jerry in the face. Tom follows your instruction and murders poor Jerry. As a result, you would not likely escape from the criminal liability of the murder. The legal principle is that a person can also become a party to a criminal offence by “aiding and/or abetting another person to actually commit it.” To obtain a conviction of abetting in Canada, the Crown must prove the presence of both the actus reus and the mens rea. In plain language, the actus reus suggests “a guilty act,” while the mens rea indicates “a guilty mind.” This blog will focus on a recently decided case, R. v. Cowan, and explain why the decision might be imprudent through the actus reus analysis.
R. v. Cowan Case
The story began at a Subway fast-food restaurant in Regina, Saskatchewan, on July 7, 2016. Two men walked in with weapons and announced the robbery. One masked man brandished a knife while the other stood watch at the front door. They managed to take $400 from the cash register and escaped without being caught. Fortunately, the security camera recorded the whole incident. Six days later, the Regina Police Service received a tip suggesting that Jason Cowan was involved in the robbery. Cowan then admitted that he instructed some men on how to commit the robbery at his friend’s house. He also identified the two robbers from the security video as Matthew Tone and Littleman (a nickname—his legal name was unknown), who had been present at that house.
According to the facts, Cowan would likely be guilty of abetting, as he either breached section 21(1)(c) of the Criminal Code (the “Code”) as an abetter or violated section 22(1) of the Code as a counsellor. However, the trial judge acquitted Cowan because the Crown failed to prove that Tone and Littleman were the principal offenders. The Crown appealed, and the Saskatchewan Court of Appeal reversed the decision and claimed that the trial judge “made a legal error.” Cowan then appealed to the Federal Court, and the Supreme Court of Canada dismissed his appeal on November 5, 2021. The principle implied is that the Crown only needed to prove that any individuals encouraged by Cowan participated in the robbery either as principal offenders or as parties.
The final ratio applied in R. v. Cowan seems to make good sense in a practical legal setting, but there are more details to dig into in this case. One interesting fact is that Tone was arrested after the incident, but was eventually released with no charges laid. There was insufficient evidence connecting him to the robbery. On the other hand, Littleman completely vanished, and nobody knew his real identity; that is to say, the Crown could not convict both potential principals. The Crown’s failure to obtain a conviction would play a vital role in the following actus reus analysis.
The Actus Reus Analysis for R. v. Cowan
To convict Cowan based on section 21(1)(c) of the Code, the Crown had to prove that “the accused person actively encouraged the person who actually committed the offence” in order to satisfy the actus reus. The Supreme Court of Canada concluded that all the Crown needed was to find that Cowan encouraged at least one of the individuals who participated in the robbery. Looking at the facts of the case, there is no dispute that Cowan actively encouraged some of his friends to commit the robbery. The question is whether any persons who received Cowan’s instruction actually robbed the Subway restaurant; the only evidence available was Cowan’s statement. The Supreme Court of Canada considered other possible suspects other than Tone and Littleman and agreed with the Saskatchewan Court of Appeal’s decision that the trial judge overlooked relevant and probative evidence that strongly supported a finding of guilt. This conclusion was based on Cowan’s statement that two other individuals—Dustin Fiddler and Bradley Robinson—were also present when Cowan gave his robbery instructions and participated as drivers. Although Fiddler and Robinson were not principals of the offence, the Court believed that their participation as parties provided enough evidence that Cowan possessed the required actus reus of abetting the crime.
Nevertheless, neither Fiddler nor Robinson were convicted. Besides Cowan’s statement and some unreliable rumours, there was no other evidence suggesting that Fiddler or Robinson played any role in the robbery. Such a result is no surprise, considering what Justice Jackson of the Saskatchewan Court of Appeal wrote in her dissenting opinion:
If Mr. Cowan’s statement was not sufficient to permit the trial judge to draw the inference that Mr. Tone or Littleman were principals, it would not have supported the less obvious inferences that they played a different role in the offence or that anyone else was a party.
Overall, all four suspects of the robbery (Tone, Littleman, Fiddler, and Robinson), either as a principal or a party, were not found guilty of the offence. In other words, the Crown failed to convict any individual as the actual robber, which was the fundamental requirement to fulfill the actus reus to convict Cowan. Therefore, the question becomes: would it be reasonable to hold Cowan liable for abetting when the court could not convict actual offenders?
Could the Crown Convict Cowan for Abetting When the Actual Offenders’ Identities Are Unknown?
When there are difficulties identifying the actual offender, the Crown may still be able to affirm the actus reus and convict the abetter by filling in the gaps with strong evidence. One significant case referenced by the Supreme Court of Canada and the Saskatchewan Court of Appeal is R. v. Thatcher. In R. v. Thatcher, the Supreme Court of Canada convicted Mr. Thatcher of abetting to murder his ex-wife even though the identity of the actual murderer was unknown. The core principle taken from this case is that to convict an abetter, the Crown does not need to prove the identity of the actual offender and their specific roles. This is also the primary principle applied by both the Supreme Court of Canada and the Saskatchewan Court of Appeal to make their decisions regarding Cowan.
However, there are some fundamental factual differences between these two cases. In R. v. Thatcher, multiple facts and evidence provided substantial evidence to support the conviction: Thatcher supplied the vehicle to the killer; a group of witnesses testified that Thatcher had the motive to kill or hire someone else to do the actual shooting; the calibre and type of bullets were consistent with Thatcher’s .357 Ruger revolver; and a witness delivered said vehicle and gun to Thatcher. These facts formed firm ground for the judge to believe that Thatcher was guilty of abetting through contract murder. On the contrary, the only evidence source in the current case was Cowan’s statement. No reliable evidence from any third party was available.
Moreover, the trial judge discounted Cowan’s statement because Cowan may have had a motive to fabricate his statements; his statement given to the police had many inconsistencies and contradictions. These contextual factors suggested that Cowan’s statement might not be reliable. Additionally, the Crown could not verify if Cowan was telling the truth due to the failure to convict any potential robbery suspects. Therefore, unlike Thatcher, evidence from Cowan could not strongly support the argument that one of the suspects actually committed the robbery, leading to the lack of the actus reus.
It thus seems reasonable to conclude that the courts may have acted imprudently in setting aside Cowan’s acquittance. Apart from the issues discussed above, Justice Rowe of the Supreme Court of Canada also claimed that it would be unfair to relitigate the case. He suggested that maintaining Cowan’s acquittal would ensure the proper administration of justice and the integrity of the criminal process. However, this blog will not go deep into Justice Rowe’s argument since it would amount to another paper.
Overall, the Crown failed to prove the required actus reus to convict Cowan, and there was not enough reliable evidence to fill the gaps in establishing actus reus. Accordingly, Cowan’s acquittance should have been restored. However, the Supreme Court of Canada eventually dismissed Cowan’s appeal and ordered a full new trial. It may take months or years for the process, during which many things could happen during this period. For instance, if the police found Littleman and Littleman admitted to the offence, the entire dispute would be settled immediately. But for now, the end of Cowan’s story remains in suspense.
 Simon N Verdun-Jones, Criminal Law in Canada: Cases, Questions, and the Code, 7th ed (Toronto: Nelson Education, 2015) at 161.  “Criminal Law – Elements of A Crime: Mens Rea and Actus Reus” (last visited 18 March 2022), online: Law Library – American Law and Legal Information <law.jrank.org/pages/22506/Criminal-Law-Elements-Crime-Mens-Rea-Actus-Reus.html> [perma.cc/7DTH-QXHR].  R v Cowan, 2017 SKQB 382.  Criminal Code, RSC 1985, c C-46, s 21(1)(c), s 22(1).  R v Cowan, 2018 SKQB 75 at paras 48, 49.  R v Cowan, 2020 SKCA 77 at para 6.  R v Cowan, 2021 SCC 45 at para 74.  Ibid.  Criminal Code, supra note 4 at 48.  Verdun-Jones, Supra note 1 at 161.  Cowan, supra note 6 at para 44.  Elizabeth Raymer, “New trial ordered for Saskatchewan man accused of armed robbery” (5 November 2021), online: Canadian Lawyer <www.canadianlawyermag.com/practice-areas/litigation/new-trial-ordered-for-saskatchewan-man-accused-of-armed-robbery/361476> [perma.cc/DYZ7-6R7Y].  Cowan, supra note 5 at para 42.  Ibid at paras 87, 89.  Ibid at para 92.  R v Thatcher,  1 SCR 652 at para 63.  Cowan, supra note 6 at para 33.  Thatcher, supra note 16 at para 61.  Cowan, supra note 5 at para 47.  Harman Mann, “The Supreme Court of Canada’s Clarification of Abetting and Counselling in R v Cowan” (10 February 2022), online: the Court.ca <www.thecourt.ca/the-supreme-court-of-canadas-clarification-of-abetting-and-counselling-in-r-v-cowan> [perma.cc/UM34-MFZL].  Ibid.