Criminal Law
Cases
Dunlop and Sylvester v. The Queen
Supreme Court of Canada
May 31, 1979
BACKGROUND
Dunlop and Sylvester were convicted by a jury on a charge of rape, following a "gang
rape" of the complainant by members of a motor cycle gang. Dunlop and Sylvester's
subsequent appeal to the Manitoba Court of Appeal was dismissed and their conviction was
affirmed. Dunlop and Sylvester then appealed to the Supreme Court of Canada against the
judgment of the Court of Appeal.
MAIN ISSUES
Did the trial judge err when he instructed the members of the jury that they could find
that the accused were parties to the offence of rape on the basis of section 21 (1) of the
Criminal Code? Did the trial judge err when he instructed the jury that
they could convict the accused on the basis of "common intention", as defined by
section 21(2) of the Code?
JUDGMENTS
Six members of the Supreme Court (Chief Justice Laskin and Justices Dickson, Spence,
Estey, Pratte and Beetz) ruled that the judge had erred in placing section 21(2) before
the jury. Four members of this group (Chief Justice Laskin and Justices Dickson, Spence
and Estey) also held that the trial judge had been in error when he charged the jury in
relation to the application of section 21(1); the other two members of the majority
(Justices Pratte and Beetz) stated that it was unnecessary to decide this question since
the accused's appeal must, in any event, be allowed in light of the judge's error in
relation to section 21(2). Justice Martland (with whom two other members of the Court
agreed) dissented. The majority judgment of Justice Dickson (with whom Chief Justice
Laskin and Justices Spence and Estey agreed) is excerpted below. The concurring judgment
of Justice Pratte (with whom Justice Beetz agreed) and the dissenting judgment of
Justice Martland (with whom Justices Ritchie and Pigeon agreed) have been omitted.
DICKSON J.: -- The appellants were
twice tried and convicted on a charge of rape. The indictment alleges that on June 26,
1975, they did unlawfully have sexual intercourse with Brenda Ross without her consent.
They were sentenced to serve six years in penitentiary. In an appeal taken following the
second trial, the Manitoba Court of Appeal found error on the part of the trial judge, but
by a three to two majority sustained the conviction by applying s. 613(1)(b)(iii) of the Code
[37 C.C.C. (2d) 90]. It is from that judgment that the present appeal is taken.
The facts
A rather detailed
recital of the facts is essential to an understanding of the issues. In June, 1975, Brenda
Ross was 16 years of age. On the night of the alleged offence, accompanied by a friend,
Anne McGibney, she went to the Waldorf Hotel in the City of Winnipeg to listen to a band
and drink beer.
A number of members of a
motorcycle club known as the Spartans were present at the hotel. The two girls were joined
at their table by two members of the club, one Hawryluk and the appellant Dunlop, and by a
prospective member, one Douglas. During the evening the complainant consumed five or six
glasses of beer. At about 11:30 p.m. she, riding on the back of Douglas' motorcycle, and
Anne McGibney, riding on the back of Hawryluk's motorcycle, went briefly to the Balmoral
Hotel. Leaving there, they proceeded on the motorcycles to an isolated area, the site of a
former dump, located in Elmwood on the outskirts of Winnipeg. The Elmwood dump was
favoured as a rendezvous by motorcyclists because of the hillocks. After arrival,
the four sat on the grass and talked for about five minutes, following which McGibney and
Hawryluk went for a walk. The complainant and Douglas remained for three or four minutes,
then Douglas left to repair his bike, leaving the complainant alone.
Lonely, she arose and went
looking for McGibney and Hawryluk. At this moment, four men in black leather jackets
bearing the Spartan emblem arrived on motorcycles. They approached the complainant, picked
her up by the arms and legs, carried her to a nearby area bordering a creek and threw her
on the ground. By this time, quite a few other men, similarly dressed, arrived. The
complainant's clothes were torn from her, and each of the men, about 18 in number, had
intercourse with her while she was being held by two of the others. On direct examination
the complainant was asked whether she was able to recognize any of the men who had had
intercourse, to which she replied, "Yes, those two right there," looking at the
appellants Dunlop and Sylvester. The night was very dark, but the complainant explained
that after the men had laid her down a bonfire had been lighted, and she could see by the
light of the fire. At one point she was threatened with a knife. There are more unpleasant
details, but they need not be here recounted.
The following day the
complainant picked Dunlop from a police line-up as one of the men who had attacked her.
Sylvester was identified in a second line-up later the same day. Asked by Crown counsel
what it was about them that made it possible for her to recall the two men so clearly, the
complainant answered: "Well, not really that much, but I seen their faces as they
were getting on top of me." Later, she testified that she remembered very clearly the
two accused, and that she was positive in her identification. She conceded on
cross-examination that neither of the two accused was among the four men who first
approached her, nor had either of them pinned her arms or produced a knife. Her sole
testimony implicating the two accused was to the effect that each of them had performed
the physical act of intercourse with her during the course of the sexual attack. The case
for the Crown was put forward on that footing.
Each of the accused gave
evidence. Dunlop testified that he had attended a meeting of the Spartan Motorcycle Club
at the Elmwood dump early in the evening in question, at which time Douglas had been
introduced as a prospective member. Later, according to his evidence, Dunlop went to the
Waldorf Hotel, joined the two girls at a table for a while, and then played pool until he
left the hotel at about 1:00 a.m. He explained that Sylvester had been asked to bring beer
to the dump for a party. He, Dunlop, accompanied Sylvester, in the latter's car to the
Vibrations discotheque, where they remained about half-an-hour and then proceeded to the
dump, arriving at 2:15 a.m.. Upon arrival, he said, he and Sylvester "grabbed the
beer which was four cases,", walked over to the top of a knoll and set down the beer.
Douglas was there. He told Sylvester that everyone was angry over the delay in delivering
the beer. Dunlop walked to the other side of the knoll and noticed a few people down near
the creek bed about 25 yd. distant. Some of them displayed their ire at the delay in
fetching the beer by yelling at Dunlop and Sylvester. Dunlop saw a female having
intercourse; with whom, he could not say, but he believed the person to be a Spartan.
After three minutes he and Sylvester left. Dunlop denied having intercourse with Brenda
Ross, or in any way assisting anyone else to have intercourse with her. Sylvester's
evidence was to the same effect as that of Dunlop.
The issue for the jury was a simple one --
did the two accused have intercourse with Brenda Ross? She said that they had, and they
denied it. The issue was well formulated by the trial judge just before the conclusion of
his summing up, in these words:
If you accept the evidence
of Brenda Ross, and if after weighing all the evidence you come to the conclusion that you
are satisfied beyond a reasonable doubt that the two accused did have sexual intercourse
with Brenda Ross without her consent, then you may find them both guilty as charged.
If, on the other hand you
have a reasonable doubt that either one or both accused participated in this way, then you
must give that particular accused the benefit of that reasonable doubt and acquit the
accused on the charge.
That is all the case was
about. The Judge chose, however, to instruct the jury upon parties to an offence under s.
21 of the Code, and it is in this respect that the convictions are challenged.
The general effect of s. 21 is to make equally culpable (i) the person who actually
commits the offence; (ii) any person who aids or abets in committing the offence, and
(iii) persons who form an intention in common to carry out an unlawful purpose leading to
the commission of the offence.
Section 21(2) of the Criminal Code
The first ground of
appeal is that the trial Judge erred in charging the jury on s. 21(2) of the Code, common
intention, when there was no evidence that the appellants Dunlop and Sylvester had formed
any common intention with those involved in the gang rape to commit rape upon Brenda Ross.
It is common ground that the trial judge erred in this respect. Crown counsel concedes as
much. There was no evidence that the appellants participated in a plan or scheme to lure
the complainant to the dump as part of the initiation proceeding.
Section 21(1) of the Criminal Code
The second ground of
appeal was set out in the formal judgment of the Court of Appeal in this manner:
2. That the Learned Trial
Judge erred in charging the Jury with respect to Section 21(1) of the Criminal Code, as
there was insufficient evidence in law to make the Appellant ... a party to the
offence.
Mere presence at the scene of a crime is
not sufficient to ground culpability. Something more is needed: encouragement of the
principal offender; an act which facilitates the commission of the offence, such as
keeping watch or enticing the victim away, or an act which tends to prevent or hinder
interference with accomplishment of the criminal act, such as preventing the intended
victim from escaping or being ready to assist the prime culprit.
In this Court the question
of aiding and abetting was canvassed in Preston v. The King (1949), 93 C.C.C. 81,
[1949] S.C.R. 156, 7 C.R. 72. The appellant and another were accused of
having set fire to a school. Mr. Justice Estey delivered the majority judgment in this
Court, in the course of which he stated (p. 159) that in order to find the
appellant guilty of aiding, abetting, counselling or procuring, it was only necessary to
show that he understood what was taking place and by some act on his part encouraged or
assisted in the attainment thereof. Later he said (p. 160) that mere presence does
not constitute aiding and abetting, but presence under certain circumstances may itself be
evidence thereof. He proceeded to review the evidence and concluded, p. 85 C.C.C., p.
161 S.C.R.:
If appellant's explanation
was not believed by the jury there was evidence in addition to his mere presence upon
which they might well conclude that he was guilty of aiding, abetting, counselling or
procuring.
(Emphasis added.)
The case of R. v.
Salajko, [1970] 1 CX.C. 352, [1970] 1 O.R. 824, 9 C.R.N.S. 145 (Ont.
C.A.), is like the instant case in many respects. A girl was raped by 15 young men in a
lonely field. Three were charged. Two of these were identifled as having had intercourse
with the girl. She admitted, however, that the third accused, Salajko, though seen to be
near the girl with his pants down while she was being raped by others, did not have
intercourse with her. The Crown placed its case against him on s. 21(1)(b) and
(c) of the Criminal Code. One might be forgiven for thinking that it was
open to the jury to infer encouragement by conduct, but the Ontario Court of Appeal
thought otherwise. Chief Justice Gale, delivering the judgment of the Court, stated that
in the absence of evidence to suggest something in the way of aiding, or counselling, or
encouraging on the part of the accused with respect to that which was being done by the
others, there was simply no evidence upon which a jury could properly arrive at a verdict
of guilty against the particular accused. The learned Chief Justice also found error in
the trial Judge's charge which seemed to indicate that a person could abet another in the
commission of an offence if, knowingly, he stood by while the offence was being committed.
Finally, there are the
cases of R. v. Black, [197014 C.C.C. 251, lo C.R.N.S. 17, 72 W.W.R. 407, and
R. v. Clarkson, [1971] 3 All E.R. 344. The victim in Black's case was
conveyed to a clubhouse where he was subjected to various sordid indignities. Many of the
accused took an active part in torturing the victim while others stood around laughing and
yelling. The British Columbia Court of Appeal confirmed the convictions, being of the view
that the spectators furnished encouragement to the perpetrators of the outrages and their
mere presence in the circumstances of the case ensured against the escape of the victim.
There was thus something more than "mere presence."
In contrast to R. v.
Black is the case of R. v. Clarkson, a decision of the Court Martial Appeal
Court. A girl was raped in a room in a barracks in Germany by a number of soldiers.
Another group of soldiers clustered outside the door and later "piled in" to the
room. They remained there for a considerable time while the girl was raped. There was no
evidence that the appellants had done any physical act, or uttered any word which involved
direct physical participation or verbal encouragement. There was no evidence that they
touched the girl, or did anything to prevent others from assisting her or to prevent her
from escaping. The Appeal Court held that it was not enough that the presence of the
accused, in fact, gave encouragement. "It must be proved that the accused intended to
give encouragement; that he wilfully encouraged" (p. 347). There must
be, the Court held, an intention to encourage and encouragement in fact. The convictions
were quashed.
The case at bar
In the case at bar, I have
great difficulty in finding any evidence of anything more than mere presence and passive
acquiescence. Presence at the commission of an offence can be evidence of aiding and
abetting if accompanied by other factors, such as prior knowledge of the principal
offender's intention to commit the offence or attendance for the purpose of encouragment.
There was no evidence that while the crime was being committed either of the accused
rendered aid, assistance or encouragement to the rape of Brenda Ross. There was no
evidence of any positive act or omission to facilitate the unlawful purpose. One can infer
that the two accused knew that a party was to be held, and that their presence at the dump
was not accidental or in the nature of casual passers-by, but that is not sufficient. A
person cannnot properly be convicted of aiding or abetting in the commission of acts which
he does not know may be or are intended: per Viscount Dilhorne in Director of
Public Prosecutions for Northern Ireland v. Maxwell, [1978] 3 All E.R. 1140 at p. 1144
(H.L.). One must be able to infer that the accused had prior knowledge that an offence of
the type committed was planned, i.e., that their presence was with knowledge of the
intended rape. On this issue, the Crown elicited no evidence.
In these circumstances, in
my view, the trial Judge erred in charging the jury on the alternative bases of (i)
principal offender, and (ii) aider and abettor.
Question by the jury
The error,
unfortunately, was compounded when the jury, which had retired at 3:15 p.m., returned at
5:40 with the following question:
If the accused were aware
of a rape taking place in their presence and did nothing to prevent or persuade the
discontinuance of the act, are they considered as an accomplice to the act under law?
That question should have been answered in
one word -- "No".
A person is not guilty
merely because he is present at the scene of a crime and does nothing to prevent it. If
there is no evidence of encouragement by him, a man's presence at the scene of the crime
will not suffice to render him liable as aider and abettor. A person who, aware of a rape
taking place in his presence, looks on and does nothing is not, as a matter of law, an
accomplice. The classic case is the hardened urbanite who stands around in a subway
station when an individual is murdered.
The judge here initially
intended to respond to the jury's question with a "No" answer, but during
argument, he was persuaded to the point of view, advanced for the first time on behalf of
the Crown, that the accused might be guilty as parties to the offence under s. 21 of the Code.
I think with respect, that this
recharge is in error 21.
Conclusion
If the trial Judge was in error in charging
upon s. 21(2), which is admitted and, as I believe, in error in his recharge on s. 21(1),
what disposition is to be made of the case?
I would allow the appeals, set aside the
judgment of the Manitoba Court of Appeal, and direct a verdict of acquittal in respect of
each appellant.
Source: Adapted from
Dunlop and Sylvester v. The Queen (1979), 47 C.C.C. (3d), pp.100-114.
Copyright © 1979 Canada Law Book. Used with permission.
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