2011 QCCA 2012, 2011 QCCA 2012

Rochon c. R. 2011 QCCA 2012 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No.: 500-10-004238-083 (560-01-009814-063) DATE: October 26, 2011 CORAM: THE HONOURABLE NICOLE DUVAL HESLER, C.J.Q. PIERRE J. DALPHOND, J.A NICHOLAS KASIRER, J.A. NICOLE ROCHON APPELLANT – Accused v.

HER MAJESTY THE QUEEN RESPONDENT – Prosecutrix JUDGMENT [ 1 ] THE COURT – On appeal from a conviction handed down by the Court of Quebec, Criminal and Penal Division, District of Labelle, Locality of Mont-Laurier (the Honourable Judge Paul Chevalier), on September 19, 2008, which convicted the appellant of producing cannabis and possessing cannabis for the purpose of trafficking. [ 2 ] For the reasons of the Duval Hesler C.J. and Kasirer, J.A.: [ 3 ] ALLOWS the appeal; [ 4 ] REVERSES the judgment of the Court of Quebec, Criminal and Penal Division; [ 5 ] OVERTURNS the conviction and ACQUITS the appellant. [ 6 ] For his part, and for other reasons, Dalphond J.A., would have dismissed the appeal.

NICOLE DUVAL HESLER, C.J.Q. PIERRE J. DALPHOND, J.A. NICHOLAS KASIRER, J.A. Mtre Julie Giroux Julie Giroux, attorney For the appellant Mtre Christine Lafrance Criminal and penal prosecutor For the respondent Date of hearing: April 13, 2011

REASONS OF THE CHIEF JUSTICE [ 7 ] The appellant is the mother of Olivier Rochon, to whom she had entrusted her property in her absence. [ 8 ] It is worth noting that Olivier Rochon has been convicted of charges relating to a marijuana plantation other than the one that concerns us here. [ 9 ] Upon returning to her property in the summer to do some camping, the appellant observed a marijuana plantation on her land. [ 10 ] The appellant testified that she asked her son twice to [ translation ] "get rid of it".

She added that she did not want to report him to the authorities. [ 11 ] The elements constituting the mens rea for the offence of marijuana production ( subsections 7(1) and (2) of the Controlled Drugs and Substances Act [1] ) are the following: knowledge that the cultivation, propagation, or harvest of the substance is taking place, and knowledge of the nature of the substance produced. [ 12 ] To establish the actus reus , the prosecution must prove beyond any reasonable doubt that the accused cultivated, propagated, or harvested the substance. [2] [ 13 ] As for being party to this offence under 21(1)(

b) Cr. C ., there must be an intention to aid a person to commit it. The intention to refrain from reporting the offender is not sufficient. [ 14 ] Therefore, the fact that the accused did not report her son to the authorities does not constitute the actus reus of participating in the production and possession of marijuana. Nor does it, in itself, constitute the mens rea or the intention to aid her son in the production and possession of marijuana. [ 15 ] In other words, inaction is not criminal. [ 16 ] In Dunlop , Dickson C.J. wrote the following: The leading case of R. v.

Coney , (1881) 8 Q.B. 534, decided that non-accidental presence at the scene of the crime was not conclusive of aiding and abetting. [3] [ 17 ] Dickson C.J. continued by citing two excerpts from the reasons of Cave J. in Coney , which distinguish being party to a crime from being a witness: Now it is a general rule in the case of principals in the second degree that there must be participation in the act, and that, although a man is present whilst a felony is being committed, if he takes no

part in it, and does not act in concert with those who commit it, he will not be principal in the second degree merely because he does not endeavour to prevent the felony, or apprehend the felon. and, ... Where presence may be entirely accidental, it is not even evidence of aiding an abetting. Where presence is prima facie not accidental it is evidence, but no more than evidence, for the jury. [4] [ 18 ] Moreover, for criminal liability to arise under paragraph 21(1)(

b) Cr. C. for omitting to act, the law must impose a prior duty to act or provide assistance. A person’s [ translation ] "mere passive presence at the scene of a crime when it is committed does not constitute aiding or abetting unless the purpose of the presence was to aid in the commission of the offence". [5] [ 19 ] This is at least what emerges from the prevailing Canadian case law on the subject, as the following judgments illustrate. [ 20 ] R. v. Davy , (2000, Ont. C.A.): [6] The accused appealed from a conviction for attempted murder.

Due to the contradictory evidence, it was difficult to determine whether the accused had also stabbed the victim. The majority judgment clearly limited liability to cases where there is a duty to act: It was therefore essential, if the trial judge intended to leave s. 21(1)(

b) to the jury, that he make it clear that a mere bystander cannot be a party under s. 21(1)(

b) and that presence at the scene cannot found liability under that provision on the basis of an omission unless the accused was under a duty to act. There was no suggestion that the appellant was under such a duty. The possibility that this jury found liability on the basis that the appellant was a party and did so on the basis of an omission is a real one given their reference to "indirect involvement" and "non-intervention of the crime" in their question. [7] [Emphasis added.] [ 21 ] R. v. Portillo , (2003, Ont. C.A.): [8] Two co-accused appealed from a second-degree murder conviction.

Circumstantial evidence revealed that it was possible that one of the two co-accused aided in the murder of the victim, who was strangled to death. The accused challenged the instructions to the jury with respect to omission and complicity. The Court's unanimous opinion was that the instructions to the jury were insufficient and prejudicial. Applying R. v. Davy , the Court reiterated that complicity is not necessarily the result of omission unless there is a duty to act.

I agree with the appellants' submission that the trial judge's reference to liability based on omissions was inappropriate and potentiallyprejudicial. There was no basis upon which either appellant could be found to have aided in the homicide by virtue of a mere failure toact. A failure to act by one present at the scene of the crime will not amount to aiding in the crime absent a duty to act and an intention toaid the perpetrator: R. v. Davey (2000), (ON CA), 137 O.A.C. 53 at 59 (C.A.).

Although the trial judge did tell thejury that mere presence at the scene does not constitute aiding, it would have been better had he not made any reference to omissions inhis instructions on liability under s. 21(1).[9] [Emphasis added.] [22] R v. Dooley (2009, Ont. C.A.):[10] In Dooley, the parents were convicted of the second-degree murder of their young son. The evidence did not establish which of theappellants dealt the fatal blow. One of the grounds of appeal concerned the instructions to the jury with respect to aiding and abetting thecommission of an offence.

The Court unanimously held that a person may be an accomplice by reason of omission if there is a legal dutyto act: The conduct component that must accompany the culpable mental state is captured by the words "aids" and "abets". Conduct can includeomissions. A failure to act where there is a legal duty to do so, what V. Gordon Rose calls "culpable acquiescence", can constitute an actof aiding or abetting: see V.

Gordon Rose, Parties to an Offence (Toronto: Carswell Company, 1982), at pp. 18-19; Richard Card, Card,Cross and Jones Criminal Law, 18th ed. (Oxford, U.K.: Oxford University Press, 2008), at p. 760; David Ormerod, Smith and HoganCriminal Law, 12th ed. (Oxford, U.K.: Oxford University Press, 2008), at p. 190; Brent Fisse, Howard's Criminal Law, 5th ed. (NorthRyde, Austl.: Law Book Company, 1990), at pp. 326-27; R. v. Nixon (1990), (BC CA), 57 C.C.C. (3d) 97(B.C.C.A.), at p. 114, leave to appeal to S.C.C. refused, [1990] S.C.C.A.

No. 316, [1991] 1 S.C.R. xii.[11] [Emphasis added.] [23] The Court of Appeal upheld the trial judge's instructions to the jury regarding the origin of the duty to act in that case: The trial judge also told the jury that the Crown's case for aiding and abetting rested on the contention that the non-perpetrating parenthad failed to perform his or her parental duty to protect Randal from further abuse, and that the failure had helped or encouraged theother parent to continue the abuse, which included the fatal assault.[12] [Emphasis added.] [24] R. v.

Laurencelle, (1999, B.C.C.A.):[13] At trial, the accused was convicted of being an accomplice to forcible confinement. The victim had been detained at the accused's home,which the accused shared with one of the four attackers.

The trial judge faulted her for having allowed the attackers to detain the victimat her home, for not having left her home, and for having helped the victim on a few occasions (giving him water, untying him so that hecould smoke): There was no indication that the accused was aware that the kidnapping and confinement was going to take place, but upon entering herown home some short time after the offence she saw the complainant or the victim bound. She knew what had occurred andunfortunately for her made a wrong decision.

At that point in time she could have left and there would have been no burden on her to do anything else and she could not have becomeinvolved in this matter. She did not leave immediately. In fact, she did not leave at all. She stayed. She stayed in the home. She allowedthe victim and Bradley McCandless and Biron to remain, which is more than passive acquiescence.

She helped in the care of the victimand as I said she allowed her home to be used as a place of confinement, thereby encouraging the other co-accused in their venture.[14] [Emphasis added.] [25] The British Columbia Court of Appeal unanimously ruled that the accused had no duty to leave her home. Moreover, while shedid have a certain control over her home, it was not reasonable to require her to make the two assailants leave.

The Court distinguishedthis case from those that involve driving, where the owners of motor vehicles may be considered accomplices if they allow their vehiclesto be used unlawfully: It is my view, with respect, that the passage which I have quoted from the judge's reasons indicates that she lost sight of the principle thatthe burden of proving participation was on the Crown. She appears to have imposed a duty on the appellant to leave the house, andperhaps more importantly, she found that the appellant "allowed" McCandless and Biron to remain.

In my view, the evidence providesno reasonable basis for finding a duty to leave or for finding that the appellant allowed McCandless and Biron to remain and continue theconfinement. The evidence, since it all comes from the victim, is very hazy as to what the appellant's relationship was to the house but,from what little evidence there is, it can be taken that she and Biron were both living there and both, to that extent, had some control overthe premises.

There is no basis for asserting that the appellant had sole control, and certainly no basis as a matter of common sense forsuggesting that she had any effective way of requiring McCandless and Biron to leave. This case is quite different from the various caseswhich have found that control can lead to a person being found a party by allowing premises or automobiles to be used in an unlawfulmanner.[15] [Emphasis added.] [26] R. v. Nixon, (1990, C.A. C.-B.):[16] In Nixon, a police officer failed to protect a detainee who was assaulted by other officers while in custody.

He remained inactive:although present, he did not intervene to stop the attack. The Court found that it was his duty to intervene under the Police Act, theCriminal Code, and the common law. After concluding that she was satisfied beyond a reasonable doubt that the appellant was present at the time of the assault and knew what

happened, the trial judge reasoned that under the Police Act (R.S.B.C. 1979

Chapter 331) and Sections 27 and 37 of the Criminal Code of Canada , the appellant had a duty to protect Jacobsen. By failing to act to prevent the assault on Jacobsen the appellant failed to discharge this duty and, on the basis of this omission, was guilty of aiding and abetting the commission of the assault. [17] ...

The appellant is correct in arguing that only in narrow and well-defined circumstances will the law punish an omission to act. (See Glanville Williams, Criminal Law, The General Part , Second Edition (1961) at p. 4 where he quotes from Macaulay): We must grant impunity to the vast majority of those omissions which a benevolent morality would pronounce reprehensible, and must content ourselves with punishing such omissions only when they are distinguished from the rest by some circumstance which marks them out as peculiarly fit objects of penal legislation.

In my opinion a police officer has a statutory duty to protect a person under his care.

If he fails in that duty he may be the object of penal legislation. [18] [Emphasis added.] [ 27 ] The British Columbia Court of Appeal then goes on to cite several other decisions convicting an accused for an omission when the accused was under a duty imposed by law to take positive action : These cases make clear there may be criminal liability for breach of a duty to aid another , and that this principle extends to the situation in which the breach of duty was a failure to protect another from the independent criminal act of a third person. This principle is particularly applicable in the case under appeal.

The breach of duty relied upon by the Crown to justify the appellant's conviction was his failure to prevent an assault on Jacobsen by others. ... A failure to act in accordance with a duty to act may be an omission to do something for the purpose of aiding or abetting. [19] [Emphasis added.] [ 28 ] According to this leading line of authority, where there is no duty to act, there is only mere presence, and this is insufficient to conclude that someone was party to an offence. [ 29 ] Quebec courts have a different

interpretation of being party to an offence through the omission to act under paragraph 21(1)(

b) Cr. C . They insist on the lack of reference to a legal duty to act in this provision, whereas provisions concerning criminal negligence (subsection 219(1

b) Cr. C .) refer to it specifically. [ 30 ] On at least three occasions, this Court has expressed the opinion that a duty to act is not essential for the omission to act to constitute being party to an offence within the meaning of paragraph 21(1)(

b) Cr. C. [ 31 ] The distinction was first put forward in R. v. Marc , [20] which states that, [ translation ] "Parliament makes no reference to a legal duty in

section 21". [21] [ 32 ] In R. v. M.D ., [22] the distinction is refined: [ translation ] Parliament does not refer in

section 21 to the breach of a legal duty, as it does with regard to criminal negligence in paragraph 219(1)(

b) of the Code . This is not a situation in which a statutory duty to act can be seen to create criminal liability. This argument, put forward by the Crown, lacks merit. [23] [ 33 ] In R. v. Michaud , [24] this Court added the following: [ translation ] The reference to a failure to fulfill a duty which, according to the judge, was incumbent on the appellant was an error. First, there was clearly confusion because, through this directive, the judge imported into the definition of murder a notion (omitting to do anything that it is his duty to do) which, under paragraph (

b) of subsection 219(1) Cr. C ., applies not to murder but to criminal negligence. Second, if paragraph (

b) of section 21(1) Cr. C . is at issue, the omission may relate to something that is not necessarily the duty of the accused to accomplish; it is essential to remind the jurors that, not only must it be demonstrated that the accused aided the murder through omission, it must also be shown that, in failing to act, he had the specific intent to do so. [25] [ 34 ] First, I do not believe that these judgments necessarily demonstrate a divide between the line of authority described above and the positions of this Court.

The nature of the offences alleged in each case must be taken into consideration. [ 35 ] The offence in the case before us is not criminal negligence but being party to an offence under

section 21 of the Criminal Code . From this perspective, it is important to recall the traditional common law principles in such matters. [ 36 ] Traditionally, the common law does not seek to punish omissions but only positive acts that can harm others.

In most cases, criminalizing omissions is not desirable because doing so is tantamount to imposing a duty to intervene on a third-party witness to a crime, thus unduly restricting individual freedom in a society that considers itself to be free: Second is a concern that criminalizing omissions has the effect of forcing people to engage in particular conduct, and this is not something the law does lightly. As Simester and Brookbanks have noted:

We value living in a society where citizens are respected as individuals—where they are free to live their own lives to act or intervene. The prohibition of omissions is far more intrusive upon individual's autonomy and freedom than is the prohibition of acts, which is why the systematic imposition of (criminal or civil) liability for failures to act is to be resisted . [26] [Emphasis added.] [ 37 ] That is why, under the common law, there can be no conviction for omission in the absence of a legal duty to act. The common law has enforced the notion that omissions should not be punishable for centuries.

For this reason, it remains correct to state as a general principle that an omission is not culpable unless it is specifically rendered liable either by the imposition of some sort of duty to act, or through the wording of a particular statutory provision .

While the duties that exist cannot be classified quite so precisely, omissions tend to be punishable only where there is some form of obligation to act because of the nature of the relationship between the accused and the person at risk from an omission, or because of acts already performed by the accused that require him or her to account for future omissions. [27] [Emphasis added.] ... The conclusion one can take from this is that the inclusion of the term "or omits to do anything" does not change the basics of the law of omissions.

In other words , the accused will only be liable for such an omission as a party where he or she is under some type of duty to act, and the appropriate mens rea , discussed below, is present. [28] [Emphasis added.] [ 38 ] This position is generally accepted by Canadian commentators, including Alan D. Gold: A person is a party to a crime as an aider if that person: does (or in the case of a legal duty, omits to do) something that helps the (or

a) principal to commit the offence (the fault requirement). [29] [Emphasis added.] [ 39 ] The author Kent Roach also opines that it is not desirable to criminalize the mere failure to act in the absence of a duty to act: One possible exception to the trend to wide

definitions of the criminal act is the traditional reluctance to use failure to act as an actus reus. Traditionally, the criminal law has prohibited harmful conduct; it has not required socially desirable conduct. An omission or failure to act will generally only form the actus reus of a criminal offence when an individual has a specific duty to act. [30] ... The position that mere presence and passive acquiescence in a crime is not sufficient to make a person an aider or abettor mirrors the criminal law's traditional reluctance to penalize omissions.

As with omissions, however, courts recognize exceptions to this principle in cases where the person who stands by is under a specific legal duty to act. [31] [ 40 ] It would certainly be desirable to clarify the above-described ambiguity in the case law. Be that as it may, however, there is another reason for this appeal to succeed. [ 41 ] It is critical to point out that, with respect to being party to an offence within the meaning of paragraph 21(1)(

b) Cr. C ., the prosecution must prove, beyond a reasonable doubt, the requisite mens rea, that is to say, the intent to do or to omit doing something for the purpose of aiding in the commission of the offence . [ 42 ] In other words, a person who passively witnesses the commission of a crime —even if he or she is in a position to do something to prevent it—does not necessarily become liable for this crime.

The evidence must demonstrate that the purpose of his or her failure to act was to aid the offender to commit the crime. [ 43 ] Therefore, in this case, the Crown had to prove, beyond a reasonable doubt, the mother's specific intent to aid or abet the main perpetrator of the crime, her son. It is not sufficient to prove that the accused knew of the consequences of her passivity ( i.e ., that it would facilitate the commission of the offence). Rather, it had to be shown that the accused had the specific intent to help her son commit the offence.

The fact of the matter is that, in this case, the requisite state of mind was not proved to that standard. [ 44 ] Indeed, as the trial judge himself noted, at paragraph 22 of his reasons, mere presence at the scene of a crime and passive acquiescence are insufficient to give rise to criminal liability. [32] [ 45 ] And yet, as the rest of the judgment under appeal indicates, this is what the accused's participation amounts to in this case. [ translation ] 37 She claims that when she warned her son that he had to remove the cannabis from her property, he answered that he would do his best to find out who it belonged to and for it to be removed.

If it did not belong to her son, why would she explain her failure to call the police by the fact that she [ translation ] "didn't want to stool on her son"? [Emphasis added.] ... 42 How is the act of reporting an unlawful situation that she will not tolerate likely to cause problems for her? Being in possession of the drugs that were found, with the intention of handing them over to the police, something that the British Columbia Court of Appeal describes as a "civic duty", does not incur criminal liability.

We have never heard of anyone who has called the police to report the presence of cannabis on his or her land without his or her consent experiencing problems with the authorities. [Judge's citations omitted,

emphasis added.] [ 46 ] Further on: [ translation ] 47 It is clear that the accused was under no legal duty to report the presence of cannabis production on her land. [Emphasis added] 48 But if the accused, knowing that she risked being implicated in this production, chose not to alert the authorities as a way of demonstrating that she had nothing to do with the plantation , under the pretext that she did not want to [ translation ] "stool on" her son and cause problems for him and because she is [ translation ] "against repression", not only displayed laxity but, through her decision, also allowed the offence to continue at the risk of incurring her own criminal liability. 49 In so doing, she demonstrated that she consented to the commission of the offence.

And this consent went well beyond indifference or mere passive acquiescence. The accused clearly had a certain measure of control over the plantation because she could have stopped it , which she chose not to do for illegitimate, if not altogether dishonest, reasons. [ 47 ] We may also legitimately wonder how the accused could have put an end to the plantation without notifying the authorities. Indeed, the trial judge added: [ translation ] 50 The evidence demonstrates, beyond a reasonable doubt, the essential elements of each of the alleged offences.

Regarding the production of drugs: the required knowledge, control over production, and aiding by omission.

Regarding possession for the purpose of trafficking, whatever the form of this possession: knowledge beyond passive knowledge, consent, tacit here but very clear, that the producers could continue to have personal or direct possession of the plants, and a measure of control over them since, to demonstrate her good faith and lack of involvement, the accused could and should have reported the presence of this plantation on her land, or at least dissociated herself by leaving . [Emphasis added.] [ 48 ] In other words, after correctly identifying and analyzing the applicable legal principles, the trier of fact found on the evidence that the appellant had knowledge of the situation and therefore, despite everything, should have called the police in this case and reported her son's actions.

In my view, this is contrary to the very same legal rules, as it is tantamount to saying that the consequences of the mother's passivity justify her conviction. [ 49 ] Aside from the confusion in this reasoning between the actus reus and the mens rea , however, the fact remains that the file contains no evidence of any actions of production or possession for the purpose of trafficking on the mother's part, and indeed the trial judge observed none.

What he faults the mother for, as already noted, is her presence, her knowledge, and her passivity. [ 50 ] The burden of establishing proof beyond a reasonable doubt falls on the prosecution, and in my view it has not established that the mother wished to join forces with her son in his unlawful production of and trafficking in marijuana. The most the evidence shows is that the son took advantage of the fact that his mother owned the land and that he presented her with a fait accompli .

Indeed, she had no way of knowing about the marijuana plantations on her land until after they were well-established and fully operational. This does not make her an accomplice after the fact. As for the way events unfolded, it is worth repeating that she did not have a duty to report the situation to the police, and the public interest provides ample justification for the position taken in Canadian criminal law, which refuses to impose such a duty on mere witnesses. [ 51 ] Moreover, I do not believe it is realistic to expect the mother to have undertaken the destruction of $1 million in cannabis on her own.

In actual fact, from the moment her son refused to put an end to the plantation activities, the mother had only one option open to her – which she was under no obligation to take – and that was to call the police. Leaving the property, as the trial judge suggested she should have done, would have changed nothing. Her son would have continued to cultivate marijuana on her property, and by choosing to leave, the accused would have permitted her son to continue to use her property to commit the offence. It is tantamount to saying that, whatever her intent, she could do nothing to avoid incurring criminal liability.

I cannot endorse this statement. [ 52 ] Moreover, it is worth pointing out that the trial judge did not even consider the possibility of the mother physically removing the plantation herself in order to avoid conviction. Rather, he limited himself to saying that the mother should have called the authorities and reported her son in the process.

As the trial judge surmised, she might not have had any problems with the authorities, but it is not a given that her relationship with her son – who, we should note, is an adult – would have come through unscathed. [ 53 ] Guilty intent should be assessed in light of all the relevant circumstances. The relationship between a mother and her adult son is surely not irrelevant to the analysis of the mother's mens rea .

Nevertheless, the trial judge did not consider it at all. [ 54 ] Given the lack of evidence on an essential element of the alleged offences, I would allow the appeal and substitute verdicts of acquittal for the guilty verdicts handed down by the trial judge. NICOLE DUVAL HESLER, C.J.Q.

REASONS OF DALPHOND, J.A. (DISSENTING) [ 55 ] The appellant appeals from a judgment convicting her on two counts relating to a marijuana plantation. Unlike my colleagues, whose reasons I have read, I am of the view that it was reasonable for the trial judge to conclude that the Crown had established the elements required on both counts and that the appeal should therefore be dismissed. CONTEXT [ 56 ] The appellant owns land where a modest residence has been built. Its address is ..., La Macaza. The area is rather isolated.

The appellant lived there until May of 2005, when she moved to Île-Michon on the North Shore, with her daughter. She entrusted her property and her large dog to her son, who lives in the area. The dog was left at the residence as a guard dog. [ 57 ] In the second week of July of 2006, after taking a detour of a few hundred kilometres around Lac St-Jean, [33] the appellant, age 54, arrived from the North Shore in her white 1988 Jeep Comanche, along with her daughter's son and a little dog. Her daughter was to meet them later.

She explained her arrival at La Macaza by saying that she wanted to put the place in order in view of an eventual sale and to take care of her niece, who had just lost her mother, the appellant's sister. [ 58 ] She pitched a tent on her property in a clearing located 277 metres from the house (the trial judge noted this fact at paragraph 3 of his judgment) [34] and 300 metres from the public road, from which, according to the testimony of the police, neither the tent nor her vehicle could be seen. At trial, she claimed that the house was in bad shape and humid, and that she preferred not to sleep inside.

She nevertheless went there every day to use the refrigerator and the bathroom (toilet and shower) [35] (the judge noted this at paragraphs 39–40). The appellant did not explain her choice of location for her tent, which, according to the testimony of one of the police officers, was about ten minutes' walk from the house, and according to her daughter, was a five- to ten-minute walk.. Bags of peat moss and some light shades, hidden out of sight, were also found close by.

It would have been more convenient to set up her tent near the house, as her niece in fact did when she came to join her. [ 59 ] In early August, her niece, age 32, arrived. She testified that she camped near the house on weeknights and returned to her apartment in Montreal on the weekends; during the day, she went to clean out the house belonging to her mother, who had passed away in June. Shortly thereafter, the appellant’s daughter, age 27, joined her along with her other child and her spouse.

They moved into the house with their son, whom the appellant had been taking care of, while apartment-hunting in the area to settle down there. They found an apartment toward the end of the summer. According to the daughter's testimony, she, her spouse, and the children were away from the house almost every day, visiting with acquaintances, going to the beach, and looking for an apartment. [ 60 ] All of the testimony heard reveals that only the appellant was present on the land all summer long, except for the week she went to Montreal to visit friends.

Considering that the roads leading to the seven plantation plots all left from the spot at which she had pitched her tent and that the plants were ready for harvesting, the appellant had chosen a rather exceptional location.

In fact, she is the only one not to have taken up residence in or near the house. [ 61 ] During her testimony, the appellant admitted that she quickly noticed that her property was being used for large-scale marijuana production (light shades, humidity in the residence and a constantly lit basement [36] – two signs of a nursery there –, hundreds of mature plants in the wooded areas grouped into seven plots accessible only on foot or by ATV, bags of peat moss, and so on). Her understanding of the situation was aided by the fact that she has personal knowledge of the product, which she uses herself.

Indeed, the police found cannabis, hashish, and a joint in her tent, and she states that she bought these prohibited substances before arriving in La Macaza. [ 62 ] At trial, she stated that she had on a few occasions asked her son, who came to visit once in a while, to do what was required to put a stop to the marijuana production (the trial judge did not seem to believe her: see paragraphs 37 to 44 of the judgement).

The son did not testify, but he was convicted in another file of producing cannabis (approximately 5,000 cuttings and 200 plants) on the property belonging to his deceased aunt, for whom he had been caring. He was arrested while in a tent located at a remove but close to this other plantation. [ 63 ] Even though her son did not accede to her requests (if she did indeed make them) and even though she was well aware that the illegal operation was continuing, the appellant did nothing that could have brought the production to an end.

On the contrary, she remained on the premises and continued to live in her tent, which was located at the only access point for all of the paths, acting as a kind of de facto guard at this strategic point. This is a rather surprising decision for a person who wanted the operation to stop. [ 64 ] She acknowledges that she received small amounts of money from her son and daughter. Her only known income is an allowance of about $200 a month during the school year for bringing her daughter's child to school, which is paid for by the relevant school board.

She was not eligible for welfare because she owned two properties. [ 65 ] She also admitted that she left the premises, without her tent, in early August to spend a week in Montreal. She then returned to the site. According to her niece, the appellant [ translation ] "needed a change of scenery" after an argument with her daughter.

According to the appellant, she did not have enough money to go home to the North Shore, so she returned to the property (the judge did not believe her on this point; see paragraphs 35 and 36). [ 66 ] On August 16, 2006, following an anonymous tip, the Sûreté du Québec sent a team with a general warrant on a discreet visit to the site. The two officers observed a plot containing about two hundred plants, some of which were being harvested . They saw two tents in the hidden clearing where the paths met, as well as two vehicles, one of which was a white Jeep Comanche.

[ 67 ] In the early morning of August 22, 2006, three Sûreté du Québec officers armed with a search warrant carried out a search of the premises and arrested the appellant, who was emerging from her tent, and two other persons, namely, her daughter and her niece. Inside the residence, they seized twenty cannabis plants, along with production equipment, buds (in the freezer), and stems (in a bucket in the bathtub). Outside, they observed an ATV, used to take the paths leading to the plots, and 880 plants in 7 different isolated plots (the officers cut down all the plants that same day).

The police evidence establishes that the seven plots were only accessible by the paths, all of which left from the site where the appellant was camping by herself. Aside from the vehicle registered in the appellant's name (the white Jeep), another vehicle registered in her son's name was found in the clearing, near another tent that was unoccupied at the time.

Near the tents were dozens of bags of peat moss (regularly used in marijuana plantations), eighteen light shades used in interior grow operations, and one cannabis plant drying on a canvas. [ 68 ] The appellant was charged with two counts: [ translation ] 1. On or about August 22, 2006, at La Macaza, District of Labelle, did produce cannabis (marihuana), thereby committing the indictable offence set out in paragraph 7(1) (2)(

b) of the Controlled Drugs and Substances Act . 2. On or about August 22, 2006, at La Macaza, District of Labelle, did have in her possession, for the purposes of trafficking, cannabis (marihuana), thereby committing the indictable offence set out in paragraph 5(2) (3)(

a) of the Controlled Drugs and Substances Act . [ 69 ] Her daughter and niece faced similar charges. They later pleaded guilty to a reduced charge of simple possession of cannabis. [ 70 ] The trial took place on June 20, 2008, and lasted one day. The Crown called three police officers, who filed a map of the site and photographs. The defence called the appellant's niece, her daughter, and the appellant herself. Examined about her laissez-faire attitude toward the plantation, the appellant stated: [ translation ] … Q Did you call the police at any time? A No, I didn't call the police.

Q Can you tell the Court why you didn't call the police? A Because... Q Explain why you didn't call the police.

A Well, because first of all, I didn't want to get mixed up in that , I would have liked to go home but I was kind of stuck there, we were all pretty much stuck. [37] And because my perspective was, I am not anti-marijuana because I am someone who has been using it for nearly forty (40) years and I don't do anything else, I don't drink alcohol, I don't smoke cigarettes, and I've never taken any chemical drugs so it's about the only thing I do, and I'm kind of against repression so calling the police wasn't really the first thing that came to mind, but yes, I was panicked that it was at my place, and with the record [38] that you know about, which is from '96 but still, I didn't want to have any problems , it was the last thing I wanted to happen to me, to have those problems. [Emphasis added.] [ 71 ] Once the cases were closed, the parties presented their arguments.

The appellant's argument can be summarized as follows: She discovered that her property was being used for production, she asked her son to put a stop to it, and she had no money and was unable to leave, but she refused to report her son, which she was under no legal obligation to do. In short, she was nothing more than a passive witness to the alleged offences. The Crown's argument is altogether different: The appellant came to help with the harvest and her version is [ translation ] "entirely confusing and implausible and illogical" and devoid of all credibility.

According to counsel for the prosecution, the circumstantial evidence is stronger than it was in R. v. Jackson , [2007] 3 S.C.R. 514, 2007 SCC 52 , rendered in the same judicial district, and it demonstrates beyond any reasonable doubt [ translation ] "that all of the people present at the time were there to pitch in, help their son, help their brother, help their cousin with the harvest, with maintenance but especially with harvesting the plants, the crop that was on its way". TRIAL JUDGMENT [ 72 ] On September 19, 2008, the Court of Quebec judge convicted her on both counts.

In his written judgment, he began by outlining his understanding of the legal principles applicable to the alleged offences of production and possession. With regard to the charge of production, the judge found that two elements must be proved: the actus reus , which involves the cultivation, propagation, or harvest of the controlled substance, and the mens rea , which is established through knowledge of the nature of the substance being produced. He then dealt with being a party to an offence under paragraph 21(1)(

b) Cr. C . and added that mere presence and passive acquiescence are not sufficient. In his opinion, the case law from Ontario and Quebec is divided [39] as to the nature of the omission referred to in that provision. Some decisions refer to a failure to perform an action that the accused had a duty to perform, while others speak of the failure to perform an action by a person who has the right to intervene. He opted for the second theory.

He then outlined the elements of the charge of possession for the purposes of trafficking, pointing out that such possession could be personal, constructive, or joint, within the meaning of subsection 4(3) Cr. C . [ 73 ] He then analyzed the evidence (paragraphs 33 to 44). He found that the appellant's explanations were not credible, particularly

regarding her presence at La Macaza, her inability to leave, and her reasons for not calling the police.

His analysis of the evidence is detailed and clear with respect to his reasons for disbelieving the appellant's version: [ translation] [44] Even if the Court had a reasonable doubt as to the veracity of a large part of the accused's version, which it does not have given the implausibilities and incongruities pointed out above , it would still render a guilty verdict. [Emphasis added.] [ 74 ] The rest of his judgment reads as follows (the emphasis is mine): [ translation ] [45] The accused's knowledge of the plantation, of the nature of what was being produced, and of its illegality is proved beyond a reasonable doubt, not least of all by her own admissions. [46] It is clear that the accused's prolonged presence on her own property , where she knew cannabis was being cultivated and effectively did nothing to stop the unlawful activity that she observed and did not dissociate herself from what was happening but remained on the scene instead – even though the evidence demonstrates that she could have left – grounds the inference of her consent.

It is certainly reasonable to conclude that she was helping the producers, at least by choosing to allow them to proceed with their production, by letting them use her land, which was wooded and out of sight . [47] It is clear that the accused was under no legal duty to report the presence of cannabis production on her land. [48] But if the accused, knowing that she risked being implicated in this production, chose not to alert the authorities as a way of demonstrating that she had nothing to do with the plantation, under the pretext that she did not want to [ translation ] "stool on" her son and cause problems for him and because she is [ translation ] "against repression", not only displayed laxity but, through her decision, also allowed the offence to continue at the risk of incurring her own criminal liability . [49] I n so doing, she demonstrated that she consented to the commission of the offence.

And this consent went well beyond indifference or mere passive acquiescence. The accused clearly had a certain measure of control over the plantation because she could have stopped it, which she chose not to do for illegitimate, if not altogether dishonest, reasons. [50] The evidence demonstrates, beyond a reasonable doubt, the essential elements of each of the alleged offences. Regarding the production of drugs: the required knowledge, control over production, and aiding by omission .

Regarding possession for the purpose of trafficking, whatever the form of this possession: knowledge beyond passive knowledge, consent, tacit here but very clear, that the producers could continue to have personal or direct possession of the plants, and a measure of control over them since, to demonstrate her good faith and lack of involvement, the accused could and should have reported the presence of this plantation on her land, or at least dissociated herself by leaving. V.

THE VERDICTS [51] The Court finds the accused guilty of cannabis production, the offence alleged in count 1. [52] The Court finds the accused guilty of possession for the purpose of trafficking, the offence alleged in count 2. GROUNDS OF APPEAL [ 75 ] According to the appellant, the trial judge erred in law by convicting her because of her mere presence at the scene of the commission of an offence, by imposing on her the duty to report the commission of an offence, by creating the duty to leave the scene of the commission of an offence, and in his

interpretation of the notion of passive acquiescence and the definition of possession. ANALYSIS I. Preliminary remarks : [ 76 ] In this case, the guilty verdict is not based on an observation of the appellant in the process of harvesting or processing a prohibited substance.

Rather, the Crown strove to establish an array of elements, including actions and omissions, the cumulative effect of which was to demonstrate the appellant's participation in the production of prohibited substances. [ 77 ] The trial judge, who was familiar with Jackson , supra , since it was raised before him by the Crown, first pointed out that the criminal law did not permit a conviction merely because a person was there and passive.

He then found on the whole of the evidence that the appellant had participated in the production of the prohibited substances and had had possession of them for the purpose of trafficking. [ 78 ] That is why I will begin with the concept of participating in an offence not only through positive actions but also through the omission to act. I will then summarize the evidence to determine whether the verdict was unreasonable in the circumstances, in light of the legal principles applicable to being party to an offence. Finally, I will deal briefly with possession for the purpose of trafficking. II.

Principles applicable to participation in an offence:

[79]

Section 21 of the Criminal Code sets out three ways of participating in an offence: 21.

(1) Participent à une infraction :

a) quiconque la commet réellement;

b) quiconque accomplit ou omet d’accomplirquelque chose en vue d’aider quelqu’un à lacommettre;

c) quiconque encourage quelqu'un à lacommettre. 21.

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

a) actually commits it; (

b) does or omits to do anything for the purposeof aiding any person to commit it; or (

c) abets any person in committing it. [80] Paragraphs (

b) and (

c) of

section 21, which are often confused because their meaning is similar, in actual fact refer to twodifferent types of behaviour: aiding and abetting (R. v. Greyeyes, (SCC), [1997] 2 S.C.R. 825 at para. 26; Marc v. R.,[2006] R.J.Q. 357, 2006 QCCA 57; R. v. Meston (1975), (ON CA), 28 CCC (2d) 497 (Ont.

C.A.)). [81] Richard Card, in Card, Cross and Jones Criminal Law, 17th ed. (Oxford: Oxford UP, 2006) summarizes the distinction asfollows, at page 821: Although 'aiding' and 'abetting' have sometimes been regarded as synonymous, there is a difference between them: 'aid' being used todescribe the activity of a person who helps, supports or assists the perpetrator to commit the principal offence, and 'abet' to describe theactivity of a person who incites, instigates or encourages the perpetrator to commit it, whether or not in either case he is present at thetime of commission. [82] In this case, there was no abetting.

The evidence reveals no form of encouragement or inducement. The verdict can only bebased on 21(1)(b), doing something or omitting to do something else for the purpose of aiding. [83] To obtain a conviction under 21(1)(b), the Crown must demonstrate, beyond a reasonable doubt, the two usual elements,namely, the actus reus (actions to aid) and the mens rea (intent to aid). [84] I will first address what may constitute an action to aid, or the actus reus.

Defining what constitutes the performance of aconcrete action to aid is not problematic. [85] Defining what constitutes a form of aid by omission to act, however, can be difficult, both in this country and in Great Britain.In the British tradition, the general principle is that the mere omission to act when faced with the commission of a prohibited act does notconstitute a form of aiding or abetting and is therefore not likely to lead to the conviction of a merely passive person for being a party toan offence.

That does not mean, however, that the omission to act does not, in specific circumstances, constitute a form of aid sufficientto constitute the actus reus. [86] In a report entitled Participating in Crime, drafted by the Law Commission (U.K.) and presented before British Parliament inMay of 2007, the law is summarized as follows: 3.26 The general rule at common law is that a person incurs no criminal liability for standing by and doing nothing.

The reluctance of thelaw to impose criminal liability for omissions is attributable to a number of reasons of which perhaps the most significant is that: The prohibition of omissions is far more intrusive upon the individuals’ autonomy and freedom than is the prohibition of acts, which iswhy the systematic imposition of (criminal or civil) liability for failures to act is to be resisted.42 3.27 However, the general rule of common law is subject to an important exception.

Provided an offence is capable of being committedby inaction, a person may commit the offence if he or she is under a duty to act but refrains from doing so.43 In the context of secondaryliability, the law has focused on three issues: (1) the extent to which and the circumstances in which D can incur secondary liability by virtue of mere presence when P commits anoffence; (2) whether D can incur secondary liability by failing to take steps to discharge a duty;44 and (3) whether D can incur secondary liability by failing to exercise an entitlement to prevent or control the actions of P.45 3.28 The law in relation to (1) is reasonably clear: ... 3.29 The law in relation to (2) is also reasonably clear.

If D is under a duty to act, then D can incur secondary liability for an offencecommitted by P as a result of D failing to take steps to discharge the duty, provided that P is thereby assisted or encouraged to committhe offence: ... 3.30 The law in relation to (3) is far less clear. There have been specific instances where the courts have held D to be secondarily liable

for failing to control the actions of others.47 However, it is open to question whether any general principle can be derived from thosecases.48[Emphasis added.] [87] From the case law cited by the British Law Commission, three judgments appear relevant here. [88] First, in Tuck v. Robson, [1970] 1 All E.R. 1171, a pub owner who allowed clients to finish their drinks after the mandatoryclosing time was charged with aiding and abetting them to consume after hours. He was convicted and appealed unsuccessfully beforethe Queen's Bench Division.

On behalf of the three judges, Lord Chief Justice Parker made the following remarks: … Here is a licensee who is in control of his premises; he has full knowledge that liquor is being consumed after hours; he takes no stepsin the matter other than to call 'time' and ask customers to leave, which he did at 11.00 pm, and as he himself puts it 'I thought that if Icalled out "time" and asked customers to leave, that is all I am required to do '.

The question as it seems to me is whether the magistrate, as a reasonable tribunal, was entitled in all the circumstances to draw theinference that here there was passive assistance in the sense of presence with no steps being taken to enforce his right either to eject thecustomers or at any rate to revoke their licence to be on the premises. In my judgement the magistrate was entitled to draw that inference,and accordingly I would dismiss this appeal. [89] Then, in R. v. JF Alford Transport, [1997] 2 Cr. App.

Rep. 326, the Court allowed the appeal of an employer and two managerswho were convicted of aiding or abetting fraudulent changes to the tachograph used to record truck movements made by the company'sdrivers because there was nothing showing that the managers knew about the fraudulent acts of the drivers at the relevant times, notbecause the conviction for participating in the crime was impossible in law without a duty to act. [90] Finally, in R. v.

Webster, [2006] EWCA Crim 415, the appellant was convicted at trial for having aided in the commission ofthe offence of dangerous driving causing death by allowing his vehicle to be driven by an intoxicated person and by failing to intervenewhen that person's driving became dangerous. The English Court of Appeal overturned this conviction because of a lack of evidence thatthe accused realized before it was too late that the driver was driving dangerously and yet chose to do nothing. Lord Justice Moses, forthe Court, wrote the following: Liability for failure to intervene ... 28.

There was no dispute about the law in relation to this approach. Du Cros v Lambourne [1907] 1 KB 40 establishes that a defendantmight be convicted of aiding or abetting dangerous driving if the driver drives dangerously in the owner’s presence and with the owner’sconsent and approval. The owner was in control and ought to have prevented or attempted to prevent the driver driving in a dangerousmanner. We derived assistance from the decision of Smithers J. in Dennis v Pite [1968] 11 FLR 458.

This concerned an appeal in theAustralian Capital Territory against a conviction for aiding and abetting the driving of a motor vehicle in a dangerous manner. Theappellant was joint owner with the driver of the motor vehicle. It appeared from his evidence that he may not have appreciated, until itwas too late to prevent, the dangerous manner in which the vehicle was driven. The court concluded it could not be satisfied that he hadsufficient awareness that the manner of the driver’s handling of the vehicle was dangerous to conclude that he assented or concurred inthe dangerous driving.

Smithers J. emphasised that mere presence with knowledge was not enough. The joint owner did not appreciate,until it was too late, that there was any need for him to take action to intervene (see in particular page 465). Dennis v Pite is a powerfuldemonstration of the need to establish not only knowledge of the dangerous driving but knowledge at a time when there was anopportunity to intervene. 29.

In pursuance of this second approach, we conclude that the prosecution had to prove that the appellant knew that Westbrook was, byvirtue of the speed the vehicle was travelling, driving dangerously at a time when there was an opportunity to intervene.

It was theappellant’s failure to take the opportunity and, exercise his right as owner of the vehicle, which would lead to the inference that he wasassociating himself with the dangerous driving. [Emphasis added.] [91] In my view, the following excerpt from Card, Cross and Jones, Criminal Law, supra at page 822, provides an accuratesummary of the situation in England: 20.8 Normally,

an act of assistance or encouragement is required. Thus, mere abstention from preventing an offence is generally notenough, but if D has a right of control over E and deliberately fails to take an opportunity to prevent E committing an offence, and knowsthat this is capable of assisting or encouraging the commission of the principal offence, his omission will constitute aiding or abetting. …[Emphasis added.] [92] In Canada, paragraph (

b) of subsection 21(1) expressly recognizes that the omission to do something may constitute a sufficientactus reus provided that this omission is for the purpose of aiding someone to commit an offence (mens rea), and that it may also makethe person who omits to do something a participant or an accomplice of the actual perpetrator. [93] Some would limit the omission to act under paragraph 21(1)(

b) Cr. C. to situations in which the accused had a duty to act. Withrespect, I believe this is too restrictive. [94] It is true that the existence of a legal duty may be an element to consider, particularly in the case of police officers who fail tofulfill their duty to protect with respect to a detained person (R. v. Hovington, 207 QCCA 1016 at para. 72, and R. v. Nixon (1990), (BC CA), 57 C.C.C. (3d) 97 (B.C.C.A.)). It is also true that other appellate courts, the Court of Appeal for Ontario, forexample, have sometimes made this a requirement. [95] Judgments rendered by this Court, however, have firmly rejected such an

interpretation of

section 21 Cr. C. [96] In Michaud v. R., 2006 QCCA 1121, for example, a unanimous bench stated the following:

[ translation ] [55] The reference to a failure to fulfill a duty that, according to the judge, was legally incumbent on the appellant constituted an error. First, there was clearly some confusion since, in this instruction, the judge imported into the definition of murder a notion (omission to do something that it is one's duty to do) that, pursuant to paragraph (

b) of subsection 219(1) Cr. C ., applies to criminal negligence, not to murder. Second, if paragraph (

b) of subsection 21(1) Cr. C . is the provision at issue, the omission may concern something that the accused is not necessarily required to do; it is essential to remind the jury that not only must aiding by omission be proved, it must also be shown that, in omitting to do something, the accused had the specific intent to aid his or her accomplice in the commission of the murder. [Emphasis added.] [ 97 ] In a judgment filed on the same day, R. v.

Marc , 2006 QCCA 1112 , Côté J.A. wrote the following, again for a unanimous bench: [ translation ] [122] When the judge explained the concept of aiding to commit an offence, he told the jury the following concerning the meaning to give to the expression "every one ... who ... does or omits to do anything for the purpose of aiding any person to commit it": [ translation ] ... a person may also, as the provision states, aid someone to commit an offence by omission, that is to say, by omitting to do something that the person has a legal duty to do, where this omission actually aids the primary offender in the commission of the offence.

So, as I say, there are situations where a person has a legal duty to intervene, and if not there will be a breach of this legal duty, which will incur that person's criminal liability. For example, a person who is present when someone else commits an offence against the person, assault for example, this person who is present as the other person commits assault has a legal duty to intervene to try to protect or help the victim. If the person does nothing and his or her purpose in doing nothing is to aid in the commission of the crime, he or she is as guilty as the person who commits the assault. ...

And there too you can ask yourself, why didn't Mr. Jackson go help Mr. Lafontant in the kitchen, it's a question you can ask yourself, I will not give you the answer, it is not up to me to answer, it is up to you to answer, all right. [123] With respect, this instruction is erroneous. It is true that a person may incur criminal liability by omitting to act, but only when that person is under a legal duty to act and to provide assistance. In such circumstances, the person may be held liable for criminal negligence, since, in paragraph (

b) of section 219(1) Cr. C. , the legislator specifically describes the situation in which a duty imposed by law may give rise to criminal liability. [124] In this case, Jackson had no legal duty to go into the kitchen and intervene between Marc and Lafontant. The omission to which Parliament refers in paragraph 21(1)(

b) is the omission to do something with the purpose of aiding the primary offender, as in the case of a night watchman, for example, who deliberately conspires with thieves and leaves the door to a business unlocked so that they can enter and commit theft. [125] Parliament has made no mention of a legal duty in

section 21. [126] Moreover, according to case law, mere passive presence at the scene of a crime as it is being committed does not constitute aiding or abetting unless that presence is for the purpose of aiding the commission of the offence . [127] That said, this erroneous instruction does not inevitably require holding a new trial, since I am of the view that this error did not cause Jackson any prejudice and that the verdict would have been no different if the error had not been committed. [128] In this case, it was not Jackson's omission to act that grounded the inference that he participated in the crime, but rather the way he acted.

Campbell states that when she heard a thump from the kitchen and tried to turn around, Jackson put a hand over her mouth and held a knife to her throat, dragging her upstairs. She adds that Jackson was wearing gloves. Once upstairs, he asked her where the money was. This all indicates that there was a concerted effort between the two appellants. [Emphasis added.] This passage indicates that there was no contradiction with Michaud and that some readers have confused the elements of criminal negligence under

section 210 with those of participation under

section 21 . [ 98 ] Recently, in R. v. M.D. , 2010 QCCA 126 , my colleague Rochette J.A. wrote the following on behalf of the panel: [ translation ] [10] Let us first address the ground based on being a party by omission. [11] According to paragraph 21(1)(

b) Cr. C. , "Every one is a party to an offence who...does or omits to do anything for the purpose of aiding any person to commit it". The actus reus for being a party requires that a person do something or omit to do something . This act or omission must take place for the purpose of aiding someone to commit an offence. [12] Parliament does not refer in

section 21 to the breach of a legal duty, as it does with regard to criminal negligence in paragraph 219(1) (

b) of the Code . This is not a situation in which a statutory duty to act can be seen to create criminal liability. This argument, put forward by the Crown, lacks merit.

[13] That said, the mens rea of being a party by omission consists in the specific intent to aid someone to commit an offence by omittingto do something. This intent may be inferred from the evidence. On the other hand, mere knowledge of the commission of the offence isnot sufficient to deduce the accused's intent, though it may sometimes be an indicator thereof. [Emphasis added.] [99] I would add a few comments regarding decisions rendered in other provinces. First, some of the cases involved criminalnegligence, which, under

section 219 Cr. C., requires a legal duty to act; the offences were not being party to an offence within themeaning of

section 21. The words "that it is his duty to do" cannot be imported into paragraph 21(1)(

b) because if Parliament hadintended to include them, it would have stated them clearly, as it did in

section 219 Cr. C. [100] Second, many of these judgments deal with the issue of mere presence at the scene of an offence. On this point, the law is wellestablished, and there is no legal duty to intervene. However, and this is where some of these judgments are, in my view, less reliable, theomission to do something referred to in paragraph 21(1)(

b) goes far beyond mere presence and contemplates, for example, an omissionthat occurred before the offence is committed. Indeed, such is the example in Marc, at paragraphs 124 and 125. [101] Third, judgments from the appellate courts of Ontario, Manitoba and British Columbia have recognized that an omission to actby a person who has the right to act could be sufficient. Thus, in R. v.

Nixon (1990), (BC CA), 57 C.C.C. (3d) 97(leave to appeal to the Supreme Court refused), the accused, a police officer, had failed to protect a detainee from an assault that occurredwhile he was present, and the British Columbia Court of Appeal found, at page 112: In some cases it has been held to be sufficient that the accused had the power to control the acts of the person committing the offence.Where such control exists, failure to act has been interpreted to constitute encouragement.

Glanville Williams states in Criminal Law, theGeneral Part, ibid., p. 360: "Where a person has the right to control another, his inactivity may be taken as evidence of encouraging theconduct, making him guilty as abettor." See also R. v. Halmo (1941), (ON CA), 76 C.C.C. 116 (C.A. Ont.) (an automobile owner’s failure to prevent the driverfrom driving while impaired); R. v. Kulbacki, (MB CA), [1966] 1 C.C.C. 167 (Man.

C.A.) (an automobile owner’sfailure to prevent a person from driving dangerously). [102] I am therefore of the view that the law here is similar to that in the country where our criminal system originated. [103] Thus, a person's mere presence at the scene is not conclusive of aiding or abetting (Dunlop and Sylvester v. R., (SCC), [1979] 2 S.C.R. 881 at 891 and 898). In some circumstances, however, a person's voluntary presence and lack of opposition to acrime despite his or her ability to prevent it may constitute both the actus reus (omission to act) and an indication of the intent to aid(Dunlop and Sylvester v.

R. at 892–893). It all depends on the assessment of the evidence as a whole by the jury or judge sitting alone. [104] It therefore follows that here, as in England, the failure to exercise one's authority over property or a person may constitute asufficient actus reus to justify conviction where it is concomitant with the requisite mens rea to render a person an accomplice throughaiding. [105] I shall now move on to the mens rea. It has two components: intent and knowledge (R. v.

Briscoe, 2010 SCC 13 ,[2010] 1 S.C.R. 411, 2010 SCC13). [106] Knowledge means the accused must know that another person intends to commit a specific offence: R. v. Briscoe atparagraphs 17 and 18. This alone is not sufficient, however, since the Crown must also demonstrate the intent to aid. Evidence beyond adoubt of an actus reus (such as an omission to act or a positive act of assistance) and the knowledge that another person intends tocommit an offence is not sufficient to justify a conviction for complicity.

If it were, a person who is accidentally present then realizesthat an indictable offence is being committed with his or her property but does nothing could be found to be a party. [107] The Crown must also establish, beyond a reasonable doubt, that the accused wished to aid in the commission of the offence bythe other person (subjective intent). At this stage, it is important to avoid confusing motive, the desire for the offence to be successfullycommitted, and mens rea.

Mens rea requires proof that the accused acted or omitted to act for the purpose of aiding someone in thecommission of an offence, not that he or she wished for or approved of the consequences of his or her assistance, whether direct or byomission (R. v. Hibbert, (SCC), [1995] 2 S.C.R. 973; R. v. Greyeyes at para. 37; R. v. Briscoe at para. 16). [108] The above leads me to conclude that being a party through the omission to act is possible in Canada under paragraph 21(1)(b)Cr. C. and is not limited to cases in which the accused omits to do something that he or she had a duty to do.

The trial judge did not err inhis conclusion on this point.

I am aware, however, that this is an area of law that can inspire criticism and reservations regardingsituations of criminal complicity by omission (see, for example, the comments of Glanville Williams in two articles, "What Should theCode Do About Omissions?", (1987) 7 Legal Studies 92 and "Which of You Did It?" (1989) 52 Modern Law Review 179, in which theauthor reacts to proposals from the English law reform commission). [109] Those who fear that including the omission to act of a person who had a right to act with regard to his or her property or withregard to a person under his or her authority will lead too easily to a finding of complicity, particularly in the case of spouses or parents,should be reminded that the Crown will always be required to demonstrate not only the omission to do something that the accused couldhave done, but also the knowledge of the criminal nature of an activity carried out or planned by the spouse or child and, in addition, theaccused's intent to aid in the commission of the crime by omitting to act.

The burden on the Crown is therefore very high and does notinclude the possibility of imprisonment for the parent of a youth simply because the youth was growing a few marijuana plants in thefamily garden. III. Application of the principles to the case:

[ 110 ] It is not disputed that the plantation site belonged exclusively to the appellant and that she had the right to decide how it was used. [ 111 ] It has also been proved beyond any reasonable doubt that the appellant was at the site during the harvest season, quickly understood that the production of controlled substances was taking place, and omitted to do something concrete to bring the unlawful use of her property to an end. If her testimony is to be believed, she merely asked her son to put a stop to the operation. Although she saw that the production continued, she did nothing more.

She did not even move her tent closer to the house, which would have allowed her to be closer to her family members but farther from an area that could be dangerous during the harvest season. [ 112 ] By omitting to do anything at all, she allowed the use of her property to continue and made it possible for the offences, namely, the production of prohibited substances, to be completed (the harvest was in full swing).

Moreover, by pitching her tent at the meeting point of the paths, where no one else was permanently located, she was a de facto guard at the pathway access points, thus performing a concrete act of assistance. The actus reus under paragraph 21(1)(

b) is established. [ 113 ] It then remained for the Crown to establish that the appellant knew about the production of controlled substances and that she had done certain things and omitted to do others for the purpose of aiding in the completion of the production of controlled substances. [ 114 ] As my colleague Rochette J.A. stated in R. v. M.D. , supra : [ translation ] [13] That said, the mens rea of being a party by omission consists in the specific intent to aid someone to commit an offence by omitting to do something. This intent may be inferred from the evidence .

On the other hand, mere knowledge of the commission of the offence is not sufficient to deduce the accused's intent, though it may sometimes be an indicator thereof. [Emphasis added.] [ 115 ] Let us consider what the evidence reveals. [ 116 ] First, the appellant knew that her land was being used for the purpose of marijuana production and that this substance is prohibited.

Indeed, if we are to believe her, she even asked her son to stop because of the unlawfulness of the operation, which she understood perfectly well. [ 117 ] Second, she also quickly understood that the operation was continuing, but she chose to do nothing to end the unlawful operation, which in fact could not be completed without the continued use of her property. Her testimony also indicates that she had a triple motive for her inactivity: not to harm her son, not to take

part in the repression of something that, in her view, should not be criminal, and not to suffer the possible inconveniences of reporting her son, which she described vaguely as [ translation ] "having problems" because of her criminal record. In short, she deliberately omitted to do something that could have brought the production to an end and therefore prevented the harvest. This does not in itself establish the mens rea to aid in the commission of the crimes.

But there is more. [ 118 ] The judge added that she remained where she was and even returned to the site after a short absence (one week in Montreal), while finding on the evidence that she could have left (paragraphs 35, 36, and 46), a conclusion that has not been shown to be vitiated by a palpable and overriding error or to be unreasonable in the present case. Why, then, did she return?

The judge deduced that it was to help with the plantation (paragraph 46, in fine ). [ 119 ] The police evidence also indicates that she chose to stay in a tent with a dog in an isolated, out-of-the-way spot that was not practical in relation to the residence, which was about ten minutes' walk away, and that her vehicle was parked well out of sight. This choice can only be explained by a wish not to be seen and indicates that her presence at the scene of the offences was in no way accidental.

It is also inconsistent with her explanation that she had gone there to console her niece after her mother's death (an explanation that the judge rejected at paragraph 34); indeed, if she wanted to be with her, why did she set up her tent ten minutes' walk away from that of her niece? [ 120 ] Finally, the police evidence indicated that the site she chose to pitch her tent was highly strategic, since it was the only point from which all access paths to the plantation plots emanated, and that it was harvest season.

The choice of this location thus made it possible to observe, even control, the only access to the mature plants. In short, by remaining at this location, which was highly impractical in terms of the residence and the rest of her family, she acted as a kind of guard for the plantation, taking on a certain de facto control. [ 121 ] In my view, the cumulative effect of these actions and omissions appears sufficient to find that the trial judge's overall conclusion in the impugned judgment that the appellant intended to aid in the commission of the offences within the meaning of paragraph 21(1)(

b) Cr. C . was reasonable. I would add, in passing, that the judge did not impose on the appellant a duty to leave; rather, he took into consideration her continued presence in his analysis of the evidence as a whole in determining the appellant's intent ( mens rea ). That being said, with respect for the contrary opinion, the fact that the trial judge did not express himself as clearly as we might wish on the subject of mens rea does not mean that the judgment was without reasons or incomprehensible once the evidence and arguments are read.

Therefore, with respect, it cannot be concluded that inadequate reasons regarding the mens rea were given in the judgment . [ 122 ] In her defence, the appellant did not argue that she acted under any duress (indeed, there is no evidence to support such a claim). Moreover, it is well established that an accused cannot raise the common law defence of duress if there was a possibility of escaping the situation without being harmed. See R. v. Hibbert , supra .

In any event, such a defence (withdrawal/abandonment) is available only under subsection 21(2). [ 123 ] In addition, the conviction is clearly not based solely on mere presence at the scene of an offence, which would go against the teachings of the Supreme Court of Canada in R. v. Jackson , supra . In that case, a person was found on the site of a marijuana plantation, wearing boots, and living in a tent near the plantation in a secluded spot. In that judgment, which upheld a majority judgment of this

Court (2007 QCCA 67), Fish J., stated the following for the majority of the Supreme Court: 3 The appellant relies for the success of his appeal on the proposition that mere presence at the scene of a crime does not proveculpable participation in its commission. That proposition is entirely sound. As we shall see, however, it is of little assistance to theappellant, whose conviction does not rest on his mere presence at the scene of the crime.

It rests, rather, on the cumulative effect of hisapprehension at the scene, the rejection of his explanation for being there, the particular nature of the offence the context in which it wascommitted, and other circumstantial evidence of his guilt. [124] Here, the conviction rests on the same kind of evidence, and the comments of Fish J. are entirely applicable. We must considerthe cumulative effect of all of the factors and avoid analyzing them in isolation.

In addition to the presence of the appellant's tent at astrategic point in the plantation, all of the other circumstances should also be pointed out: her ownership of the land, her prolongedpresence during harvest season, the rejection of her explanation for not leaving, her deliberate omission to do something likely to bringthe production to an end, the lack of credibility of her explanation for deciding to return to the premises in August, the particular natureof the offences, the context in which they were committed, and the other circumstantial evidence. [125] In short, as the trial judge clearly indicated in his analysis, the guilty verdict does not rest on the mere presence of the appellantat the scene, but on a specific context demonstrating her right to control the premises, her knowledge of the nature of the operationstaking place there, her performance of concrete actions that could only provide assistance (pitching her tent at the entrance point of thepaths, thus becoming the de facto guard over access to the plots, and returning to the scene after an absence), and her failure to performconcrete actions to put a stop to the unlawful operation that could not be completed without using her property.

Moreover, all of theseelements indicate the intent to aid. IV. Lack of duty to report: [126] It is true that a citizen who witnesses the commission of a crime does not commit an offence by failing to report it. This citizenwould be in breach of his or her civic duties, but this is not a criminal offence. [127] Thus, anyone who observes actions indicating a marijuana plantation on his neighbour's land does not have a duty to call thepolice.

If that person remains silent, he or she may not subsequently be charged with any offence, including having aided by omission orabetted illegal operations. [128] In my opinion, the situation appears quite different when the observer is the owner of property that is necessary to thecommission of the offence.

Once the person has knowledge of the illegal operation, his or her decision to do nothing to stop it, knowingthat continued use of the property is required to commit the offence, can constitute evidence of the actus reus and, possibly, also anindication of intent (wilful blindness or omission to act for the purpose of aiding the commission) within the meaning of

section 21 Cr.C. If it is true that a person who agrees to rent his or her land to produce substances he or she knows to be prohibited aids in theproduction and becomes a party thereto, then the situation can be no different when a land owner tolerates use for the same purposebecause in so doing he or she intends to aid production. [129] In this case, the judge did not impose a duty to report on the appellant, and his comments at paragraphs 47 and following, citedabove, are not contradictory. V.

Offence of possession: [130] Regarding the second count, I reiterate the conclusions of the trial judge: [translation] [50] ...

Regarding possession for the purpose of trafficking, whatever the form of this possession: knowledge beyond passive knowledge,consent, tacit here but very clear, that the producers could continue to have personal or direct possession of the plants, and a measure ofcontrol over them since, to demonstrate her good faith and lack of involvement, the accused could and should have reported the presenceof this plantation on her land, or at least dissociated herself by leaving. [Emphasis added.] [131] In R. v.

Terrence, (SCC), [1983] 1 S.C.R. 357, the Supreme Court recalled the elements that must bedemonstrated to make a finding of possession under subsection 4(3) of the Criminal Code: knowledge, consent, and a measure of controlover the property at issue. Thus, a mere passenger in a vehicle that he or she knows to be stolen does not have joint possession with thethief who was drivin

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