A gang rape of the complainant occurred late at night in an isolated area, the site of a former dump, where members of a motorcycle club were having a party. Some eighteen men had intercourse with the complainant while she was being held by two other members of the group. She identified Dunlop and Sylvester as two of the men who attacked her but they denied the charge. They testified that they had attended a meeting of the club at the dump earlier in the evening in question, and later were present in a beverage room where the complainant and a friend were spending some time. Still later, the accused delivered a quantity of beer at the dump. Dunlop saw a female having intercourse; with whom, he could not say, but he believed the person to be a member of the motorcycle club. After three minutes he and his co-accused left.
- Is mere presence sufficient to find aiding and abetting?
Appeals allowed, acquittals entered.
Lamer, writing for the majority, held that 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 encouragement. In the case at bar there was no evidence that while the crime was being committed either of the accused rendered aid, assistance, or encouragement to the rape of the complainant. There was no evidence of any positive act or omission to facilitate the unlawful purpose. One could 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 was not sufficient. A person cannot properly be convicted of aiding and abetting in the commission of acts which he does not know may be or are intended. 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.
- Mere presence is not sufficient for a third party to be culpable.
- A finding of aiding and abetting requires some knowledge of the crime to be committed and some positive act or omission which aids or abets the offence.