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CRIMINAL CODE OFFENCES - Attempts, conspiracies and accessories - Common intention

Wednesday, August 26, 2020 @ 8:18 AM  

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Appeal by the accused from convictions for committing robbery while using a restricted or prohibited firearm, using a firearm while committing break and enter and intentionally discharging a firearm. The appellant and three others participated in a home invasion. Several firearms were found at the scene, and shots were fired from one of them. Although the trial judge concluded that a co-accused fired those shots and that the appellant did not have possession of any of the guns, he convicted him as a party to three firearms offences. The judge concluded that by being actively engaged in the primary offence, liability flowed for the incidental offence and that all participants knew that guns were going to be used and that it was objectively foreseeable that guns might be discharged. The appellant argued the judge erred in his analysis of party liability. 

HELD: Appeal allowed. New trial ordered on the firearms offences. The trial judge applied the wrong test when convicting the appellant of the firearms related offences as a party. Active engagement in the primary offence did not necessarily mean the elements for party liability were met for an incidental offence. The trial judge failed to consider whether it was foreseeable that the firearms would be used or discharged as an incidental crime to the primary offence. The test was whether it was reasonably foreseeable that the incidental offences would occur, not whether they might occur.

R. v. Cooper, [2020] B.C.J. No. 1140, British Columbia Court of Appeal, E.A. Bennett, R. Goepel and S.A. Griffin JJ.A., July 20, 2020. Digest No. TLD-August242020005