R v Natewayes: Clarity to Party Requirements in the Code and Inferring the Knowledge Requirement
The Supreme Court’s recent, very short decision in R v Natewayes, 2012 SCC 5, clarifies the tests for being proven a party to an offence in the Criminal Code, It also demonstrates that it is open for a trial judge to make a wide range of inferences regarding an accused’s knowledge based on the facts. In doing so, the case shows how these inferences can ultimately be influenced by subjective understanding and policy considerations.
In 2012, Tasia Natewayes drove her boyfriend, Mr. Goodrich and his friends to Mr. Vandall’s home where there was ultimately a confrontation leading to the death of the victim, Dakota Nayneecassum. Natewayes knew about the historic discord between Goodrich and Vandall. Natewayes testified that she saw the group of men in her car cover their faces prior to attending the house. She also drove to a second location after making sure Mr. Vandall’s car was in his driveway to pick up additional friends, at Mr. Goodrich’s request.
The Trial Decision
The trial judge found that the accused was a party to the offence of manslaughter as per the requirements of s 21(2) of the Criminal Code, RSC 1985, c C-46 which provides that:
Where two or more persons form an intention in common to carry out an unlawful purpose and to assist each other therein and any one of them, in carrying out the common purpose, commits an offence, each of them who knew or ought to have known that the commission of the offence would be a probable consequence of carrying out the common purpose is a party to the offence.
The trial judge interpreted this section to require that common purpose party liability is conditional on whether the risk of harm to the victim is reasonably foreseeable. She found that the accused could not be convicted as a party because Natewayes did know how that Nayneccassum was in the house and could thus not have foreseen he would be harmed.
Saskatchewan Court of Appeal and the Final Outcome
The Saskatchewan Court of Appeal’s (“SCA”) found that the lower court’s understanding of 21(2) was incorrect, and that it is unnecessary for the Crown to prove that the accused could have reasonably foreseen the specific prospect of harm to the specific victim. Instead, the SCA found Ms. Nateways guilty both on the basis of aiding (helping or assisting the act, R v Greyeyes 1997 SCC) the offence and on the basis of the section 21(2) requirements.
The Supreme Court upheld the SCA’s reasons on appeal and dismissed Ms. Natewayes’ appeal on the issues. The SCA’s decision, as adopted by the SCC, has clarified the purposes and requirements for proving an accused is a party to an offence.
Clarity to the Types of Parties
While not specifically an issue on appeal, the SCC’s adoption of a clarified description of the requirements of subsections s 22(1)(b) and s 22(2) of the Code is helpful. The SCA agreed with the Crown’s position at appeal, finding that in order to fulfil the requirements of s 21(2) in the context of an unlawful act manslaughter such as this, the Crown must prove that the potential party aided the principle in the commission of a “dangerous unlawful act where a reasonable person in all of the circumstances would have appreciated that bodily harm was a foreseeable consequence of the unlawful act.” The foreseeability is measured on whether a reasonable person in the circumstances would have foreseen the risk of harm to “another individual” as a result of carrying out what was intended.
Similarly, to prove s 22(1)(b), the Crown must demonstrate that a person knew that the principal plans to commit the crime, whether or not they knew precisely the manner in which it was to be carried out. The alleged party must also have intended to assist the principal in the commission of the offence, whether or not he or she actually wished for it to be carried out successfully.
The Court’s analysis overturns the trial judge’s finding that the accused could not be found guilty based on her lack of knowledge that the victim was in the home and that the target would be someone else. This concept of “transferred intention” (R v DeSousa, Respondent Factum) is well-founded in case law.
Drawing Inferences of Knowledge
These tests and concepts are not necessarily novel and are well-established, as the SCA decision illustrates. Nonetheless, Natewayes provides a sense of how the courts interpret the knowledge requirement within a specific factual context. The accused essentially appealed the reasonableness of the trial judge and Court of Appeal’s interpretation of events, arguing that there was not evidence on which they could find her guilty. The accused argued there was no evidence to infer that she knew that her passengers were going to commit a break and enter. It is necessarily a tricky task for courts to interpret what is in the mind of an accused and the case exemplifies an instance of lower courts being swayed by policy considerations and their own sensibilities.
The Crown argued that it is completely reasonable to draw an inference on the facts that the accused knew that the men intended to commit the break and enter prior to driving them to Mr. Vandall’s home. The trial judge agreed with this inference, which was upheld as reasonable by both the SCA and SCC. The accused’s perspective differed, and she argued that she realized after the men had left Mr. Vandall’s home that there had been a home invasion. While the defence team was burdened with facts that made it difficult for them to suggest that Ms. Natewayes did not know nor was wilfully blind to the possibility of a break and enter, it is not hard to imagine similar but slightly-altered facts that could lead to the equally convincing view that Ms. Natewayes was not aware of the break and enter until after the fact. It is also not completely absurd to suggest that, while she did know there would be a confrontation, that she could not have known or shared intention to commit an offence. The defence’s problem arises in having to prove that the SCA’s conclusion was unreasonable and warrants being overturned on appeal. In any event, the Crown would likely have still been able to prove the offence on the basis that Ms. Natewayes knew that an assault would take place (regardless of whether she knew the identity of the specific victim).
Ultimately, the SCC rightly agrees with the SCA’s finding that the trial judge’s decision, based on her consideration of the facts, was reasonable. But the case nonetheless hints at the difficulty of subjectivity in the process of inferring the state of mind of an accused.
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