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Blog of Adam Daifallah -- author, journalist, law student. Lover of politics, writing, golf, curling, fitness, fashion, bacon and maple products -- not necessarily (but probably) in that order. Partisan of the Anglosphere. Contact me via email at adam@daifallah.com. This summer I am joined by Keir Wilmut and Omar Soliman.
Monday, July 09, 2007
The Mayerthorpe murders and Parties to an Offence
Dennis Cheesman and Shawn Hennesey have been charged with four counts of first-degree murder under the “Parties to Offence” provision of the Criminal Code. Judging by the vague descriptions in the newspapers, I don’t think this is a well-understood provision.
Section 21 of the Criminal Code doesn’t make a particular act illegal, but rather overlays the other offences in the Code and extends liability for those offences beyond the person who actually committed the act:
PARTIES TO OFFENCE / Common intention.
21. (1) Every one is a party to an offence who
(a) actually commits it;
(b) does or omits to do anything for the purpose of aiding any person to commit it;
(c) abets any person in committing it.
Translated into plain English this means that a person can be found guilty of any of the acts in the Code if he or she (a) actually commits the act, (b) assists another person to commit the act, or (c) encourages another person to commit the act. The possible penalties are the same as for a person who actually commits the offence, although the degree of the role will play a role in sentencing.
It looks as if Cheesman and Hennesey are accused of aiding (section 21(1)(b)) James Roszko in the murder of the four RCMP officers. This will require the Crown prosecutor to prove that the two men did something (or didn’t do something) for the purpose of helping Roszko commit murder. Accidental assistance is not enough: whatever specific act or acts Cheesman and Hennesey are accused of doing to aid Roszko, it will have to be proven that they either intended that death would ensue, or that they intended Roszko cause harm of a kind likely to result in death. Note that “intent” does not equate with “desire”; there is no requirement that the two men wanted the officers dead.
There isn’t much information available about what the two men allegedly did to aid in the commission of the offence other than a statement by an RCMP officer in the warrant that “Hennesey is a person on which Roszko would turn to for assistance.” What we do know: on the day before of the murders, two bailiffs arrived at Roszko’s farm to seize a stolen truck. Roszko fled. He allegedly made phone calls from Hennesey’s house. Hennesey later told the police that Roszko asked him to hide his truck, but he refused. The next day, Roszko somehow make it back to his farm where he shot the four officers.
As an example (and this is entirely speculative), let’s say Roszko came over to one of their houses and said, I’m in trouble, can I hide out here for the night? Hiding Roszko could only result in a conviction for murder if the men did so with the intention of helping him kill the officers. Just knowing that he was on the run for some reason and giving him a place to stay would not be enough to convict for murder (but may be enough to convict under sections 23 and 463 as an accessory after the fact). Similarly, say one of them men drove Roszko back to his farm. This could only result in a conviction for murder if the man drove him to the farm intending that he commit an act likely to lead to the deaths of the officers.
If such intent cannot be proven, the two men could still be found guilty of manslaughter if they intended to assist Roszko commit an act that a reasonable person would have understood would lead to bodily harm. Continuing the speculation, it might be enough to convict them of manslaughter if they drove Roszko back to the farm while he spoke of his desire to shoot at the officers, even if they had no intention of helping him commit murder, and didn’t appreciate that he might do so.
Edited to add: Colby Cosh has some great analysis, pointing out additional reasons why it may be difficult to convict these guys.
# posted by Keir Wilmut : 11:11 AM
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