Masked Beyond a Reasonable Doubt: R v Cowan is Granted Leave to the Supreme Court

An anonymous tip to Crime Stoppers points investigators toward a potential suspect that was involved in an armed robbery. However, what is the outcome when the robber was masked and the witnesses who testify are not, in the eyes of the trial judge, credible? To top it all off, the remaining evidence to hold this particular suspect accountable is deemed circumstantial.

R v Cowan 2020 SKCA 77 [Cowan] was recently granted leave to the Supreme Court (“SCC” or “the Court”) on January 14, 2021. This article looks at why this case has been accepted by the SCC and what this could mean for individuals who are buried under circumstantial evidence.

The Facts

On July 7, 2016 in Regina, Saskatchewan, Mr. Patel was working at Subway, a fast-food restaurant, when at approximately 9:00 p.m., two people came into rob the store (para 4). The Subway employee testified at trial that one person was unmasked and remained at the door, while the second individual, who was wearing a black jacket, a mask, and carried a large kitchen knife, approached Mr. Patel demanding money (para 4). The masked robber reportedly stated, “I won’t hurt you I just want the money,” and eventually left Mr. Patel unharmed with four hundred dollars in hand (Para 4).

Mr. Patel testified that he could not identify the second unmasked individual, nor would he be able to recognize him (Jason, Para 6). When the robbers left, Mr. Patel reported the robbery and within minutes, police officers arrived at the scene (Jason, Para 6). Approximately six days after the robbery, the police received an anonymous tip from Crime Stoppers identifying Jason Cowan (“Cowan”) as the masked offender (Jason, para 9).

Cowan was charged with armed robbery contrary to section 343(d) of the Criminal Code R.S.C., 1985, c. C-46 (“CC”), and with having his face masked with intent to commit robbery contrary to section 351(2) of the CC (Jason, para 1). The Crown held that if Cowan was proven not to be one of the principals (a person who committed the crime themselves) beyond a reasonable doubt, he would alternatively be found guilty of being a party to the act for aiding, abetting and/or counselling the persons who had committed the robbery pursuant to sections 21(1)(b) and 22(1) and (2) of the CC (para 33). 

The Trial

At the trial of R v Jason William Cowan 2018 SKQB 75 [Jason], the Crown advanced two alternative theories: 1) Cowan was the masked robber and guilty as the principal offender, or 2) if Cowan was found not guilty beyond a reasonable doubt as the principal offender, by providing instruction to two men he had named in his warned statement on how to commit a robbery, he encouraged or counselled them to commit the offence.

Justice Zarzeczny, sitting alone without a jury, analyzed the evidence submitted by the Crown. This evidence included the Subway videotape illustrating the details of the robbery, pictures of shoes “similar” to the ones owned and worn by the accused in the surveillance footage of the robbery, testimony stating that Cowan admitted to committing the robbery, testimony that the accused lied about his alibi on the night of the robbery, and a statement Cowan conveyed to the police with respect to the details of the robbery which matched closely to what had actually occurred (Jason, para 35).

Justice Zarzeczny held that the most significant piece of evidence was the admission of guilt that the accused allegedly made to one of the Crown’s witnesses (Jason, para 36). However, the judge explained that a previous SCC ruling in R v Vetrovec 1982 1 SCR 811, required him to carefully assess the reliability of the witness’s evidence and the weight it was given when a witness’ character is question, in this case, due to her bizarre, unusual, and disrespectful conduct in court. Questions were raised about the witness’ mental state during testimony because of her disreputable character as she had been previously convicted of a number of offences, including robbery and assault, and self-admitted to being a drug addict (Jason, para 36). Justice Zarzeczny therefore classified the witness’ testimony as circumstantial, which made the “confession statement” not supportive of the charges against Cowan (Jason, para 37).

The trial judge went on to consider the remaining evidence to prove Cowan’s involvement in the robbery (Jason, para 38). Justice Zarzeczny noted that considerable suspicion was raised against Cowan based on his extensive knowledge about the details of the robbery. However, Justice Zarzeczny held the accused’s statement to be circumstantial since “the identity of the robbers was incapable of otherwise being established since the principal robber was masked at the time and the person keeping watch by the door was unidentifiable” (Jason, para 38). Justice Zarzeczny referenced the SCC’s recent case which discusses the implications of solely relying on circumstantial evidence to support a conviction in R v Villaroman 2016 SCC 33. Therefore, the trial judge held that he could not find the accused guilty of being a principal offender in the robbery beyond a reasonable doubt (Jason, para 42).

Justice Zarzeczny then went on to consider the Crown’s alternative theory of Cowan acting as a party through counselling or encouraging other parties to the robbery. The trial judge held that there was not enough evidence to implicate or prove beyond a reasonable doubt that the individuals named by Cowan in his statement to police were actually the perpetrators involved in the robbery (Jason, para 45). Therefore, Justice Zarzeczny held that in these circumstances, even though the accused is a twice-convicted robber, before he can be accused of aiding, abetting or counseling the commission of the Subway robbery, “I must be satisfied that it was [the individuals Cowan had referred to] who participated as principals in the commission of the crime” (Jason, para 49).

At the Court of Appeal

The Majority

The majority of the Saskatchewan Court of Appeal (“SKCA”) ruled that the trial judge made a legal error in requiring the identity of the principal offenders to be known in order to establish Cowan’s culpability in either abetting or counselling the commission of the robbery. The majority held that this misapplication constituted a material bearing on Cowan’s acquittal as it led Justice Zarzeczny to overlook “relevant and probative evidence which strongly supported a finding of guilt” (Cowan, para 2). The majority, consisting of Justices Kalmakoff and Ottenbreit, held that the appropriate remedy was to grant a new trial (Cowan, para 47).

The SKCA held the purpose of both section 21(1)(c) – abetting – and section 22 – counselling – is to make those who assist in the preparation of a crime possess the same legal culpability as the principal offenders” (para 25). With respect to abetting, the SKCA held that it is not necessary to prove precisely who “assisted” and participated as the principal offender in the felony. Writing for the majority, Justice Kalmakoff relied on R v Isaac 1984 1 SCR 74 and R v Pickton 2010 SCC 32 to confirm that even though the identity of the principal offender and the role of each of the participants may be unknown, where there is evidence to support the possibility of abetting, it must be directed to the jury (Cowan, para 28).

With respect to “counselling,” the SKCA relied on Mugesera v Canada (Minister of Citizenship and Immigration) 2005 SCC 40 to hold that the Crown does not need to prove that the person counselled was a principal offender (Cowan, para 35). There only needs to be a direct link between the counselling by the accused and the commission of the offence for culpability under section 22(1) of the CC.

The Dissent

Justice Jackson began by stating the trial judge did not commit an error of law (Cowan, para 52). The SKCA judge stated that she agreed with the majority judges in their analysis as to the proper interpretation of sections 21(1)(c) and 22(1) of the CC, but that Justice Zarzeczny did not misinterpret the law and was solely dealing with the evidence before him and the submissions provided by the Crown (Cowan, para 61).

Justice Jackson dedicated a portion of her judgment to emphasize how appellate courts should attempt to understand the reasons of the trial judge by reading them as a whole in the context of the evidence and not by parsing in a line-by-line search for errors (Cowan, para 70). In emphasizing this principle, Justice Jackson relied on the recent ruling in R v Chung 2020 SCC 8, a case also covered by TheCourt.ca in October 2020. Even though the SKCA judge’s dissension made it clear that Justice Zarzeczny found no errors of materiality, she continued to consider whether the Crown would be able to overcome the burden of justifying a new trial in the alternative event that the trial judge was found to have committed an error (Cowan, para 71).

The key distinction Justice Jackson found in the trial transcripts was in the evidence used by the Crown to bolster two contradictory theories. Justice Jackson stated, “By attempting to put forward both theories [Cowan as the principal offender, and in the alternative, Cowan abetted or counselled other persons as parties in the commission of the robbery], the Crown actually created the reasonable doubt that led the trial judge to conclude Mr. Cowan could not be convicted as principal” (Cowan, para 74). Justice Jackson reasoned that if the trial judge could not use Cowan’s statement as evidence to substantiate him as the principal offender in the robbery, how could he then use that same statement to substantiate the less obvious inference that Cowan played a role in the abetting or counselling? (Cowan, para 92)

After reading Cowan’s video-recorded statement to the police, Justice Jackson highlighted that she found it difficult to disagree with the trial judge’s conclusion that Cowan not only had the motive to lie, but also that his statement was full of inconsistencies and contradictions, “leaving the general impression that Mr. Cowan was prepared to say anything in order to be released” (Cowan, para 79). She also articulated,

For most of his statement, he appeared not to understand that by telling the interviewing officer that he had told others how to commit robbery, and if one or more of those others went on to do so, that he was implicating himself in the crime in the same way as if he had committed the offence (Cowan, para 79).

 Justice Jackson concluded that the most critical part of the potential abetting or counselling conviction, is whether the person(s) that Cowan was alleged to have instructed, regarding the robbery, were actually parties to the crime pursuant to section 21 or 22 of the CC (Cowan, para 75). Without evidence to establish these facts beyond a reasonable doubt, a conviction for abetting or counselling cannot be upheld.

SCC Prediction

The two interpretations provided by the SKCA have extremely diverse outcomes for the accused, either in his ability to walk away from the charges or to be further held in custody to await a new trial. All of the judges at the SKCA agreed that there was not enough evidence produced at trial to substitute a conviction. Armed robbery is an incredibly serious offence, and even after considering the fact that the stolen amount was not a substantial sum, a conviction could potentially result in a minimum of 4 years imprisonment to a maximum of life imprisonment pursuant to section 344(1) of the CC.

Therefore, it is clear that the SCC accepted this appeal to possibly clear up the inconsistent views in the application of the CC provisions that were held by the SKCA. On one hand, there is the possibility that the principal offenders are never identified and based on the ideologies of Justice Jackson, this would entail that individuals who have probative evidence against them for aiding, abetting or counselling, without the identity of the principal actors, could walk free for being just as criminally culpable.

On the other hand, where the evidence obtained is not strong enough to hold the accused to be the principal offender, how can they be held liable for assisting in the preparation of a crime, when the trial judge cannot confirm beyond a reasonable doubt of who was actually involved? When facing incarceration, circumstantial evidence seems to be hardly enough to prove one’s guilt and this is not something we want our justice system to use when enforcing prison terms. The SCC will likely provide its guidance on how these provisions should be interpreted and applied, as well as a possible expansion into how far circumstantial evidence can aid in assisting with a conviction that is based on the Crown’s alternative theory.