Joseph Kennedy and Donald Schaeffer attacked a fellow inmate while in custody. Keith O’Loughlin decided to join in. He was convicted by a jury after trial, and appealed from conviction and sentence: R v O’Loughlin, 2017 ONCA 89.

The case for the Crown at trial was simple: video surveillance of the assault. The video depicted O’Loughlin first watching the assault intently, and then purposefully walking toward the bathroom, where the assault had moved. O’Loughlin was then seen peeling back a hand clutching the doorframe, and then moving his leg in a manner consistent with a knee strike: @paras 4-8.

After brief deliberations, a properly instructed jury convicted O’Loughlin. Trial counsel agreed that the jury could find O’Loughlin guilty as either a joint principal or as an aider: Section 21(1), Criminal Code of Canada. The jury was instructed that their verdict need only be unanimous in finding guilt, not as to the nature of O’Loughlin’s participation: R v Thatcher [1987] 1 SCR 652.

At trial, the principal assailant –Kennedy– testified for the defence. He testified that O’Loughlin was not involved in the attack. Kennedy testified that O’Loughlin intervened to stop him from stomping on the victim’s head, saying, “Joe, that’s enough, that’s enough”. The defence position at trial was that while O’Loughlin was present for the assault, he was not participating: @ para 9. This position was rejected by the jury.

The Ontario Court of Appeal reviewed the video surveillance evidence. They found no basis to interfere with the verdict. The video formed a sufficient basis on which the judge could instruct that O’Loughlin could be found guilty. As such, the appeal was dismissed. The appeal from sentence was allowed, but also dismissed: @paras 18-28.

Comment

In writing for a unanimous court, Watt J. highlighted that O’Loughlin’s presence was not accidental. This was not a case of simply being “in the wrong place at the wrong time.” His presence during the assault was “intentional”, and his involvement was “active”: @para 16. While “mere presence” or “passive acquiescence” is not enough to establish criminal liability as a party (see R v Kirkness, 1990 3 SCR 74; R v Dunlop, [1979] 2 SCR 881), in this case, the takeaway point from the Court of Appeal is clear: presence itself during a crime does matter, and it is not necessarily innocent.