Appeal from conviction for counselling offences of fraud and uttering a forged document. Issue of whether the requisite mens rea was proven at trial. Trial judge found that appellant tried to convince conspirators to “go along with the plan” of using a fake letter to gain an advantage in a lawsuit. Issue on appeal of whether the mens rea for counselling was established: appellant argued that trial judge’s finding was only that he intended to convince the other parties that the scheme would work, rather than an expectation or desire for the parties to implement the plan.

Held: Appeal dismissed.

Hamilton, 2005 SCC 47 outlined the test for mens rea for counselling: “a) actual intention that the counselled crime be committed, or b) reckless disregard of an unjustified risk that the offence would be committed”. Trial judge paraphrased the proper test and his conclusion that both branches of the Hamilton test were met was supportable by the evidence. No reviewable error.

M. Duckett – Defence Counsel