Mr. Cowan was acquitted of armed robbery and having his face masked with intent to commit robbery. The Crown’s theories at trial were that Mr. Cowan was the masked robber and, as such, he was guilty as a principal offender, or that Mr. Cowan was guilty as party to the offence because, by providing instruction to the men he named in his warned statement on how to commit a robbery, he encouraged and/or counselled them to commit that offence. The trial judge found that the Crown had failed to prove Mr. Cowan’s guilt on the basis of either theory.

A majority of the Court of Appeal allowed the Crown’s appeal from the acquittal on the charge of armed robbery, set aside Mr. Cowan’s acquittal, and ordered a new trial proceeding from the footing that the question to be determined is whether Mr. Cowan is guilty of robbery, as a party, on the basis of abetting or counselling.

Justice Jackson, dissenting, would have dismissed the Crown’s appeal because the legal error, if it existed, was insufficiently material for the court to overturn the acquittal.