Contrived Ignorance: Wilful Blindness 



Summer 2010 - (Lang Michener LLP InBrief Summer 2010)

Lang Michener LLP InBrief Summer 2010
Ed.: The principles of wilful blindness have recently surfaced in the context of copyright infringement and in manufacturer recalls and in allegations against banks in their wilful blindness to Ponzi schemes and with reference to monies impressed with a trust. In R. v. Briscoe , the Supreme Court of Canada recently reviewed the doctrine of wilful blindness in the context of parties to an offence under the Criminal Code . The case is reviewed here as it may offer clarifications of broader application.
The facts in R. v. Briscoe are brutal and graphic and unnecessary to delve into for the purpose of this article. Suffice to say that a teenage girl was murdered, and what happened to the victim was not the main question at trial. There was also no serious question that the homicide fell within the category of first degree murder, either because it was planned and deliberate, or because it was committed during the commission of a crime of domination.
In the Court of Appeal of Alberta the issue was whether the trial judge erred in law by failing to consider whether Mr. Briscoe was "wilfully blind to the harm his cohorts intended to cause the victim."
Canadian criminal law does not distinguish between the principal offenders and parties to an offence and makes perpetrators, aiders and abettors equally liable. Of course, doing or omitting to do something that results in assisting another in committing a crime is not sufficient to attract criminal liability. The aider or abettor must also have the requisite mental state, or mens rea . Specifically, in the words of s. 21(1)(b) of the Criminal Code , the person must have rendered the assistance for the purpose of aiding the principal offender to commit the crime.
In the Court of Appeal, Mr. Briscoe argued that wilful blindness was only a heightened form of recklessness, and recklessness is inconsistent with the very high mens rea standard for murder under the Criminal Code . The Court of Appeal rejected that argument.
The Supreme Court of Canada agreed and indicated that wilful blindness, correctly delineated, is distinct from recklessness and involves no departure from the subjective inquiry into the accused's state of mind that must be undertaken to establish an aider or abettor's knowledge.
Wilful blindness does not define the mens rea required for particular offences. Rather, it can substitute for actual knowledge whenever knowledge is a component of the mens rea .
The doctrine of wilful blindness imputes knowledge to an accused whose suspicion is aroused to the point where he or she sees the need for further inquiries, but deliberately chooses not to make those inquiries. This was similarly stated in the U.S. case of State v. McCallum : "[T]he rule is that if a party has his suspicion aroused but then deliberately omits to make further [i]nquiries, because he wishes to remain in ignorance, he is deemed to have knowledge…. The rule that wilful blindness is equivalent to knowledge is essential…."
In Jorgensen (Supreme Court of Canada, 1995), Mr. Justice Sopinka explained: "A finding of wilful blindness involves an affirmative answer to the question: Did the accused shut his eyes because he knew or strongly suspected that looking would fix him with knowledge?"
Courts and commentators have consistently emphasized that wilful blindness is distinct from recklessness. In Sansregret , the Supreme Court (in 1985) said:
The culpability in recklessness is justified by consciousness of the risk and by proceeding in the face of it, while in wilful blindness it is justified by the accused's fault in deliberately failing to inquire when he knows there is reason for inquiry. [Italics added.]
While a failure to inquire may be evidence of recklessness or criminal negligence, as for example, where a failure to inquire is a marked departure from the conduct expected of a reasonable person, wilful blindness is not simply a failure to inquire but "deliberate ignorance."
Glanville Williams, cited in the Sansregret case, explains the key restriction on the doctrine:
The rule that wilful blindness is equivalent to knowledge is essential….
A court can properly find wilful blindness only where it can almost be said that the defendant actually knew. He suspected the fact; he realized its probability; but he refrained from obtaining the final confirmation because he wanted in the event to be able to deny knowledge. This, and this alone, is wilful blindness. It requires in effect a finding that the defendant intended to cheat the administration of justice. Any wider definition would make the doctrine of wilful blindness indistinguishable from the civil doctrine of negligence in not obtaining knowledge. [Italics added.]
In this case, the Supreme Court found that the evidence cried out for an analysis on wilful blindness. Indeed, Briscoe's own statements to the police suggested that he had a strong, well‑founded suspicion that someone would be killed, and that he may have been wilfully blind to the kidnapping and prospect of sexual assault. His statements also show that he deliberately chose not to inquire about what the members of the group intended to do because he did not want to know. The trial judge's failure to consider Briscoe's knowledge from that perspective constituted a legal error that necessitated a new trial on all charges.
This article appeared in the Lang Michener LLP InBrief Summer 2010.