SUPREME
COURT OF CANADA
Between:
Michael
Erin Briscoe
Appellant
and
Her
Majesty The Queen
Respondent
‑
and ‑
Attorney
General of Ontario
Intervener
Coram: McLachlin
C.J. and Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and
Cromwell JJ.
Reasons
for Judgment:
(paras. 1 to
26)
|
Charron J. (McLachlin C.J. and Binnie,
LeBel, Deschamps, Fish, Abella, Rothstein and Cromwell JJ. concurring)
|
Restriction
on Publication: Subject to this section, no person
shall publish the name of a young person, or any other information related to a
young person, if it would identify the young person as a young person dealt
with under this Act. See the Youth Criminal Justice Act, S.C. 2002, c.
1, s. 110(1) .
Subject to this
section, no person shall publish the name of a child or young person, or any
other information related to a child or a young person, if it would identify
the child or young person as having been a victim of, or as having appeared as
a witness in connection with, an offence committed or alleged to have been
committed by a young person. See the Youth Criminal Justice Act, S.C.
2002, c. 1, s. 111(1) .
______________________________
R. v. Briscoe, 2010 SCC 13, [2010] 1 S.C.R. 411
Michael Erin Briscoe Appellant
v.
Her Majesty The Queen Respondent
and
Attorney General of Ontario Intervener
Indexed as: R. v. Briscoe
2010 SCC 13
File No.: 32912.
2009: December 10; 2010: April 8.
Present: McLachlin C.J. and Binnie, LeBel,
Deschamps, Fish, Abella, Charron, Rothstein and Cromwell JJ.
on appeal from the court of appeal
for alberta
Criminal law — Parties to offences — Aiding and
abetting — Mens rea — Intent and knowledge components — Wilful blindness —
Accused charged with several offences for his participation in kidnapping, rape
and murder of young girl — Accused acquitted — Trial judge finding that mens
rea for being party to offences not proven because accused did not have
requisite knowledge of co‑accused’s intention to commit each crime —
Whether trial judge erred by failing to consider accused’s knowledge from
perspective of doctrine of wilful blindness — Criminal Code, R.S.C. 1985,
c. C‑46, s. 21(1) (b), (c).
C, a 13‑year‑old girl, and a young friend
were lured into a car on the false promise of being taken to a party. B drove
the group, which included L and three youths, to a secluded golf course.
Unbeknownst to C or her friend, L had said earlier in the day that he would
like to find someone to kill. It would appear that the idea had been generally
well received and C was chosen by L and some of the others as the victim. On
their arrival, B opened the trunk and, at L’s request, handed him some pliers.
B stayed behind at the car as the others went onto the golf course under the
guise of seeking the party. B rejoined the group around the time that one of
the youths hit C from behind with a wrench. For a moment, B held on to C and
angrily told her to be quiet or shut up. B then stood by and watched as C was
brutally raped and murdered. All five persons involved were charged with
kidnapping, aggravated assault and first degree murder and the two adults, B
and L, were jointly tried by a judge alone. B was acquitted. The trial judge
found that the actus reus for being a party to the offences was proven,
but not the mens rea because B did not have the requisite knowledge that
L intended to commit the crimes. The Court of Appeal overturned the acquittals
and ordered a new trial, holding that the trial judge erred in law by failing
to consider wilful blindness.
Held: The appeal should
be dismissed.
The mens rea requirement reflected in the word
“purpose” under s. 21(1) (b) of the Criminal Code has two
components: intent and knowledge. For the intent component, the Crown must
prove that the accused intended to assist the principal in the commission of
the offence. It is not required that the accused desired that the offence be
successfully committed. As for knowledge, in order to have the intention to
assist in the commission of an offence, the aider must know that the principal
intends to commit the crime, although he or she need not know precisely how it
will be committed. Even in the case of murder, the principal’s intention to
commit the crime must be known to the aider or abettor, but it need not be
shared. It is sufficient that he or she, armed with knowledge of the
principal’s intention to commit the crime, acts with the intention of assisting
the principal in its commission.
The doctrine of wilful blindness, correctly delineated,
is distinct from recklessness and involves no departure from the subjective
inquiry into the accused’s state of mind which 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. 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.
In this case, the evidence cried out for an analysis on
wilful blindness. Even B’s own statements to the police, on which the trial
judge relied heavily, suggest that he had a strong, well‑founded
suspicion that someone would be killed at the golf course 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 B’s knowledge from that perspective constitutes a
legal error which necessitates a new trial on all charges.
Cases Cited
Referred to: R.
v. Laboucan, 2009 ABCA 7, 1 Alta. L.R. (5th) 264, rev’d 2010 SCC 12, [2010]
1 S.C.R. 397; R. v. Greyeyes, [1997] 2 S.C.R. 825; R. v. F. W.
Woolworth Co. (1974), 3 O.R. (2d) 629; R. v. Hibbert, [1995] 2 S.C.R.
973; R. v. Maciel, 2007 ONCA 196, 219 C.C.C. (3d) 516; R. v. Kirkness,
[1990] 3 S.C.R. 74; R. v. Martineau, [1990] 2 S.C.R. 633; Sansregret
v. The Queen, [1985] 1 S.C.R. 570; R. v. Jorgensen, [1995] 4 S.C.R.
55; R. v. Graveline, 2006 SCC 16, [2006] 1 S.C.R. 609.
Statutes and Regulations Cited
Canadian Charter of Rights
and Freedoms, s. 7 .
Criminal Code, R.S.C. 1985, c. C‑46, ss. 21(1) , 229 (a),
231(5) .
Authors Cited
Mewett, Alan W., and Morris Manning. Criminal
Law, 2nd ed. Toronto: Butterworths, 1985.
Stuart, Don. Canadian Criminal Law:
A Treatise, 5th ed. Scarborough, Ont.: Thomson Carswell, 2007.
Williams, Glanville. Criminal
Law: The General Part, 2nd ed. London: Stevens & Sons, 1961.
APPEAL from a judgment of the Alberta Court of Appeal
(Paperny and Martin JJ.A. and Belzil J. (ad hoc)), 2008 ABCA 327,
95 Alta. L.R. (4th) 211, 437 A.R. 301, 433 W.A.C. 301, [2009] 1 W.W.R. 447, 237
C.C.C. (3d) 41, [2008] A.J. No. 1060 (QL), 2008 CarswellAlta 1322, setting
aside the acquittals entered by Burrows J., 2007 ABQB 196, 413 A.R. 53,
[2007] A.J. No. 344 (QL), 2007 CarswellAlta 401, and ordering a new
trial. Appeal dismissed.
Alexander D. Pringle,
Q.C., Anna Konye and Daniel Chivers, for the appellant.
James C. Robb,
Q.C., and Tamara Friesen, for the respondent.
Jennifer M. Woollcombe,
for the intervener.
The judgment of the Court was delivered by
Charron J. —
1. Introduction
[1]
Three young persons and two adults were charged for their participation
in the kidnapping, rape, and brutal murder of 13-year‑old Nina
Courtepatte. The two adults in the group, the appellant Michael Erin Briscoe
and Joseph Wesley Laboucan, were charged jointly with kidnapping, aggravated
sexual assault and first degree murder. Following their trial before a judge
sitting without a jury, Mr. Laboucan was found guilty and Mr. Briscoe was
acquitted on all charges (2007 ABQB 196, 413 A.R. 53). Mr. Laboucan successfully
appealed his convictions to the Court of Appeal of Alberta and obtained an
order for a new trial (2009 ABCA 7, 1 Alta. L.R. (5th) 264). On further appeal
to this Court, the order was set aside and his convictions were restored (2010
SCC 12, [2010] 1 S.C.R. 397). This appeal relates solely to Mr. Briscoe. On
appeal by the Crown, the Court of Appeal of Alberta overturned his acquittals
and ordered a new trial (2008 ABCA 327, 95 Alta. L.R. (4th) 211). Mr. Briscoe
now appeals to this Court.
[2]
For the reasons that follow, I would dismiss the appeal and uphold the
order of a new trial on all charges.
2. Background
[3]
The following summary of the facts reflects the findings of the trial
judge.
[4]
Shortly after midnight on April 3, 2005, 13-year-old Nina Courtepatte
and her young friend Ms. K.B. were lured, on the false promise of being taken
to a party, into a car with Mr. Briscoe, who was 34 years old at the time,
19-year-old Mr. Laboucan, and three youths. Unbeknownst to Ms. Courtepatte and
Ms. K.B., Mr. Laboucan had said earlier in the day that he would like to find
someone to kill. It would appear that the idea had been generally well
received and, after looking around the West Edmonton Mall for a potential
victim, Mr. Laboucan and some of the others had chosen Ms. Courtepatte as the
victim.
[5]
Mr. Briscoe drove the group to a secluded golf course. Everyone got out
of the car. Mr. Briscoe opened the trunk and, at Mr. Laboucan’s request,
handed him some pliers. One of the youths, S.B., hid a wrench up her sleeve.
A sledgehammer or mallet was also taken. Except for Mr. Briscoe, everyone
started to walk down a path on the golf course. For the benefit of the
unsuspecting Ms. Courtepatte and her friend Ms. K.B., Mr. Laboucan and some
of the others pretended to be looking for the party.
[6]
At some point during the walk, Ms. S.B. struck Ms. Courtepatte from
behind with the wrench. She cried out and ran to Mr. Laboucan. He whispered
something that terrified her and she broke away, pleading with him not to make
good on his threat. Around this time, Mr. Briscoe rejoined the group. For a
moment, he held on to Ms. Courtepatte and angrily told her to be quiet or
shut up. Mr. Laboucan then raped her. One of the youths, Mr. M.W., did the
same. They then hit her in the head multiple times with the sledgehammer or
mallet, and Mr. Laboucan choked her from behind with a wrench. Mr. Laboucan
also directed another youth, Ms. D.T., to stab Ms. Courtepatte’s throat with a
throwing knife. She did. Mr. Briscoe stood by and watched the rape and
murder. Ms. K.B. witnessed some of the gruesome events, but was physically
unharmed. Ms. Courtepatte’s badly beaten body was left behind on the golf
course where it was discovered a day later.
[7]
What happened to Ms. Courtepatte was not the main question at trial.
There was no real question about whether she had been a victim of a kidnapping,
aggravated sexual assault, or culpable homicide. 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 within the meaning of s. 231(5)
of the Criminal Code, R.S.C. 1985, c. C-46 . The issue was whether each
accused was involved and, if so, whether criminal liability flowed from this
involvement.
[8]
The Crown’s theory was that Mr. Laboucan was “the mastermind behind
these offences” who had formulated the plan, selected the victim, and communicated
the plan to the others. Mr. Briscoe’s actions, carried out with knowledge of
Mr. Laboucan’s plan, made him a party to the offences. His participation
included driving the group to and from the crime scene, choosing a secluded
location, providing and transporting weapons, and taking “an active role” by
holding Ms. Courtepatte and telling her to shut up, and threatening Ms. K.B.
The Crown argued that Mr. Briscoe had actual knowledge of or was wilfully blind
to the plan. The Crown also submitted that, even apart from Mr. Briscoe’s
acts of assistance, his presence coupled with his knowledge of the plan made
him an abettor. His presence could lend courage to the attackers, discourage
rescue, and give Ms. Courtepatte “one more reason to feel helpless and lost and
futile” (J.R., vol. XIII, at pp. 169-73).
[9]
The trial judge essentially accepted the Crown’s theory. He found that
Mr. Laboucan had committed the offences as a principal offender and that
Mr. Briscoe had aided in the commission of the crimes by doing four things: he
“drove the group to the place” where the crimes were committed; he “selected a
place to stop the characteristics of which facilitated” the commission of the
crimes; he “opened the trunk of the car at Mr. Laboucan’s request” and “gave
him one of the tools that was taken to the grassy area, albeit a tool
apparently not used to murder Ms. Courtepatte”; and he “angrily told Ms.
Courtepatte to be quiet when she was screaming after Ms. S.B. hit her and
before Mr. Laboucan sexually assaulted and murdered her” (para. 277).
Therefore, the actus reus for being a party to the offences was proven.
[10] The
trial judge then examined whether Mr. Briscoe had the requisite mens rea
for any of the offences. Did he intend to assist Mr. Laboucan in the
commission of the crimes? In order to have such intention, he would have to
have known of Mr. Laboucan’s intention to commit each of the crimes. The
crucial question then became whether he had such knowledge. The trial judge
concluded that Mr. Briscoe did not have the requisite knowledge. Although Mr.
Briscoe did not testify at trial, the Crown introduced statements he had made
to the police following his arrest. The trial judge ruled the statements
voluntary and relied heavily on their contents in concluding that Mr. Briscoe
lacked the requisite knowledge. The following are relevant parts of the
statements:
(a) Mr. Briscoe acknowledged that he
heard members of the group talking about killing people and became aware that
one member of the group was carrying knives: J.R., vol. XV, at pp. 102 and
106. He wondered “when is this gonna happen” and worried that he was going to
be killed: J.R., vol. XV, at p. 102.
(b) While at the mall, Mr. Briscoe knew
that Mr. Laboucan was looking for a girl to have sex with. He said: “I was
more than happy to provide him with a chick so he don’t take mine right?”: J.R.,
vol. XV, at p. 128. He also said: “I ain’t been screwing kids is not my piece
of pie”: J.R., vol. XV, at p. 126.
(c) Before arriving at the golf course,
he thought they “wanted to scare the shit out of” Ms. Courtepatte: J.R., vol.
XV, at p. 108.
(d) Later, when he parked outside the
golf course, he knew something was going to happen, but did not want to know
what it was: “whatever you guys wanna do just do it. Don’t do it around me I
don’t want to see nothing I don’t know what the fuck you’re gonna do”: J.R.,
vol. XV, at p. 106. Mr. Laboucan asked him for a pair of pliers, and he
observed Mr. Laboucan taking “[s]ome kind of a pipe or something” from his
trunk: J.R., vol. XV, at pp. 108‑9 and 162. He worried about his and
his girlfriend’s safety: J.R., vol. XV, at pp. 99 and 106.
(e) After initially hanging back, he
rejoined the group at the grassy area of the golf course, and witnessed the two
other men raping Ms. Courtepatte and beating her to death: J.R., vol. XV, at
pp. 107-8, 115, 117, 119, 122 and 147. He did not want to know what was
happening: “That’s what I seen. And I was like ahh fuck I don’t wanna know”:
J.R., vol. XV, at p. 123.
(f) Mr. Briscoe stated that he did not
physically assault Ms. Courtepatte, but admitted to holding her at one point
and telling her to shut up: J.R., vol. XV, at pp. 134, 146‑47, 164 and
171-172.
(g) When asked about who knew during
the drive out to the golf course what was going on, Mr. Briscoe asked, “Like,
definitely for sure?” and then said, “I didn’t know exactly what was goin’
on”: J.R., vol. XV, at pp. 191‑92.
[11] In
brief, the trial judge’s conclusions on mens rea were the following. On
the charge of kidnapping, despite finding that Mr. Briscoe knew that Mr.
Laboucan intended to at least seriously scare Ms. Courtepatte, the trial judge
determined that the evidence did not support the conclusion that Mr. Briscoe
knew “Ms. Courtepatte and Ms. KB had been lured by fraud into his car”
(paras. 283-84). On the charge of aggravated sexual assault, although Mr.
Briscoe’s “statement does suggest that he understood Mr. Laboucan anticipated
to be sexually intimate with Ms. Courtepatte”, there was “nothing to indicate
he understood that Mr. Laboucan intended to sexually assault Ms. Courtepatte”
(para. 285). Finally, on the charge of first degree murder, the trial judge
held that “the evidence does not establish that he knew Mr. Laboucan in fact
intended to kill Ms. Courtepatte. Further the evidence certainly does not
establish that he himself had the requisite intent for murder” (para. 286).
The trial judge concluded that, in these circumstances, the evidence was not
sufficient to prove beyond a reasonable doubt “that Mr. Briscoe did any of the
assistive things he did knowing, much less intending, that they would assist
Mr. Laboucan” to commit any of the crimes (para. 287). The trial judge did not
consider whether Mr. Briscoe was wilfully blind, despite the Crown’s
submissions. He acquitted Mr. Briscoe on all charges.
[12] The Crown
appealed Mr. Briscoe’s acquittals to the Court of Appeal of Alberta. Writing
for a unanimous court, Martin J.A. held that 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” and that, “[b]ut for this error, the
verdicts may well have been different” on all three charges (para. 41). The
Court of Appeal set aside the acquittals and ordered a new trial on all
charges. Mr. Briscoe now appeals to this Court.
3. Analysis
[13] Canadian
criminal law does not distinguish between the principal offender and parties to
an offence in determining criminal liability. Section 21(1) of the Criminal
Code makes perpetrators, aiders, and abettors equally liable:
21. (1) Every one is a party to an offence who
(a) actually commits it;
(b) does or omits to do anything for the purpose of aiding
any person to commit it; or
(c) abets any person in committing it.
The person who
provides the gun, therefore, may be found guilty of the same offence as the one
who pulls the trigger. The actus reus and mens rea for aiding or
abetting, however, are distinct from those of the principal offence.
[14] The actus
reus of aiding or abetting is doing (or, in some circumstances, omitting to
do) something that assists or encourages the perpetrator to commit the
offence. While it is common to speak of aiding and abetting together, the two
concepts are distinct, and liability can flow from either one. Broadly
speaking, “[t]o aid under s. 21(1) (b) means to assist or help the
actor. . . . To abet within the meaning of s. 21(1) (c)
includes encouraging, instigating, promoting or procuring the crime to be
committed”: R. v. Greyeyes, [1997] 2 S.C.R. 825, at para. 26. The actus
reus is not at issue in this appeal. As noted earlier, the Crown argued at
trial that Mr. Briscoe was both an aider and an abettor. The trial judge’s
finding that Mr. Briscoe performed the four acts of assistance described above
is not disputed.
[15] Of
course, doing or omitting to do something that resulted in assisting another in
committing a crime is not sufficient to attract criminal liability. As the
Court of Appeal for Ontario wrote in R. v. F. W. Woolworth Co. (1974), 3
O.R. (2d) 629, “one does not render himself liable by renting or loaning a car
for some legitimate business or recreational activity merely because the person
to whom it is loaned or rented chooses in the course of his use to transport
some stolen goods, or by renting a house for residential purposes to a tenant
who surreptitiously uses it to store drugs” (p. 640). The aider or abettor
must also have the requisite mental state or mens rea. Specifically, in
the words of s. 21(1) (b), the person must have rendered the assistance for
the purpose of aiding the principal offender to commit the crime.
[16] The mens
rea requirement reflected in the word “purpose” under s. 21(1) (b)
has two components: intent and knowledge. For the intent component, it was
settled in R. v. Hibbert, [1995] 2 S.C.R. 973, that “purpose” in s.
21(1) (b) should be understood as essentially synonymous with
“intention”. The Crown must prove that the accused intended to assist the
principal in the commission of the offence. The Court emphasized that
“purpose” should not be interpreted as incorporating the notion of “desire”
into the fault requirement for party liability. It is therefore not required
that the accused desired that the offence be successfully committed (Hibbert,
at para. 35). The Court held, at para. 32, that the perverse consequences that
would flow from a “purpose equals desire” interpretation of s. 21(1) (b)
were clearly illustrated by the following hypothetical situation described by
Mewett and Manning:
If a man is approached by a friend who tells him that he is going to
rob a bank and would like to use his car as the getaway vehicle for which he
will pay him $100, when that person is . . . charged under s. 21 for doing
something for the purpose of aiding his friend to commit the offence, can he
say “My purpose was not to aid the robbery but to make $100”? His argument
would be that while he knew that he was helping the robbery, his desire was to
obtain $100 and he did not care one way or the other whether the robbery was
successful or not.
(A. W. Mewett and M. Manning, Criminal Law (2nd ed. 1985), at p.
112)
The same
rationale applies regardless of the principal offence in question. Even in
respect of murder, there is no “additional requirement that an aider or abettor
subjectively approve of or desire the victim’s death” (Hibbert, at para.
37 (emphasis deleted)).
[17] As for
knowledge, in order to have the intention to assist in the commission of an
offence, the aider must know that the perpetrator intends to commit the crime,
although he or she need not know precisely how it will be committed. That
sufficient knowledge is a prerequisite for intention is simply a matter of
common sense. Doherty J.A. in R. v. Maciel, 2007 ONCA 196, 219
C.C.C. (3d) 516, provides the following useful explanation of the knowledge
requirement which is entirely apposite to this case (at paras. 88-89):
. . . a person
who is alleged to have aided in a murder must be shown to have known that the
perpetrator had the intent required for murder under s. 229 (a): R. v.
Kirkness (1990), 60 C.C.C. (3d) 97 (S.C.C.) at 127.
The same analysis applies where it is alleged that
the accused aided a perpetrator in the commission of a first degree murder that
was planned and deliberate. The accused is liable as an aider only if the
accused did something to assist the perpetrator in the planned and deliberate
murder and if, when the aider rendered the assistance, he did so for the
purpose of aiding the perpetrator in the commission of a planned and deliberate
murder. Before the aider could be said to have the requisite purpose, the
Crown must prove that the aider knew the murder was planned and deliberate.
Whether the aider acquired that knowledge through actual involvement in the
planning and deliberation or through some other means, is irrelevant to his or
her culpability under s. 21(1) .
[18] It is
important to note that Doherty J.A., in referring to this Court’s decision in R.
v. Kirkness, [1990] 3 S.C.R. 74, rightly states that the aider to a murder
must “have known that the perpetrator had the intent required for murder”.
While some of the language in Kirkness may be read as requiring that the
aider share the murderer’s intention to kill the victim, the case must now be
read in the light of the above-noted analysis in Hibbert. The
perpetrator’s intention to kill the victim must be known to the aider or
abettor; it need not be shared. Kirkness should not be interpreted as
requiring that the aider and abettor of a murder have the same mens rea
as the actual killer. It is sufficient that he or she, armed with knowledge
of the perpetrator’s intention to commit the crime, acts with the intention of
assisting the perpetrator in its commission. It is only in this sense that it
can be said that the aider and abettor must intend that the principal offence
be committed.
[19] Having
set out the relevant legal principles for assessing the mens rea of a
person charged with aiding and abetting murder, I now turn to Mr. Briscoe’s
main argument in this appeal: that the doctrine of wilful blindness should
find no application in determining the requisite knowledge for murder, either
as a principal or as an aider or abettor.
[20] In
essence, Mr. Briscoe argues that wilful blindness is but a heightened form of
recklessness which is inconsistent with the very high mens rea standard
for murder under s. 229 (a) of the Criminal Code . He argues
further that allowing fault for murder, as either a principal or party, to be
established by wilful blindness could run afoul of the principle that
“subjective foresight of death” is the minimum standard of fault for murder
under s. 7 of the Canadian Charter of Rights and Freedoms : R. v.
Martineau, [1990] 2 S.C.R. 633, at p. 645. The Court of Appeal rejected
these arguments and, in my view, rightly so. As I will explain, wilful
blindness, correctly delineated, is distinct from recklessness and involves no
departure from the subjective inquiry into the accused’s state of mind which
must be undertaken to establish an aider or abettor’s knowledge.
[21] 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. See Sansregret v. The Queen, [1985] 1 S.C.R. 570,
and R. v. Jorgensen, [1995] 4 S.C.R. 55. As Sopinka J. succinctly put
it in Jorgensen (at para. 103), “[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?”
[22] Courts
and commentators have consistently emphasized that wilful blindness is distinct
from recklessness. The emphasis bears repeating. As the Court explained in Sansregret
(at p. 584):
. . . while recklessness involves knowledge of a danger or risk and
persistence in a course of conduct which creates a risk that the prohibited
result will occur, wilful blindness arises where a person who has become aware
of the need for some inquiry declines to make the inquiry because he does
not wish to know the truth. He would prefer to remain ignorant. 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. [Emphasis added.]
[23] It is
important to keep the concepts of recklessness and wilful blindness separate.
Glanville Williams explains the key restriction on the doctrine:
The rule that wilful blindness is equivalent to knowledge is
essential, and is found throughout the criminal law. It is, at the same time,
an unstable rule, because judges are apt to forget its very limited scope. A
court can properly find wilful blindness only where it can almost be said that
the defendant actually knew. He suspected the fact; he realised 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. [Emphasis added.]
(Criminal Law: The General Part (2nd ed. 1961), at p. 159 (cited
in Sansregret, at p. 586).)
[24] Professor
Don Stuart makes the useful observation that the expression “deliberate
ignorance” seems more descriptive than “wilful blindness”, as it connotes “an
actual process of suppressing a suspicion”. Properly understood in this way,
“the concept of wilful blindness is of narrow scope and involves no departure
from the subjective focus on the workings of the accused’s mind” (Canadian
Criminal Law: A Treatise (5th ed. 2007), at p. 241). 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, to repeat Professor Stuart’s words, “deliberate ignorance”.
[25] In
this case, I agree with Martin J.A. that the trial judge erred in law by
failing to consider wilful blindness. As he noted, even Mr. Briscoe’s own
statements to the police suggest that he had a “strong, well-founded suspicion
that someone would be killed at the golf course” (para. 30) 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. As he put
it, “whatever you guys wanna do just do it. Don’t do it around me I don’t want
to see nothing I don’t know what the fuck you’re gonna do.” The trial judge
relied heavily upon the statements in his reasons but did not refer to the doctrine
of wilful blindness. Of course, whether Mr. Briscoe had the requisite mens
rea for the three offences was a question for the trier of fact, and
Mr. Briscoe is entitled to the benefit of any reasonable doubt on this
issue. However, from a legal standpoint, it is my respectful view that the
evidence cried out for an analysis on wilful blindness. In these circumstances,
the Court of Appeal rightly concluded that the trial judge’s failure to
consider Mr. Briscoe’s knowledge from that perspective constitutes a legal
error which necessitates a new trial on all charges.
[26] In my
view, the Crown has met its heavy onus on appealing an acquittal of showing
that the errors of the trial judge “might reasonably be thought, in the
concrete reality of the case at hand, to have had a material bearing on the
acquittal” on the three charges: R. v. Graveline, 2006 SCC 16, [2006] 1
S.C.R. 609, at para. 14 (per Fish J.). Consequently, I would dismiss
the appeal and confirm the order for a new trial.
Appeal dismissed.
Solicitors for the appellant: Pringle, Peterson, MacDonald
& Bottos, Edmonton.
Solicitor for the respondent: Attorney General of Alberta,
Edmonton.
Solicitor for the intervener: Attorney General of Ontario,
Toronto.