Knowledge and Wilful Blindness

This page was last substantively updated or reviewed March 2021. (Rev. # 95292)

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General Principles

Knowledge is the awareness of a fact or circumstance. It is a state of mind, which is generally proven by inference from the surrounding circumstances.

With respect to objects, it is not necessary that the accused have knowledge of the exact details of the "thing". Knowledge of its character is sufficient.

Proof of knowledge is a "subjective inquiry" into what the accused actually knew and not "what ought he to have known."

Knowledge of the character of an object can be proven by actual knowledge or by wilful blindness.

Wilful Blindness

Wilful blindness refers to the accused's state of mind. The doctrine attributes "knowledge to a party whose strong suspicions have been aroused but who refrains from making inquiries to have those suspicions confirmed. The doctrine serves to override attempts to self-immunize against criminal liability by deliberately refusing to acquire actual knowledge."

It does not "define the mens rea for particular offences". Instead, it is a "substitute for actual knowledge" where it is a component for the mens rea.In effect, wilful blindness is the state of "deliberate ignorance" of a certain fact.

It is not enough that there be a suspicion in the mind of the accused. Rather, the accused must have "virtually knew the critical fact, and intentionally declined to secure that knowledge."

It is also not enough that there be merely a "failure to inquire". The ignorance must be "deliberate."

The determination inquires into whether "the accused shut his ... eyes because he .. knew or strongly suspected that looking would fix him ... with knowledge?”

The doctrine is not premised on "what a reasonable person would have done, but requires a finding that the accused, with actual suspicion, deliberately refrained from making inquiries because he or she did not want his or her suspicions confirmed." To put it another way, it is not a form of "constructive knowledge" by way of a standard of reasonableness..

Where wilful blindness is established, "the knowledge imputed is the equivalent of actual, subjective knowledge." It is where the accused "shut[s] his eyes because he knew or strongly suspected that looking would fix him with knowledge" that woudl render his conduct culpable. This is true even for an offence of murder.

Before the doctrine applies, "there must be realisation that the fact in question is probable, or, at least, "possible above the average" The accused must have "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."

In certain circumstances, "where an accused made some or basic inquiries, but still harboured suspicions, it remains open to the trier of fact to find wilful blindness."

Wilful blindness has been imputed where the accused simply stated "Whatever you guys want to do just do it. Don’t do it around me. I don’t want to see anything."

A court may want to make inquiries as follows:

1. Has the accused’s suspicion been aroused about a fact that would reveal a prohibited consequence or circumstance?
2. Is the accused’s suspicion about the prohibited consequence or circumstance probable or at least “possible above the average”?
3. Did the accused inquire about the suspicion?
4. If the accused inquired about the suspicion did the accused harbour any real remaining suspicion after the inquiry?

If the accused harboured any real remaining suspicions after the inquiry, did the accused inquire further about the suspicion?

The finding of wilful blindness is tantamount to finding that he intended to "deny knowledge" of the fact and "intended to cheat the administration of justice."

There must be a finding of subjective suspicion on the part of the accused. The test is not objective. It does not matter whether the accused "should have", or "normally" would have, known the fact at issue.

The determination of wilful blindness is contextual and must be made in "light of all the circumstances."

Air of Reality

An air of reality for wilful blindness can be based on circumstantial evidence assessed in the totality of the evidence. There will be an air of reality where the circumstances are "inherently suspicious."

Suspicion

The level of awareness must be a "real suspicion" in the mind of the accused "that causes the accused to see the need for inquiry." Others have described the standard as requiring that the accused be shown to have "strongly suspected" that inquiry would have created actual knowledge.

There is no need for the judge to describe that "level of suspicion beyond the finding that it was sufficient in the [accused's] mind" to require inquiry.

"Some Inquiry" and reasonable steps

Where the Crown relies on wilful blindness and the evidence shows that "some inquiry" was made on the part of the accused, the question is then whether "the Crown has proved beyond a reasonable doubt that despite that inquiry the accused remained suspicious and refrained from making any further inquiry because she preferred to remain ignorant of the truth."

Where the judge can find that the accused took "all reasonable steps to determine the truth", there can be no finding of wilful blindness.

Inquiries

A person is not absolved of being willfully blind merely because an inquiry was made from which a negative answer was received. The effort required in making inquiries seems to be af unction of the level of suspicion.

Compared to Recklessness

Recklessness differs from wilful blindness as recklessness concerns the accused's "attitude" once they are aware of the risk of a particular result that their conduct could produce.

The culpability of recklessness arises from "consciousness of risk" while in wilful blindness it arises from the accused responsiblity for "deliberaly fialing to inquire when he knows there is reasons to."

See Also

• Intention
• Recklessness
• Possession