Criminal Law Notebook

Knowledge and Wilful Blindness

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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.[1]

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.[2]

Proof of knowledge is a "subjective inquiry" into what the accused actually knew and not "what ought he to have known".[3]

Knowledge of the character of an object can be proven by actual knowledge or by wilful blindness.[4]

  1. ↑ R v Aiello (1978), 38 CCC (2d) 485, 1978 CanLII 2374 (ON CA), per Martin JA - there is no requirement on the Crown to prove knowledge on direct evidence
  2. ↑ R v Buzzanga and Durocher, (1979), 25 O.R. (2d) 705, 1979 CanLII 1927 (ON CA), 101 DLR (3d) 488 (C.A.), per Martin JA at p. 717
  3. ↑ R v Tyrell, 2014 ONCA 617 (CanLII), per Doherty JA at para 30
  4. ↑ R v Hanano, 2008 MBQB 121 (CanLII), per Spivak J at para 16

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."[1]

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.[2]In effect, wilful blindness is the state of "deliberate ignorance" of a certain fact.[3]

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."[4]

It is also not enough that there be merely a "failure to inquire". The ignorance must be "deliberate".[5]

The determination inquires into whether "the accused shut his ... eyes because he .. knew or strongly suspected that looking would fix him ... with knowledge?”[6]

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."[7] To put it another way, it is not a form of "constructive knowledge" by way of a standard of reasonableness..[8]

Where wilful blindness is established, "the knowledge imputed is the equivalent of actual, subjective knowledge." [9] This is true even for an offence of murder.[10]

Before the doctrine applies, "there must be realisation that the fact in question is probable, or, at least, "possible above the average""[11] 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."[12]

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".[13]

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."[14]

A court may want to make inquiries as follows:[15]

  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".[16]

There must be a finding of subjective suspicion on the part of the accused.[17] The test is not objective. It does not matter whether the accused "should have", or "normally" would have, known the fact at issue.[18]

The determination of wilful blindness is contextual and must be made in "light of all the circumstances".[19]

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".[20] Others have described the standard as requiring that the accused be shown to have "strongly suspected" that inquiry would have created actual knowledge.[21]

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.[22]

"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."[23]

Where the judge can find that the accused took "all reasonable steps to determine the truth", there can be no finding of wilful blindness.[24]


Inquiries
A person is not absolved of being willfully blind merely because an inquiry was made from which a negative answer was received.[25] The effort required in making inquiries seems to be af unction of the level of suspicion.[26]

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.[27]

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".[28]

  1. ↑ R v Briscoe, 2008 ABCA 327 (CanLII), per Martin JA at para 19
    R v Briscoe, [2010] 1 SCR 411, 2010 SCC 13 (CanLII), per Charron J
    R v Jorgensen, 1995 CanLII 85 (SCC), [1995] 4 SCR 55, per Sopinka J at pp. 157 - 158
    R v Sault Ste. Marie, [1978] 2 SCR 1299, 1978 CanLII 11 (SCC), per Dickson J at p. 1309 ("Where the offence is criminal, the Crown must establish a mental element, namely, that the accused who committed the prohibited act did so intentionally or recklessly, with knowledge of the facts constituting the offence, or with wilful blindness toward them.") -- early instance of doctrine of wilful blindness
  2. ↑ Briscoe, supra at para 21
  3. ↑ Briscoe, supra at para 24
    R v Souter, [1997] A.J. No 330(*no CanLII links) at para 9 to 10
  4. ↑ Briscoe at para 20
    cf. R v Lagace, 2003 CanLII 30886 (ON CA), (2003), 181 CCC (3d) 12 (Ont. C.A.), per Doherty JA, at paras 25-6 There must be “a real suspicion” causing the need for further inquiry
  5. ↑ R v Farmer, 2014 ONCA 823 (CanLII), per Sharpe JA at para 24
  6. ↑ Jorgensen, supra at para 103
  7. ↑ Briscoe at para 21
  8. ↑ R v Callejas, 2011 ONCA 393 (CanLII), per curiam, at para 8
    R v Laronde, 2010 BCCA 430 (CanLII), per Bennett JA, at paras 28-35
    R v Smith, 2008 ONCA 101 (CanLII), per curiam, at paras 5-6
    R v Malfara, 2006 CanLII 17318 (ON CA), [2006] OJ No 2069 (C.A.), per curiam at para 2 (“Where willful blindness is in issue, the question is not whether the accused should have been suspicious, but whether the accused was in fact suspicious”)
  9. ↑ Briscoe, supra at para 21
    R v Wolsey, 2008 BCCA 159 (CanLII), per Huddart JA, at para 28
  10. ↑ Briscoe, supra
  11. ↑ Jorgenson, supra at pp. 158 to 159
  12. ↑ Jorgenson, supra at pp. 159
  13. ↑ R v Rashidi-Alvije, 2007 ONCA 712 (CanLII), per Gillese JA, at para 24
    R v Lagace, 2003 CanLII 30886 (ON CA), per Doherty JA at paras 27-29
    R v Niemi, 2006 CanLII 13949 (ON CA), per Juriansz JA at para 77
  14. ↑ Briscoe, supra
  15. ↑ R v Bailey, 2014 ABPC 103 (CanLII), per Fradsham J, at para 396
  16. ↑ R v Sansregret (1985), 1985 CanLII 79 (SCC), 18 CCC (3d) 223, per McIntyre J
    R v Tejani, 1995 CanLII 786 (ON CA), per curiam
  17. ↑ R v Calder, 2011 NSSC 96 (CanLII), per Coady J at para 57 citing Stuart (Canadian Criminal Law, 1982, The Carswell Company Ltd., p. 130 ("Our courts have generally insisted that 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. It involves deliberate ignorance or an actual process of suppressing a suspicion. ")
  18. ↑ R v Barbeau, 1996 CanLII 6391 (QC CA), per Rothman JA ("The test was not whether appellant "should" have known or should "normally" have known from the suspicious circumstances that her husband was probably involved in a conspiracy to import cocaine. The question was whether the circumstances were such that she, herself, was, in fact, suspicious that this was the case but deliberately refrained from making inquiries so that she could remain in ignorance as to the truth.")
  19. ↑ Jorgensen, supra at para 101
  20. ↑ R v Lagace, 2003 CanLII 30886 (ON CA), per Doherty JA at para 26
  21. ↑ Briscoe, supra at para 103
  22. ↑ Lagace, ibid. at para 24 and 25
  23. ↑ Lagace, ibid.
  24. ↑ Lagace, ibid.
  25. ↑ Souter, supra at paras 17 to 18
  26. ↑ e.g. Souter, supra at paras 17 to 18
  27. ↑ Wolsey, supra at para 28
    R v Sansregret, [1985] 1 SCR 570, 1985 CanLII 79 (SCC), per McIntyre J, at para 22 ("Wilful blindness is distinct from recklessness because, 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.")
  28. ↑ Sansregret, ibid. at para 22 ("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")

See Also

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