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Criminal - Mens Rea - Recklessness. R. v. A.B.
In R. v. A.B. (Ont CA, 2024) the Ontario Court of Appeal allowed a criminal sexual assault appeal. Here the court contrasts the mens rea for recklessness and for wilful blindness, here in considering a sexual assault appeal:[34] Recklessness and wilful blindness are two distinct concepts: R. v. Briscoe, 2010 SCC 13, [2010] 1 S.C.R. 411, at paras. 20, 22; R. v. Morrison, 2019 SCC 15, [2019] 2 SCR 3, at para. 100. 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”: Briscoe, at para. 21 (emphasis in original); see also Morrison, at para. 98. Recklessness is “the attitude of one who, aware that there is danger that his conduct could bring about the result prohibited by the criminal law, nevertheless persists, despite the risk. It is, in other words, the conduct of one who sees the risk and who takes the chance”: Sansregret v. The Queen, 1985 CanLII 79 (SCC), [1985] 1 S.C.R. 570, para. 16.
[35] While recklessness and wilful blindness are distinct concepts, neither looks at the accused’s knowledge from an objective perspective; that is, from the negligence standard of what a reasonable person ought to have known. Rather, recklessness and wilful blindness both require an inquiry into what the accused subjectively knew or understood at the time of the sexual activity: Briscoe, at para. 20; Sansregret, at para. 16.
[36] Accordingly, to find that the appellant was wilfully blind with respect to the complainant’s consent, the jury would have to be satisfied beyond a reasonable doubt that the appellant suspected that he was engaging in sexual activity with the complainant without her consent, and that he deliberately chose not to make inquiries despite those suspicions. It would not be sufficient for the jury to find that the appellant ought to have been suspicious and made inquiries. To find that the appellant was reckless, the jury would have to be satisfied beyond a reasonable doubt that the appellant was aware that he may be engaging in sexual activity without the complainant’s consent, but that he nevertheless persisted. It would not be sufficient for the jury to find that he ought to have been aware that the complainant was not consenting. In some circumstances, the difference between actual suspicion or awareness and what a reasonable person ought to suspect or know may be a fine one, but it is nevertheless an important distinction for the purpose of establishing the mens rea element of sexual assault.
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[38] The recklessness and wilful blindness instructions the trial judge gave are different from the National Judicial Institute Model Jury and Watt’s Model Jury instructions. In this respect, it is helpful to set them out together.
[39] For recklessness:National Judicial Institute Model Jury instruction: “To prove that [the appellant] was aware of [the complainant’s] lack of consent, the Crown must prove … that [the appellant] knew there was a risk that [the complainant] did not consent to the sexual activity in question and [the appellant] proceeded in the face of that risk”.
Watt’s instruction: “To prove this essential element, that [the appellant] knew that [the complainant] did not consent to the sexual touching by [the appellant], Crown counsel must prove beyond a reasonable doubt … that [the appellant] knew (was aware) that there was a risk that [the complainant] did not consent (was not consenting) to the sexual touching by [the appellant], but [the appellant] went ahead anyway despite knowing (being aware) of the risk”.
Trial judge’s instruction: “[The appellant’s] knowledge that she did not consent is also proven if you are satisfied beyond a reasonable doubt that there was a risk she was not consenting, but he went ahead anyway, not caring whether she consented or not. [Emphasis added.] [40] The National Judicial Institute Model Jury instruction and Watt’s instruction make clear that recklessness includes a requirement that the appellant knew there was a risk that the complainant was not consenting. However, the trial judge’s instruction in this case fails to include this knowledge component and simply stated that it would be sufficient if there was a risk the complainant was not consenting; thereby suggesting that the risk could be objective or even from the complainant’s subjective point of view. This is an obvious error.
[41] The wilful blindness instruction contains a similar error:National Judicial Institute Model Jury instruction: “To prove that [the appellant] was aware of [the complainant’s] lack of consent, the Crown must prove … that [the appellant] was aware of indications that [the complainant] did not consent to the sexual activity in question, but deliberately chose to ignore them because [the appellant] did not want to know the truth. [Emphasis added.]
Watt’s instruction: “To prove this essential element, that [the appellant] knew that [the complainant] did not consent to the sexual touching by [the appellant], Crown counsel must prove beyond a reasonable doubt … that [the appellant] knew (was aware) of indications that [the complainant] did not consent (was not consenting) to the sexual touching by [the appellant], but deliberately chose (decided) to ignore those indications because [the appellant] did not want to know the truth.”
Trial judge’s instruction: “[The appellant’s] knowledge that she did not consent is proven if you are satisfied beyond a reasonable doubt that given the circumstances he should have inquired about her willingness to engage in sexual activity but did not ask, what is sometimes referred to as, ‘willful blindness’”. [Emphasis added.] [42] Again, the National Judicial Institute Model Jury instruction and Watt’s instruction make clear that, for wilful blindness, the appellant must have been aware that there were indications the complainant was not consenting, but that he deliberately chose to ignore those indications. Instead, the trial judge’s instruction stated that it would be sufficient if, in the circumstances, the appellant “should” have made inquiries, thereby again suggesting that the jury was to assess what the appellant ought to have known from an objective point of view.
[43] Accordingly, the trial judge made legal errors in his instructions to the jury regarding recklessness and wilful blindness. . R. v. Hason
In R. v. Hason (Ont CA, 2024) the Ontario Court of Appeal characterizes the 'recklessness' mens rea, here in adjudging age for purposes of child sex offences:[65] As I have explained, recklessness is the state of mind of a person who is aware that his conduct risks bringing about a result that the criminal law prohibits but still proceeds: Morrison, at para. 100. The third mental state, subjective appreciation of the risk that the complainant is underage, is inherently reckless and inevitably leads to a conviction because the accused chooses to proceed with sexual activity with the complainant despite being aware of that risk: Carbone, at para. 125. . R. v. Basso
In R. v. Basso (Ont CA, 2024) the Court of Appeal considered the mens rea for 'recklessness', here were adjudging the age of a potential sexual offence victim:[38] In June 2020, this court released its decision in R. v. Carbone, 2020 ONCA 394, 150 O.R. (3d) 758. The appellant’s trial took place 4 months later, in October 2020. In Carbone, this court clarified the law on what the Crown must prove to establish the mens rea for sexual offences against minors. Prior to Carbone, the Crown was only required to prove beyond a reasonable doubt that the accused did not take all reasonable steps to determine the complainant’s age. In Carbone, relying on the Supreme Court of Canada’s decision in R. v. Morrison, 2019 SCC 15, [2019] 2 S.C.R. 3, this court held that the Crown is additionally required to prove beyond a reasonable doubt that the accused believed the complainant was underage. The court summarized, at paras. 120 and 131, this new approach as follows:As I read the above-quoted passage, it is no longer, strictly speaking, correct to define the required mens rea with respect to the complainant’s age by reference, only to the absence of reasonable steps to determine the complainant’s age. There is a mens rea requirement that focuses exclusively on the accused’s state of mind. The Crown is required to prove the accused believed the complainant was underage.
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In summary, to convict on a charge under s. 152, the Crown must prove the accused believed (or was wilfully blind) the complainant was under 16, or was reckless as to her age. Recklessness includes a failure to advert to the age of the complainant, save in those cases in which the circumstances did not permit the inference that in proceeding without regard to the complainant’s age, the accused decided to treat her age as irrelevant to his conduct. While one can imagine circumstances in which the failure to advert to the age of the complainant should not be characterized as a decision to treat the age of the complainant as irrelevant and take the risk, those circumstances will seldom occur in the real world. For practical purposes, those rare circumstances, in which the failure to turn one’s mind to the age of the complainant does not reflect the decision to take a risk about the complainant’s age, will be the same rare circumstances in which the reasonable steps inquiry in s. 150.1(4) will be satisfied even though the accused took no active steps to determine the complainant’s age. [39] The trial judge did not refer to Carbone in her reasons, nor was this case put before her by counsel for either party. However, in our view, her findings clearly support the conviction under the mens rea requirement as set out in Carbone. The trial judge found on the appellant’s own evidence that he chose to proceed with sexual activity with a minor after clearly adverting to the possibility that she was underage.
[40] As Watt J.A. in R. v. W.G., 2021 ONCA 578, 405 C.C.C. (3d) 162, at para. 70, noted:As Carbone teaches, the fault element of recklessness is subjective. It involves the appreciation of some level of risk coupled with the conscious decision to take that risk. Under s. 151, an accused who chooses to proceed with the activity the section prohibits – sexual activity with young persons – after having adverted to the possibility that the complainant was underage, will inevitably be found to have been reckless with respect to the complainant’s age: Carbone, at para. 125. So too, at least in most cases, indifference to the complainant’s age, a state of mind that reflects a positive choice by an accused to treat the complainant’s age as irrelevant to their decision to engage in the sexual activity: Carbone, at paras. 126-127.
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