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Criminal - Mens Rea - Wilful Blindness. R. v. Rashed
In R. v. Rashed (Ont CA, 2025) the Ontario Court of Appeal dismissed a Crown criminal appeal from "a directed verdict of acquittal on a charge of accessory after the fact to murder", here in a ruling that was coupled with the related appeal in R v Osman.
Here the court considers wilful blindness as "a substitute for actual knowledge where actual knowledge is required as the mens rea for an offence":(ii) Wilful blindness as a substitute for actual knowledge
[35] Wilful blindness is a substitute for actual knowledge where actual knowledge is required as the mens rea for an offence. The jurisprudence emphasizes that the doctrine of wilful blindness is narrow in scope and that it is important to maintain the distinction between wilful blindness and recklessness.
[36] Justice Charron, writing for the court, explained the function and elements of wilful blindness in R. v. Briscoe, 2010 SCC 13, [2010] 1 S.C.R. 411, at para. 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 CanLII 79 (SCC), [1985] 1 S.C.R. 570, and R. v. Jorgensen, 1995 CanLII 85 (SCC), [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?” [Emphasis in original.] [37] In the words of Glanville Williams, “[a] court can properly find wilful blindness only where it can almost be said that the defendant actually knew” (emphasis added): as cited in Briscoe, at para. 23. See also R. v. Morrison, 2019 SCC 15, [2019] 2 S.C.R. 3, at paras. 97-99; R. v. Sandhu (1989), 1989 CanLII 7102 (ON CA), 50 C.C.C. (3d) 492 (Ont. C.A.), at p. 497.
[38] The jurisprudence on wilful blindness emphasizes that it is distinct from recklessness, as well as the importance of maintaining the distinction. Charron J. addresses this issue in Briscoe, at paras. 22-24: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.] 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).) 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”. [All emphasis from Briscoe.] See also Morrison, at para. 100.
[39] The distinction between wilful blindness and recklessness is important in this appeal because the Crown does not argue that the trial judge should have left accessory after the fact to murder to the jury on the basis that the respondent was reckless as to whether Mr. Kabuya-Ntumba was dead at the time the respondent assisted Mr. Maadani to flee. At the outset of oral argument, the Crown abandoned the submission that recklessness in relation to knowledge of death is sufficient mens rea for accessory after the fact to murder.[3]
[40] I would emphasize the language used in formulating the wilful blindness standard from Glanville Williams and Jorgensen (quoted above in Briscoe) that for wilful blindness to be present, more is required than that the accused knows there is a risk of some consequence. Proceeding in the face of knowledge of risk establishes recklessness, but not wilful blindness. Wilful blindness requires that the accused subjectively knows or strongly suspects that the consequence has happened (or will happen depending on the circumstances) and deliberately chooses not to inquire further because the accused subjectively knows or strongly suspects that inquiring will fix them with knowledge. This speaks to the accused’s belief that there is a level of probability of the consequence at issue, not just a risk. The accused must have “suspected the fact; realized its probability; but he refrained from obtaining final confirmation because he wanted to be able to deny knowledge” (Glanville Williams, Criminal Law: The General Part, 2nd ed., (London: Stevens & Sons Ltd., 1961), at p. 159). The accused must have “shut his eyes because he knew or strongly suspected that looking would fix him with knowledge” (Jorgensen, at para. 103). This notion of probability of the consequence and that the accused is deliberately shutting their eyes to it are what separate wilful blindness from recklessness.
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[66] In considering whether a reasonable jury, properly instructed, could find that the respondent was wilfully blind to the fact that Mr. Kabuya-Ntumba was dead after 5:46 a.m., it is useful to compare the evidence in cases raising similar issues where wilful blindness was found to have been proven in a judge alone trial or that the evidence required an analysis of wilful blindness, where the trial judge failed to address it.
[67] In Duong, a case involving a charge of being an accessory after the fact to murder, the accessory accused had made statements to police that provided an evidentiary basis for an inference that he was wilfully blind to whether the principal had committed murder at the time he assisted the principal. In his statements to the police, the accessory accused said he knew at the time he assisted the principal that the principal was wanted for murder, he knew he would be in trouble for harbouring the principal, and that he chose not to inquire about the principal’s involvement in the homicide because he did not want to know more. Doherty J.A., writing for the court, held that based on this evidence, it was open to the trial judge to find that “the appellant’s statements revealed a state of mind which encompassed the suspicion that [the principal] was in trouble because he had been a party to murder”: Duong, at pp. 402-03.
[68] Similarly, in Briscoe, a case which considered wilful blindness in the context of aiding or abetting murder, the alleged party to the murder had made statements to police which provided an evidentiary basis for leaving wilful blindness to the jury. The trial judge had found that the party’s actual knowledge of the principal’s intent to kill was not established, but failed to consider whether the evidence established the party’s wilful blindness. The Supreme Court ordered a new trial on the basis that the trial judge erred by failing to consider wilful blindness on the trial evidence. The court found that the party’s statements to police provided a basis to infer that he had a “strong, well-founded suspicion that someone would be killed” and that he deliberately chose not to inquire as to what the members of the group he was with intended because he did not want to know: Briscoe, at paras. 10 and 25.
[69] My point is not that statements from the accused bearing on wilful blindness – direct evidence – are always required in order to leave wilful blindness to a jury as a substitute for actual knowledge. Depending on the full evidentiary picture, circumstantial evidence can provide a basis to leave wilful blindness to a jury. But given the limits of the circumstantial evidence bearing on wilful blindness in this case, the comparison to the evidence in Duong and Briscoe is helpful in maintaining the vital distinction between recklessness and wilful blindness. In this case, there is no evidence similar to that in Duong or Briscoe to fill the evidentiary gap in relation to whether the respondent made a deliberate choice not to inquire as to whether Mr. Kabuya-Ntumba was dead.
[70] I have outlined above what is required to establish wilful blindness as a substitute for actual knowledge in proving the mens rea of an offence. The fault in wilful blindness lies not in the act of failing to inquire, but in deliberately choosing not to do so to avoid gaining knowledge of a fact that the accused suspects they will learn if they inquire. It is, in the words of Professor Stuart, quoted in Briscoe at para. 24, “deliberate ignorance” that involves “an actual process of suppressing a suspicion.”
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[73] This court has not ruled on whether recklessness as to the offence committed by the principal can satisfy the mens rea for accessory after the fact offences: see Duong, at p. 401. Because the Crown abandoned the argument that recklessness can satisfy the mens rea, I would not rule on the issue in this appeal. But I would observe that the language defining the mens rea in s. 23 of the Criminal Code as “knowing that a person [i.e., the principal] has been a party to the offence, receives, comforts or assists that person for the purpose of enabling that person to escape” (emphasis added) would appear to make the argument that recklessness can satisfy the mens rea a difficult one: R. v. Zora, 2020 SCC 14, [2020] 2 S.C.R. 3, at para. 117; Sandhu, at pp. 497-98.
[74] To allow the charge of accessory after the fact to murder in this case to go to the jury on the basis of wilful blindness would undermine the important distinction between wilful blindness and recklessness.
[75] One can imagine an evidentiary record where the injuries witnessed by a person charged with accessory after the fact to murder are such that it is inescapable that the victim would die within a short period of time – a “dead man walking” as it was described by Nordheimer J., as he then was, in R. v. Knott, 2006 CanLII 6588 (Ont. S.C.). In such a case, it may be open to a reasonable jury, properly instructed, to infer that an accused who assisted the principal to escape over a continuing time period could be found at some point to be wilfully blind to the victim’s death. But the record in this case does did not leave that finding open to a reasonable jury, properly instructed. . R. v. West
In R. v. West (Ont CA, 2024) the Ontario Court of Appeal dismissed a criminal appeal against convictions of "one count of possession of child pornography and one count of internet luring."
Here the court considers the mens rea of recklessness wrt the age of the sex offence complainant:[3] With respect to the child luring count, although the appellant does not concede the issue, he accepts that this court’s decision in R. v. Fox, 2023 ONCA 674, determines the mens rea issue adversely to his position. In Fox, this court held that as a matter of statutory interpretation, recklessness as to age can satisfy the mens rea for internet luring under s. 172.1(1)(a) of the Criminal Code in cases where an actual child under age 18 is involved.
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[12] Although in her ultimate conclusion, the trial judge described her finding as knowledge or a failure to take reasonable steps, reading her reasons as a whole, we are satisfied that the trial judge found that the appellant was either subjectively aware that the complainant was under 18, or at least knew there was a need for further inquiry about her age and deliberately chose not to inquire. In the circumstances here, the latter finding amounted to a finding that the appellant was wilfully blind about the complainant’s age, which is the legal equivalent of actual knowledge: Sansregret v. The Queen, 1985 CanLII 79 (SCC), [1985] 1 S.C.R. 570, at pp. 584-86; R. v. Briscoe, 2010 SCC 13, [2010] 1 S.C.R. 411, at paras. 21-24. .... . 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. Cady
In R. v. Cady (Ont CA, 2023) the Court of Appeal characterized 'wilful blindness':[9] 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 choses not to make those inquiries”: R. v. Briscoe, 2010 SCC 13, [2010] 1 S.C.R. 411, at para. 21 (emphasis in original). It was open to the trial judge to conclude that the appellant knew inquiries should be made but chose not to do so.
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