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Criminal - Mens Rea - Wilful Blindness. 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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