What is “Wilful Blindness” in Criminal Law?

Written on Behalf of Affleck & Barrison LLP

In a recent decision, R. v. Downey, the Court of Appeal could find no error by the trial judge in convicting the accused of various firearm related offences arising from having imported three guns into Canada. The appellant argued that the trial judge erred in applying the doctrine of wilful blindness.

WHAT HAPPENED?

Three guns were found hidden in the vehicle that Michelle-Ann Downey drove across the border from Detroit, Michigan into Canada.

The original trial judge concluded beyond a reasonable doubt that Downey had been “wilfully blind” regarding the nature of what she was transporting into Canada.

On appeal, Downey’s counsel argued that the trial judge had erred in his application of the doctrine of wilful blindness. Counsel argued that there was no evidence from which to draw the inference that Downey had suspected that she had guns (rather than some other criminal contraband) in her vehicle. The Court of Appeal disagreed that the trial judge made this error.

WHAT DOES IT MEAN TO BE WILFULLY BLIND?

In Canada, a crime is defined by two things:

  1. the act itself; and,
  2. the intention behind the act.

Wilful blindness applies to the accused’s state of mind. It describes a situation where someone tries to escape criminal liability by intentionally overlooking the obvious.

The Court of Appeal in Downey specifically wrote that “[w]ilful blindness acts as a substitute for actual knowledge”. The court relied on the words of Charron J. in the Supreme Court of Canada decision of 2010 in R. v. Briscoe:

The doctrine of willful 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.

Wilful blindness has also been described as the state of “deliberate ignorance” of a certain fact. It is not enough that the accused failed to inquire about a certain fact, but instead the accused intentionally and deliberately did not inquire.

DETERMINING WHETHER THERE HAS BEEN WILFUL BLINDNESS

In applying the doctrine of wilful blindness, one does not question what a reasonable person would have done in the circumstances. Instead, one must find that the accused deliberately refrained from making inquiries so as not to have his/her suspicions confirmed.

A court may make the following inquiries when considering the doctrine of wilful blindness:

  • Has the accused’s suspicion been triggered about a fact that would reveal a prohibited consequence or situation?
  • Is the accused’s suspicion about the prohibited consequence or situation probable or at least likely to occur?
  • Did the accused inquire about the suspicion?
  • If the accused inquired about the suspicion did the accused have any remaining suspicion after the inquiry?
  • If the accused had any remaining suspicions after the inquiry, did the accused make further inquiries?

THE DECISION

In the case of R. v. Downey, the trial judge found that the accused’s suspicion had been aroused to the point that there was a need for inquiry, but she deliberately did not inquire so as not to learn the truth. The trial judge gave these examples:

  • Her evidence was inconsistent with text messages located on her phone;
  • She knew it was not illegal to bring $4,000 into the country, yet she told the customs officials she was not carrying cash;
  • It was implausible that she thought she would be paid $1,000 for smuggling $4,000 into the country; and,
  • She admitted that her conscience was telling her she was doing something wrong.

The Court of Appeal dismissed the conviction appeal and dismissed the sentence appeal by concluding that there was no basis to interfere with the sentence of two years less a day.

If you have questions regarding your legal rights, contact the criminal lawyers at Affleck & Barrison LLP. To speak with an experienced criminal defence lawyer, please call us at 905-404-1947 or contact us online for a free consultation.