DATE: 20060525

DOCKET: C43656

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) v. NICOLA MATHEW MALFARA (Applicant/Appellant)

BEFORE:

DOHERTY, LANG and JURIANSZ JJ.A.

COUNSEL:

Richard Stern

for the appellant

Moiz Rahman

for the respondent

HEARD: May 18, 2006

RELEASED ORALLY: May 18, 2006

On appeal from the conviction entered by Justice C. Paris of the Ontario Court of Justice dated February 17, 2005.

E N D O R S E M E N T

[1] We are satisfied that the trial judge found the necessary mens rea based on a finding of wilful blindness. In respect of that finding, the trial judge said after referring to the evidence that the appellant had told the police that he delivered the clothing to the jail in return for $50:

This should have alerted Mr. Malfara of a suspicion that there may be more to the parcel than clothing and required on his part to make an inquiry as to what was in the package. By not making that inquiry Mr. Malfara was guilty of wilful blindness when taking the items to the jail. …

[2] We are satisfied that this passage reveals two errors. While the first may be semantical, the second necessitates a quashing of the conviction. The first error arises out of the trial judge’s reference to the fact that the circumstances “should have alerted Mr. Malfara”. Where wilful blindness is in issue, the question is not whether the accused should have been suspicious, but whether the accused was in fact suspicious. However, as indicated above, this quarrel with the trial judge’s reasons may fairly be regarded as more semantical than substantive.

[3] The second error, however, arises out of the trial judge’s finding that the suspicion was “that there may be more to the parcel than clothing”. In our view, this suspicion did not reach either the level of suspicion or the degree of specificity of the suspicion required to support a finding of wilful blindness. In R. v. Jorgensen (1995), 1995 85 (SCC), 102 C.C.C. (3d) 97 at 135, the Supreme Court of Canada adopted the definition of wilful blindness enunciated by Professor Williams:

A court can properly find wilful blindness only where it can almost be said that the defendant actually knew, he suspected the fact, realized its probability but he refrained from obtaining the final confirmation because he wanted in the event to be able to deny knowledge [emphasis added].

[4] The level of suspicion described by Professor Williams as a “probability” goes well beyond the suspicion described by the trial judge as “there may be more to the parcel than clothing”. Similarly, a suspicion that a fact is probably true is much more specific than a suspicion that there was something “more to the parcel than clothing”.

[5] In our view, the trial judge’s finding as to the appellant’s state of mind does not amount in law to wilful blindness.

[6] The trial judge’s error necessitates that the verdict be quashed and a new trial ordered. It is unnecessary to deal with the second issue raised on the appeal.

“Doherty J.A.”

“S.E. Lang J.A.”

“R.G. Juriansz J.A.”