Court of Appeal for Ontario

Citation: R. v. Smith, 2008 ONCA 101

Date: 20080214

Docket: C43630

Before: DOHERTY, BORINS and LANG JJ.A.

Between:

HER MAJESTY THE QUEEN Respondent

and

PAUL SMITH Appellant

Counsel: James Foord for the appellant J.K. Stewart for the respondent

Heard and orally released: February 8, 2008

On appeal from the decision dated April 8, 2005 of Justice Manton of the Superior Court of Justice, sitting as a summary conviction appeal court judge, from the conviction entered by Justice G. Michel of the Ontario Court of Justice dated April 2, 2004.

ENDORSEMENT

[1] The appellant was convicted of breaching a term of his recognizance that required him to remain at least fifty metres from the British Embassy in Ottawa. The appellant testified that he believed that the term required him to remain fifteen metres from the Embassy. He acknowledged that he must have misheard the trial judge when the recognizance was imposed. The appellant said although he had signed the recognizance indicating that he had to remain fifty metres, he had not read the recognizance at the time as he was not wearing his glasses. He further testified that he simply put the recognizance in a drawer without looking at it.

[2] On the evidence, it would appear that the respondent was within fifty metres of the British Embassy, but not within fifteen metres.

[3] The trial judge convicted the appellant indicating as follows:

He acknowledges that the document in that exhibit is the Recognizance pertaining to him. He acknowledges that it clearly says ’50 metres’. He said that he heard ’15 metres’, that he took it and shoved it in a dresser on a pile of papers and did not look at it. That is at his peril. It is simply wilful blindness not to know what terms are – when they are clear and you have them in your pocket, in your hands. [Emphasis added.]

[4] The summary conviction appeal court judge affirmed the conviction. He addressed the wilful blindness issue in these terms:

By failing to ensure that the written terms of his recognizance were consistent with what he assumed he heard in court, this constituted deliberate ignorance of a likely risk that the Appellant might have misunderstood the terms of the recognizance; the Appellant’s conduct thus exceeded mere negligence or carelessness (see Legere, supra, and Sault Ste. Marie, supra at 362), and could reasonably be categorized as “willful blindness” based on the evidence before the trial judge. [Emphasis added.]

[5] We think both courts erred in law in the application of the wilful blindness doctrine. Wilful blindness requires more than a failure to make inquiries where those inquiries could have been made and reasonably should have been made by the accused. Wilful blindness requires a finding that the accused, knowing he had reason to suspect that a certain state of affairs existed, deliberately declined to make the inquiries necessary to confirm that state of affairs preferring instead to remain ignorant of the true state of affairs. This is a subjective state of mind and justifies the imposition of criminal culpability: see D. Stuart, Canadian Criminal Law (4th ed.) at pp. 228-31; R. v. Rashidi-Alavije (2007), ONCA 712 at paras. 22-24 (C.A.).

[6] We think both the trial judge and the summary conviction appeal court judge essentially found the appellant guilty because he did not do what a reasonable person should have done to confirm the terms of his recognizance. That failure does not constitute wilful blindness for mens rea purposes.

[7] The Crown, quite properly in our view, does not seek a new trial in this matter. Consequently, we would grant leave to appeal the conviction, allow the appeal, quash the decision of the summary conviction appeal court judge, set aside the conviction and enter an acquittal.

“Doherty J.A.”

“S. Borins J.A.”

“S. Lang J.A.”