SUPREME COURT OF CANADA

Citation: R. v. Briscoe, 2010 SCC 13, [2010] 1 S.C.R. 411

Date: 20100408

Docket: 32912

Between:

Michael Erin Briscoe

Appellant

and

Her Majesty The Queen

Respondent

‑ and ‑

Attorney General of Ontario

Intervener

Coram: McLachlin C.J. and Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell JJ.

Reasons for Judgment:

(paras. 1 to 26)

Charron J. (McLachlin C.J. and Binnie, LeBel, Deschamps, Fish, Abella, Rothstein and Cromwell JJ. concurring)

Restriction on Publication: Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act. See the Youth Criminal Justice Act, S.C. 2002, c. 1, s. 110(1).

Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it would identify the child or young person as having been a victim of, or as having appeared as a witness in connection with, an offence committed or alleged to have been committed by a young person. See the Youth Criminal Justice Act, S.C. 2002, c. 1, s. 111(1).

R. v. Briscoe, 2010 SCC 13, [2010] 1 S.C.R. 411

Michael Erin Briscoe Appellant

v.

Her Majesty The Queen Respondent

and

Attorney General of Ontario Intervener

Indexed as: R. v. Briscoe

2010 SCC 13

File No.: 32912.

2009: December 10; 2010: April 8.

Present: McLachlin C.J. and Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell JJ.

on appeal from the court of appeal for alberta

Criminal law — Parties to offences — Aiding and abetting — Mens rea — Intent and knowledge components — Wilful blindness — Accused charged with several offences for his participation in kidnapping, rape and murder of young girl — Accused acquitted — Trial judge finding that mens rea for being party to offences not proven because accused did not have requisite knowledge of co‑accused’s intention to commit each crime — Whether trial judge erred by failing to consider accused’s knowledge from perspective of doctrine of wilful blindness — Criminal Code, R.S.C. 1985, c. C‑46, s. 21(1)(b), (c).

C, a 13‑year‑old girl, and a young friend were lured into a car on the false promise of being taken to a party. B drove the group, which included L and three youths, to a secluded golf course. Unbeknownst to C or her friend, L had said earlier in the day that he would like to find someone to kill. It would appear that the idea had been generally well received and C was chosen by L and some of the others as the victim. On their arrival, B opened the trunk and, at L’s request, handed him some pliers. B stayed behind at the car as the others went onto the golf course under the guise of seeking the party. B rejoined the group around the time that one of the youths hit C from behind with a wrench. For a moment, B held on to C and angrily told her to be quiet or shut up. B then stood by and watched as C was brutally raped and murdered. All five persons involved were charged with kidnapping, aggravated assault and first degree murder and the two adults, B and L, were jointly tried by a judge alone. B was acquitted. The trial judge found that the actus reus for being a party to the offences was proven, but not the mens rea because B did not have the requisite knowledge that L intended to commit the crimes. The Court of Appeal overturned the acquittals and ordered a new trial, holding that the trial judge erred in law by failing to consider wilful blindness.

Held: The appeal should be dismissed.

The mens rea requirement reflected in the word “purpose” under s. 21(1)(b) of the Criminal Code has two components: intent and knowledge. For the intent component, the Crown must prove that the accused intended to assist the principal in the commission of the offence. It is not required that the accused desired that the offence be successfully committed. As for knowledge, in order to have the intention to assist in the commission of an offence, the aider must know that the principal intends to commit the crime, although he or she need not know precisely how it will be committed. Even in the case of murder, the principal’s intention to commit the crime must be known to the aider or abettor, but it need not be shared. It is sufficient that he or she, armed with knowledge of the principal’s intention to commit the crime, acts with the intention of assisting the principal in its commission.

The doctrine of wilful blindness, correctly delineated, is distinct from recklessness and involves no departure from the subjective inquiry into the accused’s state of mind which must be undertaken to establish an aider or abettor’s knowledge. 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. 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.

In this case, the evidence cried out for an analysis on wilful blindness. Even B’s own statements to the police, on which the trial judge relied heavily, suggest that he had a strong, well‑founded suspicion that someone would be killed at the golf course and that he may have been wilfully blind to the kidnapping and prospect of sexual assault. His statements also show that he deliberately chose not to inquire about what the members of the group intended to do because he did not want to know. The trial judge’s failure to consider B’s knowledge from that perspective constitutes a legal error which necessitates a new trial on all charges.

Cases Cited

Referred to: R. v. Laboucan, 2009 ABCA 7, 1 Alta. L.R. (5th) 264, rev’d 2010 SCC 12, [2010] 1 S.C.R. 397; R. v. Greyeyes, 1997 CanLII 313 (SCC), [1997] 2 S.C.R. 825; R. v. F. W. Woolworth Co. (1974), 1974 CanLII 707 (ON CA), 3 O.R. (2d) 629; R. v. Hibbert, 1995 CanLII 110 (SCC), [1995] 2 S.C.R. 973; R. v. Maciel, 2007 ONCA 196, 219 C.C.C. (3d) 516; R. v. Kirkness, 1990 CanLII 57 (SCC), [1990] 3 S.C.R. 74; R. v. Martineau, 1990 CanLII 80 (SCC), [1990] 2 S.C.R. 633; Sansregret v. The Queen, 1985 CanLII 79 (SCC), [1985] 1 S.C.R. 570; R. v. Jorgensen, 1995 CanLII 85 (SCC), [1995] 4 S.C.R. 55; R. v. Graveline, 2006 SCC 16, [2006] 1 S.C.R. 609.

Statutes and Regulations Cited

Canadian Charter of Rights and Freedoms, s. 7.

Criminal Code, R.S.C. 1985, c. C‑46, ss. 21(1), 229(a), 231(5).

Authors Cited

Mewett, Alan W., and Morris Manning. Criminal Law, 2nd ed. Toronto: Butterworths, 1985.

Stuart, Don. Canadian Criminal Law: A Treatise, 5th ed. Scarborough, Ont.: Thomson Carswell, 2007.

Williams, Glanville. Criminal Law: The General Part, 2nd ed. London: Stevens & Sons, 1961.

APPEAL from a judgment of the Alberta Court of Appeal (Paperny and Martin JJ.A. and Belzil J. (ad hoc)), 2008 ABCA 327, 95 Alta. L.R. (4th) 211, 437 A.R. 301, 433 W.A.C. 301, [2009] 1 W.W.R. 447, 237 C.C.C. (3d) 41, [2008] A.J. No. 1060 (QL), 2008 CarswellAlta 1322, setting aside the acquittals entered by Burrows J., 2007 ABQB 196, 413 A.R. 53, [2007] A.J. No. 344 (QL), 2007 CarswellAlta 401, and ordering a new trial. Appeal dismissed.

Alexander D. Pringle, Q.C., Anna Konye and Daniel Chivers, for the appellant.

James C. Robb, Q.C., and Tamara Friesen, for the respondent.

Jennifer M. Woollcombe, for the intervener.

The judgment of the Court was delivered by

Charron J. —

1. Introduction

1Three young persons and two adults were charged for their participation in the kidnapping, rape, and brutal murder of 13-year‑old Nina Courtepatte. The two adults in the group, the appellant Michael Erin Briscoe and Joseph Wesley Laboucan, were charged jointly with kidnapping, aggravated sexual assault and first degree murder. Following their trial before a judge sitting without a jury, Mr. Laboucan was found guilty and Mr. Briscoe was acquitted on all charges (2007 ABQB 196, 413 A.R. 53). Mr. Laboucan successfully appealed his convictions to the Court of Appeal of Alberta and obtained an order for a new trial (2009 ABCA 7, 1 Alta. L.R. (5th) 264). On further appeal to this Court, the order was set aside and his convictions were restored (2010 SCC 12, [2010] 1 S.C.R. 397). This appeal relates solely to Mr. Briscoe. On appeal by the Crown, the Court of Appeal of Alberta overturned his acquittals and ordered a new trial (2008 ABCA 327, 95 Alta. L.R. (4th) 211). Mr. Briscoe now appeals to this Court.

2For the reasons that follow, I would dismiss the appeal and uphold the order of a new trial on all charges.

2. Background

3The following summary of the facts reflects the findings of the trial judge.

4Shortly after midnight on April 3, 2005, 13-year-old Nina Courtepatte and her young friend Ms. K.B. were lured, on the false promise of being taken to a party, into a car with Mr. Briscoe, who was 34 years old at the time, 19-year-old Mr. Laboucan, and three youths. Unbeknownst to Ms. Courtepatte and Ms. K.B., Mr. Laboucan had said earlier in the day that he would like to find someone to kill. It would appear that the idea had been generally well received and, after looking around the West Edmonton Mall for a potential victim, Mr. Laboucan and some of the others had chosen Ms. Courtepatte as the victim.

5Mr. Briscoe drove the group to a secluded golf course. Everyone got out of the car. Mr. Briscoe opened the trunk and, at Mr. Laboucan’s request, handed him some pliers. One of the youths, S.B., hid a wrench up her sleeve. A sledgehammer or mallet was also taken. Except for Mr. Briscoe, everyone started to walk down a path on the golf course. For the benefit of the unsuspecting Ms. Courtepatte and her friend Ms. K.B., Mr. Laboucan and some of the others pretended to be looking for the party.

6At some point during the walk, Ms. S.B. struck Ms. Courtepatte from behind with the wrench. She cried out and ran to Mr. Laboucan. He whispered something that terrified her and she broke away, pleading with him not to make good on his threat. Around this time, Mr. Briscoe rejoined the group. For a moment, he held on to Ms. Courtepatte and angrily told her to be quiet or shut up. Mr. Laboucan then raped her. One of the youths, Mr. M.W., did the same. They then hit her in the head multiple times with the sledgehammer or mallet, and Mr. Laboucan choked her from behind with a wrench. Mr. Laboucan also directed another youth, Ms. D.T., to stab Ms. Courtepatte’s throat with a throwing knife. She did. Mr. Briscoe stood by and watched the rape and murder. Ms. K.B. witnessed some of the gruesome events, but was physically unharmed. Ms. Courtepatte’s badly beaten body was left behind on the golf course where it was discovered a day later.

7What happened to Ms. Courtepatte was not the main question at trial. There was no real question about whether she had been a victim of a kidnapping, aggravated sexual assault, or culpable homicide. There was also no serious question that the homicide fell within the category of first degree murder, either because it was planned and deliberate, or because it was committed during the commission of a crime of domination within the meaning of s. 231(5) of the Criminal Code, R.S.C. 1985, c. C-46. The issue was whether each accused was involved and, if so, whether criminal liability flowed from this involvement.

8The Crown’s theory was that Mr. Laboucan was “the mastermind behind these offences” who had formulated the plan, selected the victim, and communicated the plan to the others. Mr. Briscoe’s actions, carried out with knowledge of Mr. Laboucan’s plan, made him a party to the offences. His participation included driving the group to and from the crime scene, choosing a secluded location, providing and transporting weapons, and taking “an active role” by holding Ms. Courtepatte and telling her to shut up, and threatening Ms. K.B. The Crown argued that Mr. Briscoe had actual knowledge of or was wilfully blind to the plan. The Crown also submitted that, even apart from Mr. Briscoe’s acts of assistance, his presence coupled with his knowledge of the plan made him an abettor. His presence could lend courage to the attackers, discourage rescue, and give Ms. Courtepatte “one more reason to feel helpless and lost and futile” (J.R., vol. XIII, at pp. 169-73).

9The trial judge essentially accepted the Crown’s theory. He found that Mr. Laboucan had committed the offences as a principal offender and that Mr. Briscoe had aided in the commission of the crimes by doing four things: he “drove the group to the place” where the crimes were committed; he “selected a place to stop the characteristics of which facilitated” the commission of the crimes; he “opened the trunk of the car at Mr. Laboucan’s request” and “gave him one of the tools that was taken to the grassy area, albeit a tool apparently not used to murder Ms. Courtepatte”; and he “angrily told Ms. Courtepatte to be quiet when she was screaming after Ms. S.B. hit her and before Mr. Laboucan sexually assaulted and murdered her” (para. 277). Therefore, the actus reus for being a party to the offences was proven.

10The trial judge then examined whether Mr. Briscoe had the requisite mens rea for any of the offences. Did he intend to assist Mr. Laboucan in the commission of the crimes? In order to have such intention, he would have to have known of Mr. Laboucan’s intention to commit each of the crimes. The crucial question then became whether he had such knowledge. The trial judge concluded that Mr. Briscoe did not have the requisite knowledge. Although Mr. Briscoe did not testify at trial, the Crown introduced statements he had made to the police following his arrest. The trial judge ruled the statements voluntary and relied heavily on their contents in concluding that Mr. Briscoe lacked the requisite knowledge. The following are relevant parts of the statements:

(a) Mr. Briscoe acknowledged that he heard members of the group talking about killing people and became aware that one member of the group was carrying knives: J.R., vol. XV, at pp. 102 and 106. He wondered “when is this gonna happen” and worried that he was going to be killed: J.R., vol. XV, at p. 102.

(b) While at the mall, Mr. Briscoe knew that Mr. Laboucan was looking for a girl to have sex with. He said: “I was more than happy to provide him with a chick so he don’t take mine right?”: J.R., vol. XV, at p. 128. He also said: “I ain’t been screwing kids is not my piece of pie”: J.R., vol. XV, at p. 126.

(c) Before arriving at the golf course, he thought they “wanted to scare the shit out of” Ms. Courtepatte: J.R., vol. XV, at p. 108.

(d) Later, when he parked outside the golf course, he knew something was going to happen, but did not want to know what it was: “whatever you guys wanna do just do it. Don’t do it around me I don’t want to see nothing I don’t know what the fuck you’re gonna do”: J.R., vol. XV, at p. 106. Mr. Laboucan asked him for a pair of pliers, and he observed Mr. Laboucan taking “[s]ome kind of a pipe or something” from his trunk: J.R., vol. XV, at pp. 108‑9 and 162. He worried about his and his girlfriend’s safety: J.R., vol. XV, at pp. 99 and 106.

(e) After initially hanging back, he rejoined the group at the grassy area of the golf course, and witnessed the two other men raping Ms. Courtepatte and beating her to death: J.R., vol. XV, at pp. 107-8, 115, 117, 119, 122 and 147. He did not want to know what was happening: “That’s what I seen. And I was like ahh fuck I don’t wanna know”: J.R., vol. XV, at p. 123.

(f) Mr. Briscoe stated that he did not physically assault Ms. Courtepatte, but admitted to holding her at one point and telling her to shut up: J.R., vol. XV, at pp. 134, 146‑47, 164 and 171-172.

(g) When asked about who knew during the drive out to the golf course what was going on, Mr. Briscoe asked, “Like, definitely for sure?” and then said, “I didn’t know exactly what was goin’ on”: J.R., vol. XV, at pp. 191‑92.

11In brief, the trial judge’s conclusions on mens rea were the following. On the charge of kidnapping, despite finding that Mr. Briscoe knew that Mr. Laboucan intended to at least seriously scare Ms. Courtepatte, the trial judge determined that the evidence did not support the conclusion that Mr. Briscoe knew “Ms. Courtepatte and Ms. KB had been lured by fraud into his car” (paras. 283-84). On the charge of aggravated sexual assault, although Mr. Briscoe’s “statement does suggest that he understood Mr. Laboucan anticipated to be sexually intimate with Ms. Courtepatte”, there was “nothing to indicate he understood that Mr. Laboucan intended to sexually assault Ms. Courtepatte” (para. 285). Finally, on the charge of first degree murder, the trial judge held that “the evidence does not establish that he knew Mr. Laboucan in fact intended to kill Ms. Courtepatte. Further the evidence certainly does not establish that he himself had the requisite intent for murder” (para. 286). The trial judge concluded that, in these circumstances, the evidence was not sufficient to prove beyond a reasonable doubt “that Mr. Briscoe did any of the assistive things he did knowing, much less intending, that they would assist Mr. Laboucan” to commit any of the crimes (para. 287). The trial judge did not consider whether Mr. Briscoe was wilfully blind, despite the Crown’s submissions. He acquitted Mr. Briscoe on all charges.

12The Crown appealed Mr. Briscoe’s acquittals to the Court of Appeal of Alberta. Writing for a unanimous court, Martin J.A. held that the trial judge erred in law by failing to consider whether Mr. Briscoe was “wilfully blind to the harm his cohorts intended to cause the victim” and that, “[b]ut for this error, the verdicts may well have been different” on all three charges (para. 41). The Court of Appeal set aside the acquittals and ordered a new trial on all charges. Mr. Briscoe now appeals to this Court.

3. Analysis

13Canadian criminal law does not distinguish between the principal offender and parties to an offence in determining criminal liability. Section 21(1) of the Criminal Code makes perpetrators, aiders, and abettors equally liable:

21. (1) Every one is a party to an offence who

(a) actually commits it;

(b) does or omits to do anything for the purpose of aiding any person to commit it; or

(c) abets any person in committing it.

The person who provides the gun, therefore, may be found guilty of the same offence as the one who pulls the trigger. The actus reus and mens rea for aiding or abetting, however, are distinct from those of the principal offence.

14The actus reus of aiding or abetting is doing (or, in some circumstances, omitting to do) something that assists or encourages the perpetrator to commit the offence. While it is common to speak of aiding and abetting together, the two concepts are distinct, and liability can flow from either one. Broadly speaking, “[t]o aid under s. 21(1)(b) means to assist or help the actor. . . . To abet within the meaning of s. 21(1)(c) includes encouraging, instigating, promoting or procuring the crime to be committed”: R. v. Greyeyes, 1997 CanLII 313 (SCC), [1997] 2 S.C.R. 825, at para. 26. The actus reus is not at issue in this appeal. As noted earlier, the Crown argued at trial that Mr. Briscoe was both an aider and an abettor. The trial judge’s finding that Mr. Briscoe performed the four acts of assistance described above is not disputed.

15Of course, doing or omitting to do something that resulted in assisting another in committing a crime is not sufficient to attract criminal liability. As the Court of Appeal for Ontario wrote in R. v. F. W. Woolworth Co. (1974), 1974 CanLII 707 (ON CA), 3 O.R. (2d) 629, “one does not render himself liable by renting or loaning a car for some legitimate business or recreational activity merely because the person to whom it is loaned or rented chooses in the course of his use to transport some stolen goods, or by renting a house for residential purposes to a tenant who surreptitiously uses it to store drugs” (p. 640). The aider or abettor must also have the requisite mental state or mens rea. Specifically, in the words of s. 21(1)(b), the person must have rendered the assistance for the purpose of aiding the principal offender to commit the crime.

16The mens rea requirement reflected in the word “purpose” under s. 21(1)(b) has two components: intent and knowledge. For the intent component, it was settled in R. v. Hibbert, 1995 CanLII 110 (SCC), [1995] 2 S.C.R. 973, that “purpose” in s. 21(1)(b) should be understood as essentially synonymous with “intention”. The Crown must prove that the accused intended to assist the principal in the commission of the offence. The Court emphasized that “purpose” should not be interpreted as incorporating the notion of “desire” into the fault requirement for party liability. It is therefore not required that the accused desired that the offence be successfully committed (Hibbert, at para. 35). The Court held, at para. 32, that the perverse consequences that would flow from a “purpose equals desire” interpretation of s. 21(1)(b) were clearly illustrated by the following hypothetical situation described by Mewett and Manning:

If a man is approached by a friend who tells him that he is going to rob a bank and would like to use his car as the getaway vehicle for which he will pay him $100, when that person is . . . charged under s. 21 for doing something for the purpose of aiding his friend to commit the offence, can he say “My purpose was not to aid the robbery but to make $100”? His argument would be that while he knew that he was helping the robbery, his desire was to obtain $100 and he did not care one way or the other whether the robbery was successful or not.

(A. W. Mewett and M. Manning, Criminal Law (2nd ed. 1985), at p. 112)

The same rationale applies regardless of the principal offence in question. Even in respect of murder, there is no “additional requirement that an aider or abettor subjectively approve of or desire the victim’s death” (Hibbert, at para. 37 (emphasis deleted)).

17As for knowledge, in order to have the intention to assist in the commission of an offence, the aider must know that the perpetrator intends to commit the crime, although he or she need not know precisely how it will be committed. That sufficient knowledge is a prerequisite for intention is simply a matter of common sense. Doherty J.A. in R. v. Maciel, 2007 ONCA 196, 219 C.C.C. (3d) 516, provides the following useful explanation of the knowledge requirement which is entirely apposite to this case (at paras. 88-89):

. . . a person who is alleged to have aided in a murder must be shown to have known that the perpetrator had the intent required for murder under s. 229(a): R. v. Kirkness (1990), 1990 CanLII 57 (SCC), 60 C.C.C. (3d) 97 (S.C.C.) at 127.

The same analysis applies where it is alleged that the accused aided a perpetrator in the commission of a first degree murder that was planned and deliberate. The accused is liable as an aider only if the accused did something to assist the perpetrator in the planned and deliberate murder and if, when the aider rendered the assistance, he did so for the purpose of aiding the perpetrator in the commission of a planned and deliberate murder. Before the aider could be said to have the requisite purpose, the Crown must prove that the aider knew the murder was planned and deliberate. Whether the aider acquired that knowledge through actual involvement in the planning and deliberation or through some other means, is irrelevant to his or her culpability under s. 21(1).

18It is important to note that Doherty J.A., in referring to this Court’s decision in R. v. Kirkness, 1990 CanLII 57 (SCC), [1990] 3 S.C.R. 74, rightly states that the aider to a murder must “have known that the perpetrator had the intent required for murder”. While some of the language in Kirkness may be read as requiring that the aider share the murderer’s intention to kill the victim, the case must now be read in the light of the above-noted analysis in Hibbert. The perpetrator’s intention to kill the victim must be known to the aider or abettor; it need not be shared. Kirkness should not be interpreted as requiring that the aider and abettor of a murder have the same mens rea as the actual killer. It is sufficient that he or she, armed with knowledge of the perpetrator’s intention to commit the crime, acts with the intention of assisting the perpetrator in its commission. It is only in this sense that it can be said that the aider and abettor must intend that the principal offence be committed.

19Having set out the relevant legal principles for assessing the mens rea of a person charged with aiding and abetting murder, I now turn to Mr. Briscoe’s main argument in this appeal: that the doctrine of wilful blindness should find no application in determining the requisite knowledge for murder, either as a principal or as an aider or abettor.

20In essence, Mr. Briscoe argues that wilful blindness is but a heightened form of recklessness which is inconsistent with the very high mens rea standard for murder under s. 229(a) of the Criminal Code. He argues further that allowing fault for murder, as either a principal or party, to be established by wilful blindness could run afoul of the principle that “subjective foresight of death” is the minimum standard of fault for murder under s. 7 of the Canadian Charter of Rights and Freedoms: R. v. Martineau, 1990 CanLII 80 (SCC), [1990] 2 S.C.R. 633, at p. 645. The Court of Appeal rejected these arguments and, in my view, rightly so. As I will explain, wilful blindness, correctly delineated, is distinct from recklessness and involves no departure from the subjective inquiry into the accused’s state of mind which must be undertaken to establish an aider or abettor’s knowledge.

21Wilful 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?”

22Courts 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.]

23It 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).)

24Professor 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”.

25In this case, I agree with Martin J.A. that the trial judge erred in law by failing to consider wilful blindness. As he noted, even Mr. Briscoe’s own statements to the police suggest that he had a “strong, well-founded suspicion that someone would be killed at the golf course” (para. 30) and that he may have been wilfully blind to the kidnapping and prospect of sexual assault. His statements also show that he deliberately chose not to inquire about what the members of the group intended to do because he did not want to know. As he put it, “whatever you guys wanna do just do it. Don’t do it around me I don’t want to see nothing I don’t know what the fuck you’re gonna do.” The trial judge relied heavily upon the statements in his reasons but did not refer to the doctrine of wilful blindness. Of course, whether Mr. Briscoe had the requisite mens rea for the three offences was a question for the trier of fact, and Mr. Briscoe is entitled to the benefit of any reasonable doubt on this issue. However, from a legal standpoint, it is my respectful view that the evidence cried out for an analysis on wilful blindness. In these circumstances, the Court of Appeal rightly concluded that the trial judge’s failure to consider Mr. Briscoe’s knowledge from that perspective constitutes a legal error which necessitates a new trial on all charges.

26In my view, the Crown has met its heavy onus on appealing an acquittal of showing that the errors of the trial judge “might reasonably be thought, in the concrete reality of the case at hand, to have had a material bearing on the acquittal” on the three charges: R. v. Graveline, 2006 SCC 16, [2006] 1 S.C.R. 609, at para. 14 (per Fish J.). Consequently, I would dismiss the appeal and confirm the order for a new trial.