ESSAYS

No. 1300A-01158

IN THE PROVINCIAL COURT OF NEWFOUNDLAND

BETWEEN:

HER MAJESTY THE QUEEN

AND:

RODGER DAVID ADEY

Heard: April 10^th, 2001

Judgment: June 18^th, 2001

DECISION OF GORMAN, P.C.J.

INTRODUCTION:

[1] This case involves the application of the doctrine of wilful blindness to the offence of possession of stolen goods.

THE EVIDENCE

[2] Mr. Adey bought a stolen satellite dish from a person he did not know, at the Viking Mall in St. Anthony. He paid $175.00 and had it set up at his house.

[3] This particular satellite dish had originally been purchased by Mr. Todd Russell in St. John's. He paid $349.00 (plus tax) for the dish. On a flight through St. Anthony it was stolen.

[4] The accused concedes that he had possession of the satellite dish and that it was stolen. The question, that this case raises, is whether or not the doctrine of wilful blindness applies so as to impute the necessary knowledge to the accused.

POSITION OF THE PARTIES

The Crown:

[5] The Crown argues that the mens rea element has been established through the application of the doctrine of wilful blindness. In its view the accused ignored a number of "red flags" and proceeded knowing that further inquiry was called for (See R. v. Wretham (1972), 16 C.R.N.S. 124 (Ont.C.A.) and R. v. Osherow (1972), 19 C.R.N.S. (Alta.Q.B.).

The Accused:

[6] Counsel for the accused responds by arguing that the price paid for the satellite was not so outrageous that it should have caused the accused or a reasonable person to be suspicious. Therefore in its view the Crown has not established that wilful blindness applies.

THE LEGISLATION

[7] Section 354(1) of the Criminal Code of Canada states:

Every one commits an offence who has in his possession any property or thing or any proceeds of any property or thing knowing that all or part of the property or thing or of the proceeds was obtained by or derived directly or indirectly from

(a) the commission in Canada of an offence punishable by indictment; or

(b) an act or omission anywhere that, if it had occurred in Canada, would have constituted an offence punishable by indictment.

ANALYSIS

Mens Rea

[8] It is generally accepted, as a rule of statutory authority, that when the word "knowingly" is used in a criminal statute, it applies to all the elements of the actus reus (R. v. Rees (1956), 115 C.C.C. 1 (S.C.C.).

[9] The test for mens rea is generally a subjective one (offences of negligence being one exception). It is concerned with the accused's intent and his or her appreciation of the circumstances rather than that of a reasonable person.

[10] The Crown concedes that it has not established that the accused "knew" that the satellite dish had been stolen. Therefore it relies on establishing the necessary mental element through the doctrine of wilful blindness.

[11] An accused's knowledge of a fact can be established through the doctrine of wilful blindness. Wilful blindness complies with the subjective fault requirement of our criminal law because it requires actual suspicion and a conscious choice to refrain from making inquiries. It is very close to actual knowledge. It has been described, by one author, as "deliberate ignorance"¹.

[12] Though wilful blindness applies to offences which include "knowingly" as an element (see R. v. Jorgensen 1995 CanLII 85 (S.C.C.), (1995), 102 C.C.C. (3d) 97 S.C.C.), it is important to keep the distinctions between negligence; recklessness; and wilful blindness in mind (see R. v. Sansregret 1985 CanLII 79 (S.C.C.), (1985), 18 C.C.C. (3d) 223 (S.C.C.) at p.233-237).

Recklessness/Negligence:

[13] Negligence involves a failure to take reasonable care. It is a civil standard generally not applicable to criminal law. Those offences which do involve a lack of care require a "marked departure" from the requisite standard of care applicable to the particular offence in question (see R. v. Finlay 1993 CanLII 63 (S.C.C.), (1993), 83 C.C.C. (3d) 513 (S.C.C.) and R. v. Creighton 1993 CanLII 61 (S.C.C.), (1993), 83 C.C.C. (3d) 346 (S.C.C.)). The Newfoundland Court of Appeal, in R. v. Connors, (1996), 146 Nfld. & P.E.I.R. 246, at p.247, in the context of the offence of arson, held that recklessness requires "more than a mere error of judgment, but rather a very significant departure from the standard of a reasonable person; in otherwords, complete indifference as to the consequences".

[14] In R. v. Sansregret, supra, the Supreme Court of Canada distinguished recklessness from negligence by concentrating on the subjective element involved in recklessness. At page 233 the Court stated:

In accordance with well-established principles for the determination of criminal liability, recklessness, to form a part of the criminal mens rea, must have an element of the subjective. It is found in 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. It is in this sense that the term "recklessness" is used in the criminal law and it is clearly distinct from the concept of civil negligence. ²

[15] The Court held in Sansregret that a finding of recklessness cannot "overide the defence of mistake of fact". An honest belief does not have to be a reasonable one (at p.235).

[16] In R. v. Currie (1975), 24 C.C.C. (2d) 292 (Ont.C.A.) Mr. Justice Martin, at page 296, described the insufficiency of the civil standard to criminal proceedings as follows:

The fact that a person ought to have known that certain facts existed, while it may, for some purposes in civil proceedings, be equivalent to actual knowledge, does not constitute knowledge for the purpose of criminal liability, and does not by itself form a basis for the application of the doctrine of wilful blindness.

[17] In R. v. Dimitry Vinokurov, 2001 ABCA 114 (CanLII), 2001 ABCA 0114 the Alberta Court of Appeal, at paragraph fourteen, concluded that "recklessness will not satisfy the knowledge requirement on a charge of possession of stolen property..." (Also see R. v. Zundel 1987 CanLII 121 (ON C.A.), (1987), 31 C.C.C. (3d) 97 (Ont.C.A.); R. v. McFall (1976), 26 C.C.C. (2d) 181 (B.C.C.A.) at pp.194-198, and E. Colvin, Principles of Criminal Law (2d ed), Carswell, 1991, at p.125).

[18] Establishing the knowingly element, through recklessness, does appear to be inconsistent with the mens rea the section requires and with the importance our legal system places upon intent and moral culpability in criminal proceedings (see R. v. Wholesale Travel Group 1991 CanLII 39 (S.C.C.), (1991), 67 C.C.C. (3d) 193 (S.C.C.) at p.212, and R. v. Vaillancourt 1987 CanLII 2 (S.C.C.), (1987), 39 C.C.C. (3d) 118 (S.C.C.).³ However, since the Crown is not relying on recklessness to prove the requisite mens rea this is an issue that I need not resolve.

Wilful Blindness

[19] Wilful blindness requires suspicion, combined with a conscious decision to refrain from making inquiries. This is why our law equates it with having actual knowledge. An accused cannot deliberately remain ignorant and escape criminal liability as a result.

[20] In R. v. Jorgensen, supra, the accused was charged with the offence of "knowingly" selling obscene material, contrary to s.163(2)(a) of the Criminal Code of Canada. Mr. Justice Sopinka considered the word knowingly and held, at page 135, that "... Deliberately choosing not to know something when given reason to believe further inquiry is necessary can satisfy the mental element of the offence". He described the effect of a finding of wilful blindness, at pages 135-136 as follows:

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? Retailers who suspect that the materials are obscene but refrain from making the necessary inquiry in order to avoid being contaminated by knowledge may be found to have been wilfully blind. The determination must be made in light of all the circumstances. In R. v. Sansregret 1985 CanLII 79 (S.C.C.), (1985), 18 C.C.C. (3d) 17 D.L.R. (4^th) 577, [1985] 1 S.C.R. 570, this court held that the circumstances were not restricted to those immediately surrounding the particular offence but could be more broadly defined to encompass, for example, past events: see also R. v. Blondin (1970), 2 C.C.C. (2d) 118 at p.122, [1971] 2 W.W.R. 1 (B.C.C.A.).⁴

[21] In Sansregret, the Supreme Court of Canada distinguished wilful blindness from recklessness in the following manner (at p.235):

Wilful blindness is distinct from recklessness because, 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.

[22] The Court, relied, in part on Glanville Williams' description (in Criminal Law: The General Part, (2d ed), 1961, at p.157) of the nature and limitations of establishing mens rea through the use of the wilful blindness doctrine. At pages 236-237 of their judgment the court quotes from Williams' text as follows:

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.

[23] It is not sufficient for it to be established that the accused "ought to have known" (R. v. Barbeau 1996 CanLII 6391 (QC C.A.), (1996), 110 C.C.C. (3d) 69 (Que'.C.A.). Actual suspicion is necessary (R. v. Duong 1998 CanLII 7124 (ON C.A.), (1998), 124 C.C.C. (3d) 392 (Ont.C.A.).

CONCLUSION

[24] I am not satisfied that the Crown has proven that the accused had the necessary mens rea for the offence in this case. A reasonable person may have made further inquiries. However, I accept the accused's testimony that he was not suspicious. The price paid for the satellite dish, by the accused, was not such that it should have been apparent to him or raised his suspicions so as to constitute wilful blindness.

[25] The charge against the accused is dismissed.

Judgment accordingly.

Appearances:

Ms. B. Duffy for Her Majesty the Queen

Ms. C. Casey for the Accused

2 In R. v. Theroux, 1993 CanLII 134 (S.C.C.), [1993] 2 S.C.R. 5, the Court stated that recklessness is "established when it is shown that the accused, with such knowledge, commits acts which may bring about those prohibited consequences, while being reckless as to whether or not they ensue".

3 In R. v. Jorgensen, supra, the Supreme Court of Canada, at page 136, concluded that the presence of the word knowingly indicates that Parliament has chosen to adopt "an onerous standard of proof" for that offence.

4 J.C. Smith and B. Hogan conclude, in their text, Criminal Law (3d ed), (Butterworths, 1973), at p.85, that " 'knowingly' ... includes the state of mind of the man who suspects the truth, but deliberately avoids finding out (shutting his eyes to an obvious means of knowledge) or deliberately refraining from 'making inquiries the results of which me might not care to have' ".


Date:	2001-06-18
Docket:	1300A-01158
Parallel citations:	[2001] 203 Nfld. & P.E.I.R. 295 • (2001), 44 C.R. (5th) 362
URL:	http://www.canlii.org/en/nl/nlpc/doc/2001/2001canlii11355/2001canlii11355.html

R. v. Adey, 2001 CanLII 11355 (NL P.C.)

Noteup

Legislation cited (available on CanLII)

Decisions cited