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's 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.
James Morton
1100-5255 Yonge Street
Toronto, Ontario
M2N 6P4
416 225 2777
www.jmortonmusings.blogspot.com
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