Willful blindness -- a defence to murder? We'll know tomorrow

Admiral Nelson was blinded in one eye early in his naval career. In 1801, during the Battle of Copenhagen cautious Admiral Sir Hyde Parker, in overall command of the British forces, sent a signal to Nelsons forces giving him discretion to withdraw. Naval orders were transmitted via a system of signal flags at that time. When this order was given to the more aggressive Nelson's attention, he lifted his telescope up to his blind eye, said "I really do not see the signal", and his forces continued to press home the attack.

Of course, Admiral Nelson did not disobey any order – he was given discretion to withdraw and chose not to. But the concept of turning a blind eye, or willful blindness was born.

Legally, willful blindness describes a situation where someone seeks to avoid criminal liability by intentionally putting himself in a position where he will be unaware of facts which would render him liable. For example, in a number of cases, persons transporting packages containing illegal drugs have asserted that they never asked what the contents of the packages were, and therefore lacked the requisite intent to break the law. Generally speaking, the defence does not work because willful blindness amounts to knowledge. And knowledge of wrongdoing is a crucial element of an offence.

In Canada a criminal act is defined by two things – the act itself and the intention behind the act. The very same act can be criminal or not depending on the intention; so a taxi driver driving a holdup gang away from a bank has committed no crime if the driver is unaware of a robbery but the very same act is criminal if the driver knows of the robbery and intends to assist in a getaway. If the driver were willfully blind to the knowledge of the robbery but assisted the holdup gang anyway, the driver would be a party to the crime.

The same analysis applies to murder charges. To be guilty of being a party to a murder an accused must assist someone knowing the act of the principal is intended to cause death or at least bodily harm likely to cause death. But what if the person does not know that there an intention not to cause death or bodily hard likely to cause death because they were willfully blind? It would seem sensible that willful blindness would afford no defence.

Tomorrow’s Supreme Court of Canada decision in R. v. Briscoe will answer the question.