Turning away is no defence

Five years ago thirteen year old Nina Courtepatte’s body was found on a golf course just outside Edmonton. She had been gang raped, bludgeoned with a hammer and had her throat slit. Five people, three men and two women, were involved in the killing; three of those were juveniles. The killing was planned, deliberate and committed for sport -- it is hard to imagine a more dreadful crime.

One of the adults, Michael Briscoe, took no part in the sexual assault or the killing. He did stand by and watch taking no steps to stop the murder. Briscoe claimed he did not know Courtepatte was going to be raped and murdered; that was his defence.

Briscoe, however went further that merely standing aside. He drove the gang and Courtepatte from the West Edmonton Mall, where she was kidnapped, to the golf course where she was killed. After parking at the golf course he said “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”. Later, while watching the assault and murder he said, “that’s what I see. And I was like ahh fuck I don’t wanna know”. Briscoe seems to have known something was going to happen but drove Courtepatte to her death anyway.

The trial judge acquitted Briscoe of all charges finding there was insufficient evidence to prove he knew of the plan. On Thursday the Supreme Court disagreed and sent Briscoe back to a new trial; in doing so they sent a strong message that looking away will not be a defence to crime.

Legally, wilful blindness describes a situation where someone tries to avoid criminal liability by intentionally ignoring the obvious. For example, someone transporting packages containing illegal drugs might say 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 wilful blindness amounts to knowledge. And knowledge of wrongdoing is a crucial element of an offence.

In Canada a crime 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. The very same act is criminal if the driver knows of the robbery and intends to assist in a getaway.

The same analysis applies to murder charges. To be guilty of being a party to a murder an accused must assist someone who intended to cause death or at least bodily harm likely to cause death. Lacking that knowledge there is no crime. But what if the person does not know that there was an intention to cause death or bodily harm because they were wilfully blind? Here is seems Briscoe knew that he was driving Courtepatte to her death but chose not to ask the obvious questions to make that knowledge express. The Supreme Court said, if that is shown at trial, then Briscoe is guilty.

The Court carefully distinguished wilful blindness, where the accused knows something is wrong and decides to suppress that knowledge, from recklessness, where the accused does not know even though, reasonably, the accused ought to have known. The Court says:"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”."

The impact of this decision is broader than just murder cases. What of the corporate employee who looks away from environmental dumping? Or the bookkeeper who turns a blind eye to tax fraud? The defence "I see nothing" is no defence at all.