International Law

R. v. Smith

The appellant was convicted of breaching a term of his recognizance that required him to remain at least fifty metres from the British Embassy in Ottawa. The appellant testified that he believed that the term required him to remain fifteen metres from the Embassy. He acknowledged that he must have misheard the trial judge when the recognizance was imposed. The appellant said although he had signed the recognizance indicating that he had to remain fifty metres, he had not read the recognizance at the time as he was not wearing his glasses. He further testified that he simply put the recognizance in a drawer without looking at it.

At trial, and on a subsequent appeal, Mr. Smith was found guilty on the basis of his “wilful blindness.” Wrong. The appellant was no doubt negligent, but that is not the same thing as being wifully blind — which is tantamount to knowledge.

We think both courts erred in law in the application of the wilful blindness doctrine. Wilful blindness requires more than a failure to make inquiries where those inquiries could have been made and reasonably should have been made by the accused. Wilful blindness requires a finding that the accused, knowing he had reason to suspect that a certain state of affairs existed, deliberately declined to make the inquiries necessary to confirm that state of affairs preferring instead to remain ignorant of the true state of affairs. This is a subjective state of mind and justifies the imposition of criminal culpability [sources omitted]

We think both the trial judge and the summary conviction appeal court judge essentially found the appellant guilty because he did not do what a reasonable person should have done to confirm the terms of his recognizance. That failure does not constitute wilful blindness for mens rea purposes.

Full post as published by Criminal Review on February 14, 2008 (boomark / email).