Sentencing: Wilful Blindness


The mens rea required for some offences may be proven by recourse to the doctrine of willful blindness; specifically, wilful blindness acts as a substitute for actual knowledge when knowledge is a component of mens rea.

Wilful blindness does not define the mens rea required for particular offences. … The doctrine of 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.

R. v. Briscoe, 2010 SCC 13, [2010] 1 S.C.R. 411, at para. 21. 

Wilful blindness involves a state of what has been described as “deliberate ignorance” that involves “an actual process of suppressing suspicion”. It does not involve a failure to inquire, but an active decision not to inquire so as to avoid being fixed with knowledge.

Briscoe, at para. 24, citing Don Stuart, Canadian Criminal Law: A Treatise, 5th ed. (2007), at p. 241.

Courts sometimes refer to wilful blindness (vis-a-vis actual knowledge) as a lesser form of mens rea; however, any such distinction is generally not reflected in sentence.

Indeed, in R. v. Sidhu the Court of Appeal for Ontario stated that wilful blindness, rather than actual knowledge, was not a mitigating circumstance on sentence:

Having kept himself in the dark, [the accused] cannot rely on his lack of knowledge as a mitigating factor.

R. v. Sidhu , 2009 ONCA 81 (CanLII), at paragraph 19.

It appears to me, however, that there is still room for wilful blindness to operate as a factor in the mitigation of sentence.  But whether it does or not will be circumstance dependent (and not predicated on a mere distinction between actual and imputed knowledge). The Court of Appeal for Ontario, in a recent comment made in obiter, appears to at least provide for that possibility: 

 In the circumstances of this case, the appellant’s wilful blindness did not act as a factor in mitigation of sentence.
R. v. Downey, 2017 ONCA 789, at para. 10.



Stuart O’Connell, O’Connell Law Group, www.leadersinlaw.ca



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