Canadian Criminal Law/Intent and Knowledge

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Intent[edit]

"Intent" refers to the mental state of the individual consisting of the desire or purpose to achieve a particular consequence, or where the consequences the person sees as certain, "substantially", or "practically" certain.[1]

Intent is often proven by way of inference.

Inferences are factual findings based on common sense.[2]

There is the long-standing inference that a person intends the natural consequences of one’s actions applies to many situations.[3]

The inference will be made in most any circumstances except where there may be evidence to the contrary. Doubt may be raised as to the specific intent of the person where they suffer from mental illness or where intoxicated.[4]

Generally speaking, the inference requires the assumption that the accused has the capacity to form intent.[5]

The presence of the word "wilfully" in an provision for an criminal code offence "generally signals a subjective mens rea requirement, but the appropriate meaning of the term ‘wilfully’ will depend on the context in which it is found."[6] In context of a probation order, "wilful" denotes "a legislative concern for a relatively high level of mens rea" that requires a intent to breach and have a purpose in doing so.[7]

  1. R. v. W.(A.), 2012 ONCJ 472 (CanLII) includes a very detailed consideration of the history of intent
  2. see R. v. Daley, 2007 SCC 53 at paras 103 and 104; R v EB [2006] OJ No 1864 aff'd at 2011 ONCA 194, at para 66 (context of murder)
  3. R. v. Missions, 2005 NSCA 82 at 21
    R. v. Starratt (1971), 5 C.C.C. (2d) 32 (ONCA) at para 3
    See R. v. Giannotti (1956), 115 C.C.C. 203 (Ont. C.A.)
    R. v. Hilson (1958), 121 C.C.C. 139 (Ont. C.A.)
    R. v. Berger (1975), 27 C.C.C. (2d) 357 (B.C.C.A.), leave to appeal to S.C.C. refused [1975] S.C.R. vii
    R. v. Borque, [1969] 4 C.C.C. 358, 7 C.R.N.S. 189 (B.C.C.A.)
    R. v. Theroux, [1993] S.C.J. No. 42, 1993 CanLII 134 (SCC), [1993] 2 SCR 5,79 C.C.C. (3d) 449 at 458 per McLachlin J.
    R. v Gill, 2012 ONCJ 326 (Ont. C.J.), per Ready J.
  4. R v Robinson, 2010 BCSC 368 at para 107 cited in R v Damin, 2011 BCSC 723 at para 33
    R v McConnell, 2012 ABQB 263
  5. See R. v. Bird (1973), 13 C.C.C. (2d) 73 (Sask C.A.)
  6. R. v. A.D.H., [2011] S.J. No. 5 (C.A.)
  7. R v Docherty, 1989 CanLII 45 (SCC), [1989] 2 SCR 941 at para. 13

Knowledge[edit]

Wilful Blindness[edit]

Wilful blindness refers to the accused's state of mind. The doctrine attributes "knowledge to a party whose strong suspicions have been aroused but who refrains from making inquiries to have those suspicions confirmed. The doctrine serves to override attempts to self-immunize against criminal liability by deliberately refusing to acquire actual knowledge."[1]

It is not enough that there be a suspicion in the mind of the accused. Rather, the accused must have "virtually knew the critical fact, and intentionally declined to secure that knowledge."[2]

The determination inquires into whether "the accused shut his ... eyes because he .. knew or strongly suspected that looking would fix him ... with knowledge?”[3]

The doctrine is not premised on "what a reasonable person would have done, but requires a finding that the accused, with actual suspicion, deliberately refrained from making inquiries because he or she did not want his or her suspicions confirmed."[4] To put it another way, it is not a form of "constructive knowledge" by way of a standard of reasonableness..[5]

Where wilful blindness is established, "the knowledge imputed is the equivalent of actual, subjective knowledge." [6]

In certain circumstances, "where an accused made some or basic inquiries, but still harboured suspicions, it remains open to the trier of fact to find wilful blindness".[7]

  1. R. v. Briscoe, 2008 ABCA 327 (CanLII) at para. 19
  2. Briscoe at para. 20
    c.f. R. v. Lagace 2003 CanLII 30886 (ON CA), (2003), 181 C.C.C. (3d) 12 (Ont. C.A.), at paras. 25-6 There must be “a real suspicion” causing the need for further inquiry
  3. R v Jorgensen, 1995 CanLII 85 (SCC), [1995] 4 S.C.R. 55 at para. 103
  4. Briscoe at para. 21
  5. R. v. Callejas, 2011 ONCA 393 (CanLII), at para. 8
    R. v. Laronde, 2010 BCCA 430 (CanLII), at paras. 28-35
    R. v. Smith, 2008 ONCA 101 (CanLII), at paras. 5-6
    R. v. Malfara, [2006] O.J. No. 2069 (C.A.) at para. 2 (“Where wilful blindness is in issue, the question is not whether the accused should have been suspicious, but whether the accused was in fact suspicious”)
  6. Briscoe at para. 21
  7. R. v. Rashidi-Alvije, 2007 ONCA 712 (CanLII), at para. 24
    Lagace, 2003 CanLII 30886 (ON CA) at paras. 27-29
    Niemi, 2006 CanLII 13949 (ON CA) at para. 77