Prosecutorial Pragmatism in R. v. Briscoe

Last month, the SCC unanimously dismissed the appeal of R. v. Briscoe, 2010 SCC 13 and confirmed that a new trial was necessary. The Briscoe decision provides an interesting analysis into both the prosecutorial decisions of the Attorney General and the mens rea requirement for party offences. In particular, the decision clarifies the wilful blindness doctrine.

At trial, Burrows J. found that Briscoe possessed the requisite actus reus of aiding a crime. However, he held that Briscoe did not have the mens rea to aid in the commission of each crime since he lacked the necessary intention (or knowledge). At trial, it was established that Briscoe’s statements to the police indicated he did not want to know what Laboucan had planned. However, the trial judge did not consider the wilful blindness doctrine.

As determined in R. v. Buzzanga and Durocher (1979), 25 O.R. (2d) 705 (C.A.), knowledge may form intention, as the only major difference is that intention refers to consequences, whereas knowledge refers to the circumstances. Essentially, a person who knows that something may result from an act is considered to have intended that consequence. As held in R. v. Maciel, 2007 ONCA 196 and affirmed in Briscoe, common sense will dictate what “sufficient knowledge” is as a prerequisite for intention.

Since Briscoe did not intend for Courtepatte to be murdered, knowledge was the relevant issue in this case. Although the Crown submitted that the doctrine of wilful blindness would allow for the requisite level of knowledge, the trial judge did not consider wilful blindness and determined the accused did not have either knowledge or intention.

The Court of Appeal of Alberta allowed the appeal and ordered a new trial.

At the SCC, Charron J. gave a clear analysis of the mens rea requirements for party offences. To be guilty of aiding in the commission of a crime, the accused must have knowledge that the principal offender intended to commit a crime. Alongside the actus reus of the actual aiding in the commission, that is enough for a conviction. The theory behind this is that the mens rea for a party offender must reflect the same level of subjective mens rea to which a principal offender is also subject. The SCC’s approach to subjectivity in criminality draws here, as it does in other areas of its criminal law jurisprudence, on the seriousness of stigma in the criminal law.

The mens rea requirement for a party offender does not need to be identical to the principal. In R. v. Hibbert, [1995] 2 S.C.R. 973, the SCC determined that a party offender does not need to share intention with the principal.  He or she need only to have knowledge of the principal's intention.

The doctrine of wilful blindness is relevant to determining whether a party to an offence possesses knowledge. Briscoe claimed he had no subjective knowledge. However, case law establishes that the doctrine of wilful blindness does not require actual knowledge of the requisite element of the offence (here, knowledge of the principal’s intention to kill) and, as such, is often used to circumvent an accused’s claim of ignorance. As discussed in Sansregret v. The Queen, [1985] 1 S.C.R. 570, wilful blindness performs the role of filling the gap between suspicion and actual knowledge. Simply put, one must make the appropriate inquiries if he or she has a suspicion that a crime may occur. The SCC in Briscoe agreed that the doctrine of wilful blindness was relevant and ordered a new trial.

I agree that wilful blindness is applicable  to  the facts of this case, though I question the SCC’s  brief discussion on the subjective mens rea level of recklessness. Recklessness alone may very well have also provided the requisite mens rea to convict Briscoe.

At para. 23 of the decision, Charron J. discusses the distinction between recklessness and wilful blindness. Recklessness is where one knows of a danger or risk and nonetheless persists with a certain course of conduct, knowing that there is a risk that a certain act will occur. On the other hand, wilful blindness (as explained above) involves an accused having a sufficiently serious suspicion that a crime may be committed, but failing to determine whether this suspicion is in fact true.

The decision in R. v. Martineau, [1990] 2 S.C.R. 633 sets out that the mens rea requirement for murder as being subjective foresight of death. Essentially, the mens rea must be a recognized subjective level. Recklessness is accepted in SCC jurisprudence as being a form of subjective mens rea. According to both Martineau and R. v. Vaillancourt, [1976] 1 S.C.R. 13 it is the lowest acceptable level of mens rea for murder.

If Laboucan had foregone the rape and simply murdered Courtepatte, the Crown arguably might have tried to use recklessness, as was successfully done in R. v. Cooper, [1993] 1 S.C.R. 146. There, the SCC held that recklessness (which usually requires a mere possibility that a crime will occur) requires probability when the charge is murder. In this hypothetical situation, the Crown would have the onus of showing that it was likely (not simply possible) that Courtepatte would be murdered. As a result, a modified recklessness approach would suffice for a single charge of murder.

So then the question to be asked is “Why not use a recklessness approach?” The answer is that the inclusion of an aggravated sexual assault charge alters the situation.

The mens rea requirement for sexual assault is higher than recklessness. In R. v. Ewanchuk, [1999] 1 S.C.R. 330 the SCC held that knowledge of lack of consent is required as part of the mens rea for sexual assault, due to the substantial stigma that comes with conviction. Recklessness alone will not provide the necessary mens rea for a sexual assault conviction, though it will for murder. If a recklessness-based approach had been used, Briscoe would easily escape liability for the sexual assault charge while still (possibly) being convicted for murder at the same time. The SCC implicitly confirmed the established precedents with respect to the mens rea requirement for both murder and sexual assault by allowing the use of the wilful blindness doctrine. In a joint charge (such as this one) proving knowledge and intention will allow for conviction on all charges.

This decision confirms the existing precedents establishing the mens rea necessary for sexual assault and murder. A higher mens rea standard of knowledge was necessary to ensure conviction on all three criminal charges. Jurisprudence gives Crown prosecutors a certain degree of flexibility as to whether wilful blindness or recklessness is the best theory of the case. Briscoe is an example of a case where the most pragmatic approach was taken. While recklessness alone will fulfill the mens rea requirement for murder, when combined with other charges (such as sexual assault) the  Crown must prove the higher mens rea standard of knowledge.