The Doctrine of Wilful Blindness
![handle is hein.journals/unblj28 and id is 177 raw text is: The Doctrine of Wilful Blindness
LARRY C. WILSON*
The following paper examines a recent development in the evolution
of mens rea. The author traces the history of the doctrine of wilful
blindness and how it has been interpreted by the courts since its
beginnings in forgery cases during the early nineteenth century
through R. v. Sault Ste. Marie (1978).
Where knowledge is required as a requisite element of a criminal
offence general principle dictates that proof of such knowledge rests
with the Crown. It is equally settled law that the Crown need not prove
knowledge by direct evidence. In the vast majority of criminal cases
direct evidence of knowledge or lack of it is unavailable. Since knowledge
is a state of mind it must be found, failing an admission by the accused
of that state of mind, in the same way as intent, by proper inferences
from facts proved.'
Traditionally the Courts have refrained from invoking civil tests of
responsibility in criminal cases requiring proof of knowledge. If the
defendant did not know, he cannot be convicted, however negligent he
may have been in not obtaining knowledge.' Devlin J. has succinctly
stated the principle as follows: The case of merely neglecting to make
inquiries is not knowledge at all - it comes within the legal conception
of constructive knowledge, a conception which, generally speaking, has
no place in the criminal law.3
* Thus, as Judge Graburn noted, there is a particular school of thought
that actual knowledge must be proven beyond a reasonable doubt to be
brought home to the accused. 4 However, adherents of this position do
recognize what Glanville Williams calls one strictly limited exception -
the doctrine of wilful blindness:
*LL.B., 1974 (Saskatchewan), LL.M., 1976 (Manitoba). Associate Professor, Faculty of Law, University
of Windsor.
'R. v. Kelly, [1967] 1 C.C.C. 215, at 222 (B.C.C.A.) per Bull J.A.
'G. Williams, Criminal Law, 2nd ed. (London: Stevens & Sons, 1961), at 157.
3Roper v. Taylor's ., [1951] 2 T.L.R. 284, at 289 (K.B.)per DevlinJ.
4L. Graburn, Burdens of Proof and Presumptions in Studies in Canadian Criminal Evidence,
R. Salhany and R. Carter, eds. (Toronto: Butterworths, 1972), at 64. Granville Williams, supra, foot-
note 2, at 157 stated: Knowledge, then, means either personal knowledge or (in the licence cases)
imputed knowledge. In either event there is someone with actual knowledge.](ViewImageLocal?handle=hein.journals/unblj28&div=12&collection=&method=preview&ext=.png&size=3)
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The Doctrine of Wilful Blindness
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