R. v. Briscoe (M.E.) et al., (2010) 477 A.R. 86 (SCC)

• Judge: McLachlin, C.J.C., Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell, JJ.
• Court: Supreme Court (Canada)
• Case Date: December 10, 2009
• Jurisdiction: Canada (Federal)
• Citations: (2010), 477 A.R. 86 (SCC);2010 SCC 13;[2010] SCJ No 13 (QL);400 NR 216;73 CR (6th) 224;[2010] CarswellAlta 589;253 CCC (3d) 140;483 WAC 86;JE 2010-680;210 CRR (2d) 150;AZ-50624687;477 AR 86;[2010] 6 WWR 1;316 DLR (4th) 577;EYB 2010-171953;22 Alta LR (5th) 49;[2010] EXP 1249;[2010] 1 SCR 411

R. v. Briscoe (M.E.) (2010), 477 A.R. 86 (SCC);

      483 W.A.C. 86

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2010] A.R. TBEd. AP.054

Michael Erin Briscoe (appellant) v. Her Majesty The Queen (respondent) and Attorney General of Ontario (intervenor)

(32912; 2010 SCC 13; 2010 CSC 13)

Indexed As: R. v. Briscoe (M.E.) et al.

Supreme Court of Canada

McLachlin, C.J.C., Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell, JJ.

April 8, 2010.

Summary:

Three young persons and two adults were charged for their participation in the kidnapping, rape and murder of a 13 year old girl. The two adults (Briscoe and Laboucan) were charged jointly with kidnapping, aggravated sexual assault and first degree murder.

The Alberta Court of Queen's Bench, in a decision reported at (2007), 413 A.R. 53, found that Laboucan committed the offences as a principal offender and that Briscoe aided in the commission of the crimes by doing four things. However, the trial judge concluded that Briscoe did not have the requisite mens rea for the offences. The trial judge concluded that the evidence was not sufficient to prove beyond a reasonable doubt "that Mr. Briscoe did any of the assistive things he did knowing, much less intending, that they would assist Mr. Laboucan" to commit any of the crimes. The trial judge did not consider whether Briscoe was wilfully blind. Briscoe was acquitted on all charges. The Crown appealed from the acquittals.

The Alberta Court of Appeal, in a decision reported at (2008), 437 A.R. 301; 433 W.A.C. 301, held that the trial judge erred in law by failing to consider whether Briscoe was "wilfully blind to the harm his cohorts intended to cause the victim" and that, "but for this error, the verdicts may well have been different" on all three charges. The court allowed the appeal, overturned the acquittals, and ordered a new trial on all three counts. Briscoe appealed.

The Supreme Court of Canada agreed with the Court of Appeal that the trial judge erred in law in failing to consider wilful blindness. The court dismissed the appeal and upheld the order for a new trial on all charges.

Editor's Note: Laboucan successfully appealed his convictions to the Alberta Court of Appeal and obtained an order for a new trial (see 2009), 446 A.R. 106; 442 W.A.C. 106). On further appeal to the Supreme Court of Canada, the order for a new trial was set aside and the convictions were restored (see 400 N.R. 200).

Certain names in the following case have been initialized or the case otherwise edited to prevent the disclosure of identities where required by law, publication ban, Maritime Law Book's editorial policy or otherwise.

Criminal Law - Topic 39.4

General principles - Mens rea or intention - Doctrine of wilful blindness - The accused argued that wilful blindness was but a heightened form of recklessness which was inconsistent with the very high mens rea standard for murder under s. 229(a) of the Criminal Code - He further argued that allowing fault for murder, as either a principal or party, to be established by wilful blindness could run afoul of the principle that "subjective foresight of death" was the minimum standard of fault for murder under s. 7 of the Charter - The Supreme Court of Canada stated that "wilful blindness, correctly delineated, is distinct from recklessness and involves no departure from the subjective inquiry into the accused's state of mind which must be undertaken to establish an aider or abettor's knowledge. Wilful blindness does not define the mens rea required for particular offences. Rather, it can substitute for actual knowledge whenever knowledge is a component of the mens rea. 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 ... It is important to keep the concepts of recklessness and wilful blindness separate ... While a failure to inquire may be evidence of recklessness or criminal negligence, as for example, where a failure to inquire is a marked departure from the conduct expected of a reasonable person, wilful blindness is not simply a failure to inquire but, to repeat Professor Stuart's words, 'deliberate ignorance'" - See paragraphs 20 to 24.

Criminal Law - Topic 39.4

General principles - Mens rea or intention - Doctrine of wilful blindness - Three young persons and two adults were charged for their participation in the kidnapping, rape and murder of a 13 year old girl - The two adults (Briscoe and Laboucan) were charged jointly with kidnapping, aggravated sexual assault and first degree murder - The trial judge found that Laboucan had committed the offences as a principal offender and that Briscoe had aided in the commission of the crimes by doing four things - However, the trial judge concluded that Briscoe did not have the requisite mens rea for the offences - The trial judge concluded that the evidence was not sufficient to prove beyond a reasonable doubt "that Mr. Briscoe did any of the assistive things he did knowing, much less intending, that they would assist Mr. Laboucan" to commit any of the crimes - The trial judge did not consider whether Briscoe was wilfully blind - Briscoe was acquitted on all charges - The Crown appealed - The Alberta Court of Appeal held that the trial judge erred in law by failing to consider whether Briscoe was "wilfully blind to the harm his cohorts intended to cause the victim" and that, "but for this error, the verdicts may well have been different" on all three charges - The court overturned the acquittals, and ordered a new trial on all three counts - Briscoe appealed - The Supreme Court of Canada agreed with the Court of Appeal that the trial judge erred in law in failing to consider wilful blindness - The court dismissed the appeal and upheld the order for a new trial.

Criminal Law - Topic 1263

Offences against person and reputation - Murder - General principles - Intention - [See first Criminal Law - Topic 39.4 and both Criminal Law - Topic 2742 ].

Criminal Law - Topic 2742

Attempts, conspiracies, accessories and parties - Parties to offences - Necessary intention or knowledge - The Supreme Court of Canada stated that "doing or omitting to do something that resulted in assisting another in committing a crime is not sufficient to attract criminal liability ... The aider or abettor must also have the requisite mental state or mens rea. Specifically, in the words of s. 21(1)(b), the person must have rendered the assistance for the purpose of aiding the principal offender to commit the crime. The mens rea requirement reflected in the word 'purpose' under s. 21(1)(b) has two components: intent and knowledge. For the intent component, it was settled in R. v. Hibbert, [1995] 2 S.C.R. 973, that 'purpose' in s. 21(1)(b) should be understood as essentially synonymous with 'intention'. The Crown must prove that the accused intended to assist the principal in the commission of the offence. The Court emphasized that 'purpose' should not be interpreted as incorporating the notion of 'desire' into the fault requirement for party liability. It is therefore not required that the accused desired that the offence be successfully committed ... The same rationale applies regardless of the principal offence in question. Even in respect of murder, there is no 'additional requirement that an aider or abettor subjectively approve of or desire the victim's death'. As for knowledge, in order to have the intention to assist in the commission of an offence, the aider must know that the perpetrator intends to commit the crime, although he or she need not know precisely how it will be committed" - See paragraphs 14 to 17.

Criminal Law - Topic 2742

Attempts, conspiracies, accessories and parties - Parties to offences - Necessary intention or knowledge - The Supreme Court of Canada stated that "The perpetrator's intention to kill the victim must be known to the aider or abettor; it need not be shared. Kirkness [S.C.C.] should not be interpreted as requiring that the aider and abettor of a murder have the same mens rea as the actual killer. It is sufficient that he or she, armed with knowledge of the perpetrator's intention to commit the crime, acts with the intention of assisting the perpetrator in its commission. It is only in this sense that it can be said that the aider and abettor must intend that the principal offence be committed" - See paragraph 18.

Cases Noticed:

R. v. Greyeyes (E.R.), [1997] 2 S.C.R. 825; 214 N.R. 43; 152 Sask.R. 294; 140 W.A.C. 294, refd to. [para. 14].

R. v. Woolworth (F.W.) Co. (1974), 3 O.R.(2d) 629; 18 C.C.C.(2d) 23 (C.A.), refd to. [para. 15].

R. v. Hibbert (L.), [1995] 2 S.C.R. 973; 184 N.R. 165; 84 O.A.C. 161, refd to. [para. 16].

R. v. Maciel (R.) (2007), 222 O.A.C. 174; 219 C.C.C.(3d) 516; 2007 ONCA 196, refd to. [para. 17].

R. v. Kirkness, [1990] 3 S.C.R. 74; 116 N.R. 81; 69 Man.R.(2d) 81, refd to. [para. 18].

R. v. Martineau, [1990] 2 S.C.R. 633; 112 N.R. 83; 109 A.R. 321, refd to. [para. 20].

R. v. Sansregret, [1985] 1 S.C.R. 570; 58 N.R. 123; 35 Man.R.(2d) 1, refd to. [para. 21].

R. v. Jorgensen (R.) et al., [1995] 4 S.C.R. 55; 189 N.R. 1; 87 O.A.C. 1, refd to. [para. 21].

R. v. Graveline (R.), [2006] 1 S.C.R. 609; 347 N.R. 268; 2006 SCC 16, refd to. [para. 47].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 21 [para. 13].

Authors and Works Noticed:

Mewett, Alan W., and Manning, Morris, Criminal Law (2nd Ed. 1985), p. 112 [para. 16].

Stuart, Donald, Canadian Criminal Law: A Treatise (5th Ed. 2007), p. 241 [para. 24].

Williams, Glanville, Criminal Law: The General Part (2nd Ed. 1961), p. 159 [para. 23].

Counsel:

Alexander D. Pringle, Q.C., Anna Konye and Daniel Chivers, for the appellant;

James C. Robb, Q.C., and Tamara Friesen, for the respondent;

Jennifer M. Woollcombe, for the intervenor.

Solicitors of Record:

Pringle, Peterson, MacDonald & Bottos, Edmonton, Alberta, for the appellant;

Attorney General of Alberta, Edmonton,

Alberta, for the respondent;

Attorney General of Ontario, Toronto, Ontario, for the intervenor.

This appeal was heard on December 10, 2009, before McLachlin, C.J.C., Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell, JJ., of the Supreme Court of Canada. The following judgment of the Supreme Court was delivered in both official languages by Charron, J., on April 8, 2010.