R. v. Briscoe (M.E.) et al.,

• Judge: Belzil,Martin,Paperny
• Neutral Citation: 2008 ABCA 327
• Citation: 2008 ABCA 327,(2008), 437 A.R. 301 (CA),437 AR 301,(2008), 437 AR 301 (CA),437 A.R. 301
• Date: 30 September 2008
• Court: Court of Appeal (Alberta)

R. v. Briscoe (M.E.) (2008), 437 A.R. 301 (CA);

      433 W.A.C. 301

MLB headnote and full text

Temp. Cite: [2008] A.R. TBEd. OC.004

Her Majesty The Queen (appellant) v. Michael Erin Briscoe (respondent)

(0703-0096-A; 2008 ABCA 327)

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

Alberta Court of Appeal

Paperny and Martin, JJ.A., and Belzil, J.(ad hoc)

September 30, 2008.

Summary:

A missing 13 year old girl was found dead on a golf course. She had been badly beaten and sexually assaulted. The accused (Briscoe and Laboucan) were charged with first degree murder, aggravated sexual assault and kidnapping. Three youths were also charged. One pleaded guilty. The other two were awaiting trial in the Provincial Court.

The Alberta Court of Queen's Bench, in a judgment reported (2007), 413 A.R. 53, found Laboucan guilty of aggravated sexual assault, kidnapping and first degree murder. The first degree murder conviction was based on a planned and deliberate murder and, alternatively, on the basis that the girl was murdered during the commission of an aggravated sexual assault and kidnapping, both offences listed in s. 231(5) of the Criminal Code. The Crown failed to prove beyond a reasonable doubt that Briscoe was guilty of any of the offences as a principal offender or as a party to the offences by aiding and abetting. Laboucan was convicted of first degree murder and the remaining two offences were conditionally stayed under the Kienapple principle. The Crown appealed Briscoe's acquittal, submitting, inter alia, that the trial judge erred in acquitting him because he lacked the requisite mens rea.

The Alberta Court of Appeal allowed the appeal and ordered a new trial on all three counts.

Criminal Law - Topic 39.4

General principles - Mens rea or intention - Doctrine of wilful blindness - [See Criminal Law - Topic 2742 ].

Criminal Law - Topic 2742

Attempts, conspiracies, accessories and parties - Parties to offences - Necessary intention or knowledge - Loboucan was found guilty of first degree murder, aggravated sexual assault and kidnapping - A 13 year old girl was lured under false pretences (party) to a remote location, where she was confined, raped and then brutally beaten to death by Loboucan and M.W., a youth who earlier pleaded guilty - Briscoe, who drove Loboucan, M.W., the victim and others to the remote location, was also charged with first degree murder, aggravated sexual assault and kidnapping - The trial judge held that the Crown failed to prove beyond a reasonable doubt that Briscoe was guilty of any of the offences as a principal offender or as a party to the offences by aiding and abetting - Although Briscoe did several things to assist Loboucan, it was not proved that Briscoe intended to assist Laboucan in committing any of the offences, as it was not proved that he had actual knowledge that Laboucan intended to kidnap, rape and kill the girl (i.e., lacked the requisite mens rea) - The Alberta Court of Appeal ordered a new trial on all three counts, stating that "the doctrine of wilful blindness provides a means of attributing 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" - The trial judge erred in acquitting on the basis of a lack of actual knowledge without considering whether Briscoe was wilfully blind - On the evidence, there was an air of reality to the issue of wilful blindness.

Cases Noticed:

R. v. Maciel (R.) (2007), 222 O.A.C. 174; 2007 ONCA 196, leave to appeal denied , [2007] 3 S.C.R. xi; 378 N.R. 393, refd to. [para. 11].

R. v. Dunlop and Sylvester, [1979] 2 S.C.R. 881; 27 N.R. 153; 47 C.C.C.(2d) 93, refd to. [para. 11].

R. v. Yanover and Gerol (No. 1) (1985), 9 O.A.C. 93; 20 C.C.C.(3d) 300 (C.A.), refd to. [para. 11].

R. v. Kirkness, [1990] 3 S.C.R. 74; 116 N.R. 81; 69 Man.R.(2d) 81; 60 C.C.C.(3d) 97, refd to. [para. 13].

R. v. Jackson and Davy, [1993] 4 S.C.R. 573; 162 N.R. 113; 68 O.A.C. 161; 86 C.C.C.(3d) 385, refd to. [para. 13].

R. v. Droste, [1984] 1 S.C.R. 208; 52 N.R. 176; 10 C.C.C.(3d) 404, refd to. [para. 13].

R. v. Sansregret, [1985] 1 S.C.R. 570; 58 N.R. 123; 35 Man.R.(2d) 1; 18 C.C.C.(3d) 223, refd to. [para. 13].

R. v. Jorgensen (R.) et al., [1995] 4 S.C.R. 55; 189 N.R. 1; 87 O.A.C. 1; 102 C.C.C.(3d) 97, refd to. [para. 18].

R. v. Hundal (S.), [1993] 1 S.C.R. 867; 149 N.R. 189; 22 B.C.A.C. 241; 38 W.A.C. 241; 79 C.C.C.(3d) 97 refd to. [para. 21].

R. v. Beatty (J.R.), [2008] 1 S.C.R. 49; 371 N.R. 119; 251 B.C.A.C. 7; 420 W.A.C. 7; 2008 SCC 5, refd to. [para. 21].

R. v. Duong (T.D.) (1998), 108 O.A.C. 378; 39 O.R.(3d) 161 (C.A.), refd to. [para. 21].

R. v. Tutton and Tutton, [1989] 1 S.C.R. 1392; 98 N.R. 19; 35 O.A.C. 1, refd to. [para. 24].

R. v. Creighton, [1993] 3 S.C.R. 3; 157 N.R. 1; 65 O.A.C. 321; 83 C.C.C.(3d) 346, refd to. [para. 24].

R. v. Martineau, [1990] 2 S.C.R. 633; 112 N.R. 83; 109 A.R. 321; 58 C.C.C.(3d) 353, refd to. [para. 25].

R. v. Vaillancourt, [1987] 2 S.C.R. 636; 81 N.R. 115; 10 Q.A.C. 161; 68 Nfld. & P.E.I.R. 281; 209 A.P.R. 281; 39 C.C.C.(3d) 118, refd to. [para. 25].

R. v. Souter (D.N.) (1998), 216 A.R. 292; 175 W.A.C. 292; 1998 ABCA 215, refd to. [para. 27].

R. v. Cinous (J.), [2002] 2 S.C.R. 3; 285 N.R. 1; 2002 SCC 29, refd to. [para. 29].

R. v. Oakley (1977), 4 A.R. 103; 36 C.C.C.(2d) 436 (C.A.), refd to. [para. 38].

R. v. Gallup (H.A.) (2002), 319 A.R. 131; 2002 ABQB 638, affd. (2004), 357 A.R. 336; 334 W.A.C. 336; 2004 ABCA 322, refd to. [para. 38].

R. v. Metcalfe (1983), 10 C.C.C.(3d) 114 (B.C.C.A.), refd to. [para. 38].

R. v. Kienapple, [1975] 1 S.C.R. 729; 1 N.R. 322, refd to. [para. 42].

Authors and Works Noticed:

Williams, Glanville, Criminal Law - The General Part (2nd Ed. 1961), pp. 157 [para. 17]; 159 [para. 20].

Counsel:

A.R. Schlayer and S.D. Hughson, Q.C., for the appellant;

C.B. Davison, for the appellant.

This appeal was heard on May 1, 2008, before Paperny and Martin, JJ.A., and Belzil, J.(ad hoc), of the Alberta Court of Appeal.

The judgment of the Court was delivered by Martin, J.A., and filed on September 30, 2008.