R. v. Malfara (N.M.), (2006) 211 O.A.C. 200 (CA)

• Judge: Doherty, Lang and Juriansz, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: May 18, 2006
• Jurisdiction: Ontario
• Citations: (2006), 211 O.A.C. 200 (CA)

R. v. Malfara (N.M.) (2006), 211 O.A.C. 200 (CA)

MLB headnote and full text

Temp. Cite: [2006] O.A.C. TBEd. MY.112

Her Majesty the Queen (respondent) v. Nicola Mathew Malfara (applicant/appellant)

(C43656)

Indexed As: R. v. Malfara (N.M.)

Ontario Court of Appeal

Doherty, Lang and Juriansz, JJ.A.

May 18, 2006.

Summary:

An accused was charged with an offence as a result of delivering a package to a prison for $50. The trial judge convicted the accused, stating that the accused should have suspected that there was more to the parcel than clothing and should have inquired as to what was in the package. By not doing so, he was wilfully blind. The accused appealed, asserting that the trial judge erred in finding the necessary mens rea based on wilful blindness.

The Ontario Court of Appeal allowed the appeal, quashed the verdict and ordered a new trial.

Criminal Law - Topic 39.4

General principles - Mens rea or intention - Doctrine of wilful blindness - An accused was charged with an offence as a result of delivering a package to a prison for $50 - The trial judge convicted the accused, stating that the accused should have suspected that there was more to the parcel than clothing and should have inquired as to what was in the package - By not doing so, he was wilfully blind - The Ontario Court of Appeal allowed the accused's appeal - The question was not whether the accused should have been suspicious, but whether he was in fact suspicious - This might have been a semantical error - However, the judge's finding that the suspicion was "that there may be more to the parcel than clothing" did not reach either the level of suspicion or the degree of specificity of the suspicion required to support a finding of wilful blindness.

Cases Noticed:

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. 3].

Authors and Works Noticed:

Williams, Glanville, Criminal Law - The General Part (2nd Ed. 1961), pp. 158, 159 [para. 3].

Counsel:

Richard Stern, for the appellant;

Moiz Rahman, for the respondent.

This appeal was heard on May 18, 2006, by Doherty, Lang and Juriansz, JJ.A., of the Ontario Court of Appeal. The court released the following endorsement on the same date.