• Lewis Waring

Wilful Blindness - Bob Smith



R v Ducharme (“Durcharme”), coming out of the Manitoba Court of Queen’s Bench (“MBQB”), is a classic case of whodunit. Ducharme is a prison murder case where the security cameras conveniently have terrible angles that make it hard to see where inmates are looking or who they are talking to and do not record inside cells. Also, in Ducharme there were no witnesses to provide additional details. For these reasons, the Crown relied on circumstantial evidence to argue that at the very least the accused was wilfully blind to the murder plan and both aided and abetted in its commission.


A prison murder lacking direct evidence


On April 22, 2019, Adrian Fillion was stabbed 52 times in his prison cell at Stony Mountain Institute in Manitoba. Based on the evidence, the accused, Aaron Michael Ducharme, was a drug dealer within the prison prior to this case’s events. The chain of events started when the accused and Mr. Fillion went back to the latter’s cell to complete a drug handoff. After the accused had completed the transaction and left the cell, inmates Peter Fisher and Kevin Edwards had entered the cell, stabbed Mr. Fillion 52 times, and then went to shower. The accused went to the shower shortly after and retrieved the shank used for the murder. He then walked towards his cell, changed his mind, and returned to the commons area where he hid the weapon in a garbage bin.

Within seven minutes of the attack, the first Correctional Officer arrived on the scene to assist Mr. Fillion, but his wounds were too severe, and he died after being transported to a hospital. Finally, after reviewing the security cameras, the murder weapon was recovered by officers. Due to the circumstantial nature of the evidence, the Crown in Ducharme needed to prove that there is no other reasonable alternative.


The accused as willfully blind accessory


The Crown in Ducharme argued that the accused was a “lynchpin in a coordinated plan, and without his part, the crime could not have taken place.” They relied on various pieces of evidence to support this, including that the accused looked up towards the victim’s cell while the stabbing was occurring, that a handshake and embrace occurred in the common area, argued to be a gesture to solidify the murder plan, that the accused and Mr. Edwards were walking together prior to the murder, and other small sequences of evidence recorded on the security footage. The Crown in Ducharme argued that all of these pieces came together to show that the accused knew of the plan or was at least wilfully blind to the plan, which substitutes for knowledge. Finally, the Crown in Ducharme argued that, if it could not be found that the accused knew or was wilfully blind to the plan, then he should have been convicted of being an accessory after the fact to murder because he had disposed of the weapon.


Many explanations and an inmate under duress


The Defence in Ducharme argued that there were several inconsistencies between the camera footage and the evidence the Crown presented. The footage, according to the defence, offered numerous explanations to the accused’s actions and made it impossible to say that there were no reasonable alternatives. Furthermore, the defence in Ducharme argued that Mr. Edwards and Mr. Fisher constantly bullied the accused and had beaten him up in the past. He was afraid of them, and, when they told him to dispose of the murder weapon, he had no choice. In this sense, the defence argued, the facts in Ducharme illustrated a clear cut case of duress, and the accused could not be convicted of being an accessory after the fact.


A silent video grounds a reasonable doubt


In Ducharme, the MBQB held that the inconsistencies in the evidence led to reasonable doubt as to the accused’s prior knowledge of the murder plan (some of these inconsistences will be discussed further in the commentary section of this blog). The evidence for this finding derived entirely from the fact that the video evidence was silent and thus was open to numerous explanations. As a result, the Crown in Ducharme failed to establish beyond a reasonable doubt the accused’s guilt. Furthermore, this case was not like R v Briscoe (“Briscoe”) because, unlike in the latter case, there had been no evidence in Ducharme from witnesses, other participants, or the accused himself that could help the trier of fact to determine the level of knowledge that the accused had.

Finally, the defence of duress requires that: (1) there must be an urgent situation of clear and imminent peril; (2) compliance with the law must be demonstrably impossible; and (3) that there be proportionality between the danger facing the accused and the harm caused by their unlawful acts. In a situation where Mr. Fisher stated “take this or I’ll f***ing kill you” to get the accused to dispose of the shank, a reasonable person in those circumstances would have felt they had no choice. The accused was already scared of Mr. Fisher and Mr. Edwards, and in this circumstance the requirements for the defence of duress were met.


The Crown’s overblown assumptions


While the accessory after the fact argument was reasonably brought up by the Crown and disposed of accurately in the court’s judgment, the Crown in Ducharme should not have attempted to use wilful blindness to convict the accused. The attempt to use wilful blindness in Ducharme was clearly incorrect and would have generated an unfair result had the judge erred and found that there was sufficient evidence to impute wilful blindness.

The Crown in Ducharme's employment of wilful blindness was an attempt to pull knowledge from thin air and find the accused guilty. Several pieces of evidence rose reasonable doubt as to the accused’s prior knowledge. For example, the Crown argued that the accused suspiciously looked up towards the victim’s cell while the stabbing was occurring and that this was proof that he knew or suspected that the stabbing was occurring. In reality, several other inmates were also seen looking up in response to noises coming from the cell. In another line of argument, the Crown in Ducharme asserted that there was a handshake and embrace in the common area which it claimed to be a gesture to solidify the murder plan. The crazy part about this tactic was that the accused was not even nearby nor did he participate in these gestures. Nevertheless, the Crown contended these depictions supported his guilt. All of the above contradictions plus others in the camera footage evidence showed that there was almost no concrete evidence to prove murder beyond a reasonable doubt. This is very likely why wilful blindness was included as a backup argument by the Crown in Ducharme.


The Crown’s misunderstanding of wilful blindness


It is tempting to look at circumstantial camera footage and say, “maybe he did know” or “maybe he suspected it but did not want to ask”, but this line of thinking would be wrong. As clarified in Briscoe, wilful blindness is a rule with a very limited scope and it should only be found when it can almost be said that the accused knew. Wilful blindness seems to have three elements that all need to be met: (1) subjective suspicion, (2) deliberate failure to inquire, and (3) a desire to avoid knowledge. According to these three elements, you would need a substantial amount of evidence to substitute knowledge with wilful blindness, evidence that was clearly not present in Ducharme.

The clear lack of a basis for wilful blindness in Ducharme raises a question of why the Crown attempted to use it. It is possible that the Crown in this case may have misinterpreted wilful blindness as an objective form of fault. It would not be the first time this has occurred and in fact it is a common misinterpretation. For example, in R v Smith (“Smith”), not one court, but both the Ontario Superior Court of Justice (“ONSC”) and Court of Appeal for Ontario (“ONCA”) misinterpreted wilful blindness as an objective form of fault. These two courts determined that wilful blindness is applicable where the accused failed to make inquiries where they reasonably should have been made. As we already know, however, wilful blindness requires more than merely that an accused failed to make some relevant inquiry. Instead, wilful blindness requires subjective suspicion where the accused suspects something to be true but refrains from taking the last step by asking. Furthermore, it is a subjective test and therefore harder to establish than if it were objective. Misinterpreting wilful blindness as being an objective test thus could lead to unfair convictions of accused individuals.


Future developments in wilful blindness


Thankfully, the MBQB in Ducharme did not make the same mistake as the ONSC and ONCA in Smith. Unlike the noted Ontario courts, the MBQB correctly distinguished Ducharme from Briscoe and laid the Crown’s wilful blindness argument to rest. With that said, Ducharme does raise a concern as to the way lawyers and judges interpret wilful blindness. In the future, it may be necessary to set out a clearer test so that there is no confusion as to the exact requirements for wilful blindness. Doing so is necessary for the proper administration of justice and will ensure the consistency and accuracy of our criminal law system.

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