[28] The mens rea for this offence requires the Crown to prove one of the following:
1) Mr. Tweedie knew he had been in an accident with a person.
2) Mr. Tweedie was wilfully blind as to whether he had been in an accident with a person.
3) Mr. Tweedie was reckless as to whether he had been in an accident with a person.
[29] Justice Shergill of the British Columbia Supreme Court explained the mens rea options for an offence under s. 320.16 of the Criminal Code in R. v. Dionne, 2022 BCSC 959 as follows:
[28] The mens rea for an offence under s. 320.16(1) and (3) is knowledge or recklessness that they were involved in an accident, and knowledge or recklessness as to whether death or bodily harm ensued.
[29] Knowledge can be proven by either actual knowledge or imputed knowledge based on wilful blindness: R. v. Edwards, 2020 BCCA 253at para. 95.
[30] In R. v. Farmer, 2014 ONCA 823at para. 26, the court explained wilful blindness as occurring when an accused becomes aware of the need for some inquiry, but declines to make the inquiry because the accused does not ‘wish to know the truth’. Put another way, an accused is wilfully blind if they shut their eyes because they know or strongly suspect that ‘looking would fix [them] with knowledge’.
[31] The deliberate nature of wilful blindness was expressed by Justice Moldaver in R. v. Morrison, 2019 SCC 15 at follows:
[98] Wilful blindness exists where an accused’s ‘suspicion is aroused to the point where he or she sees the need for further inquiries, but deliberately chooses not to make those inquiries…Wilful blindness has been characterized as ‘deliberate ignorance’ because it connotes ‘an actual process of suppressing a suspicion’.
[citations and references omitted]
[32] Recklessness occurs where an accused is aware of a risk, but proceeds despite that risk: Edwards at para. 99, and R. v. Alekozai, 2021 ONCA 633at para. 42.
[33] In R. v. Sansregret, [1985] 1 S.C.R. 570, 1985 CanLII 79 (SCC)at p. 582, Justice McIntyre explained recklessness as follows:
In accordance with the well-established principles for the determination of criminal liability, recklessness, must have an element of the subjective. It is found in the attitude of one who, aware that there is a danger that his conduct could bring about the result prohibited by the criminal law, nevertheless persists, despite the risk. It is, in other words, the conduct of one who sees the risk and takes the chance.
[34] Recklessness has been described as a less stringent standard than wilful blindness: R. v. Sandhu, [1989] OJ No 1647, 1989 CanLII 7102 (O.N.C.A.)at para. 19.
[35] In Sansregret at p. 582, the court distinguished between recklessness and wilful blindness, as follows:
Wilful blindness is distinct from recklessness because, while recklessness involves knowledge of a danger or risk and persistence in a course of conduct which creates a risk that the prohibited result will occur, wilful blindness arises where a person who has become aware of the need for some inquiry declines to make the inquiry because he does not wish to know the truth. He would prefer to remain ignorant. The culpability in recklessness is justified by the consciousness of the risk and by proceeding in the face of it, while in wilful blindness it is justified by the accused’s fault in deliberately failing to inquire when he knows there is a reason for inquiry.
[Emphasis added]
[30] The British Columbia Court of Appeal in R. v. Edwards, 2020 BCCA 253 discussed the issue of wilful blindness in relation to a charge of leaving the scene of an accident under the predecessor to s. 320.16:
[70] In Harrison, the accused struck a person wearing dark clothing and walking, in the dark, on the gravel edge of the paved shoulder of the road. The impact shattered the windshield on the passenger side and did damage to the vehicle similar to that which was sustained in this case. The driver testified she knew she had been in a major impact with something but didn’t know what and was too afraid to stop. Grist J. held:
[37] … [T]he element of knowledge accompanying s. 252(1) with respect to involvement in an accident can be satisfied by the accused exhibiting wilful blindness towards what has been struck. In Sansregret v. R. 1985 CanLII 79 (SCC), [1985] 1 S.C.R. 570, wilful blindness was defined as a quality different from recklessness. It is where a person is aware of the need to inquire, but makes no inquiry because he or she does not want to know the truth.
[38] Here, the circumstances required the accused to at least determine what she had hit. She did not want to learn the truth and there cannot be a defence, in my view, to closing one's eyes through panic or fear of what has happened.
[39] Had Ms. Harrison stopped and made the necessary inquiry, the bodily harm to Mr. Pinson would have been evident. Her failure to do so in the face of the force of impact exhibited recklessness as to whether he lived or died.
[71] In R. v. Basra, 2015 BCSC 1075, Verhoeven J. convicted a driver, charged under the same provisions we are considering, on the basis the driver was wilfully blind to the fact the vehicle he drove was involved in an accident and as to the bodily harm that resulted from the accident, and reckless as to whether death resulted. The judge adopted Grist J.’s view that there may be said to be wilful blindness where a person is aware of the need to inquire, but makes no inquiry because he or she does not want to know the truth.
[72] In Basra, as in Harrison, awareness of the need to make further enquiries supported a finding of wilful blindness. While the driver in Basra did not know what he had hit, it was obvious the vehicle had been involved in a major impact. As in the case at bar, there was a loud bang at the time of impact and the windshield was severely damaged on the passenger side. In cross‑examination, the driver said he recognized at least three possibilities to explain the impact: collision with an animal, collision with a person and collision with a rock that might have been thrown at the vehicle. There was nothing to indicate a rock had been thrown. The driver did not testify he thought he might have hit an animal and, in the words of the judge ‘there was really nothing to suggest that he might have struck an animal’ (at para. 48).
[73] As in the case at bar, the driver stopped his vehicle after impact but did not return to the scene of the impact to further investigate. The judge found, at para. 57,
[57] I find that Mr. Basra was well-aware of the possibility that the accident had involved a collision with a person, but chose not to investigate or inquire, in order to avoid finding out what he did not want to find out. He was wilfully blind to the fact that the accident had involved a collision with Mr. McKay.
[Emphasis added.]
[74] In my view, the judges in these cases correctly found the requisite mens rea to exist because the accused were aware of the need for some inquiry, and yet declined to make the inquiry because they did not wish to know the truth.