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Sansregret v. The Queen, [1985] 1 S.C.R. 570

 

John Henry Sansregret     Appellant;

 

and

 

Her Majesty The Queen     Respondent.

 

File No.: 18186.

 

1984: October 11; 1985: May 9.

 

Present: Dickson C.J. and Estey, McIntyre, Chouinard, Lamer, Wilson and Le Dain JJ.

 

 

on appeal from the court of appeal for manitoba

 

                   Criminal law ‑‑ Rape ‑‑ Consent ‑‑ Defence of mistake of fact not available ‑‑ Wilful blindness ‑‑ Knowledge of the nature of the consent presumed ‑‑ Criminal Code , s. 143 (b)(i).

 

                   The appellant was charged with several offences, including rape with the complainant's consent extorted by threats or fear of bodily harm under s. 143 (b)(i) of the Criminal Code . The complainant, after living with the appellant for a year ended their turbulent affair. Subsequently, the appellant broke into her house twice. On both occasions, complainant feared for her safety because of his threats and violent behaviour. To calm him down and to protect herself from further violence, she held out some hope of reconciliation and consented to intercourse. Although she reported both incidents to the police and complained of being raped, no proceedings were taken after the first time because appellant's probation officer asked her not to press the matter. Appellant was arrested and charged following the second incident. At trial, the judge found not only that the complainant consented to intercourse solely because of fear engendered by appellant's threats but also that the appellant honestly believed that the consent to intercourse was freely and genuinely given. Applying the Pappajohn case, the trial judge acquitted the appellant. On appeal, the Court of Appeal set aside the acquittal and entered a conviction for rape.


 

                   Held: The appeal should be dismissed.

 

                   The defence of mistake of fact rests on the proposition that the mistaken belief, honestly held, deprives the accused of the requisite mens rea for the offence. The mens rea for rape under s. 143 (b)(i) of the Criminal Code  must involve a knowledge that the woman is consenting because of threats or fear of bodily harm, or recklessness as to its nature. An honest belief on the part of the accused ‑‑ even though unreasonably held ‑‑ that the woman was consenting to intercourse freely and voluntarily and not because of threats would negate the mens rea and entitle the accused to an acquittal. In the present circumstances, the defence of mistake of fact was not available to the accused. The trial judge found that the complainant consented out of fear and that the appellant blinded himself to the obvious and made no inquiry as to the nature of the consent which was given. The evidence revealed that he knew of the complaint of rape caused by the first incident and therefore was aware of the likelihood of the complainant's reaction to his threats. To proceed with intercourse in such circumstances without further inquiry constitutes self‑deception to the point of wilful blindness. Where the accused is deliberately ignorant as a result of blinding himself to reality the law presumes knowledge‑‑in this case knowledge of the forced nature of the consent. There was therefore no room for the application of the defence.

 

Cases Cited

 

                   Pappajohn v. The Queen, [1980] 2 S.C.R. 120, considered; Director of Public Prosecutions v. Morgan, [1976] A.C. 182; R. v. Plummer and Brown (1975), 24 C.C.C. (2d) 497; The Zamora No. 2, [1921] 1 A.C. 801; R. v. Wretham (1971), 16 C.R.N.S. 124; R. v. Blondin (1970), 2 C.C.C. (2d) 118 (B.C.C.A.), affirmed (1971), 4 C.C.C. (2d) 566 (S.C.C.); R. v. Currie (1975), 24 C.C.C. (2d) 292; R. v. McFall (1975), 26 C.C.C. (2d) 181; R. v. Aiello (1978), 38 C.C.C. (2d) 485; Roper v. Taylor’s Central Garages (Exeter), Ltd., [1951] 2 T.L.R. 284, referred to.

 

Statutes and Regulations Cited

 

Criminal Code, R.S.C. 1970, c. C‑34, ss. 143 (a), 143 (b)(i).

 

 

Authors Cited

 

Stuart, Don. Canadian Criminal Law, Toronto, Cars­wells, 1982.

 

Williams, Glanville. Criminal Law: The General Part, 2nd ed., London, Stevens & Sons Ltd., 1961.

 

 

                   APPEAL from a judgment of the Manitoba Court of Appeal (1983), 37 C.R. (3d) 45, 25 Man. R. (2d) 123, 10 C.C.C. (3d) 164, [1984] 1 W.W.R. 720, allowing the Crown's appeal from the acquittal of the accused on a charge of rape (1983), 34 C.R. (3d) 162, 22 Man. R. (2d) 115. Appeal dismissed.

 

                   Richard J. Wolson, for the appellant.

 

                   David Rampersad, Q.C., for the respondent.

 

                   The judgment of the Court was delivered by

 

1.                McIntyre J.‑‑This appeal raises once more the issue of the application of the defence of mistake of fact in a rape case. On this occasion its relevance on a charge laid under s. 143 (b)(i) of the Criminal Code , now repealed but in force when this case arose, is questioned. In view of the significant changes made in this branch of the law by the amendments in 1980‑81‑82‑83 (Can.), c. 125, it may be thought that this question has become of minor importance, but it would appear that similar cases involving similar defence claims may well arise under the new Code provisions and the applicable principles will still require consideration.

 

2.                The appellant, a man in his early twenties, and the complainant, a woman of thirty‑one years, had lived together in the complainant's house for about a year before the events of October 15, 1982. Their relationship had been one of contention and discord with violence on the part of the appellant; "slapping" or "roughing up" in his description, "blows" in hers. The appellant had left the house for short periods and in September of 1982 the complainant decided to end the affair. She told the appellant to leave and he did.

 

3.                On September 23, 1982, some days after his dismissal, the appellant broke into the house at about 4:30 a.m. He was "raging" at her and furious because of his expulsion. He terrorized her with a file‑like instrument with which he was armed. She was fearful of what might occur, and in order to calm him down she held out some hope of a reconciliation and they had intercourse. A report was made to the police of this incident, the complainant asserting she had been raped, but no proceedings were taken. The appellant's probation officer became involved and there was evidence that he had asked the complainant not to press the matter, presumably because it would interfere with the appellant's probation.

 

4.                On October 15, 1982, again at about 4:30 a.m., the appellant broke into the complainant's house through a basement window. She was alone, and awakened by the entry she seized the bedroom telephone in an effort to call the police. The appellant picked up a butcher knife in the kitchen and came into the bedroom. He was furious and violent. He accused her of having another boyfriend; pulled the cord of the telephone out of the jack and threw it into the living room; threatened her with the knife and ordered her to take off her nightdress and made her stand in the kitchen doorway, naked save for a jacket over her shoulders, so he could be sure where she was while he repaired the window to conceal his entry from the police, should they arrive. He struck her on the mouth with sufficient force to draw blood, and on three occasions rammed the knife blade into the wall with great force, once very close to her. He told her that if the police came he would put the knife through her, and added that if he had found her with a boyfriend he would have killed them both. At one point he tied her hands behind her back with a scarf. The complainant said she was in fear for her life and sanity.

 

5.                By about 5:30 a.m., after an hour of such behaviour by the appellant, she tried to calm him down. She pretended again that there was some hope of a reconciliation if the appellant would settle down and get a job. This had the desired effect. He calmed down and after some conversation he joined her on the bed and they had intercourse. The complainant swore that her consent to the intercourse was solely for the purpose of calming him down, to protect herself from further violence. This, she said, was something she had learned from earlier experience with him. In her evidence she said:

 

I didn't consent at any time.

 

I was very afraid. My whole body was trembling. I was sure I would have a nervous breakdown. I came very, very close to losing my mind. All I knew was I had to keep this man calm or he would kill me.

 

6.                At about 6:45 a.m. after further conversation with the appellant she got dressed and prepared to leave for work. She had a business appointment at 8:00 a.m. She drove the appellant to a location which he chose, and in the course of the journey he returned her keys and some money that he had taken from her purse upon his arrival in the early morning. Upon dropping him off she drove immediately to her mother's home where she made a complaint of rape. The police were called and the appellant was arrested that evening.

 

7.                The appellant was charged with rape, unlawful confinement, robbery, breaking and entering with intent to commit an indictable offence, and possession of a weapon. At trial, before her Honour Judge Krindle in the County Court of Winnipeg without a jury, he was acquitted on the charge of rape but was convicted of breaking and entering and unlawful confinement. The Court of Appeal (Matas, Huband and Philp JJ.A.‑‑Philp J.A. dissenting) allowed the Crown's appeal on the charge of rape and entered a conviction as well as imposing a sentence of five years' imprisonment. The unlawful confinement count was held to be subsumed in the rape. The appellant appealed to this Court asserting that the defence of mistake of fact, in this case a belief by the appellant that the complainant consented to intercourse, is open to an accused under s. 143 (b)(i) of the Criminal Code  as well as under para. (a), and that it is the honesty of such belief that is determinative in considering the defence, not its reasonableness. Reliance was placed on Pappajohn v. The Queen, [1980] 2 S.C.R. 120.

 

8.                The indictment set out the rape count in these terms:

 

1. THAT he, the said John Henry Sansregret, a male person, on or about the fifteenth day of October, in the year of our Lord one thousand nine hundred and eighty‑two, at the City of Winnipeg in the Eastern Judicial District in the Province of Manitoba, did unlawfully have sexual intercourse with Terry Wood, a female person who was not his wife, with her consent, which consent was extorted by threats or fear of bodily harm.

 

It clearly falls within s. 143 (b)(i) of the Criminal Code . On the facts of this case, briefly summarized above, at first glance it may appear strange indeed that defence of mistake of fact could be suggested, let alone made out. To appreciate how the issue arises, reference must be made to the findings of fact made at trial (1983), 34 C.R. (3d) 162, and to the judgments given in the Court of Appeal (1983), 37 C.R. (3d) 45.

 

9.                The trial judge described the complainant as a bright, sophisticated woman, articulate, capable, and well employed. She considered that the appellant was neither particularly intelligent nor "verbal" and expressed surprise that any intimate relationship had ever arisen between them. She described the events of September 23, 1982, a month before the events in question, and she considered there was no evidence that the appellant knew she had complained of rape as a result of that incident. Comment will be made on this question later. She then referred to the defence of mistake of fact, and said (at p. 164):

 

If there were any evidence before me that the accused was aware on 15th October that the complainant had considered the sexual relations of 23rd September 1982 to have been non‑consensual, I would have rejected this defence out of hand. There is no such evidence. I can speculate, but that is not proof.

 

She described in detail the events of October 15 and said that she accepted the complainant's version in so far as it differed from the appellant's, but she observed that in many respects his evidence confirmed hers. She continued (at p. 166):

 

                   I am satisfied beyond any doubt, that the accused broke and entered the complainant's residence of 15 October motivated primarily by jealously and I do not doubt for a moment that, had the complainant had a man there, the knife would have been used aggressively. Having not found another man, he was bound and determined to make the complainant hear what he had to say to her by confining her unlawfully. He certainly broke and entered the dwelling‑house with intent to commit an indictable offence therein, and he certainly took possession of the butcher knife for purposes dangerous to the public peace.

 

                   Having entered the house and discovering that the complainant was on the telephone, being unsure about whether or not she had called the police, two things became paramount. One was to cover up the evidence of his break‑in so that it would not be visible from the street, and to cover up his presence in the house by reducing it to darkness. The second was to prevent the escape of the complainant, or her use of the telephone, particularly probable events while he was outside putting the basement window back on the house. What better way to confine her than to take her car keys, her house keys, her money, to strip her naked, to bind her hands and to force her to stand by the back door and whistle so he could hear where she was.

 

                   I find that the accused forced the complainant to strip and tied her hands, not by way of preliminaries to an intended rape, but by way of confining the complainant. I similarly find the forced taking of her keys and money, to be part of the unlawful confinement.

 

She said that once the appellant became satisfied that the police would not come, he set out to convince the complainant to reconcile. She accepted the evidence of the complainant that she was absolutely terrified, and that her consent was given solely to protect herself from further violence or death. She told him the things he wanted to hear regarding reconciliation, and she assured him that no other man was of interest to her. Then the trial judge continued (at pp. 167‑68):

 

                   As I said, no rational person could have been under any honest mistake of fact. However, people have an uncanny ability to blind themselves to much that they do not want to see, and to believe in the existence of facts as they would wish them to be. The accused says that, notwithstanding the reign of terror which preceded their chat, notwithstanding that he held a knife while they talked, notwithstanding that he did most of the talking and that the complainant's answers were clearly equivocal, he presumed and believed that everything between them was peachy, this notwithstanding that three weeks earlier, on a replay of the same sort of evening, his probation officer became involved and the complainant moved out of the house. Very honestly, despite my confidence in the ability of people to blind themselves to reality, and even if the accused had not lied about other parts of his testimony, I would have been hard‑pressed to credit the honesty of his belief.

 

                   However, his honest belief finds support in the testimony of the complainant. She knows him, and in her opinion, notwithstanding all the objective facts to the contrary, he did believe that everything was back to normal between them by the time of the sexual encounter. His subsequent behaviour as well attests to that fact.

 

                   I do not like the conclusion which this leads me to. There was no real consent. There was submission as a result of a very real and justifiable fear. No one in his right mind could have believed that the complainant's dramatic about‑face stemmed from anything other than fear. But the accused did. He saw what he wanted to see, heard what he wanted to hear, believed what he wanted to believe.

 

                   The facts in Pappajohn v. R., [1980] 2 S.C.R. 120,...are quite dissimilar to those in this case. The dictum of the Supreme Court of Canada, however, is clear and broad and in no way seems to limit itself to the peculiar circumstances of that case. Perhaps the Crown will appeal this decision to obtain some direction from the Supreme Court on whether it was that court's intention to cover situations where an accused who demonstrates the clarity and shrewdness this accused showed in securing his own safety at the outset can turn around and, because it does not suit his wishes, can go wilfully blind to the obvious shortly thereafter. In any event, the ratio of Pappajohn is clear and it leaves me no alternative but to acquit.

 

10.              To summarize, the trial judge found that the appellant did not enter the house with intent to make a sexual assault on the complainant; that the complainant consented to intercourse only be­cause of the fear engendered by the threats of the appellant and to save herself; and that the appellant honestly believed that the complainant was giving a free and genuine consent to intercourse. She found as well that the complainant, who knew the appellant, also believed in the honesty of his belief.

 

11.              In the Court of Appeal three judgments were delivered. Matas J.A., after reviewing the facts and conclusions of the trial judge, concluded his judgment with these words (at p. 53):

 

                   In the case at bar, it was Mr. Sansregret's conduct which terrorized the complainant and brought about her conciliatory response. It would be the ultimate in irony if the complainant's successful pretense that she consented, out of a legitimate fear for her life, could be relied on by the accused as a basis for a defence of honest but mistaken belief in consent. To paraphrase the words of McIntyre J., in Pappajohn, the notion of the availability of the defence in these circumstances has an air of unreality. In my respectful opinion, it is not open to Mr. Sansregret to terrorize his victim, to follow up the terror with sexual intercourse, and to end up by innocently claiming he had an honest belief in his victim's consent. I have concluded that the defence of mistake of fact does not arise in this case.

 

Huband J.A., agreeing in the result, reached his conclusion on a different basis. He considered that the mens rea required for rape is the intent to have intercourse with the complainant without consent or while being reckless as to whether she consented or not. He found support for this proposition in Pappajohn, in the words of Dickson J. (as he then was), and in Director of Public Prosecutions v. Morgan, [1976] A.C. 182, where Lord Hailsham said, at p. 209:

 

...if the intention of the accused is to have intercourse nolens volens, that is recklessly and not caring whether the victim be a consenting party or not, that is equivalent on ordinary principles to an intent to do the prohibited act without the consent of the victim.

 

and he referred to the words of Lord Simon regarding the proof of rape which must be made by the Crown when he said, at p. 216:

 

...an intention to have sexual intercourse with a woman with knowledge that she is not consenting to it (or reckless as to whether or not she is consenting).

 

It was his view that although the defence of mistake of fact could apply to a charge of rape under s. 143 (b)(i) of the Criminal Code  where consent had been given, its elements required reshaping. He said (at p. 55):

 

But with a case involving consent extorted by threat the honest belief of the accused, to constitute a defence, must relate not to the consent, but to the impact of the threat.

 

He then drew attention to the findings of the trial judge regarding the nature of the complainant's consent, and said (at p. 56):

 

                   It avails the accused nothing to now say "But she consented", when the charge is one of consent extorted by threat. Everyone is agreed that the complainant gave every indication of consent.

 

Upon this basis he reached his conclusion, saying that to proceed with sexual intercourse at all‑‑immediately after an extended period designed to render the complainant submissive‑‑constitutes recklessness sufficient to sustain a charge of rape with consent extorted by threats. He agreed with Matas J.A. that the Crown's appeal should be allowed and a conviction of rape entered.

 

12.              Philp J.A. dissented. He accepted the findings of fact of the trial judge, to the effect that the belief in consent on the part of the appellant was honestly held, and referred to the evidence of the complainant herself which, in his view, lent support to the trial judge's finding. Relying on Pappajohn for the proposition that an honest belief in consent need not be reasonably based to support a defence on a charge of rape, he would have dismissed the Crown's appeal and confirmed the acquittal on the rape count.

 

13.              Before this Court the appellant contended that he never suspected, and never had cause to suspect, that the consent had been given because of his threats. He argued that all the facts and all findings of the trial judge supported this proposition. He denied wilful blindness and recklessness and contended that the Pappajohn case was decisive in his favour.

 

14.              Rape, as defined in s. 143 (a) of the Criminal Code , is of course the act of having sexual intercourse without consent. The issue with which we are concerned arises directly in a charge under para. (a). The question will be: Did the accused have an honest belief that the woman gave her consent? It is in this form that the issue arose in Pappajohn, Morgan, and in R. v. Plummer and Brown (1975), 24 C.C.C. (2d) 497 (Ont. C.A.) While those cases provide authority for the existence of the defence and for its application where the consent is in issue, in my view they do not cover a charge under s. 143 (b)(i) where consent is assumed from the outset. In other words, the existence of the consent is established and only its nature, that is, whether it was freely given or procured by threats, is in issue. Where the accused in a case arising under s. 143 (b)(i) asserts an honest belief in consent, the honest belief must encompass more than the fact of consent. It must include a belief that it has been freely given and not procured by threats. I agree in this respect with Huband J.A. The defence would apply then, subject to what is said later about wilful blindness, in favour of an accused who had an honest belief that the consent was not the result of threats but one freely given.

 

15.              The defence of mistake of fact has been said to rest on the proposition that the mistaken belief, honestly held, deprives the accused of the requisite mens rea for the offence. The question of the mens rea required for a conviction of rape was considered by Dickson J. in this Court in Pappajohn. He reviewed the authorities which have dealt with this question in the English, Australian, and Canadian courts. It is not necessary here to refer again to the many authorities considered, but their effect and the conclusions drawn from them by Dickson J. may be summarized. He observed, at p. 140, that: "The actus reus of rape is complete upon (a) an act of sexual intercourse; (b) without consent". Under s. 143 (b)(i) I would substitute: "(b) with consent if it is extorted by threats of fear of bodily harm". He then raised the consideration of whether at common law and under s. 143  of the Criminal Code  the guilty intention for rape extends to the element of consent. He concluded that it did, and he said, at p. 145:

 

                   It will thus be seen that the great weight of authority is in support of the view that the accused's perception of the woman's consent is an important aspect of any prosecution for the crime of rape.

 

And concluding upon this point, at p. 146, he said:

 

                   In summary, intention or recklessness must be proved in relation to all elements of the offence, including absence of consent. This simply extends to rape the same general order of intention as in other crimes.

 

I would conclude then that the mens rea for rape under s. 143(a) of the Code must involve knowledge that the woman is not consenting, or recklessness as to whether she is consenting or not, and for s. 143 (b)(i), knowledge that the consent was given because of threats or fear of bodily harm, or recklessness as to its nature. It would follow, as has been held by the majority of this Court in Pappajohn, that an honest belief on the part of the accused, even though unreasonably held, that the woman was consenting to intercourse freely and voluntarily and not because of threats, would negate the mens rea under s. 143(b)(i) of the Code and entitle the accused to an acquittal.

 

16.              The concept of recklessness as a basis for criminal liability has been the subject of much discussion. Negligence, the failure to take reasonable care, is a creature of the civil law and is not generally a concept having a place in determining criminal liability. Nevertheless, it is frequently confused with recklessness in the criminal sense and care should be taken to separate the two concepts. Negligence is tested by the objective standard of the reasonable man. A departure from his accustomed sober behaviour by an act or omission which reveals less than reasonable care will involve liability at civil law but forms no basis for the imposition of criminal penalties. In accordance with well‑established principles for the determination of criminal liability, recklessness, to form a part of the criminal mens rea, must have an element of the subjective. It is found in the attitude of one who, aware that there is 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 who takes the chance. It is in this sense that the term `recklessness' is used in the criminal law and it is clearly distinct from the concept of civil negligence.

 

17.              On the face of it, one would have thought that a man who intimidates and threatens a woman and thereafter obtains her consent to intercourse would know that the consent was obtained as a result of the threats. If specific knowledge of the nature of the consent was not attributable to him in such circumstances, then one would think that at the very least recklessness would be. It might be said then that this case could have been disposed of on the basis of recklessness. The trial judge, however, did not do so because of her application of the `mistake of fact' defence.

 

18.              There was indeed an abundance of evidence before the trial judge upon which a finding of recklessness could have been made. After a stormy period of cohabitation, the complainant dismissed the appellant from her house in September, 1982 thus demonstrating her rejection of him. He broke into the house on September 23 and there went through a performance which led to an act of intercourse with a consent given by the complainant out of fear for her life. This incident led to a report to the police and the involvement of the appellant's probation officer. In the early morning hours of October 15 he again broke into the house and repeated his earlier performance, which provided the basis for the present charges.

 

19.              There was also evidence from which the clear inference can be drawn that the appellant knew a complaint of rape had been made in respect of the first incident. Though the complainant complained to the police about that incident, no charges were laid. She was persuaded not to pursue the matter by the appellant's probation officer, who had approached her and told her that he would find a job for Sansregret if she did not press the charges. A police officer testified as to a conversation which occurred between himself and Sansregret after the latter's arrest. In response to a question as to why he ran from the police when they approached him on the evening of October 16, the appellant replied: "From before, that time she `phoned the police on me before." This reply was confirmed by Sansregret on direct examination but then denied on cross‑examination. Sansregret admitted that he knew his probation officer had called the complainant with respect to the September incident and that he knew that he was not welcome in her house. There was then evidence that the appellant knew of her attitude towards him; knew that she had complained to the police with respect to the September 23 incident; and knew that it was only the intervention of his parole officer which prevented charges from being laid after that incident. I therefore disagree with the trial judge who, in my opinion, was in error in not drawing the inference that the appellant knew that the complainant had complained of rape as a result of the incident on September 23.

 

20.              It is evident that the trial judge would have convicted the appellant of rape had it not been for the defence of mistake of fact. She considered that the belief in the consent expressed by the appellant was an honest one and therefore on the basis of Pappajohn, even if it were unreasonably held, as it is clear she thought it was, he was entitled to his acquittal. This application of the defence of mistake of fact would be supportable were it not for the fact that the trial judge found in addition that the appellant had been wilfully blind to reality in his behaviour on October 15. Such a finding would preclude the application of the defence and lead to a different result. It is my opinion then that the trial judge erred in this matter in that though she made the requisite findings of fact that the appellant was wilfully blind to the consequences of his acts she did not apply them according to law.

 

21.              The idea of wilful blindness in circumstances such as this has been said to be an aspect of recklessness. While this may well be true, it is wise to keep the two concepts separate because they result from different mental attitudes and lead to different legal results. A finding of recklessness in this case could not override the defence of mistake of fact. The appellant asserts an honest belief that the consent of the complainant was not caused by fear and threats. The trial judge found that such an honest belief existed. In the facts of this case, because of the reckless conduct of the appellant, it could not be said that such a belief was reasonable but, as held in Pappajohn, the mere honesty of the belief will support the `mistake of fact' defence, even where it is unreasonable. On the other hand, a finding of wilful blindness as to the very facts about which the honest belief is now asserted would leave no room for the application of the defence because, where wilful blindness is shown, the law presumes knowledge on the part of the accused, in this case knowledge that the consent had been induced by threats.

 

22.              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 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 reason for inquiry. Cases such as R. v. Wretham (1971), 16 C.R.N.S. 124 (Ont. C.A.); R. v. Blondin (1970), 2 C.C.C. (2d) 118 (B.C.C.A.), appeal dismissed in this Court at (1971), 4 C.C.C. (2d) 566 (see: [1971] S.C.R. v, unreported); R. v. Currie (1975), 24 C.C.C. (2d) 292 (Ont. C.A.); R. v. McFall (1975), 26 C.C.C. (2d) 181 (B.C.C.A.); R. v. Aiello (1978), 38 C.C.C. (2d) 485 (Ont. C.A.); Roper v. Taylor's Central Garages (Exeter), Ltd., [1951] 2 T.L.R. 284, among others illustrate these principles. The textwriters have also dealt with the subject, particularly Glanville Williams (Criminal Law: The General Part, 2nd ed., 1961, at pp. 157‑160). He says, at p. 157:

 

                   Knowledge, then, means either personal knowledge or (in the licence cases) imputed knowledge. In either event there is someone with actual knowledge. To the requirement of actual knowledge there is one strictly limited exception. Men readily regard their suspicions as unworthy of them when it is to their advantage to do so. To meet this, the rule is that if a party has his suspicion aroused but then deliberately omits to make further enquiries, because he wishes to remain in ignorance, he is deemed to have knowledge.

 

He then referred to the words of Lord Sumner in The Zamora No. 2, [1921] 1 A.C. 801, at pp. 811‑12, which was a case wherein a ship and cargo were condemned in the Prize Court as contraband. The managing director of the shipping company denied knowledge of the contraband carried by the ship, and on this subject Lord Sumner said at pp. 811‑12:

 

                   Lord Sterndale [the president of the Prize Court] thus expressed his final conclusion: "I think the true inference is that, if Mr. Banck did not know this was a transaction in contraband, it was because he did not want to know, and that he has not rebutted the presumption arising from the fact of the whole cargo being contraband."

 

                   Their Lordships have been invited to read this as saying that Mr. Banck is not proved to have known the contraband character of the adventure; that if he did not know, because he did not want to know, he was within his rights and owed no duty to the belligerents to inform himself; and that the Zamora is condemned contrary to the passage above cited from The Hakan, [1918] A.C. 148, upon a legal presumption arising solely and arbitrarily from the fact that the whole cargo was contraband. It may be that in his anxiety not to state more than he found against Mr. Banck, the learned President appeared to state something less, but there are two senses in which a man is said not to know something because he does not want to know it. A thing may be troublesome to learn, and the knowledge of it, when acquired, may be uninteresting or distasteful. To refuse to know any more about the subject or anything at all is then a wilful but a real ignorance. On the other hand, a man is said not to know because he does not want to know, where the substance of the thing is borne in upon his mind with a conviction that full details or precise proofs may be dangerous, because they may embarrass his denials or compromise his protests. In such a case he flatters himself that where ignorance is safe, `tis folly to be wise, but there he is wrong, for he has been put upon notice and his further ignorance, even though actual and complete, is a mere affectation and disguise.

 

Glanville Williams, however, warns that the rule of deliberate blindness has its dangers and is of narrow application. He says, at p. 159:

 

                   The rule that wilful blindness is equivalent to knowledge is essential, and is found throughout the criminal law. It is, at the same time, an unstable rule, because judges are apt to forget its very limited scope. A court can properly find wilful blindness only where it can almost be said that the defendant actually knew. He suspected the fact; he realized its probability; but he refrained from obtaining the final confirmation because he wanted in the event to be able to deny knowledge. This, and this alone, is wilful blindness. It requires in effect a finding that the defendant entended to cheat the administration of justice. Any wider definition would make the doctrine of wilful blindness indistinguishable from the civil doctrine of negligence in not obtaining knowledge.

 

This subject is also dealt with by Professor Stuart in Canadian Criminal Law, 1982, at pp. 130 et seq., where its relationship to recklessness is discussed.

 

23.              This case reveals, in my view, an appropriate set of circumstances for the application of the `wilful blindness' rule. I have outlined the circumstances which form the background. I have referred to the findings of the trial judge that the appellant blinded himself to the obvious and made no inquiry as to the nature of the consent which was given. If the evidence before the Court was limited to the events of October 15, it would be difficult indeed to infer wilful blindness. To attribute criminal liability on the basis of this one incident would come close to applying a constructive test to the effect that he should have known she was consenting out of fear. The position, however, is changed when the evidence reveals the earlier episode and the complaint of rape which it caused, knowledge of which, as I have said, had clearly reached the accused. Considering the whole of the evidence then, no constructive test of knowledge is required. The appellant was aware of the likelihood of the complainant's reaction to his threats. To proceed with intercourse in such circumstances constitutes, in my view, self‑deception to the point of wilful blindness.

 

24.              In my view, it was error on the part of the trial judge to give effect to the `mistake of fact' defence in these circumstances where she had found that the complainant consented out of fear and the appellant was wilfully blind to the existing circumstances, seeing only what he wished to see. Where the accused is deliberately ignorant as a result of blinding himself to reality the law presumes knowledge, in this case knowledge of the nature of the consent. There was therefore no room for the operation of this defence.

 

25.              This is not to be taken as a retreat from the position taken in Pappajohn that the honest belief need not be reasonable. It is not to be thought that any time an accused forms an honest though unreasonable belief he will be deprived of the defence of mistake of fact. This case rests on a different proposition. Having wilfully blinded himself to the facts before him, the fact that an accused may be enabled to preserve what could be called an honest belief, in the sense that he has no specific knowledge to the contrary, will not afford a defence because, where the accused becomes deliberately blind to the existing facts, he is fixed by law with actual knowledge and his belief in another state of facts is irrelevant.

 

26.              I would dismiss the appeal.

 

Appeal dismissed.

 

                   Solicitors for the appellant: Walsh, Micay and Company, Winnipeg.

 

                   Solicitor for the respondent: Department of the Attorney‑General for the Province of Manitoba, Winnipeg.

 

 

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