What happens if you are driving at night, end up hitting something traversing the road you are on that you couldn’t see, and which causes a loud bang and damage to your vehicle? If you suspect that you have hit something or someone, to what extent are you obligated to investigate and discover what it is that you might have hit? That was the question put forth recently to the B.C. Court of Appeal in the case of R. v. Edwards where the issues of what constitutes “heightened suspicion” and “wilful blindness” in a criminal law context – and in particular, for “hit and run” cases – were discussed.

Accused Doesn’t Immediately Stop to Investigate After Impact

In this case, the accused was driving his car on a provincial highway in the early hours of the morning after Halloween. The victim was walking along the highway, heading home with a friend after attending a Halloween party. The victim was dressed in dark clothing and was struck in the back by the vehicle driven by the accused at such a speed that he was sent flying into the bushes by the side of the highway, where initially the victim’s friend wasn’t able to find him. The victim’s friend testified that the vehicle which hit the victim not only didn’t stop but didn’t even slow down and appeared to speed up before turning a corner up ahead and disappearing from view.

The accused testified that he pulled into a driveway a short way down the highway after he had heard the loud bang and noticed that his windshield on the passenger side had been shattered. He also testified that he did go to look into what it was he had hit, armed with only the light stemming from his cell phone. Not being able to find anything, he assumed that he might have hit a deer.

The trial judge determined that the accused was “wilfully blind to the fact the accident had involved a person and deliberately avoided obtaining actual knowledge of the bodily harm that had resulted” as the investigation was insufficient because he never went back to the spot of the actual accident to find out what he may have hit. The accused was convicted of a “hit and run” under Section 252(1.3) of the Criminal Code but appealed the conviction.

Wilful Blindness

The description of wilful blindness in Canadian criminal law is a “state of mind distinct from recklessness that exists where a person has become aware of the need for some enquiry but declines to make the enquiry because they do not wish to know the truth.” If a person is found to have been “wilfully blind” to a crime (or a fact), they are considered to have had knowledge of the crime or fact. The principle 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.” This is crucial for a “hit and run” case. Under s.252 of the Criminal Code, if the accused knows that they have caused death or bodily harm leading to the death of another person, they can be convicted of an indictable offence and liable for imprisonment for life.

Accused Raises Heightened Suspicion as a Requirement of Wilful Blindness

The accused appealed his conviction by arguing that the doctrine of wilful blindness had been incorrectly applied because the trial judge had failed to recognize the requirement of “heightened suspicion” as part of the doctrine. He contended that culpable wilful blindness is only present where there is heightened suspicion (as opposed to “mere suspicion”) on the part of the accused person. Because the trial judge had concluded that the accused “did not know what he hit”, this meant that the accused hitting a person (rather than a deer or another animal) was a possibility, rather than a “probability” that would qualify as someone having a heightened suspicion that they had hit a person.

The Court of Appeal disagreed with the accused’s argument on appeal in a unanimous decision. The precedent with “hit and run” cases indicates that facts causing an accused to believe he or she should make further enquiries before leaving the scene of a collision meet the “heightened suspicion” test. The test for wilful blindness was whether an accused has “suspicion to the point where the accused actually sees the need to make further inquiries”.

They ruled that the trial judge was correct to find that the accused in this case was wilfully blind because in the trial judge’s view, the accused “took no steps whatsoever to determine whether someone had been injured” even though he stopped the car to inspect the damage soon after the impact. In their eyes, this was proof that he had his suspicions aroused that he had hit something significant in size that could have been a person.

The accused was thus deemed to have met the threshold for the test, as the Court determined that he was aware of the need to enquire further, but had declined to do so because he didn’t wish to know the truth.

Despite this decision, wilful blindness cases (whether for “hit and run” or other criminal law cases) remain complex and controversial. This is in part because the legal doctrine of wilful blindness itself is somewhat ambiguous and imprecise in nature (often relying upon the Courts attempting to infer the state of mind of the accused, which is often fraught with difficulties).

Contact Hicks Adams LLP in Toronto for Experienced Defence of Various Driving Offences

Our criminal defence lawyers can advise on how best to protect your rights and defend you in court, including for cases involving wilful blindness or alleged hit and run cases. We defend individuals charged with a variety of offences, including driving offences, assault, and homicides. Contact Hicks Adams LLP in downtown Toronto to discuss the options available to help you through this time. Call us at 416-975-1700 or contact us online to schedule a confidential consultation.