Mistake of Law/Ignorance of the Law

Mistake of Law/Ignorance of the Law

 there would be insurmountable evidentiary problems for courts and would encourage ignorance

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  Accused operating a bingo on reserve without a provincial license
  
• 
  Accused had political argument – doesn’t think that fed gov’t or prov gov’t has authority to operate the regulation of bingo on reserves
  
• 
  SCC said for him to believe that wasn’t sufficient
  

1. 
   Mistake of fact is a defence, s.19 does not affect the common law defence of mistake of fact which is preserved by s.8. A mistake of mixed law and fact is also a defence eg. Bigamy – “married to another person” is mixed law and fact so ignorance of another person’s marriage status is a defence
   

2. 
   Ignorance of a regulatory offence that has not yet been published in the Gazette is an excuse. The gov’t has the responsibility of publishing it first.
   

3. 
   Mistake as to civil law
   
   1. 
      Prue & Baril: a mistake as to whether one’s license is suspended under the provincial Motor Vehicle Act will be considered a mistake of fact when the suspension is an essential part of the criminal code offence.
      
   2. 
      Macdougall: mistake as to civil law is NOT a defence if the offence is provincial rather than in the criminal code (it is a regulatory offence)
      
   3. 
      Molis v the Queen: accused was producing a drug that subsequently became restricted under a federal act. He argued due diligence, which the court refused as due diligence is not used in relation to the ascertainment of the existence of a prohibition or its interpretation.
      
   4. 
      Pontes: departs from Prue and Baril and follows Macdougall. Says the above approaches are irreconcilable. In this case, the SCC held that the mistake as to the status of the driver’s licence was not a defence when the accused was charged under the Motor Vehicles Act (provincial).
      

4. 
   Colour of Right: an honest but mistaken belief that you have a right in law to the
   

1. 
   Howson: employee of a towing company charged with theft after refused to give a towed car back to the owner until the owner paid expenses. The belief that the criminal law did not apply was a mistake of law (not a defence)
   

5. 
   Negate Mens Rea: the court will sometimes hold that a mistake of law negates mens
   

6. 
   Officially induced mistake of law is an excuse. It is an excuse and NOT a justification. It applies to both regulatory offences and criminal offences. The accused must prove the defence on a BoP (it is a question of law or mixed fact and law for the judge to decide), and the remedy is a stay of proceedings rather than an acquittal.
   

 First recognized in Lévis v. Tetreault and requires the following 6 elements set out in Jorgensen 1995 SCC, modified in Lévis 2006 SCC (note the objective standard of the advice and the reliance, based on the accused’s efforts to obtain information, the clarity of the law, the position of the advice giver, and the definitiveness of the opinion)

1. 
   That an error of law or of mixed law and fact was made
   
2. 
   That the person who committed the act considered the legal consequences of his actions (can’t just assume your conduct is permissible – this requirement acts as an incentive to seek advice)
   
3. 
   That the advice obtained came from an appropriate official
   
4. 
   That the advice was reasonable in the circumstances
   
5. 
   That the advice was erroneous
   
6. 
   That the person relied on the advice in committing the act and that the reliance was reasonable (only difference/addition from Lamer)
   

 Factors: efforts made by accused to obtain info, clarity/obscurity of the law, position/role of official, and clarity, definitiveness and reasonableness of information given

Held: OIE was NOT made out here (respondent knew date when fees would be due and when reg. would cease to be valid – should have been concerned that it didn’t receive a notice; instead it did nothing. Conditions 2 and 6 missing – didn’t rely on advice because none was given)

Jorgensen and Levis leave two questions:

1. 
   Is a SOP more appropriate than an acquittal?
   

2. Should burden be on accused of bearing the onus of proving the defence on BOP? If it is a strict liability offence then maybe (because acc’d also has to establish due diligence on a BOP). But if it is a criminal offence, with a presumption of subjective mens rea, why shouldn’t normal criminal standard of BRD apply?

7. 
   Mistake of law while enforcing the law. In Devereaux, an officer detained a complainant without lawful authority. It was no defence of law under s.19, but the court relied on s.25 which states that persons administering the law are justified if they act in good faith and on reasonable grounds.
   

• 
  Consider Polygamy: according to the AG (s.293) the provisions that prevent polygamy are not Charter compliant, and this information was potentially relied on. In 2008 – there was a charge under this provision. Do they have the defence of officially induced error?
  
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  BCSC reference: the provision is constitutional: what happens post this reference? Is the defence still available? They are now established in this family structure.
  

La Sourveraine