Chapter Thirteen: Defenses – Mistake of Law

Chapter Thirteen: Defenses – Mistake of Law

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  Ignorantia juris quod quisque tenetur scire, neminem excusat; ignorance of the law is no excuse.
  
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  There are three debates surrounding this maxim:
  
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    1. When is a mistake a mistake of law rather than a mistake of fact?
    
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    2. Do some offences, as part of their mens rea, require that the accused know that his conduct is contrary to the law?
    
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    3. May error be relief on as a defense if the error has been induced by the state?
    
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  The Availability of the Defense of Mistake of Law:
  
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    S. 19: A person may be convicted even though the person did not realize that his or her actions were illegal.
    
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  R v Campbell and Mlynarchuk: Campbell appealed from conviction of a charged under s. 163(2), unlawfully taking part as a performer in an immoral performance; there is no dispute that she committed the actus reus of dancing nude in a public place; the dispute regards the mens rea for the offence; she relied on a recent judgment from the same jurisdiction (R v Johnson) noting that it was not an offence to partake in bottomless dancing; this is not a mistake of fact but rather a mistake of law; unfortunately, it is a mistake of law to conclude that the decision of any particular judge correctly states the law, unless the judge speaks on behalf of the SCC; this is ironic because she appears to be well informed on the law; it could conceivably be a defense as negative intention to show that because of the mistake of the understanding of the law that there was no willful intent or malice, however, this is not one of those situations; it is an unfortunate situation because it appears that the accused is supposed to know the law better than judges; in this situation an absolute discharge is appropriate and was granted;
  
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    CC s. 19: Ignorance of the law by a person who commits an offence is not an excuse for committing that offence.
    
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      Excuse, or legal justification: is a defense to a criminal charge if one shows that the act complained of was authorized by some other law;
      
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      There will always be cases where honest and reasonable mistakes as to the defense of the law will explain the conduct of the accused, however, that is no defense.
      
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      This is a necessary component of our legal system.
      
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      Mistake of law may, however, afford good grounds for inflicting milder sentences.
      
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  R v Whelan: Raised the issue of whether an accused can use their reliance on poor legal advice as a defense; the respondent here was charged with disobeying a court order, contrary to s. 127(1) of the CC; there is no dispute he committed the actus reus; the dispute revolves around the mens rea of the offence; he relied on his lawyer’s advice saying “an argument could be made” suggesting that the court order could be disobeyed; he was eventually convicted as ignorance of the law does not provide a defense, even when reasonable care is pursued to determine the law;
  
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    Knowledge that one’s act is contrary to the law is not one of the elements of mens rea;
    
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    The word “knowingly” does not make a mistake of law a defense;
    
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    R v Kotch (ABCA): absent “officially-induced error”, mistaken legal advice does not shield the purposeful doing of an act which may prove contrary to the criminal law;
    
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    Mistake of Fact: which includes ignorance of fact, exists when an accused is mistaken in his belief that certain facts exist when they do not, or that certain facts do not exist when they do; ignorance of fact exists when an accused has no knowledge of a matter and no actual belief or suspicion as to the true state of the matter;
    
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    Mistake of Law: exists when the mistake relates not to the actual facts but their legal effects;
    
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  R v Jorgenson:
  
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    163(2)(a): “everyone commits an offence who knowingly, without lawful justification or excuse, a) sells, exposes to public view or has in his possession for such a purpose any obscene written matter, picture, model, phonograph, record, or other thing whatever.
    
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    Mens Rea Doctrine:
    
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      Knowingly: when used, it applies to all elements of the actus reus;
      
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      Willful blindness can be used as a route to knowledge: deliberately choosing to not know something when given reason to believe further inquiry is necessary;
      
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      Evidence – knowledge of possession of obscene material
      
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        Statements made by accused;
        
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        Warnings by police;
        
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        Seized materials; and
        
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        Where and how materials are displayed on premises.
        
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    Nature of “Obscenity:”
    
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      Based on community values; what are the social consequences?
      
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      Court looks for harm that undermines the proper functioning of society;
      
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      Harm in this context means that it predisposes person to act in anti-social manners;
      
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      E.X. Sex in general especially with violence or dehumanizing treatment.
      
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    Normative Terms & Errors of “Mixed Fact and Law:”
    
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      Tests for obscenity – matters of law.
      
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      Mixed fact of law: whether a set of facts gives rise to a finding of obscenity.
      
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      The judge found as a fact that the defendant had done facts A and B and as a matter of opinion he reach the conclusion that it was not reasonable for the defendant to have acted in that way.
      
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    Mens Rea for 163(2)(a):
    
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      Must have knowledge of all facts which give rise to obscenity;
      
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      NOT knowledge of legal tests or knowledge of whether those facts give rise to a finding of obscenity;
      
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      Must have detailed information about what is on those videos (or pictures, etc.);
      
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      Again, willful blindness may be relied upon;
      
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      See routes to proving mens rea above;
      
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    Relevance of Film Board (OFRB) Rating / Approval:
    
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      Can use external evidence such as film classification ratings as evidence that the accused did not suspect obscene materials;
      
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    A Strict Liability Criminal Offence:
    
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      No knowledge requirement for 163(1).
      
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      On its face it is an absolute liability offence since it does not require the person know what is on the films (or whatever).
      
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      Criminal law tries to avoid absolute (and strict) liability offences.
      
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      The SCC has read in the defense of due diligence to make it a strict liability offence;
      
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    “Officially Induced Error:”
    
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      Do not confuse with due diligence;
      
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      Due diligence: still performed the actus reus; negates fault;
      
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      Officially induced error: exempts you from conviction because of error of the state; an error of law;
      
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      Accused has to show reasonable reliance (two elements) and establish on a balance of probabilities;
      
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  The Availability of the Defense of Mistake of Law Owing to the Drafting of the Offense Provision: a small number of offences indicate that a mistake of law may support an acquittal: these provisions usually include the phrase “without colour of right;”
  
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    “Without colour of right:” without a belief in the legality of his or her actions;
    
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  R v Howson: charged with theft (which includes a ‘without colour of right’ provision) for impounding a car in the course of employment; accused honestly believed he had the legal right to do so and was instructed to do so by his employer; conviction was set aside and an acquittal ordered; because there was no legal basis for the taking of the car the accused and his employer were put on notice that this defense would not be accepted again in the future;
  
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    If a jury, properly instructed, is satisfied that the accused honestly, but mistakenly, believed that he had a right in law or in fact, they should acquit;
    
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    The presence of an honest belief is a subjective rather than an objective one;
    
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    Although the unreasonableness does not destroy the honesty of the belief, it may be considered along with other evidence when determining if the Crown has made their case;
    
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    This defense may only be relied upon once for the same kind of transaction;
    
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  R v Klundert: Dr. Klundert was charged with making a false statement in his tax return contract to s. 239(1)(a) of the Act, and tax evasion between Dec. 31, 1992 and June 13, 1998 contrary to s. 239(1)(d) of the Act; he contended that his refusal to pay taxes did not constitute an evasion but was instead an honest protest; at trial, the judge erred in instructing the jury that an honest belief that the Act was beyond the legislative power of the federal government was relevant to culpability on a charge of tax evasion; new trial ordered;
  
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    Can a person be said to evade the payment of income tax when that person makes no attempt to deceive or trick the tax collector but instead makes a straightforward refusal to pay?
    
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      The offence of tax evasion refers to anyone who “wilfilly evaded or attempted to evade compliance with this act….”
      
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      The offence requires proof of an act – deliberate avoidance of paying taxes; the conduct component was not at issue in this case;
      
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      Fault rests in the state of mind of the accused – the fault component is set out in the word “willfully;”
      
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      The offence also requires proof of a specific intent, that is proof that the act was done with a particular purpose – the purpose of evading the payment of tax;
      
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        To prove intent two things must be shown:
        
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          1. The accused must know tax is owing; and
          
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          2. The accused must intend to avoid or intend to attempt to avoid payment of that tax;
          
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          Factual errors can negate the fault requirement of an offence requiring knowledge and purpose. Purely legal errors raise a more difficult problem. A mistake of law does not excuse the commission of a criminal offence.
          
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          Where an offence requires proof that the accused intended to violate a court order, a mistake as to the legal effect of that court order can negate the required culpable state of mind.
          
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      R v Docherty: the word “willfully” stresses intention in relation to the achievement of a purpose; it can be contrasted with the lesser forms of guilty knowledge such as “negligently” or even “recklessly;” it denotes a relatively high level of mens rea;
      
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      R v Buzzanga and Durocher: “willfully” connotes a deliberate purpose and ulterior motive;
      
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    Is an honest belief that the Act is unconstitutional relevant in determining whether an accused has the requisite culpable mental state?
    
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      NO.
      
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      His mistake did not go to knowledge of his obligation to pay taxes owing under the act but rather to the government’s right to impose that obligation on him.
      
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      A person’s mistaken belief that a statute is invalid or is otherwise not applicable to that person’s conduct is a mistake of law.
      
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      An accused who knowingly violates the act but mistakenly believes that act is invalid is not trying to obey the law, but is instead deciding which laws should be obeyed; an acquittal based on a mistaken belief as to the validity of the law would undermine the rule of law.
      
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      There were mechanisms in place whereby he could have challenged the validity of the act without evading payment of taxes owed under the act but he chose not to pursue those legitimate avenues.
      
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      The belief that the act was invalid goes to his motive for why he evaded taxes.
      
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  R v Watson: charged with three counts of mischief when his boat threw bottles of Butyric acid onto another ship; the accused attempted to invoke the defense of “color of right” based on two propositions:
  
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    1. The accused proposed that the “color of right” defense applied because he did not know that Canadian law applied once 200m from the shore;
    
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      Applying s. 19, the fact that he did not know jurisdiction applied is no defense.
      
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    2. The accused proposed that the “color of right” defense applied because he believed that the World Charter for Nature authorized him to do these acts.
    
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    S. 19 of the Code holds that: “Ignorance of the law by a person who commits an offence is not an excuse for committing that offence.”
    
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    S. 492(2): No person shall be convicted of an offence under sections 430 to 446 where he proves that he acted with legal justification or excuse and with color of right.
    
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      This creates two defenses: legal justification or excuse, and color of right.
      
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    S. 477.1(1) Every person who commits an act that would be an offence if it occurred in Canada shall be deemed to have committed that offence in Canada if it occurred on a ship licensed in Canada.
    
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      The ship clearly falls within this jurisdiction.
      
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    Color of Right: “an honest belief in a state of facts, which, if existed, would be a legal justification or excuse.
    
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      1. Based on the honest belief of the accused that he had a color of right;
      
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      2. The test is a subjective one;
      
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      3. The belief does not have to be a reasonable one, but the jury may consider the reasonableness in determining whether there is an honest belief;
      
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      4. It is not sufficient that the accused had a moral belief in a color of right;
      
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    There are conflicting authorities whether the color of right defense encompasses a belief respecting the law or whether it is limited to a state of facts, which if true, would constitute legal justification or excuse.
    
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    R v Docherty: the principle that knowledge that one’s actions are contrary to the law is not a component of the mens rea for an offence, and consequently does not operate as a defense;
    
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  The Defense of Officially Induced Error: Crimes and Strict Liability offences
  
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    Strict Liability Offences: the defense of officially induced error is available for strict liability offences; the accused must show on a balance of probabilities that:
    
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      1. He received erroneous advice from an official; and
      
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      2. That advice was reasonable (having regard to the accused’s efforts to ascertain the proper law, the complexity of the law, the position of the official, and the clarity, definitiveness, and reasonableness of the advice given.
      
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    Criminal Offences: the SCC has intimated, but not firmly decided, that the defense of officially induced error may be available for mens rea offences;
    
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  R v Cancoil Thermal Corp: Cancoil Thermal Corporation and Terrance Parkinson, the supervisor, were charged with failing to comply with the Revised Regulations of Ontario which was designed to protect employees in the workplace; the act in question involved the removal of a guard on a “Newton Shear” which subsequently resulted in an accident where Mr. Pare lost the tips of 6 of his fingers; appeal allowed; new trial ordered;
  
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  Two main issues:
  
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    1. The Statutory Provisions: the statute provides that anyone who contravenes the act is liable to a fine of $25000 or imprisonment or both; the statute also excludes the defence of due diligence which suggests that the subsection creates an offence of absolute liability, which, if this were the case would offend s. 7 of the Charter (see Ref re Motor Vehicle Act); to avoid a s. 7 violation, 14(1)(a) must be treated as creating a strict liability offence;
    
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    Small issue: the lower courts interpreted the foot pedal as a guard which is an error; the meaning of a word in a statute is a question of law; there is no evidence upon which the court could find that the foot pedal was a guard; the acquittals were therefore based on an error of law;
    
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    2. The courts did not consider any defences that might have been available to the respondents (because they treated it as an absolute liability offence): it was open to the trier of fact to find that the respondents took all reasonable care;
    
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      R v Sault Ste Marie: the defense will be available if the accused reasonably believed in a mistaken set of facts which, if true, would render the act or omission innocent, or if he took all reasonable steps to avoid the particular event;
      
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      Even in offences of absolute liability, there is no reason why other defenses should not be available, such as necessity, duress or coercion. The usual defenses are available save lack of intention (available only in mens rea offences).
      
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    The Defense of Estoppel of Officially Induced Error:
    
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      The inspector had inspected the factory over two months before the incident, where it was pointed out to him that the guard had been removed, to which the inspector replied that it was “safe to remove the piece of metal in question and that with the machine being operated according to instructions that it was safe to do so.”
      
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      The inspector was satisfied that there were “no unresolved safety concerns.”
      
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      The defense of officially induced error exists where the accused is led to believe by the erroneous advice of an official that he is not acting illegally.
      
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      R v MacDougall: the SCC noted that the defense of officially induced error may be available;
      
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      The accused must establish on a balance of probabilities that they 1) relied upon the erroneous legal advice of an official and 2) that this reliance was reasonable.
      
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      The trier of fact decided whether the accused has established these facts.