Here, the accused was a decorated naval officer who discovered his wife was having an affair. They decided to get a divorce, and he went to wish her lover, his best friend, well; the friend said that he wasn’t going to marry her and that he “couldn’t marry every woman he slept with”. The accused shot and killed him, then turned himself in.
At trial, the jury found him not guilty – likely out of sympathy and the attitude toward the military at the time. On appeal, the judge said it would be impossible to retry him with a jury (since the story had spread so widely); he was tried again by a judge and found guilty of manslaughter (reduced due to provocation).
In response, juries were abolished in India – all trials are by judge alone.
In Canada, juries retain the ability to nullify laws or find people not guilty – there’s no obligation to inform them of that, though (Latimer).
MISTAKE OF LAW
Ignorance of the law is no excuse (s. 19 of Code); mistake of law is generally not allowed as a matter of policy (since it would lead to absurd circumstances to allow people to claim mistake of law)
There are a few circumstances where mistake of law can be a defence:
Where it negates mens rea for a specific intent crime
Officially induced error (strict liability offences only in Levis, though it’s possible that it could apply to mens rea offences as well); functions as an excuse
Where the law requires that the act be done “without colour of right” – typically property offences
Mistake of law is distinct from mistake of fact and mistake of mixed law and fact
Mistake of law does not include bad legal advice (Whelan)
ELEMENTS OF OFFICIALLY INDUCED ERROR:
There is an error of law (or mixed fact and law)
The person who committed the act considered the legal consequences of the act
This goes beyond merely administrative consequences (Levis) – what has to be shown is that information was sought about the legal consequences of their conduct
The advice came from an appropriate official
The advice was reasonable (modified objective test)
The advice was mistaken
The person actually relied on the advice in committing the act
You cannot rely on a court’s judgment until avenues of appeal have been exhausted
Mistake of law can justify a mitigation or discharge of sentence
Jorgensen
Facts: Jorgensen was charged with distributing obscene materials for selling pornographic videos which he had not watched.
The OFRB had approved the videos – this was held to be unimportant, because the province cannot have any say in what is obscene under the Code (which is federal legislation), though it can inform community standards evaluation
Because the crime required that the obscene material be “knowingly” distributed, Jorgensen did not have mens rea because he had not watched the videos and did not otherwise know the “relevant facts” that make them obscene; this is different than a poster or image where the contents are visible on the surface of the thing
There is no general presumption that vendors know the exact contents of what they sell
Lamer CJ’s dissent
Officially induced error should be a defence (adopted in Levis) if it comes from an appropriate official
It is basically impossible for citizens to fully know all regulatory laws, and it is unreasonable to expect it.
The list of appropriate government officials is open, any official who a reasonable person similarly situated would consider responsible would suffice; it need not come from someone with responsibility for criminal law
Advice given by an appropriate government official is prima facie reasonable unless it appears utterly unreasonable
Justification is that the state has acted in a way that disentitles it to a conviction – the defence makes no claim about the moral status of the accused’s act
Howson
Facts: Howson towed a car to an impound lot with permission from the landowner. The owner of the car sued for theft.
Since the car was taken under colour of right (he thought he had permission), mens rea was not shown
Klundert
Facts: Klundert stopped paying taxes because he thought the Income Tax Act was unconstitutional; tax evasion requires that the accused act “wilfully”
While the Act is very complex and mistake of law could undermine mens rea, it does not extend to a protest against the Act itself – he understood it just fine, he just disagreed
Watson
Facts: Watson was harassing a fishing vessel in international waters, and thought he could do so despite the fact that the Canadian registration of his boat made that false
While the harassment was not done under colour of right, a UN convention that Canada is party to (with which he justified his conduct) did make it such that he thought he was acting under colour of right so it was excused
Levis
Defence of officially induced error is available for strict liability offences based on Lamer’s framework in Jorgensen, since it is unfair to impose liability where there was good faith reliance on bad advice from an appropriate government official
Due diligence is required for the defence to apply – passive ignorance of the law is insufficient
Factors that colour analysis:
Efforts made by accused to obtain information
Clarity of the law
Position and role of official who gave information
Clarity, definitiveness, and reasonableness of the information
SELF-DEFENCE
Before March, ss 34-42 governed self-defence to much criticism - they were subject to many different interpretations (ultimately to be settled by SCC)
Now, the different provisions have been eliminated and replaced with a new standard
Self-defence is a justification, not an excuse - if you successfully plead self-defence, then there is no crime, because your actions are not wrongful.
There’s a spectrum - from using minor force to push someone away before they assault you to shooting them IF in the circumstances that’s a reasonable use of force
Once self-defence is raised (air of reality), it has to be put to the jury (Cinous)
The Crown must prove that self-defence doesn’t apply beyond a reasonable doubt once it’s in play (persuasive burden)
Where death occurs, the accused is usually charged with murder 2 - self-defence is often a hail mary in these cases, since if it fails they are convicted
Provisions of the new act
Before the new act, 34-42 touched different parts of what counted as self-defence; now it’s a more holistic approach
34(1) - a person is not guilty of an offence if they
believe, on reasonable grounds, that force is being used against them or another person, or that a threat of force is being made against them or another person
The act that constitutes the offence is committed for the purpose of defending themselves or the other person from that use or threat of force
34.1.a - the accused has to have a subjective belief that force is being used agains them or someone else, BUT it has to be held on reasonable/objective grounds (a reasonable person, similarly situated)
34.1.b - the act has to be for the purpose of defence or protection; even if the accused believed there was a threat of force, if the accused acted for a purpose other than defence but for some ulterior purpose (e.g. you just want to fight the guy) self-defence doesn’t apply
So Crown has to prove that at least one of those elements doesn’t apply
So what is reasonable in the circumstances? This is 34(2)
the nature of the force or threat; (what are the circumstances?)
the extent to which the use of force was imminent and whether there were other means available to respond to the potential use of force;
the person’s role in the incident; (did they incite the assault?)
whether any party to the incident used or threatened to use a weapon; (weapons typically allow for more force to be used)
the size, age, gender and physical capabilities of the parties to the incident; (is this possibly open to a Charter challenge, regarding gender?)
the nature, duration and history of any relationship between the parties to the incident, including any prior use or threat of force and the nature of that force or threat;
(f.1) any history of interaction or communication between the parties to the incident;
the nature and proportionality of the person’s response to the use or threat of force; and
whether the act committed was in response to a use or threat of force that the person knew was lawful. (So no assaulting a police officer who uses minor force to arrest you)
All of those factors are to be considered by the trier of fact
34.3 - Subsection (1) does not apply if the force is used or threatened by another person for the purpose of doing something that they are required or authorized by law to do in the administration or enforcement of the law, unless the person who commits the act that constitutes the offence believes on reasonable grounds that the other person is acting unlawfully.
All of the listed factors in (2) and (3) were listed in cases and in the old statutory provisions, but they were often determinative of whether self-defence was available (patchwork approach - if you fell in a patch, you had self-defence, but otherwise you may be locked out)
The standard for reasonableness here is different than that for penal negligence (which requires a marked departure from the standard of a reasonable person). Other factors than the nature of the relationship (Lavallee) can be relevant:
Nelson (ONCA) – accused’s diminished intelligence reduced their ability to apprehend an assault
Kagan (NSCA) – a person with Asperger’s Syndrome was taken into account as it could have led to more anxiety or paranoia in the circumstances
Section 35 - protection of property (realty or personalty)
35.1 - A person is not guilty of an offence if
they either believe on reasonable grounds that they are in peaceable possession of property or are acting under the authority of, or lawfully assisting, a person whom they believe on reasonable grounds is in peaceable possession of property;
they believe on reasonable grounds that another person
(i) is about to enter, is entering or has entered the property without being entitled by law to do so,
(ii) is about to take the property, is doing so or has just done so, or
(iii) is about to damage or destroy the property, or make it inoperative, or is doing so;
the act that constitutes the offence is committed for the purpose of
(i) preventing the other person from entering the property, or removing that person from the property, or
(ii) preventing the other person from taking, damaging or destroying the property or from making it inoperative, or retaking the property from that person; and
the act committed is reasonable in the circumstances.
“Peaceable possession” means possession which is not challenged by others
This includes agents, employees, etc. - Bouncers are covered by this
This uses a modified objective test again - requires subjective belief and objective verification
Note here that “reasonable” is not modified by a list of factors, as in 34(2) - it’s up to the courts to determine what is reasonable in protecting property
35.2 - Subsection (1) does not apply if the person who believes on reasonable grounds that they are, or who is believed on reasonable grounds to be, in peaceable possession of the property does not have a claim of right to it and the other person is entitled to its possession by law. (So no using force against someone who has a rightful claim to the property)
The two provisions can run together to some extent - if someone breaks into your house, the risk posed to the people inside can trigger 34 instead of 35 (defending the people rather than the house)
These are not the only defences - there are additional defences in the law (ss 25-31) which are still intact to protect law enforcement officials (for a breach of the peace, where they see a criminal act, etc.)
S. 43 onward remains intact - use of force for corrective purposes against children, medical procedures
S 43 was limited by CFCYL - no corrective punishment against children under 2 or over 12, no weapons, no blows to the head
R v Lavallee 1990 SCC
Facts: Lavallee shot her partner, Rust, in the back of the head after a fight. Their relationship involved a long history of abuse, and on the night in question Rust had given her a gun and said that either she would kill him or he would kill her. A psychiatrist testified that she suffered from battered wife syndrome, and that she had acted out of desperation.
Merely being in an abusive relationship will not trigger the self-defence provisions – the defence must fit into the statutory paradigm. (Arguably the approach in Lavallee could extend to other sorts of abusive relationships.)
Expert evidence is admissible in an inquiry when an ordinary person would be unlikely to form a correct judgment about it without the assistance of someone with specialized knowledge. Experts basically provide ready-made inferences that cannot be reached by the judge or jury alone.
For psychiatric issues (where people generally have some competence in the area, compared with testimony from an engineer or someone working in a more technical field), expert testimony is appropriate where the average person may not have sufficient knowledge or experience with human behaviour to draw an appropriate inference from the facts.
There is an extensive mythology about women in abusive relationships (“battered wife syndrome”), both in law (the history of coverture and discipline) and in society. Social attitudes have changed, but the myths remain. Expert testimony is necessary to overcome these systematic errors in a case like this one (e.g. wondering why she didn’t leave the relationship, etc.).
34(2) imposes an objective standard on the apprehension of death and the need to repel the assault with deadly force. This test must be modified, though, in light of the accused’s circumstances. A reasonable person is not somebody trapped in an abusive relationship.
The imminence rule looks at the temporal connection between the assault and the defence – it’s hard to plead self-defence when there’s a large gap between the two since it’s less likely to be necessary at the later point. Historically, this has basically required the assault to be basically in progress (though this was read in by the common law, it’s not part of the statute). But that can’t be justified in the context of a battered wife, given the cycle of violence they experience over months or years. Imminence must be interpreted in light of the ongoing and often predictable cycle of violence (tension-building, battering, honeymoon/contrition) – they can often detect when the violence will come, and how brutal it will be. Expert testimony can be used to help the finder of fact determine whether the accused had a reasonable apprehension of death in the circumstances. The issue is what the accused reasonably perceived in the circumstances, not what a reasonable person would have. A reasonable person would not be attentive to the dynamics of the relationship.
Expert testimony can help explain what “self-help” means in circumstances like this as well. Battered women can develop the condition of “learned helplessness”, and they form strong bonds with their abusers. There are also other reasons why a battered woman would stay in an abusive relationship, including financial dependence and a reluctance to disclose abuse. The jury’s job is to determine whether self-defence can be raised, not to judge the woman for staying in a relationship. The reasonableness of her belief that only killing would protect her must be assessed in light of the psychiatric evidence about her mental state and her relationship.
As always, expert evidence cannot usurp the function of the jury as the trier of fact.
R v Cinous 2002 SCC
Facts: Cinous was a small time crook who came to believe that his conspirators were going to kill him. On their last theft, the others were “acting suspiciously” and possibly giving signs that they were armed and they were going to kill him (wearing latex gloves, etc.). Cinous was driving, and he pulled into a gas station to buy some wiper fluid; when he returned, he put the fluid container in the trunk and shot one of them in the back of the head as an “instinctive reaction”. He then chased another down, but decided not to kill him, thinking he had control of the situation.
Self-defence has to be proven beyond a reasonable doubt by the Crown, and the jury must know this.
Imminence, after Lavalee, is a factor to be considered qua the reasonableness of the accused’s actions and the absence of alternatives – it’s not necessarily the raised knife.
The air of reality test is used for all defences to determine if there’s a sufficient evidentiary foundation to raise the defence for the jury. The air of reality test has two prongs: is there (1) evidence (2) upon which a properly instructed jury acting reasonably could acquit if it believed the evidence to be true?
Another formulation: is the evidence put forts reasonably capable of supporting the inferences required to acquit the accused?
If any element of a defence lacks an air of reality (objective or subjective, as required by the test), then it cannot go forward. Reasonableness is something that must be inferred by the jury, and its evidentiary foundation is not exempt from the test.
The justification for the air of reality test is that it would be unnecessarily confusing for the jury to have to consider defences that are not adequately supported by the evidence. The trier of law is obligated to keep non-applicable defences from the jury. The judge does not evaluate the legal effect or persuasiveness or credibility of the evidence, or draw determinate factual inferences, but considers the field of factual inferences that could be reasonably be drawn from the evidence – if a properly instructed jury could reasonably acquit, should the evidence be believed, then it passes the test.
Merely asserting the elements of a defence is insufficient – the question is whether a jury, using a construction of the evidence favourable to the accused, could draw the required inferences to acquit.
Here, there was evidence of a subjective belief in imminent danger. But there weren’t objective/reasonable grounds for thinking he couldn’t call the police, nor did he have to return to the van when he left at the gas station. Self-defence involving the killing of the attacker requires that there be no alternative course of action.
R v Szczerbaniwicz 2010 SCC
Facts: the accused and his wife were arguing on the stairs during their separation. The wife took his degree off the wall and threw it down; the accused pushed her in response and she suffered bodily harm. No contrary evidence was provided. The accused admitted to “manhandling” his wife, and said that the diploma was very meaningful to him.
Majority:
The accused’s subjective belief about what force is required is relevant – but it has to be based on reasonable grounds (objectively determined in the circumstances).
The force used has to be reasonable and proportionate in the circumstances (both subjective and objective). Here, more force than necessary was used.
The diploma may have had sentimental value, but it was replaceable, and the damage was already done when he attacked his wife.
Defence of property requires that the action be done for the sake of defending the property – attacking someone out of anger does not trigger the defence.
Here, the accused lost his temper and “manhandled” his wife. This was not proportionate to the circumstances.
Dissent:
Anger doesn’t mean that you forfeit the right to claim self-defence. The question is whether you were acting with the purpose of defending the property, notwithstanding the anger.
The military judge assigned considerable weight to the claim about the accused’s anger in the moment. But the legal question was whether he used no more force than was reasonably necessary. Under circumstances where a quick response is required, the level of consideration of consequences is lower than where there’s more time to deliberate.
The term “manhandle” is provocative and misleading – the question is the level of force that is appropriate in the circumstances, even if that amounts to “manhandling”.
The military judge was too vague in his reasons – is “manhandling” always going too far? This was an error of law – it wasn’t capable of appellate review.
You can defend yourself or your property while you’re angry so long as the force used was reasonable in the circumstances. Anger doesn’t really lend itself to the measured use of force, but the issue is the amount of force used.
