What about mistakes of law? What if you don't know what the law is? What if you've researched the law but are confused as to what is actually prohibited?
According to Section 19 of the CC, ignorance of the law is no defence. This seems to disallow a mistake of law defence. This is often described as a rule of policy, and not of fairness. What policy?
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Discourage ignorance of the law - allowing it as a defence incentivizes it. If it's not allowed, then learning about the law is encouraged.
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Proving knowledge of the law would be very difficult for the Crown - unlike MR, can't really be inferred from behaviour, given that the A broke the law.
R v CAMPBELL & MLYNARCHUK [1973] AB DC
FACTS
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A is charged with giving an immoral performance at a strip club in Edmonton. Boss told her she can go totally nude without breaking the law due to a decision called Johnson. She gets naked and is charged, even though at the time of the performance Johnson stands. But then the Court of Appeal reverses Johnson by the time her case has come before the court.
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RULING
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A's mistake was thinking that a decision from a TJ makes law, when only Court of Appeal and Supreme Court decisions can make law. Can't acquit the A, but can give her an absolute discharge - admission of guilt, but no penalty and no criminal record (there is a record of the discharge however). IRONY: SCC reverses Johnson again, and A actually broke no law.
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RATIO
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Mistakes of law are no defence for criminal offences - for reasons of policy, not of fairness.
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But what about regulatory offences, where s 19 of the CCC does not apply? Is there a common law defence of mistake of law? Courts will often trace mistake back to mistaken advice from a public official, and from that use estoppel to prevent prosecution. But there have to be limits on this approach - how much officially induced error is necessary?
LÉVIS (CITY) v TÉTREAULT; LÉVIS (CITY) v 2629-4470 QUÉBEC INC [2001] SCC
FACTS
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One A is charged with driving without a license, another with driving without paying a fee. The company was told that they were to get a notice of renewal. Levis thought that the date on his license was a payment date, not an expiry date. Both As argue they should be able to rely on a defence of officially induced error of law.
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RULING
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SCC does recognize the existence of this defence, and sets out the following definition:
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that an error of law or of mixed law and fact was made;
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that the person who committed the act considered the legal consequences of his or her actions;
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that the advice obtained came from an appropriate official;
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that the advice was reasonable;
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that the advice was erroneous; and
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that the person relied on the advice in committing the act.
The SCC eventually rejects this argument in both cases, based on the facts.
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RATIO
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There is a common law defence of officially induced error of law for regulatory offences.
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Q: Could this apply to the CC, s 19 notwithstanding?
A: The 6 elements of this defence come from the concurrence in JORGENSEN, a criminal code case. The concurrence argues that this defence should apply for criminal code offences in cases where the officially induced error amounts to an abuse of process and the A should receive a stay of proceedings. The fact that the SCC endorsed JORGENSEN suggests that they might be open to allowing this defence for criminal offences, given an appropriate fact pattern.
Q: What about if your error is induced by your lawyer?
A: Then they are civilly liable.
So mistake of law is a common law defence, which applies to all offences (possibly). It offers a full defence, and the burden is on the A to prove it on a BOP.
INTOXICATION & PROVOCATION INTOXICATION
Most people that arrive before the criminal justice system are intoxicated. When, if ever, can you raise your self-induced intoxication as a defence?
POLICY CONCERNS
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We want to convict the morally blameworthy, and intoxication undermines MR. The court can't convict without MR due to the Constitution
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We don't want to incentivize intoxication as a defence to offences, as this would induce carelessness and intoxication
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The consequences that flow from intoxication should remain the responsibility of the individual who induced their own intoxication
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Certain criminal acts are associated with intoxication (eg. drunk driving, sexual assault, violent offences)
TRADITIONAL COMMON LAW RULE (LEARY RULE)
Draws a distinction between offences of general intent and offences of specific intent, and allows a defence of intoxication only for the latter. This avoids acquittals because A can always still be charged with lesser included general intent offence of specific intent offence, and have no defence of intoxication.
General intent
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Intent to commit the act itself (eg. Assault, Manslaughter)
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Specific intent
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Adds an additional purpose requirement beyond the intent to commit the act itself (eg. Robbery, Murder) "for the purpose of", "with an intent to"
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EXAMPLE:
Assault
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Intentional application of force
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Robbery
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Assault w/ an intent to steal
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R v BERNARD [1988] SCC
FACTS
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A is trying to raise defence of intoxication to charge of sexual assault causing bodily harm. Court needs to determine whether Leary rule should be maintained and if it applies to sexual assault.
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RULING
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Majority holds that Leary rule should still hold because it is a logical distinction. Rule does not help the A however, as sexual assault is a general intent offence. What about the very rare case where someone is so intoxicated that they are basically in a state of (self-induced) automatism? Maybe there is a possibility that this should be a defence for all offences, both general and specific. In concurrence, McIntyre J disagrees, arguing that the blameworthiness for inducing that high level of intoxication can substitute for the minimal mens rea required for general intent offences. Court has to resolve this question in DAVIAULT.
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RATIO
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The Leary rule still holds. Opens a possibility of a defence of intoxication to general intent offences if intoxication was sufficient to create automatism, but there is also a possibility that the blameworthiness of getting that drunk can substitute for the MR of the general intent offence.
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DISSENT
Dickson J wants to get rid of the Leary rule because it is artificial and there should be a defence of intoxication for all offences, in order to remain consistent with PAPPAJOHN (which allows the A to argue that they had a mistaken belief).
Today, the CC (in the same provision as "reasonable steps") holds that an A cannot use self-induced intoxication as a basis for belief in the complainant's consent.
R v DAVIAULT [1994] SCC
FACTS
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A was an alcoholic who argued that he was so drunk as to be in a state of automatism and that this should function as a defence to a charge of sexual assault. TJ acquits, and SCC splits 5-4
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RULING
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MAJORITY: If the intoxication is sufficiently extreme you ought to be able to invoke the defence of intoxication even with offences of general intent. Argues that the Charter requires that we not convict the morally blameless.
DISSENT: Crown does not need to prove precise symmetry between AR and MR.
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This was a very controversial decision, public thought it would lead to a lot of acquittals in sexual assault cases – in response parliament drafts Section 33.1 of CC. This section removes defence of extreme intoxication in general intent offences that are assault based (if someone markedly and substantially departs from standard of care – getting intoxicated to the point where they can’t consciously control their behaviour and then intentionally interferes with bodily integrity of another person). Here the blameworthiness of getting intoxicated can substitute for the MR of sexual assault.
Defence has a persuasive burden to prove intoxication on a balance of probabilities.
Q: What about the defence of intoxication for offences of specific intent?
R v DRADER[2009] BC PROV CT
FACTS
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Case deals with breaking and entering with intent to commit indictable offence. TJ finds that Drader has been drinking until 5am and then entered a home and stole mail. Drader testifies that he did not remember anything until he got home. The issue is what level of intoxication is needed to establish the defence in the context of an offence of specific intent, in this case breaking and entering with intent to commit an indictable offence.
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RULING
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Court says you must be at a medium level of intoxication in order to use defence. Here, Drader was acting in a foolish but not irrational way. He was able to enter house and immediately run when confronted by the owner. He was not so intoxicated as not to possess the minimal MR needed for the offence.
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RATIO
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Behaviour must be irrational to satisfy medium level of intoxication necessary in order to use defence successfully to a crime of specific intent.
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R v PENNE [1990] SCC
Intoxication is not available as a defence if intoxication is an element of the offence itself.
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