Mr review 6 ignorance of law 6



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MR Review


  1. The presumption of MR is that every element of the AR has a corresponding MR

  2. The default MR elements are intention

  3. The accused must have knowledge or willful blindness of the circumstance elements – not recklessness (beaver) [this is unsettled law, some cases say recklessness will suffice]

  4. Intention and knowledge requires high levels of subjective awareness. Recklessness is a lower level of awareness. Both of these are subjective states. These are both higher than objective foreseeability.

  5. Parliament can restrict MR to higher mental state, which trumps CL

  6. MR is inclusive of objective foreseeability and objective states. Parliament can restrict MR to Objective states.

  7. The presumption that intention or recklessness suffices does not apply to predicate offences (those that are based on unlawful acts)

  8. The charter occasionally requires certain crimes to have high level of subjective MR (ie. Murder cannot be objective, even though it is a predicate offence)

IGNORANCE OF LAW

Mistake of Fact


  • Not relevant unless the mistake negates a crucial MR element of the offence

  • Mistakes are not relevant:

    • Example: Brian assaults “John”. Turns out not to be John. Brian is still guilty of assault because knowledge of the identity of the person is not a required element of the offence.

    • Example: Brian swings arms wildly and hits someone. Brian is not guilty of assault because assault requires intentional application of harm. Recklessness does not suffice.

    • Example: Brian punches John causing bodily harm. Says he did not mean to cause bodily harm. His mistake is irrelevant, he may be charged for assault causing bodily harm, but we must first know whether it was objectively foreseeable that his punch would cause bodily harm.

  • The Rule: if A points to evidence that could reasonably lead to the conclusion that he was mistaken as to a relevant factual element, then an acquittal must result unless the Crown proves BYD that A was not so mistaken

R v Phillips 1978 (Supplementary) [Mistake of Fact: Philips may not have known the qualities of the weapon that made it prohibited]


F: It is against the law to carry a switchblade. Defence: I did not know it was a prohibited weapon (Mistake of Law). At trial: convicted due to mistake of law. Appeal court says he had to know the facts that make this weapon prohibited (Mistake of Fact). Philips argues that I did not know it opened in that way.

I: Does the accused KNOW that the knife opens by centrifugal force?

D: Allow the appeal, quash the conviction, acquittal

R


  • Ignorance of the fact that the knife opens by centrifugal force is a defence to a charge of bring in possession of a prohibited weapon

  • Accused did not know. Police did not know. Took much practice to open it that way

R: Philips may not have known the qualities of the weapon that made it prohibited (Mistake of fact).
TH 3.3:

Assume a bail order said that a person must be in their house by 8 pm each night. John is caught at 8:45 pm outside his house, and testifies that his watch was broken and that he honestly believed it was 7:45 pm.



Decision: John can raise a mistake of fact. This is a crime of subjective MR.

  • The extent of reasonableness of the mistake has no impact on the ability to rely on a mistake of fact (except as a matter of evidence).


TH 3.35:

John is on bail. He has to return to court on April 7th and is told so by the Court Registrar. John does not show up for court. When arrested, he says he thought he was supposed to return on April 11th. He is charged with failing to comply with a bail order.

Issue: Did he know of the order to be back on court April 7th?

Facts: I thought she said 11th.

Decision: This is mistake of fact. He has a chance of avoiding conviction if he thought that the Registrar said April 11th.
TH 4.1: Gus is charged with knowingly importing narcotics into Canada. He knows that he's carrying 1 kg of heroin in his backpack when he is apprehended in Canada. In which of these situations might he have a valid MISTAKE OF FACT defence:

He is sailing, thinks hes on Island A, but actually on Island B which is in Canada. = Mistake of Fact

Close answer: He is hiking on the border, accidentally crosses. He did not know he entered Canada and made no desire to = Could be argued to be mistake of fact, but not the best answer

Mistake of Law


  • S 19: Ignorance of the law is no excuse, “I didn’t know it was illegal” = not a defence

  • “Knowledge that one’s act is contrary to the law is not normally one of the constituent elements of the an offence, and therefore a mistake as to what the law is does not affect…culpability”

  • Example: Brian hits John. No defence if he thought hitting ppl was legal.

  • Purpose of S 19

    • Encourages people to be knowledgeable of the law

    • Problems: the law is vague, connection btw notice and fault

  • Mistake of law can be relevant in sentencing: if one has a good mistake of law, then sentencing will be more lenient (Custance)

  • Wrongful subjective interpretations of elements of the AR normally do not amount to defences (Lambrecht)

Difference btw Mistake of Fact and Mistake of Law


Fisherman governed by certain regulations preventing him from keeping fish under certain weight.

Mistake of Fact:

  • A’s scale breaks, causing him to illegally retain undersized fish. A mistakenly believes fish are of correct weight

Mistake of Law:

  • B believes regulation sets minimum weight at 3 kg, when its actually 5 kg

Both operating under mistake  Only A will have a potential defence

Should reasonable interpretations of the law be treated differently?


  • Mistake of Law has conflicting principles:

    • Important to enforce compliance

    • People don’t get to decide the law for themselves BUT law is complex

  • Provides certainty for the application of the law

  • Everybody lives under the same system of rules (fairness)

Is s 19 too harsh on ordinary Canadians?


  • Sankoff thinks the law is slightly too harsh

  • Law is immensely complex, and there are many regulations/laws

  • Law is unclear to everyone

  • Law has mandatory minimums = unfair, cant “deal w/ it in sentencing”

  • Reasonable attempts to comply are irrelevant - Generally speaking, reasonableness of the mistake makes no difference. Nor do attempts to comply (This an be altered by parliament ie. Colour of right, willful evasion of tax)

  • BUT courts become concerned in some cases where people did not really do anything wrong (Tavares). We don’t want courts not to make up reasons to get around rules

TH 3.1:


Joe is charged with "luring", (contrary to s 172.1 of the Code) which involves seducing young children over the internet. One of his bail conditions is not to possess a computer. Joe is stopped and arrested with breaching his bail contrary to s 145(3), after he is in possession of an Ipad. He argues he honestly didn't believe an Ipad is a computer. What is the ONLY argument he can possibly make to escape conviction at trial?

Issue: Is an Ipad a Computer?

Decision: If an Ipad is not a computer then he did not commit any contravention of the actus reus.
TH 3.2

John wants to discipline his children. Section 43 of the Code provides that a person may use force if the force is "reasonable in the circumstances". John consults with friends and fellow parents, and decides to discipline his 12 year old son, by hitting him with a leather belt, causing significant bruising. He is charged with assault. To avoid conviction, John must:

Issue: Is hitting with a leather belt “force that is reasonable in the circumstances”

Decision: Argue that his conduct was reasonable (AR). Note: Does not matter what he believed was reasonable.


Jones and Pamajewon v The Queen 1991 SCC p 504 [Mistake of Law]


Facts: Operated unlawful bingo contrary to s 206. Argued that they thought the government had no jurisdiction on the reserve.

Reason:


  • Mistaken in their belief that the code did not apply to their activities on the reserve, not mistaken in the components of the offence

  • Not a mistake in fact

  • No defence to s 19 of the Code

Note: If the government had no jurisdiction on the reserve, the band would not have been committing the illegal act of gambling

R v Custance 2005 (Supplemental) [Mistake of law: under belief that his actions constituted lawful compliance; sentencing is the method to “fix” mistake of law; people may have trouble complying]


F: Custance can’t get into the house he was meant to stay in, and he sleeps in the parking lot.

S 145(3)


  1. Must prove that order existed (AR)

  2. Must prove that accused did not comply with order (AR)

  3. Must prove accused: a) knew that order existed AND that b) accused knowingly or recklessly did not comply with order

His defence was that he did not go against 3b, because he thought that staying in the parking lot was the same as staying in the building.

I: Did the accused knowingly or recklessly infringe the conditions of the undertaking?

D: He should have surrendered himself to authorities, not staying in parking lot.

R:


  • Crown must prove that accused Intended to commit the actus reus (of being in parking lot)

  • Is his mistaken belief considered mistake of fact or mistake of law?

  • The fact that his friend had not secured an apt. for him was a mistake of fact

  • Stayed in parking lot, under mistaken belief that it would constitute compliance. He was mistaken about the legal consequences of his actions and was therefore under mistake of law

  • (had not done his due diligence to satisfy his obligation)

  • Cannot allow individuals to decide legal parameters of compliance, against interests of justice system

R: Mistake of Law because under mistaken belief that his actions would constitute compliance

Class notes: Belief that the parking lot is NOT the same as the building is a legal issue to be determined by court. The offence does not require Custance to know the legal definition of the order

Class Analysis:


  1. Why was Custance unable to argue mistake of fact?

    1. He was arguing an interpretation. Therefore that is a mistake of law.

    2. Belief that the parking lot was the same as the building is a Legal Issue to be determined by Court

    3. The offence does not require Custance to KNOW the legal definition of the order.

    4. S 19 suggests that people KNOW the law

    5. Wrongful subjective interpretations of the Elements of the AR normally do not amount to defences

  2. Why could Custance not argue that he acted reasonably in the circumstances?

    1. Reasonableness is not part of the offence

    2. The extent of the reasonableness of the mistake has no impact on the ability to rely on a mistake of law

R v Lambrecht 2008 Supplementary [Mistake of Law: Aware of qualities of weapon, unaware it was prohibited]


F: Accused charged with possession of an illegal weapon – a cross bow. The law prohibits handheld crossbows which aren’t antiques. He thought he was exempt.

I: Is this ignorance of the law?

D: Mistake of Law.

R:


  • Accused knew item was hand held cross bow and knowledge of this constitutes MR of the offence. Acknowledges being in possession of the bow. He had no licence to hold it.

  • Not knowing what the law was does not constitute defence

Ratio: Lambrecht knew the qualities, he just didn’t know that the weapon was, in fact, prohibited (Mistake of Law)

R v Klundert 2004 (Supp.) [Mistake of law: When one knowingly violates law and mistakenly believes the law is invalid]


F: Optometrist stops paying income tax bc he believes fed. Gov does not have legislative power to impose or collect income tax. Defence: it was an honest protest against unlawful governmental action. Jury acquits him on tax evasion.

I: Is an honest belief that the Act is unconstitutional relevant in determining whether an accused has the requisite culpable mental state?

D: All crowns appeal, order new trial

R:


  • Fault component is “willfully”

  • A person who does not know that there is a tax imposed by the Act cannot do something for the purpose of evading payment of that tax

  • Or one may do something that has the effect of evading taxes, without purposefully evading them

  • The requisite knowledge or purpose may be negated by a mistaken belief

    • Ie. Makes math error = mistake of fact

    • Ie. Is unaware of definition of “income” = mistake of law

    • Ie. Is mistaken about the application of “income” to her affairs = mixture of both

  • Factual errors can negate the fault requirements of an offence requiring knowledge and purpose

  • A mistake as to one’s liability to pay tax under the Act may negate the fault requirement, and raise reasonable doubt as to whether an individual willfully evaded tax

  • Can accused’s belief that income tax is unconstitutional constitute a mistake of law negating the fault component of crime of tax evasion? No. He knew he owed taxes. His mistake was legal. He refused to pay due to belief that law requiring him to do so was invalid.

  • Difference btw one who mistakenly believes they are complying vs. one who knowingly violates but mistakenly believes it does not apply. The latter is not trying to obey the law, but deciding which laws should be obeyed

    • An acquittal based on mistaken belief as to the validity of the law would undermine rule of law

R: Mistake of law: When one knowingly violates law and mistakenly believes the law is invalid

  • Crime is committed if you willfully evade compliance with taxes

  • Thus, if you fail to pay tax intentionally, it could be said that you have breached this

  • But court recognizes that EVADE adds something extra. Must know that ITA imposes taxes, which requires knowledge of the law

TH 3.6: In Klundert, the Ontario Court of Appeal finds that the trial judge made an error, and orders a new trial as a result. The trial judge's error was in deciding that: The type of mistake made by the accused can ever be a defence to s 239(1)(d). That type of mistake cannot be a defence because his mistake was that he did not have to pay, not the amount he had to pay.


When is s 19 overruled by the Code and mistake of law IS relevant?


Colour of Right

  • Accused traded trailer for other item. When item broke, he went and took his trailer back – believed he could. NOT guilty bc he had an honest belief that he could take his trailer back

  • Accused kept rental car, planning to pay later. NOT guilty, he thought he could keep it as long as he wanted because he had an honest belief he was allowed to do what he did.

  • Therefore – for crimes like theft, mischief or any crime including colour of right, mistakes of law are permitted.

  • Its about legally believing you had the right to do it

Colour of Right: Why we have this exception?

  • Property laws are complex – disputes common violations (Eg howson) not deserving of criminal sanction.

  • Basic principle of s 19 – KNOW law before you act

  • Property crimes have a lower risk of harm (only deprivation of property that can be replaced with $$$)

  • Would never endorse “colour of right” with Violence offences

R v Howson 1966 p 502 [s 19 does not affect offence if accused acted under colour of right]


Facts: Employee of towing service charged with theft of car when he refused to give towed car back to owner until owner paid certain expenses. Convicted at trial and appealed.

Issue: Whether the accused had, under the circumstances, a colour of right sufficient to justify his refusal to release the vehicle – if not he would be guilty of theft

Decision: Acquit the accused

Reason:


  • S 19 does not affect s 269 because s 19 only applies when there is an offence. No offence if there is colour of right

  • Accused acted under genuine misconception of fact or law, so no offence committed

  • The accused was not trying to steal the car or intending to steal one

  • Acquit the accused

Ratio: s 29 does not affect offence bc there is no offence if there is colour of right.
TH 3.5: Because he believed he could hold the car, the accused in Howson did not act “with intent to deprive, temporarily or absolutely, the owner of [the car] of the thing”.

FALSE. He thought he could keep the car, which is a mistake of law. He gets treated differently bc he believed he had a colour of right. Colour of right (the belief that you had the right to do what you did) includes mistake of law, ie. S 19.



  • The mistake of fact or mistake of law is ONLY relevant if it deprives a person of the MR required for an element of the offence. Therefore – mistake of law matters in this offence.

R v Docherty 1989 p 503 [An offence requiring “willful” is exception to general rule expressed by s 19]


Facts: Accused charged with willfully failing to comply with a probation order. Charged with DUI. Was not aware that this breached probation order to “keep peace and good behavior”. Did not think he was breaking the law bc car could not be started. Trial judge acquitted. Appeal to SCC.

Issue:


Decision: Dismiss Appeal.

Reason: The offence of willful breach of probation order constitutes exception to general rule expressed in s 19. Accused cannot have willfully breached his order through commission of offence, unless he knew what he did constituted an offence. Since knowledge is requsite of MR of offence, absence of knowledge provides a good defence.

Ratio: An offence requiring “willful” is exception to general rule expressed by s 19.

Note: Subsequently parliament deleted the requirement that the breach be willful. Parliament can make a mistake of law relevant through statutory language


R v Prue and Baril 1979 p 505 [Accused lack of knowledge of licence suspension is mistake of fact]


Decision: Accused’s lack of knowledge that his license had been automatically suspended under provincial law after a driving offence was a “question of fact” and not of law

Reason:


  • Charged with s 238 (3): existence of a suspension from driving is a question of fact

  • Whether there has been an effective suspension is simply a question of fact

Dissent: (Ritchie J)

  • Failure to give notice or take admin step as is required is a question of fact and accused’s failure to know of the suspension is not a mistake of law

  • BUT R’s lack of knowledge was not occasioned by mistake of fact, rather ignorance of the law

  • Mistake as to the legal consequences of the conviction under s 236, which involve automatic suspension of licence

R v MacDougall 1982 SCC p 505 [Makes arbitrary distinction btw Prue and Baril – example where court had different feelings as to what was correct/what was equitable]


Facts: Accused charged with driving car while licence cancelled contrary to s 258(2) of Motor Vehicle Act. Following his conviction of the offence, accused sent “Order of Revocation of Licence”. When he appealed, he was sent a “Notice of Reinstatement”. Accused appeal dismissed. Later registrar sent “Order of Revocation of Licence”, which accused had not yet received when he was caught driving. Defence: Thought he could drive until he was notified by the registrar that his licence had been revoked. Acquitted. Appealed by crown to SCC.

Decision: Allow the appeal and order a new trial.

Reasons:


  • Trial Judge and CA affirm findings and held that they disclosed defence to charge as mistake of fact of accused.

  • It is actually mistake of law, to drive after his appeal had been dismissed. Therefore no defence to s 19 of Code

  • In Prue and Baril: case about enforcement of provincial enactment under which suspension is made – not to the enforcement of s 238 which is enforcement of driving suspense.

Did not know revocation had come through and was driving – therefore he is guilty. (Contradicts above case)
Prue and MacDougall: The Conflict Explained

  • Driving while under suspension is a crime

  • Majority of SCC in Pontes (1995) disapprove of MacDougall which was decided before the Charter.

MacFee [Mistake as to legality of consent is a mistake of law]


Kidnapped ex-wife, sexually assaulted her. Thought she consented. Cannot argue honest mistaken belief if it’s a mistake of law.

  • He thought she could consent in fear

Mistake of Law: Conflicting Principles


  • Important to enforce compliance with the law

  • People can’t decide for themselves which law they will respect

  • Law is complex

  • Is our law clear enough to punish people for every mistake

  • There is a degree of unfairness in punishing someone who didn’t know – especially when they tried to find out

R v Tavares 1996 (Supp) [CA was wrong saying it was Mistake of Fact, Actually Mistake of Law]


Fact: Captain of fishing vessel charged with unlawfully fishing for cod and redfish without Canadian vessel registration card contrary to Atlantic Fishing Regulations. Vessel did not have registration card, licence or fishing authorization. Exception for foreign vessels. Captain reasonably and honestly believed that ship was not a Canadian vessel. Trial judge found it was a Canadian vessel. Despite being registered in Panama, the owner is Canadian.

Issue: Whether the trial judge applied the correct test in interpretation of s 78.6 and whether accused established he was able to take advantage of the provisions of that section?

Decision: Judgment for Tavares. Allow the appeal, quash the conviction.

Reason:


  • S 78.6: No person shall be convicted of an offence if they establish that they exercised all due diligence to prevent the commission of the offence; or reasonably and honestly believed in the existence of facts that, if true, would render the person’s conduct innocent.

  • Trial judge found that the accused was not a party to the “Deliberate efforts” to avoid “Canadian creditors” and considered his testimony which constituted a basis for finding a reasonable honest belief, the trial judge concluded no such belief had been established

  • Cannot be said trial judge applied proper legal test for determination of reasonable and honest belief. Demanding that the accused demand of his employer proof that the vessel was panamian is beyond what legislation requires.

Ratio: Mistake of Law: Reasonably and honestly believed in facts

Note: If he did NOT know it was purchased in Canada it would be mistake of fact, but he knew it was purchased in Canada – therefore under Canada shipping act, which says boats purchased in Canada remain Canadian = mistake of law



  • Broke regulations if vessel was Canadian. Ship was bought in Canada. Registered in Panama. Captain knew it was bought in Canada. Believed it was Panamanian. Court concludes AR breached – it was Canadian.

  • CA is wrong! It is mistake of law. But CA feels that equity demands that Tavares goes free. He knew every fact that was material to his conviction. He knew it was bought in Canada so it’s a Canadian ship. If he argued that he thought it was bought elsewhere, this would have been mistake of fact


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