The Defence of Officially Induced Error

R v Jorgensen 1995 SCC p 508 [6 step test for OIE]

Issues: 1) Did the accused “knowingly” sell obscene material? 2) Did he do so without lawful justification or excuse?

Decision: OIE defence was not raised, so not considered. (Majority of SCC acquits on failure for crown to prove that he knew it was obscene)

Reason:

1. 
   Law requires the crown to prove that an accused retailer knew of the specific acts or set of facts which led court to conclusion that material in question is obscene.
   
   1. 
      Crown not required to prove that the accused KNEW the material was obscene in law (mistake in law) nor prove that accused viewed the obscene material.
      
   2. 
      Approval of film by Ontario film board does not negative the MR of this offence
      
   3. 
      TH 4.6: Because the definition of obscenity is determined by the Court not the OFRB
      
2. 
   Circumstances permit the accused to be excused from conviction on basis of officially induced error of law by virtue of Ontario film boards approval of films in question
   
   1. 
      Reasonable reliance on this type of official advice is sufficient basis for judicial stay of proceedings to be entered
      
   2. 
      This defence ensures that morally blameless are not made criminally responsible for their actions
      

• 
  Certain types of officially induced errors of law should be permitted to excuse an individual from criminal sanction for his actions. These do not conflict with four rationales for why we have the ignorance of law rule set out above
  
  • 
    Already have evidence of this in our legal system: ie. Accused excused when new law not published
    
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  Officially induced error excuses an accused, but does not negative culpability
  
  • 
    Due diligence is a full defence. If successfully raised, elements of the offence are not completed vs. Officially induced error functions as entrapment. (Stay of procedure: Accused has done nothing to entitle him acquittal, but state has done something which disentitles him to conviction)
    
  • 
    DD: may be necessary to obtain advice which grounds officially induced error ie. An accused who seeks to rely on this excuse must have weighed the potential illegality of her actions and made reasonable inquires. BUT this does not convert OIE into DD
    
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  When Can OIE be applied?
  
  • 
    For regulatory or “true crimes”
    
  • 
    Can be used where crimes say “without lawful justification or excuse”
    
  • 
    1) First determine that error was one of Law
    
  • 
    2) Demonstrated that accused considered legal consequences of her actions (ensures that responsible/informed citizenry is not undermined). Not sufficient if accused simply have assumed that her conduct was permissible.
    
  • 
    3) Advice obtained came from appropriate official (The State is wrongfully inducing you to break the law)
    
    • 
      Government officials involved in admin of law
      
    • 
      One whom a reasonable individual in position of accused would normally consider responsible for advice about particular law in question (independent legal advice does not count)
      
  • 
    4) Advice was reasonable. If appropriate official consulted, the advice obtained will be presumed to be reasonable unless it appears on its face to be UTTERLY Unreasonable
    
    • 
      Look to position/ role of the official
      
    • 
      Clarity, definitiveness and reasonableness of information or opinion
      
  • 
    5) Advice was erroneous
    
  • 
    6) Demonstrate reliance on advice (ie. Advice obtained prior to acting)
    

Key Points:

• 
  Defence: Its not obscene because OFRB said so. But OFRB cannot bind the courts definition of obscene. Thus accused made mistake of law. Made a mistake of fact when he said he did not know what was in the video, and that’s why he gets acquitted.
  
• 
  If he had looked at the video, Justice Lamer says he should still get a stay to defence of OIE. Stay = procedural argument stating that crown is not entitled to a conviction. = harder to prove and procedural defences are not part of crown’s burden
  

TH 4.8: What weaknesses or what is harsh about steps of OIE?

Step #3: The “state official” is too difficult to contact/ too strict

Step #4: If the advice from the official has to be reasonable, how is one who does not know the answer going to know what is reasonable advice

The fact that it’s a procedural defence: Putting burden of proof on D is unfair, difficult, should not be equated to entrapment. Should be no different than self-defence or necessity.

Levis (Ville) v Tetrault (2006) [Passive ignorance does not satisfy DD]

Decision: Could not use defence, does not apply.

Reasons: Could not have considered legal consequences, could not have acted in reliance. Lack of notice should have prompted action.