Mr review 6 ignorance of law 6

Mistake of Law and Constitutional Considerations

R v Pontes 1995 SSC p 516 [Due Diligence is Constitutionally required for Strict Liability Offences]

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  A driver will automatically and without notice be prohibited from driving for 1 year. Since the prohibition is automatic and without notice, s 94 prevents an accused who is unaware from raising defence of due diligence
  

Decision: Acquitted.

Reason: Cory J

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  A Mistake as to what the law is does not operate as a defence
  
  • 
    The accused cannot defence through due diligence as to the legality of his actions or status – as rejected in Molis
    
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  Macdougall decision: 1) irreconcilable with R v Prue and Basil; 2) rendered prior to charter, and jurisprudence on minimal fault requirement has since evolved
  
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  In Prue: accused convicted of offence. Licences suspended. Drove and were charged not with violation of suspension but with s 238. But this required MR. Ignorance of the suspension of a lisence was mistake of fact.
  
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  Defence of due diligence must be available to defence strict liability offence
  
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  S 92 and s 94 remove the possibility of defence of due diligence since prohibition is automatic and no notice is required
  
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  Significance of Notice
  
  • 
    Fundamentally fair to give notice to the accused
    

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  S 7 does not require accused to be entitled to claim due diligence in relation to existence of statutory prohibition or its interpretation
  
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  To expand due diligence would eviscerate the ignorance of the law rule
  
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  The result of this action would overturn Molis
  
  • 
    Due diligence in relation to the fulfillment of a duty imposed by law, not in relation to the ascertainment of the existence of a prohibition or its interpretation
    
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  Disagree with Cory J, a defence of due diligence IS available for the impugned offence
  
  • 
    Just because an accused believes his prohibition ended/was shorter is not unfair, that is ignorance of the law (so what if its automatically applied and without notice)
    
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  BUT ignorance of the law can be successfully pleased as a factor in mitigation of sentence ie. Gets minimum fine
  
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  Defence of officially induced error – if the accused were misled by official – would not demonstrate absence of negligence in relation to AR of driving, but would rather be an additional defence thereto
  

Statutory Reform Proposal 1987 p 521

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  Ignorance of the law owing to non-publication of regulation is a defence
  
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  Mistake of law resulting from officially induced error may also be a defence
  

We should codify these!

Class Example (Supplementary Problem 4) [Mistake of Law vs. Mistake of Fact]

A kidnaps B, sexually assaults B. B consented out of fear, so A defence: I thought she consented. But, one cannot consent out of fear, so where threats and fear are part of her defence and he knew she was afraid – that is mistake of law. He thought that being afraid still meant she was consenting = wrong.

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  Its true that a person who honestly believes another has communicated consent lacks MR
  
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  BUT! S 265(3) says consent given while under fear or threats is NOT legal consent
  
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  A thought B consented, but knew it was driven by fear.
  
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  His thinking was legit consent is a mistake of law!
  
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  If you know of facts that make something illegal – any mistake is a mistake of law.
  
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  R v MacFie, 2001 ABCA 34
  
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  Note: Can’t bring up defence that she was afraid from something else
  

Class Example 2 (Anna, the Mother) [OIE]

Mother and father divorce, 14 yr old daughter. Custody gives father sole custody. Parents reconcile, but breaks down. Mother gets legal advice that wrongfully tells her reconciliation terminated order. Takes child against will of father and charged with offence under s 280.

Sexual Assault

General Basics

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  You can’t have sexual assault without an assault (must look at assault in 265) [because sexual assault is a crime of violence]
  
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  All elements of assault are in play, BUT modified by the Code
  
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  Three types of sexual assault: (no labeling differentiation btw rape/groping/forced kiss etc for purposes of conviction, evened out in sentencing)
  

1. 
   Simpliciter (271)
   
2. 
   With weapon/cause bodily harm (272)
   
3. 
   Aggravated (273)
   
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  Children treated differently mainly because of consent issues 150-153.1
  
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  Offences involving children can be prosecute Either under ss 150-153.1 OR using the usual provisions (for children not consenting)
  
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  Crime of General Intent (Ewanhuk)
  

R v Chase SCC 1987 p 632 [Sexual assault test objective, based on circumstances]

Facts: R neighbor of 15 yr old girl enters house grabs her breasts, she manages to make a phone call, he threatens that he will tell that she raped him. R charged with offence of sexual assault + guilty. Appeal to CA dismissed, a verdict of guilty of included offence of common assault under s 245.1, sentence of 6 month imprisonment.

Issue: What should he get charged with?

Decision: Sexual Assault

Reason:

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  Sexual assault is an assault, committed in circumstances of sexual nature, that violated sexual integrity of victim.
  
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  Objective test: Viewed in the light of all circumstances, is sexual context of the assault visible to the reasonable observer?
  
  • 
    Body touched, nature of conduct, situation, words, gestures, threats
    
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  Conduct of grabbing breasts = sexual, therefore sexual assault. Same sentence.
  

Note: If you don’t touch a sexual organ, it can still be a sexual assault if that was ur purpose ie. Touching shoulder/rubbing feet
TH: The analysis in Chase most resembles the reasoning in Goudin. Goudin: Objective MR acceptable for predicate offences.

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  Also if its sexual nature, much more vitiates consent
  
• 
  In regular assault there is implied consent
  

R v V (KB) p 633 [SSC argue whether lack of intention for sexual gratification was a decisive factor weighing against finding a sexual assault]

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