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Lecture 7

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Carleton University
LAWS 2302
John Hale

Lecture 7 Mistakes - Mistake of Fact, is the only one that can be used as a defense, because it means that there was no mens rea, you are morally not guilty. If your mistake was because you did not know it was against the law there is no defense. Mistake of law - s. 19: Ignorance of the law by a person who commits an offence is not an excuse for committing that offence. - R. v. Esop (1836, p. 713) • It is not a defence to say, “What I did may be illegal here, but it is not illegal in the country where I come from and I had no idea that it was illegal. • Issue was that he was from a different country and did not know it was against the law, the onus is on the person to know the law to that country they are going to - R. v. Aryeh (1972, Ont. CA) • Facts: ∆ brought jewelry into Canada in his wife’s name  ∆ thought he had the right to do so, and not pay duty  ∆ had an innocent state of mind • Held: majority: ignorance of the law is not a defence, even where ∆ makes an honest mistake  minority (Brooke J.A.): ∆ had no blameworthy state of mind, therefore no mens rea, therefore not guilty  *is there a moral difference between mistake of law and mistake of fact? • Accused brought jewelry to Canada in his wife’s name. He did not claim it at the border, he said he had an innocent mind and should not be found guilty. However it was found that the onus is on the person to know the law. Color of right - An honestly held belief in entitlement to property - Defense that applies to property issues, an honestly held belief to their entitlement of property - 322(1) Every one commits theft who fraudulently and without color of right takes… anything, whether animate or inanimate, with intent • (a) to deprive, temporarily or absolutely, the owner of it… - 429(2) No person shall be convicted of an offence under sections 430 to 446 where he proves that he acted with legal justification or excuse and with color of right. - R. v. Howson (1966, Ont. C.A.) • Facts: Haines had parked his car in a lot, clearly marked “private property, no parking, cars will be towed”  Haines says he parked on a cold wintry night and never saw the signs  when Haines returned, his car was gone  car had been towed; superintendant had called the towing company  Haines could not get it unless he paid $10 towing and $2 storage  ∆ had taken the car on the authority of the owner of the building and had it impounded  ∆ operates Ace Towing Service  in fact have lawful authority to take the car, but not to keep it for ransom  Haines charged ∆ with theft for taking his car, after paying to get it back • Decision: ∆ had honest but mistaken belief that he had a right to take the car  ∆ had no intention to steal the car  ∆ had a colour of right, i.e., an honest but mistaken belief that he had a right to the property  Point: “colour of right” is an exception to the general rule that mistake of law is not a defense  The defence will only work once for a given accused; here, and his firm were put on notice that they can’t continue to take cars and then hold them for ransom, and they can’t rely on the defence again • Owned a tow truck company, Hanes parked his car on a lot that was on private property, Hanes said he did not see the signs and parked his car. The Superintendent called the company to tow the car away. He could not get his car if he did not pay the towing fee, and the fee for keeping the vehicle. Howson was charged with theft for taking the car. He has a defense of color of right, he had the belief that he was allowed to take the car. The Court makes the obvious point that he cannot make the color of right defense once. - R. v. Drainville (1991, Ont. Prov. Ct., p. 727) • Facts: ∆ is a priest and an elected member of the provincial Legislature; involved in civil disobedience when he, along with other protesters, blocked a roadway for an hour  Applies Howson: “colour of right” refers to an honest but mistaken belief in a legal right to do something  Here, ∆ felt that he had a moral right to block the road; this does not amount to colour of right, and is not a defence • Was a priest and an MPP, him and other protesters took a protest that stopped traffic in a busy street. Drainville said he has a right to do that, freedom of speech. Court said that because you believe that you are morally allowed is not the same as legally allowed to do. The defense was not allowed in this case Mistake of law - R. v. Campbell and Mlynarchuk (1972,Alta. Dist. Ct., p. 713) • Appeal from conviction for taking part in an immoral performance • Facts: ∆ is a go-go dancer, “which, I understand, is a violent movement of almost all parts of the body, more or less in time to strongly rhythmic music”  at the start of performance, she was wearing some clothes; at the end she wasn’t  she had been told by Pierre Couchard, her employer, that he had spoken to a Supreme Court Judge who had told him that they could go ahead with bottomless dancing  TheAlta. C.A. had recently ruled in R. v. Johnson (No. 1) that bottomless dancing falls w/in s. 163(2), and this decision was being appealed to the Supreme Court of Canada • Issue: is mistake of law available as a defence? • Held: no - absolute discharge • Ratio: in some cases a mistake of law is a defence because it negates a specific intent  this is a general intent offence  in cases where an accused has an honest but mistaken belief in the state of the law, sympathy for the accused is expressed not by acquitting but by granting a lesser sentence  there is a policy behind s. 19: it exists not because it is fair, but because it is necessary • Exotic Dancers, their boss said that they talked to a SCC Judge and said that they are allowed to dance with all of their clothes, and they were charged with committing an immoral performance. They said that they were told by their boss that it was legal. Are they morally guilty? No. The Court gave them an absolute discharge. It did not give rise to a defense. Officially Induced Error - People who get advice to do something they believe is legal however is not.Anew defense called officially induced error - R. v. MacLean (1974, N.S. Co. Ct.) (first Canadian case) • In MacLean, Justice O’Hearn was sympathetic to an accused who had been prohibited from driving after refusing a breathalyzer. MacLean worked at the Halifax airport. He made conscientious efforts to find out if he could drive on airport property without a licence. He obtained permission from the Registrar of Motor Vehicles. • O’Hearn relied on U.S. cases to support this new defence of officially induced error • Refused to do a breathalyzer test previously. He worked at an airport. The Registrar at Motor Vehicles said that he is allowed to drive on airport property but not on the road. However The Registrar was wrong, the Court said that it should be a defense when a government official gives you a defense. The Justice in this case relied onAmerican cases. - R. v. Potter (1978, PEISC) • In 1978, in R. v. Potter (PEISC), McQuaid J. praised the decision in MacLean but felt that he could not follow it. (∆ had imported a gambling device, which he thought was legal because he got the OK from customs officials.) • McQuaid gave an absolute discharge instead • They said our law does not allow ignorance of the law as a defense. In the Potter case, the accused imported a gangling device, and got an Okay about by Custom Officials. Once he sets it up the police arrested him. He said that he followed the advice of customs. The Judge felt sympathetic and gave him a discharge. Lowest sentence. - R. v. Cancoil Thermal Corporation and Parkinson (1986, Ont. C.A.) • Appeal by Crown from ∆’s acquittal • Facts: ∆ charged with offence under Occupational Health and SafetyAct  operated dangerous machinery without a guard; thought that the guard created more of a hazard  an employee accidentally cut off the tips of 6 fingers  before operating the machinery, pointed the problem out to an inspector;  inspector indicated that it was safe to remove the guard • Point: defence of officially induced error of law exists where 1. ∆ adverts to possibility of illegality 2. ∆ gets advice from official who is responsible for the administration or enforcement of the law, who says ∆ is not acting illegally 3. ∆ acts in reliance on this advice 4. the reliance was reasonable, which depends on following factors: a. efforts made to ascertain the proper law; b. complexity or obscurity of the law; c. position of the official who gave the advice; d. clarity, definitiveness and reasonableness of advice given • In other words, ∆ must show due diligence • Applied only to regulatory offences • CanCoil thermal had a dangerous piece of machinery at its business, regulations said that there has to a guard around the machinery. Cancoil believed it caused more of a danger, and brought in a safety inspector and the inspector agreed that they do not have to install the guard. One ind. Got his hand caught in the machinery, and lost the tips of 6 of his fingers. They were charged with not having a safe business under the Health and SafetyAct, Provincial. Officially Induced error, is recognized for a provincial offense. - R. v. Metro News Ltd. (1986, Ont. CA) • ∆ convicted by a jury of distributing an obscene publication (December 1984 edition of Penthouse); appeals to Ont. C.A. • Facts: ∆ is a corporation which distributes newspapers, magazines and paperback books to retail stores  ∆ handles Time, MacLean’s, etc.; over 2000 titles per year  ∆ also distributes 50 “adult” magazines such as Playboy and Penthouse  Penthouse has over 3,000,000 issues sold worldwide per month, representing about 10,000,000 readers  About 300,000 copies per month sold in Canada, with about 1,000,000 readers  Penthouse is created in New York primarily for distribution in U.S.  (1) Canada Customs:Amock-up version is submitted to Canada Customs’ Prohibited Importations Branch, where it is examined and publisher is notified of any objections  Penthouse then makes necessary changes and resubmits the published magazine to Canada Customs  If magazine is acceptable, it is then permitted to be distributed  The December 1984 issue was accepted after 4 changes were made  (2) The Ontario Advisory Committee: ∆ belongs to a trade association called Periodical Distributors of Canada  prior to 1976, a committee called theAttorney-General’s Committee on Objectionable Literature performed the function of screening magazines to determine whether they were objectionable or not; this committee was disbanded  in 1976, a number of PDC members went to theA-G of Ontario because of problems that wholesalers had in determining what material was obscene; they requested that theAGCOL be revived  A-G declined tor evive the Committee, but suggested that the PDC establish their own advisory committee; also recommended that they selectArnold Edinborough, who had been on theAGCOL, be on the advisory committee  PDC established the OntarioAdvisory Committee on Contemporary Literature, withArnold Ediburgh as its chair. The committee also included Mrs. Toby Levinson, a clinical psychologist, andAlan Grant, a law professor.  Before distribution, copies of adult magazines are sent to the advisory committee  Between March 1984 and March 1985, the committee rejected over 30 magazines  The committee approved the December 1984 issue of Penthouse  “The focus of the prosecution was a set of photographs entitled “Sakura”, which occupies 10 pages in the December 1984 issue of Penthouse. The photographs were taken byAkira Ishigaki, a Japanese photographer. Suffice it to say by way of description of “Sakura” that a number of the photographs depict young women bound by ropes with the genitalia displayed and in several of the photographs the ropes pass between the labia. Two of the photographs depict a bound woman hanging from a tree.” • Expert evidence  (1) Maude Barlow, consultant to the Task Force on the Status of Women, founder of the Canadian Coalition against Media Pornography, member of Media Watch Canada: photographs were beyond what the Canadian community was prepared to tolerate other people seeing; it made no difference that the photographs were “artistic”; testified that in her conversations with thousands of people, the Canadian community is becoming increasingly concerned about the distribution of material depicting a combination of sex and violence.  (2) Mrs. Mary Brown, Chairman of the Ontario Film Board: agreed that the Canadian community would not tolerate distribution of the “Sakura” photographs; agreed that community is concerned about combination of sex and violence  (3) Peter Webb: qualified as an expert in art and art history. Many of the photos in Penthouse had also been included in the March 1984 issue of Photo Magazine, which sold 5000 copies in Canada. Described the Sakura photos as “very fine examples of fine art photography”. He testified that in the photos, Ishigaki “was clearly attempting to explore, through the use of creative skill, areas of imagination and fantasy by creating extraordinary surrealist images which attempted to create a strange haunting dream world, which had nothing to do with pornography.” Similar work had been displayed in New York photo galleries  (4) Arnold Edinborough, chair of OntarioAdvisory Committee; formerly assistant professor of English at Queens, and editor of Saturday Night magazine; president of Council for Business and theArts in Canada; Chairman of Royal Society of the Arts, Toronto Chapter, vice-president of Massey Hall and Roy Thomson Hall: testified that the models were very carefully posed the photographs were unusual, were obviously from a different culture, and not easily judged by NorthAmerican standards. Photos did not depict violence or cruelty, nor were they an attempt to arouse the viewer in any context, either sexual or violent.  (5) Mrs. Toby Levinson, clinical psychologist: did not see any evidence of blatant eroticism or violence; photos were bizarre and very difficult to understand. Committee had very carefully considered whether to approve, as they had rejected a number of magazines that depicted combination of sex and violence. Felt that the photos would be acceptable to the Canadian community. • s. 159(6): Where an accused is charged with an offence under subsection (1) (publishing obscenity, etc.) the fact that the accused was ignorant of the nature or presence of the matter, picture, model (etc.) is not a defence to the charge. • Issues: (1) Is s. 159(6) unconstitutional, in that it creates an absolute liability offence? (2) Is mistake of fact a defence? (3) Is due diligence a defence? • Held: (1) Yes, unconstitutional; (2) No; (3) Yes  Bottom line: mistake of fact must be both honest and reasonable  this is true in any case where proof of actus reus “imports the offence”, or is prima facie proof of the mens rea  examples: distributing obscene materials; assaulting a peace officer  ∆ does not have to prove mistake; must only raise a reasonable doubt • Canada Customs • OntarioAdvisory Committee R. v. Jorgensen - Facts: ∆ owns and operates a store in Scarborough called “Adults Only Video and Magazine” 1* undercover Metro Toronto cops bought 8 videotapes from ∆’s store 2* the tapes had been approved by the OFRB 3* the cops concluded that the tapes were obscene, even though the censor board had passed them 4* Movies: “Oriental Taboo”, “D-Cup Delights”, “La Bimbo”, “The Honeymooners”, “Lawyers in Heat”, “Kinky Sluts”, “SecretAction Man”, “Suzy Superstar III” 5* Robert Payne, chair of OFRB, testified as expert witness for defence at trial; felt that the movies were no obscene 6* Trial Judge found that films were degrading and dehumanizing and were obscene - Issue: (1) Did ∆ knowingly sell obscene matter, pursuant to s.163(2)(a)? (2) Is there a defence of officially induced error due to ∆’s reliance on OFRB approval? - Held: (1) No (9:0); he didn’t know what was in the movies. (2) Yes (per Lamer CJC alone; other judges had no comment) - Ratio: (per Lamer CJC): officially induced error of the law should exist as an excuse for criminal behaviour • i.e., it does not exonerate and is not a defence, but is simply an excuse • Lamer agrees with the following statement of O’Hearn Co. Ct. J. in R. v. Flemming (1980): “Most people would consider it radically unjust for the same government to prosecute an individual for an offence that it had already assured him was not an offence, through one of its bureaus.” • Lamer: Such prosecution would bring the administration of justice into disrepute. • In Cancoil, the Ont. C.A. cited the complexity of regulations as a justification for the defence of officially induced error re regulatory offences • For the same reasons, the excuse should expand to apply also to crimes • similar to entrapment, in that the accused has done nothing to entitle him to an acquittal; instead, the state has done something which disentitles it to a conviction • like entrapment, the result should be a stay of proceedings, not an acquittal • like entrapment, ∆ has the burden of proving the defence on a balance of probabilities R. v. Jorgensen - Requirements for the defense/excuse to succeed: 1. Must be an error of law 2. ∆ considered the legal consequences of his actions, i.e., (a) ∆ considered that conduct may be illegal, and (b) ∆ sought advice 3. ∆ obtained advice from an appropriate official; examples include govt. officials involved in the administration of the law; The official must be one whom a reasonable person in the position of the accused would normally consider responsible for advice about the particular law in question 4. advice was reasonable in the circumstances (a very low threshold: the advice will be presumed to be reasonable if it comes from an appropriate person unless it appears on its face to be utterly unreasonable) 5. The advice must have been erroneous 6. ∆ relied on the erroneous advice - First time brought to the SCC. He owns anAdult Movie and Magazine store, Some officers bought a few tapes, these tapes were approved by the sensor board, even though they were approved, The Police officers came to the conclusion that they were obscene. Pornography that was taken to the extreme and is in bad taste with the rest of the community. Jorgensen was charged with possessing obscene material, his defense was that how is he suppose to know its obscene porn. The Court came to the conclusion that how is he suppose to know what movies are in his store. Majority said that he is not guilty because he did not know it was there. The Chief Justice said that this should be found that it was officially induced error. Officially Induced Error - Lévis (City) v. Tetreault (2006, SCC, p. 733) • “stay of proceedings”. Crown is not allowed to prosecute any further • Recognized the defense of officially induced error. • Do not acquit because he committed a crime however he was lead a stray from a government official.Astay of proceedings take a period of 12 years before its dismissed - R. v. Pea (2008, OCA, not in text) • ∆ failed roadside breath test in Newmarket; arrested for Over 80 • at station, ∆ spoke with Duty Counsel who told ∆ not to give any breath samples and “to reject the police request to do anything” • ∆ refused to give a breath sample, and was charged with refusal • at trial, ∆ sought a stay of proceedings based on officially induced error • trial judge believed ∆, but rejected the defense • Issue: can ∆ rely on OIE where the “official” is state-paid Duty Counsel? i.e., is Duty Counsel a government official? • Held: No; application for leave to appeal dismissed  17 The principle that ignorance of the law is no defence has been firmly and consistently applied by the courts. Even those who commit offences in good faith while relying on the mistaken advice of their legal counsel may not defend on the basis of ignorance of the law: see, for example, Regina ex rel. Irwin v. Dalley (1957), 118 C.C.C. 116 (Ont. C.A.) at pp. 123-24; R. v. Giroux (1981), 63 C.C.C. (2d) 555 (Que. C.A.) at p. 561, leave to appeal to S.C.C. refused, [1981] S.C.C.A. No. 58; R. v. Kotch (1990), 61 C.C.C. (3d) 132 (Alta. C.A.) at p. 138.  18 The inflexibility of this rule causes concern, however, when a person acts as a result of an error of an "authorized representative of the state" and the state then demands that t4e criminal law he applied strictly to punish the person for his or her conduct. In such a case, the fundamental fairness of the criminal process would appear to be compromised. Consequently, the law has recognized the defence of officially induced error which, if proved by the accused on a balance of probabilities, entitles the accused to a stay of the charges. 5  19 Like the trial judge and the summary conviction appeal judge, I see the solicitor-client relationship between duty counsel and a detainee to be very similar to the relationship between a privately retained lawyer and a detainee. In that regard, I agree with the emphasis that the judges below placed on the fact that a detainee's conversation with duty counsel is protected by the same solicitor-client privilege as that which governs other solicitor-client relationships.  20 In Lévis, the Supreme Court described a government official, for the purpose of officially induced error, as "an authorized representative of the state" -- that is, a person with the power to speak on behalf of the government. In providing legal advice protected by solicitor-client privilege, duty counsel does not speak on behalf of the government or give official approval to conduct. Rather, duty counsel offers the detainee legal options and advice based on the available information. Far from being "an authorized representative of the state", duty counsel is an independent source of legal assistance in the detainee's confrontation against the state. Even the physical requirements emphasize this differentiation in that a detainee's consultation with duty counsel must be confidential and take place in private, away from the eyes and cars of the police.  21 Further, like the judges below, I do not accept that the duty counsel becomes a "government official" simply as a result of being paid by public money or because police are obligated to facilitate a detainee's contact with duty counsel. Those factors do not diminish the fundamental nature of the relationship that exists between the detainee and duty counsel.  22 Nor do I think it is sufficient that the accused may have believed that duty counsel was a government official.Assuming that a mistaken belief that a person has the power to speak on behalf of the state may suffice, that mistake must be reasonable in all of the circumstances. That is, it is not sufficient to conduct a purely subjective analysis when determining whether the elements of the defence have been made out, In para. 27 of Lévis, the Supreme Court states that it is necessary to establish the objective reasonableness of the advice and reliance on the advice. Similarly, in my view, when assessing the position and role of the person who gave the information or advice to decide whether that person was an "authorized representative of the state", it is not sufficient to take a purely subjective approach, That assessment must also be considered from the perspective of a reasonable person in a situation similar to that of the accused. In the circumstances of this case, I do not see a reasonable person in the applicant's position as viewing the duty counsel as an authorised representative of the government. Even a naive detainee should recognise that duty counsel is not speaking on behalf of the state.  23 Afurther consideration is significant. If reliance on advice from duty counsel could constitute officially induced error, then detainees who speak to duty counsel will have available a defence that is unavailable to those who speak to privately retained lawyers. If mistake of law is not a valid defence for those who rely on the erroneous advice of privately retained lawyers, it does not make sense that those who receive the same advice from duty counsel should be afforded an exception to the rule that ignorance of the law is no defence.As a matter of criminal law policy, it cannot be right that some persons could avoid conviction simply because they received erroneous advice from duty counsel instead of a privately retained lawyer. • “Duty counsel” • Accused brought to the station because the police thought he was intoxicated. They wanted to have a breathalyser; however he has a right to counsel. There is a duty counsel who can give advice to detainee, but they are paid by the government. Duty Counsel told him not to use the breathalyser, the police charged him with refusing to take a breathalyser test. Pea’s defense was that he was told by Duty Counsel, to not take the breathalyser. • Court ofAppeal would not let the defense of Officially Induced Error, because it would set precedent for Duty Counsel to give bad advice and people would get off the crime. __________________________________________________________________________ Incapacity and Impairment - Insanity and Mental Disorder R. v. Da
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