Ignorance of the law is no excuse…or is it?
by Tushar K. Pain
By Tushar K. Pain, Criminal Defence Lawyer
July 28, 2006
We have all heard it: Ignorance of the law is no excuse. But that's not entirely true. In a recent decision, Lévis (City) v. Tétreault; Lévis (City) v. 2629-4470 Québec inc. [2006] S.C.J. No. 12 (hereinafter Lévis), the Supreme Court of Canada confirmed its 1995 decision in Jorgensen and 913719 Ontario Limited v. The Queen (1995) 102 C.C.C. (3d) 97 (hereinafter Jorgensen) and re-iterated that there is a limited and narrow exception to this principle.
In Lévis, two parties were charged with operating a motor vehicle without having paid the registration fees. One of the parties raised the defence of officially induced error. In dealing with that issue, the Court stated that in Canada ignorance of the law is no defence. However, it acknowledged that the inflexibility of the rule did raise a concern where the error by the accused arose out of an error of a government official and the state then demanded that the criminal law be applied against the accused.
Referring to its decision in Jorgensen, the Court confirmed that the defence of 'officially induced error' is an exception to the rule that ignorance of the law is no defence. It applies once the wrongfulness of the act is established. Rather than an acquittal, the accused is entitled to a stay. In Jorgensen the Court stated that this defence must be proven by the accused on a balance of probabilities and, having established the defence, the stay would only apply in the clearest of cases.
In Lévis the Court lists six elements that the accused must prove:
1. An error of law or of mixed law and fact was made;
2. The person who committed the act considered the legal consequences of his or her actions (According to Jorgensen, this will generally be demonstrated where the accused shows that she considered that her conduct might be illegal and sought advice as a consequence.);
3. The advice came from an appropriate official (The test may be stated as follows: Would a reasonable individual in the position of the accused normally consider this official responsible for advice about the particular law in question?);
4. The advice was reasonable (In Lévis the Court states that it necessary to establish not only the objective reasonableness of the advice but also of the reliance upon it. Various factors may be considered including the efforts made by the accused to obtain information, the clarity or obscurity of the law, the position and role of the official who gave the information or opinion, and the clarity, definitiveness and reasonableness of the information and opinion. According to Jorgensen, the advice will generally be presumed reasonable where an appropriate official is consulted unless it appears on its face to be utterly unreasonable.);
5. The advice was erroneous; and
6. the person relied on the advice in committing the act (According to Jorgensen, this can be demonstrated by showing that the accused asked questions of the official specifically tailored to her situation before taking action.).
In Jorgensen the Court made it clear that this defence was available in the context of "true crimes" with a full mens rea component. Being distinct from a defence of due diligence, there was no reason to confine it to the regulatory offence context.
So, when might we see this defence arise in the context of a "true crime"? The defence of 'officially induced error' has arisen in several 'refuse to comply with breath demand' cases. A motorist is pulled over by the police. She admits to having a drink. The officer asks her to provide a roadside breath sample. The motorist asks, "What happens if I don't?"
The defence was advanced in the case of R. v. Smith [2001] O.J. No. 5925. Smith, a motorist, was pulled over by a police officer. The officer smelled alcohol on Smith's breath and noticed that his eyes were red and his face was flushed. The officer subsequently demanded that Smith provide a roadside breath sample.
Smith asked the officer about the consequences of refusing to do so. The police officer advised him that it was a criminal offence to refuse and that he would lose his licence for ninety days. The officer did not mention that if Smith were convicted, he would then lose his licence for a further period of one year. Smith declined to comply with the demand and was charged.
At trial Smith testified that he knew from television that the consequences of drinking and driving was the loss of one's driving licence for one year. Rather than risk losing his licence for one year, he opted to refuse to blow and take the 90-day suspension. Smith further testified that had he been made aware that there was also a one-year licence suspension upon being convicted for refusing to comply with a breath demand, he would have provided the sample and taken his chances with the breath test.
The trial judge found that the effect of the officer's response to Smith's question about the consequences of refusing was to provide incomplete legal information. He further found that Smith reasonably relied on this information in making his decision to refuse the officer's demand. The Court concluded that Smith had acted to his detriment on the basis of an officially induced error and that this was an excuse as contemplated in Jorgensen. Smith was acquitted.
DISCLAIMER: The information contained in this article is of a general nature applicable in the Canadian context and is not intended to be construed as legal advice. Do not rely on the accuracy or completeness of this information. Any question or concern elicited by this newsletter should be taken to a lawyer who will consider the facts of each case and the legal remedies available. If you have a legal problem, you should seek proper legal advice from a lawyer.
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Questions? Comments? Ideas? Opinions?
You can reach me as follows:
E-mail: tkpain@torontocriminaldefence.com
Voice: 416 410 4838
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Mail: 393 University Avenue, Suite 3000, Toronto, Ontario, M5G 1E6, CANADA
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Tushar K. Pain, Criminal Defence Lawyer
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© Copyright 2006 by Tushar K. Pain, Criminal Defence Lawyer. All rights reserved.
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