Officially Induced Error

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General Principles

A valid excuse for violating the law is on the basis of an officially induced error of law. [1] The defence arises where the accused is given advice in error that the accused relies upon in doing the criminal act.

Officially induced error is available as a defence to prevent morally blameless individuals, who believe they are acting in a lawful manner, from being convicted.[2]

This is an exception to the principle that ignorance of the law is no excuse.[3]

This defence cannot be invoked for bad advice from court-house duty counsel as legal aid is not part of the government.[4]


Purpose
The purpose of the defence is to prevent injustices where the “state approving conduct with one hand and seeking to bring criminal sanction for that conduct with the other”[5]

The defence arises in part out of the overly complex nature of regulation. [6]

Remedy
A successful application will result in a stay of proceedings.[7]

Elements
The elements that must be proven are:[8]

  1. The error was one of law or mixed law and fact
  2. The accused considered the legal consequences of her actions
  3. The advice obtained came from an appropriate official
  4. The advice was reasonable in the circumstances
  5. The advice obtained must be erroneous
  6. The accused must demonstrate reliance on the official advice

Each element must be proven on a balance of probabilities by the accused.[9]

  1. R v Jorgensen 1995 CanLII 85 (S.C.C.), (1995), 4 SCR 55 at paras 28 to 37
  2. R v Jorgensen
    R v Halloran, 2010 ONSC 4321 (CanLII)
  3. Jorgensen
  4. R v Pea, 2008 CanLII 89824 (ON CA)
  5. R v Jorgensen at para 30
  6. R v Jorgensen, at para 25
    Lévis (City) v Tétreault; Lévis (City) v 2629-4470 Québec inc., 2006 SCC 12 (CanLII) at 24
  7. R v Jorgensen
  8. Jorgensen at paras 28 to 32
  9. R v Jorgensen

Case Digests

See Also