Officially Induced Error: Difference between revisions
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{{HeaderDefences}} | {{HeaderDefences}} | ||
==General Principles== | ==General Principles== | ||
A valid excuse for violating the law is on the basis of an officially induced error of law. <ref> | A valid excuse for violating the law is on the basis of an officially induced error of law. <ref> | ||
{{CanLIIRP|Jorgensen|1frg5|1995 CanLII 85 (SCC)|[1995] 4 SCR 55}}{{perSCC|Lamer CJ}}{{atsL|1frg5|28| to 37}}</ref> | |||
The defence arises where the accused is given advice in error that the accused relies upon in doing the criminal act. | |||
An 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.<ref> | |||
{{ibid1|Jorgensen}}<br> | |||
{{CanLIIRP|Halloran|2bz41|2010 ONSC 4321 (CanLII)|99 MVR (5th) 257}}{{perONSC|Sproat J}}<br> | |||
</ref> | </ref> | ||
This is an exception to the principle that ignorance of the law is no excuse.<ref> | This is an exception to the principle that ignorance of the law is no excuse.<ref> | ||
Jorgensen</ref> | {{supra1|Jorgensen}}</ref> | ||
This defence cannot be invoked for bad advice from court-house duty counsel as legal aid is not part of the government.<ref> | This defence cannot be invoked for bad advice from court-house duty counsel as legal aid is not part of the government.<ref> | ||
{{CanLIIRP|Pea|g1hzg|2008 CanLII 89824 (ON CA)|79 WCB (2d) 262}}{{perONCA|Gillese JA}} | |||
</ref> | </ref> | ||
; 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”<ref> | |||
{{supra1|Jorgensen}}{{atL|1frg5|30}}</ref> | |||
The defence arises in part out of the overly complex nature of regulation. <ref> | |||
The | {{supra1|Jorgensen}}{{atL|1frg5|25}}<br> | ||
{{CanLIIRPC|Lévis (City) v Tétreault; Lévis (City) v 2629-4470 Québec inc.|1n0zk|2006 SCC 12 (CanLII)|[2006] 1 SCR 420}}{{perSCC|LeBel J}} at 24</ref> | |||
; Remedy | |||
A successful application will result in a stay of proceedings.<ref> | A successful application will result in a stay of proceedings.<ref> | ||
{{supra1|Jorgensen}}</ref> | |||
; Elements | |||
The elements that must be proven are:< | The elements that must be proven are:<ref> {{supra1|Jorgensen}}{{atsL|1frg5|28| to 32}}<br> | ||
</ref> | </ref> | ||
#The error was one of law or mixed law and fact | #The error was one of law or mixed law and fact | ||
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#The accused must demonstrate reliance on the official advice | #The accused must demonstrate reliance on the official advice | ||
Each element must be proven on a balance of probabilities by the accused.< | Each element must be proven on a balance of probabilities by the accused.<ref> | ||
{{supra1|Jorgensen}}</ref> | |||
{{reflist|2}} | {{reflist|2}} | ||
Latest revision as of 07:08, 23 July 2024
| This page was last substantively updated or reviewed January 2015. (Rev. # 95802) |
- < Criminal Law
- < Defences
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.
An 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]
- The error was one of law or mixed law and fact
- The accused considered the legal consequences of her actions
- The advice obtained came from an appropriate official
- The advice was reasonable in the circumstances
- The advice obtained must be erroneous
- The accused must demonstrate reliance on the official advice
Each element must be proven on a balance of probabilities by the accused.[9]
- ↑ R v Jorgensen, 1995 CanLII 85 (SCC), [1995] 4 SCR 55, per Lamer CJ, at paras 28 to 37
- ↑
Jorgensen, ibid.
R v Halloran, 2010 ONSC 4321 (CanLII), 99 MVR (5th) 257, per Sproat J
- ↑ Jorgensen, supra
- ↑ R v Pea, 2008 CanLII 89824 (ON CA), 79 WCB (2d) 262, per Gillese JA
- ↑ Jorgensen, supra, at para 30
- ↑
Jorgensen, supra, at para 25
Lévis (City) v Tétreault; Lévis (City) v 2629-4470 Québec inc., 2006 SCC 12 (CanLII), [2006] 1 SCR 420, per LeBel J at 24 - ↑ Jorgensen, supra
- ↑ Jorgensen, supra, at paras 28 to 32
- ↑ Jorgensen, supra