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>R v Jorgensen [http://canlii.ca/t/1frg5 1995 CanLII 85] (S.C.C.), (1995), 4 SCR 55 at paras 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. | A valid excuse for violating the law is on the basis of an officially induced error of law. <ref>R v Jorgensen, [http://canlii.ca/t/1frg5 1995 CanLII 85] (S.C.C.), (1995), 4 SCR 55{{perSCC|Lamer CJ}} at paras 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> | |||
Jorgensen{{ibid}}<br> | |||
R v Halloran, [http://canlii.ca/t/2bz41 2010 ONSC 4321] (CanLII)<br> | R v Halloran, [http://canlii.ca/t/2bz41 2010 ONSC 4321] (CanLII){{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> | Jorgensen{{supra}}</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> | ||
R v Pea, [http://canlii.ca/t/g1hzg 2008 CanLII 89824] (ON CA) | R v Pea, [http://canlii.ca/t/g1hzg 2008 CanLII 89824] (ON CA){{perONCA|Gillese JA}} | ||
</ref> | </ref> | ||
'''Purpose'''<br> | '''Purpose'''<br> | ||
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> | 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>Jorgensen{{supra}} at para 30</ref> | ||
The defence arises in part out of the overly complex nature of regulation. <ref> | The defence arises in part out of the overly complex nature of regulation. <ref>Jorgensen{{supra}}, at para 25<br> | ||
Lévis (City) v Tétreault; Lévis (City) v 2629-4470 Québec inc., [http://canlii.ca/t/1n0zk 2006 SCC 12] (CanLII) at 24</ref> | Lévis (City) v Tétreault; Lévis (City) v 2629-4470 Québec inc., [http://canlii.ca/t/1n0zk 2006 SCC 12] (CanLII){{perSCC| LeBel J}} at 24</ref> | ||
'''Remedy'''<br> | '''Remedy'''<br> | ||
A successful application will result in a stay of proceedings.<ref> | A successful application will result in a stay of proceedings.<ref> | ||
Jorgensen{{supra}}</ref> | |||
'''Elements'''<br> | '''Elements'''<br> | ||
The elements that must be proven are:<Ref> Jorgensen at paras 28 to 32<br> | The elements that must be proven are:<Ref> Jorgensen{{supra}} at paras 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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Each element must be proven on a balance of probabilities by the accused.<Ref> | Each element must be proven on a balance of probabilities by the accused.<Ref> | ||
Jorgensen{{supra}}</ref> | |||
{{reflist|2}} | {{reflist|2}} | ||
Revision as of 19:50, 22 November 2018
- < 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 (S.C.C.), (1995), 4 SCR 55, per Lamer CJ at paras 28 to 37
- ↑
Jorgensen, ibid.
R v Halloran, 2010 ONSC 4321 (CanLII), per Sproat J
- ↑ Jorgensen, supra
- ↑ R v Pea, 2008 CanLII 89824 (ON CA), 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), per LeBel J at 24 - ↑ Jorgensen, supra
- ↑ Jorgensen, supra at paras 28 to 32
- ↑ Jorgensen, supra