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.
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), 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