MISTAKE OF LAW
With mistake of fact, notions of fairness intervene to allow for error (flexible approach). With mistake of law, the system is very rigid – since the first CC there has been a provision ignorance of the law is not an excuse. This applies to ignorance, not mistake; however, this distinction has been given little treatment. Holmes says a less rigid approach might encourage ignorance where knowledge is desirable. Public policy sacrifices the individual to the general good. It is no doubt true that in many cases the criminal is not aware that he is breaking the law; however, the strict approach makes men know and obey – public order.
Mistake of Law: occurs when the mistake is not as to the actual facts but rather to their legal relevance, consequences, or significance. Law: an idea in the mind of men.
R. v. Esop (1836) Eng. HL
The prisoner, a native of Baghdad, was charged with committing an unnatural offence on board a ship. It was not an offence in his native country and he therefore was held to be not guilty. What is the rationale for imposing liability on one who doesn’t know the law without consideration of whether that person was blameworthy in the circumstances?
R. v. Campbell and Mlynarchuk (1973) Alta. Dist. Ct.
A stripper appealed a conviction on a charge of taking part in an immoral performance by ending it in the nude contrary to CC163.2. This case asserted that ignorance of the law cannot be used as a disclaimer for disobeying the law. “There would be a premium upon ignorance of the law” if this strict rule was not in place. Morrison says it demonstrates the problematic elements of this approach but it has survived Charter challenges. “It is not justified because it is fair, it is justified because it is necessary even though it will sometimes produce anomalous results.”
R. v. Forrester (1992)
The principle of criminal law that an honest but mistaken belief in respect to the legal consequences of ones actions is not a defense to a criminal charge even when it cannot be attributed to the accused.
EXCEPTIONS
1. COLOUR OF RIGHT
An honest but mistaken belief in a set of facts, which, if existed, would excuse the act done. This has been recognized in various CC provisions. It is generally accepted that these clauses are statutory exceptions to CC19 and can result from a pure mistake of law. In Errand, the accused was found guilty of importing gems contrary to the Customs Act. The accused’s belief that he didn’t have to declare the gems afforded him no excuse. Colour of right must relate to a mistake rather than simple ignorance. This defense is available for full mens rea – there is no reasonableness element. The mistake must be honest (subjectively tested) but not necessarily reasonable.
R. v. Howson (1966) Ont. CA
The accused operated a towing company and was requested by the superintendent of a private lot to impound a car that was parked without permission in the lot. Signs were everywhere indicating the lot was private. The owner was asked to pay towing and storage charges to the towing company before they would release it. The owner was charged with theft and was convicted. The appeal was allowed and the conviction was quashed. Under the circumstances the accused had a colour of right. The honest belief of the accused that he had a right to tow the vehicle entitled him to the benefit of the doubt. Why? Because there was a colour of right found expressly in that part of the CC.
2. IMPOSSIBILITY CONCERNING NON-PUBLICATIONS
Canadian courts are prepared to take in to account one special type of possibility where subordinate legislation has not been published, although there is no requirement of publication in a Gazette.
R. v. Ross (1944)
Court overturned a conviction of hunting without a permit because a ministerial order declaring an area closed ha not been spread and there was no evidence that the hunters could have known. The rationale is that it is impossible for a person to ascertain and comply with the law when it was not available to the public.
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