R. v. Jorgensen

R. v. Jorgensen
Collection
Supreme Court Judgments
Date
1995-11-16
Report
[1995] 4 SCR 55
Case number
23787
Judges
Lamer, Antonio; La Forest, Gérard V.; L'Heureux-Dubé, Claire; Sopinka, John; Gonthier, Charles Doherty; Cory, Peter deCarteret; McLachlin, Beverley; Iacobucci, Frank; Major, John C.
On appeal from
Ontario
Subjects
Criminal law
Notes
SCC Case Information: 23787
Decision Content
R. v. Jorgensen, [1995] 4 S.C.R. 55
Randy Jorgensen and
913719 Ontario Limited Appellants
v.
Her Majesty The Queen Respondent
Indexed as: R. v. Jorgensen
File No.: 23787.
1995: February 21; 1995: November 16.
Present: Lamer C.J. and La Forest, L'Heureux‑Dubé, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major JJ.
on appeal from the court of appeal for ontario
Criminal law ‑‑ Obscenity ‑‑ Selling obscene material ‑‑ Mens rea ‑‑ Accused charged with "knowingly" selling obscene material without lawful justification or excuse ‑‑ Interpretation of "knowingly" ‑‑ Whether s. 163(2) of Criminal Code requires that retailer have knowledge of specific acts which make material obscene in law -- Whether sufficient for Crown to show that retailer had general knowledge that materials deal with exploitation of sex ‑‑ Criminal Code, R.S.C., 1985, c. C‑46, s. 163(2) , (8) .
Criminal law ‑‑ Obscenity ‑‑ Selling obscene material ‑‑ Effect of provincial film board approval ‑‑ Accused charged with knowingly selling obscene material "without lawful justification or excuse" ‑‑ Whether provincial film board approval of obscene material negates mens rea of offence -- Whether film board approval provides legal justification or excuse ‑‑ Criminal Code, R.S.C., 1985, c. C‑46, s. 163(2) , (8) .
J is the sole officer of the co-accused company which owns and operates an adult video store. Undercover police agents purchased eight videotapes from that store and, despite the fact that the Ontario Film Review Board ("OFRB") had approved all of them, J and his company were charged with eight counts of "knowingly" selling obscene material "without lawful justification or excuse" contrary to s. 163(2) (a) of the Criminal Code . The trial judge found three of the eight videos to be obscene within the meaning of s. 163(8) of the Code because some of their scenes portray explicit sex coupled with violence. She also found that, with respect to the mens rea for a s. 163(2) offence, the Crown must prove beyond a reasonable doubt that the accused are aware of the presence or nature of the matter that constitutes the subject of the charge in a general sense. It is not necessary that the Crown prove the accused were aware of the specific factual contents of the forbidden material at issue. The trial judge rejected the arguments made by the accused that the OFRB approval negates any possibility that an accused acted knowingly, or constitutes a lawful justification or excuse. The accused were convicted on the three counts relating to the obscene videos. The Court of Appeal upheld the convictions.
Held: The appeal is allowed and a verdict of acquittal entered.
Per La Forest, L'Heureux‑Dubé, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major JJ.: It is a general rule of statutory construction that the term "knowingly" used in a criminal statute applies to all elements of the actus reus, and there is nothing in the language of s. 163(2) , or in its legislative history, to suggest that the word "knowingly" should be given a restricted meaning. In including the word "knowingly" in s. 163(2) , Parliament chose to set an onerous standard of proof in the case of sellers or retailers. Thus, to satisfy the mens rea requirement of the offence under s. 163(2) , the Crown must show not only that the retailer was aware that the subject matter of the material had as its dominant characteristic the exploitation of sex, but also that he knew of the specific acts which make the material obscene in law. Material is generally obscene if it involves explicit sex with violence, or explicit sex which is degrading or dehumanizing. If the court is unable to specify any particular scene but still concludes that, overall, the film is obscene in law, then sufficient proof must be offered to show that the retailer was aware of the "overall" obscene nature of the film.
A retailer, however, will not be immune from charges merely because he does not know how the law defines obscenity. This would amount to the defence of mistake of law and it is well established that ignorance of the law is no defence. Further, proof that a retailer had "knowledge" that he was selling obscene material does not necessarily require the Crown to prove that he actually viewed the obscene material. "Knowledge" of the obscene character of the film can be acquired by means other than direct viewing. In this regard, in appropriate circumstances, the Crown can avail itself of the principles of wilful blindness. Deliberately choosing not to know something when there are reasons to believe further inquiry is necessary can satisfy the mental element of the offence. The approval of a film by a provincial censor board may be relevant to the issue of wilful blindness.
The accused's reliance on the OFRB approval does not negate the mens rea of the offence. The OFRB screens and classifies films, but it is not its function to determine whether a film is obscene. While the approval of a film by a provincial censor board may be relevant to the determination of community standards of tolerance, the approval is not relevant with respect to the issue of the accused's knowledge. The question whether a film exceeds community standards of tolerance may be characterized as a question of mixed fact and law. As such, the Crown need not generally prove intent or knowledge where these mind states are otherwise an essential ingredient of the offence, nor can the accused rely on a mistake of fact in relation to the issue. Accordingly, if the Crown establishes that the accused knew of the presence of the specific acts or set of facts in the film which the court finds exceed community standards, that is sufficient for a conviction. The Crown need not prove that the accused knew that the film exceeded community standards.
Furthermore, approval by a provincial censor board does not constitute a justification or excuse. First, one level of government cannot delegate its legislative powers to another. Second, approval by a provincial body cannot as a matter of constitutional law preclude the criminal prosecution of a charge under the Criminal Code . In using the words "lawful justification or excuse", Parliament did not intend that conduct which is criminalized by s. 163(2) be rendered lawful, or that the person engaging in it be excused, as a result of a decision of a provincial body.
Since there was no evidence in this case to suggest any knowledge on the part of the accused, beyond the fact that the videos in question were sex films in the general sense that they involved the exploitation of sex, the Crown did not satisfy the mens rea requirements of s. 163(2) and the accused are entitled to an acquittal.
The issue of officially induced error of law as an excuse has not been considered in this appeal because the matter was not raised either here or in the courts below. It would be preferable to address this issue in a case in which it is properly raised and argued.
Per Lamer C.J.: There is agreement with Sopinka J.'s reasons on the question of the requisite mens rea for the offence under s. 163(2) of the Criminal Code , and with his conclusion that the OFRB approval of a film cannot negative the mens rea of this offence. On the question of whether the accused acted "without lawful justification or excuse", while the OFRB approval of the films did not justify the accused's criminal actions, in the circumstances of this case it would have permitted the accused to be excused from conviction on the basis of an officially induced error of law. Officially induced error of law is an exception to the rule that ignorance of the law does not excuse which is codified in s. 19 of the Criminal Code . Like the other exceptions to this rule, it ensures that the morally blameless are not made criminally responsible for their actions.
Allowing OFRB approval to constitute an excuse is not an impermissible delegation of power from one level of government to another. Officially induced error of law can only be raised after the Crown has proven all elements of the offence. As this excuse is considered only after culpability has been proven, there is no issue of the action of a provincial board precluding criminal prosecutions. Further, advice from an official of any level of government can meet the test for this excuse.
There is no particular link between the phrase "without lawful justification or excuse" and officially induced error of law. Where an accused raises an officially induced error of law argument, the trial judge must assess whether the excuse is made out in law, regardless of the wording of the offence. Officially induced error is distinct from a defence of due diligence and is applicable to regulatory as well as criminal offences.
In order for an accused to rely on an officially induced error as an excuse, he must show, after establishing he made an error of law (or of mixed law and fact), that he considered his legal position, consulted an appropriate official, obtained reasonable advice and relied on that advice in his actions. When considering the legal consequences of his actions, it is insufficient for an accused who wishes to benefit from this excuse to simply have assumed that his conduct was permissible. The advice came from an appropriate official if that official was one whom a reasonable individual in the position of the accused would normally consider responsible for advice about the particular law in question. If an appropriate official is consulted, the advice obtained will generally be presumed to be reasonable unless it appears on its face to be utterly unreasonable. The advice relied on by the accused must also have been erroneous, but this fact does not need to be demonstrated by the accused. Reliance on the official advice can be shown by proving that the advice was obtained before the actions in question were commenced and by showing that the questions posed to the official were specifically tailored to the accused's situation.
A successful application of an officially induced error of law argument will lead to a judicial stay of proceedings. As a stay can only be entered in the clearest of cases, an officially induced error of law argument will only be successful in the clearest of cases. Finally, the question of whether officially induced error constitutes an excuse in law is a question of law or of mixed law and fact. While a jury may determine whether the accused is culpable, and hence whether this argument is necessary, it is for a judge to determine whether the precise conditions for this legal excuse are made out and if a stay should be entered. The elements of officially induced error are to be proven on a balance of probabilities by the accused.
Since the accused are entitled to an acquittal in this case, nothing turns on the application of an officially induced error of law analysis. Had the accused had the requisite mens rea for the s. 163(2) offence, however, they would have been entitled to a judicial stay of proceedings as a result of officially induced error of law. The argument put forward by the accused would have been one based on error of law ‑‑ the conclusion that the films they retailed were not legally obscene; the accused sought the OFRB opinion on these films and relied on its advice; and the OFRB was the appropriate official body to consult when seeking a determination about whether a film can be legally sold in Ontario.
Cases Cited
By Sopinka J.
Referred to: R. v. Butler, [1992] 1 S.C.R. 452; R. v. Rees, [1956] S.C.R. 640; R. v. Metro News Ltd. (1986), 29 C.C.C. (3d) 35; R. v. Cameron, [1966] 4 C.C.C. 273 (Ont. C.A.), leave to appeal to S.C.C. refused, [1967] 2 C.C.C. 195n; R. v. Kiverago (1973), 11 C.C.C. (2d) 463; R. v. McFall (1975), 26 C.C.C. (2d) 181; Sansregret v. The Queen, [1985] 1 S.C.R. 570; R. v. Blondin (1970), 2 C.C.C. (2d) 118; Coughlin v. Ontario Highway Transport Board, [1968] S.C.R. 569; R. v. Prairie Schooner News Ltd. and Powers (1970), 1 C.C.C. (2d) 251; Towne Cinema Theatres Ltd. v. The Queen, [1985] 1 S.C.R. 494; R. v. Furtney, [1991] 3 S.C.R. 89; R. v. Santeramo (1976), 32 C.C.C. (2d) 35; Perka v. The Queen, [1984] 2 S.C.R. 232.
By Lamer C.J.
Referred to: Molis v. The Queen, [1980] 2 S.C.R. 356; Long v. State, 65 A.2d 489 (1949); R. v. Maclean (1974), 17 C.C.C. (2d) 84; R. v. Potter (1978), 3 C.R. (3d) 154; R. v. Flemming (1980), 43 N.S.R. (2d) 249; R. v. MacDougall (1981), 60 C.C.C. (2d) 137, rev'd [1982] 2 S.C.R. 605; R. v. Ross, [1985] Sask. D. 5845-02; R. v. Cancoil Thermal Corp. (1986), 27 C.C.C. (3d) 295; R. v. Provincial Foods Inc. (1992), 111 N.S.R. (2d) 420; R. v. Dubeau (1993), 80 C.C.C. (3d) 54; R. v. Erotica Video Exchange Ltd. (1994), 163 A.R. 181; R. v. Forster, [1992] 1 S.C.R. 339; R. v. Pontes, [1995] 3 S.C.R. 44; R. v. Mack, [1988] 2 S.C.R. 903.
Statutes and Regulations Cited
Criminal Code, R.S.C., 1985, c. C-46, ss. 19 , 163(1) , (2) , (6) [rep. 1993, c. 46, s. 1], (8).
Theatres Act, R.S.O. 1990, c. T.6, ss. 3(7)(a), 33(1), (2), (5) to (9).
Authors Cited
Arnold, Terence. "State‑Induced Error of Law, Criminal Liability and Dunn v. The Queen: A Recent Non‑Development in Criminal Law" (1978), 4 Dalhousie L.J. 559.
Barton, P. G. "Officially Induced Error as a Criminal Defence: A Preliminary Look" (1979‑80), 22 Crim. L.Q. 314.
Canada. Law Reform Commission. Report 30. Recodifying the Criminal Law. Ottawa: The Commission, 1986.
Canada. Law Reform Commission. Working Paper 29. Criminal Law -- The General Part: Liability and Defences. Ottawa: The Commission, 1982.
Kastner, Nancy S. "Mistake of Law and the Defence of Officially Induced Error" (1985‑86), 28 Crim. L.Q. 308.
LaFave, Wayne R., and Austin W. Scott, Jr. Substantive Criminal Law, vol. 1. St. Paul, Minn.: West Publishing Co., 1986.
Stuart, Don. Canadian Criminal Law: A Treatise, 3rd ed. Scarborough, Ont.: Carswell, 1995.
Williams, Glanville. Criminal Law: The General Part, 2nd ed. London: Stevens & Sons, 1961.
APPEAL from a judgment of the Ontario Court of Appeal rendered October 19, 1993, dismissing the accused's appeal from their conviction under s. 163(2) of the Criminal Code . Appeal allowed.
Alan D. Gold, for the appellants.
David Butt, for the respondent.
The following are the reasons delivered by
Lamer C.J. --
I. Introduction
1 This appeal from a conviction under s. 163(2) of the Criminal Code, R.S.C., 1985, c. C-46 , raises two issues for our consideration because of the wording of the section: (i) did the accused "knowingly" sell obscene material? and (ii) did he do so "without lawful justification or excuse"? Regarding the first issue, the question of the requisite mens rea for this offence, I agree with the reasons of my colleague Justice Sopinka. In particular, I concur in his conclusion that the law requires the Crown to prove that an accused retailer knew of the specific acts or set of facts which lead the court to the conclusion that the material in question is obscene. The Crown is not, of course, required to prove that the accused knew the material was obscene in law, nor is the Crown required to prove that an accused actually viewed the obscene material. As my colleague has pointed out, there are other ways to acquire knowledge of the obscene character of a film. In addition, I concur in Sopinka J.'s conclusion that approval of a film by the Ontario Film Review Board ("OFRB") cannot negative the mens rea of this offence. Accordingly, I concur in Sopinka J.'s disposition of the appeal; the accused are entitled to be acquitted.
2 On the second issue raised by this appeal, the question of whether the accused acted without lawful justification or excuse, I disagree with Sopinka J.'s conclusion. In my view, the circumstances of this case permit the accused to be excused from conviction on the basis of an officially induced error of law by virtue of the OFRB's approval of the films in question. While I do not believe film board approval negatives mens rea or justifies the accused's criminal actions, I believe that reasonable reliance on this type of official advice is sufficient basis for a judicial stay of proceedings to be entered. Requiring that a stay be entered only in the clearest of officially induced error of law cases does not offend the maxim that ignorance of the law does not excuse. Rather, it provides an exception from this provision, in line with the existing exceptions, which ensures that the morally blameless are not made criminally responsible for their actions.
3 To elaborate my conclusions, I will first examine the rationale of the ignorantia juris neminem excusat maxim which is one of the backbones of our criminal law. Next I will consider emerging trends in Canadian cases, and briefly examine the American position. I will then outline how I propose that the officially induced error of law excusing provision be limited. Finally, I will demonstrate why I believe the accused in this case would have been entitled to a judicial stay of proceedings had the mens rea requirement for culpability been met.
II. Analysis
A. Ignorance of the Law Does not Excuse
4 While mistakes of fact relevant to the commission of a criminal offence excuse an accused from criminal responsibility, mistakes regarding the law do not. There is no significant difference between a mistake of law and ignorance of the law (see Molis v. The Queen, [1980] 2 S.C.R. 356). The common law rule that ignorance of the law does not excuse the commission of a criminal offence is codified in s. 19 of the Criminal Code :
19. Ignorance of the law by a person who commits an offence is not an excuse for committing that offence.
This principle is a significant barrier to the appellants here because the question of whether or not a film is obscene is a question of law, specifically a question of the interpretation and application of the definition of obscenity contained in s. 163(8) of the Criminal Code .
5 Don Stuart identifies four aspects of the rationale for the rule against accepting ignorance of the law as an excuse:
1.Allowing a defence of ignorance of the law would involve the courts in insuperable evidential problems.
2.It would encourage ignorance where knowledge is socially desirable.
3.Otherwise every person would be a law unto himself, infringing the principle of legality and contradicting the moral principles underlying the law.
4.Ignorance of the law is blameworthy in itself.
(Canadian Criminal Law: A Treatise (3rd ed. 1995), at pp. 295-98.)
While Stuart finds the rule against ignorance of the law crude, and these principles unconvincing in the present era, this maxim is an orienting principle of our criminal law which should not be lightly disturbed. I have concluded that certain types of officially induced errors of law should be permitted to excuse an individual from criminal sanction for his actions, in part because I find that this does not infringe any of the four rationales for the ignorance of the law rule set out above.
6 Despite the importance of this rule, some exceptions to it are already well established in our law. An accused is excused when the law she was charged under was impossible to gain knowledge of because it had not been published. In addition, a certain number of our Criminal Code offences provide an excuse for an accused who acted with colour of right. The existence of these exceptions demonstrates that the ignorantia juris rule is not to be applied when it would render a conviction manifestly unjust.
7 Academic commentators for some time now have argued that a form of an officially induced error of law doctrine should be accepted by the courts as an exoneration from criminal responsibility. Reviewing the tentative steps taken by judges towards this defence, Stuart asserts that courts to date have been "too timid". He advocates a full defence, which would consider whether reliance on a particular statement of the law was reasonable, and states (at p. 317):
None of the four suggested rationales for the ignorance of the law rule is undermined. Such a defence is capable of proof, and the accused can demonstrate that he was sociably responsible, not lawless and not blameworthy. Like the claim of right defence, we are considering only those who were not simply ignorant of law but made a mistake. The recognition of a common law defence of reliance on advice as to the law is a very healthy development in our criminal law and substantially ameliorates the harsh ignorance of the law rule. It is vastly preferable to the devious [case cite omitted] device of classifying the mistake made as one of mistake of fact rather than law.
8 The difficulty of distinguishing errors of fact from errors of law is also the starting point for Professor Barton's critique. Barton argues in support of a full justification defence which would remove the need to distinguish between errors of fact and errors of law. He would support a defence for an accused whose reliance on advice is reasonable, and he finds it difficult to distinguish advice from an official of a government agency charged with administering the law from advice given by a lawyer or a police officer. The starting point of Barton's analysis is an assessment of moral blameworthiness:
Because it is so difficult to fashion an adequate test to help distinguish between mistake of fact and of law, and because judges spend so much time focussing on this issue and miss the ultimate question of the effect, if any, of the mistake, perhaps it is time to abandon the distinction and to look at the position of the accused from the point of view of "should the accused be excused?"
(P. G. Barton, "Officially Induced Error as a Criminal Defence: A Preliminary Look" (1979-80), 22 Crim. L.Q. 314, at p. 315.)
From this perspective of moral blameworthiness, it is difficult to justify convicting an individual who has considered that her behaviour may be illegal, consulted an appropriate authority regarding the legality of her actions, and relied on the advice she obtained in a way that appears objectively reasonable.
9 Discussing the defence which he would name "state-induced error of law", in the context of reliance on a judicial decision which was later overturned, Terence Arnold states:
The principle that ignorance or mistake of law constitutes no defence is treated by many as expressing a proposition of self-evident utility and necessity. So simple and absolute a rule may have been appropriate at a time when the criminal law was narrow in scope and therefore fundamental in nature. It is not appropriate in a modern legal context, however. In recognition of this many courts and legislatures have reassessed the doctrine, retaining it in respect to certain offences or situations, modifying in respect to others. My criticism of the Court in the Dunn case [(1977), 21 N.S.R. (2d) 334] is not that they accept the basic mistake of law doctrine -- s. 19 of the Code compels them to do that. It is, rather, that the Court shows no sensitivity to the fact that [the] doctrine's applicability in some situations requires reconsideration. Furthermore, in order to apply the doctrine to the fact situation urged in Dunn the Court had to apply a legal theory, long since abandoned by legal analysts, which has no connection with reality, does not achieve individual justice and cannot be justified on public policy grounds.
("State-Induced Error of Law, Criminal Liability and Dunn v. The Queen: A Recent Non-Development in Criminal Law" (1978), 4 Dalhousie L.J. 559, at pp. 584-85.)
Arnold's sense of injustice is perhaps overly sensitive, but his point reflects our contemporary reality. The number of laws under which any person in Canada may incur criminal liability is nothing short of astounding. While knowledge of the law is to be encouraged, it is certainly reasonable for someone to assume he knows the law after consulting a representative of the state acting in a capacity which makes him expert on that particular subject.
10 Nancy S. Kastner also urges that a defence of officially induced error of law be accepted by the courts:
. . . the traditional rationalia for the rule that ignorance of the law does not excuse are not done violence by the incursion of the defence of officially induced error, where the offender in good faith is duly diligent in attempting to guide his conduct by the law as stated by "a party in the know".
("Mistake of Law and the Defence of Officially Induced Error" (1985-86), 28 Crim. L.Q. 308, at p. 335.)
In its Report 30 entitled Recodifying the Criminal Law (1986), the Law Reform Commission of Canada proposed the following provision as part of a new General Part of the Criminal Code (at p. 31):
3(7)Mistake or Ignorance of Law. No one is liable for a crime committed by reason of mistake or ignorance of law:
(a)concerning private rights relevant to that crime; or
(b)reasonably resulting from
(i) non-publication of the law in question,
(ii)reliance on a decision of a court of appeal in the province having jurisdiction over the crime charged, or
(iii) reliance on competent administrative authority. [Emphasis added.]
In a working paper which preceded this draft, the Law Reform Commission proposed extending a "reliance on administrative authority" excuse only to offences outside the Criminal Code (Working Paper 29, Criminal Law -- The General Part: Liability and Defences (1982), at p. 82). The shift between that provision and the final report indicates a broader approach to an officially induced error of law provision.
11 This steady trickle of academic commentary has been fuelled by tentative steps toward the recognition of officially induced error of law as either a complete defence or an excusing provision by Canadian jurists, as well as more widespread support for this defence in the United States. Before outlining the precise form this doctrine should take, I will examine some of this jurisprudence to illustrate situations where this doctrine will assist judges in achieving just results.
B. Developments in the Jurisprudence
12 The defence of officially induced error of law emerged in American jurisprudence with the 1949 case of Long v. State, 65 A.2d 489 (Del.). In that case a man who had obtained a divorce in Arkansas returned to his native Delaware, married for a second time, and was convicted of bigamy. He presented evidence that he had consulted a reputable attorney before going to Arkansas to obtain the divorce, and again upon his return to Delaware, regarding the legal effect in Delaware of his divorce. The Reverend who performed the second marriage sought and obtained the same advice, and the lawyer who had advised them both signed the marriage application. The Supreme Court of Delaware ordered a new trial where the jury would be instructed to consider this evidence based on a defence that "before engaging in the [prohibited] conduct, the defendant made a bona fide, diligent effort, adopting a course and resorting to sources and means at least as appropriate as any afforded under our legal system, to ascertain and abide by the law, and where he acted in good faith reliance upon the results of such effort" (p. 497). The Court stated (at p. 498):
It is difficult to conceive what more could be reasonably expected of a "model citizen" than that he guide his conduct by "the law" ascertained in good faith, not merely by efforts which might seem adequate to a person in his situation, but by efforts as well designed to accomplish ascertainment as any available under our system. We are not impressed with the suggestion that a mistake under such circumstances should aid the defendant only in inducing more lenient punishment by a court, or executive clemency after conviction. The circumstances seem so directly related to the defendant's behavior upon which the criminal charge is based as to constitute an integral part of that behavior, for purposes of evaluating it. No excuse appears for dealing with it piecemeal. We think such circumstances should entitle a defendant to full exoneration as a matter of right, rather than to something less, as a matter of grace.
While the American jurisprudence has since backed away from accepting reliance on the advice of a lawyer as a form of officially induced error of law, the defence is well established in American law in cases where government officials are relied upon. Long v. State itself has influenced the Canadian jurists who have opened the way for the establishment of this defence here. Discussing the present state of the defence in American law, W. R. LaFave and A. W. Scott state:
Consistent with the above [reasonable reliance on lower court decisions], the better view is that if a defendant reasonably relies upon an erroneous official statement of the law contained in an administrative order or grant or in an official interpretation by the public officer or body responsible for interpretation, administration, or enforcement of the law defining the offense, then his belief that the conduct was not criminal is a defense.
(Substantive Criminal Law (1986), vol. 1, at pp. 592-93, and see generally pp. 589-96.)
13 The first Canadian decision to reflect the defence was in R. v. Maclean (1974), 17 C.C.C. (2d) 84 (N.S. Co. Ct.), where O Hearn Co. Ct. J. sought to develop the realm of common law defences available in Canada by relying on Long v. State. Maclean's driver's licence had been revoked after he was convicted of refusing to take a breathalyser test. He worked at the Halifax airport and had obtained the permission of his supervisor to drive on airport property without his licence. His supervisor's advice was based on Maclean's telephone call to the Registrar of Motor Vehicles who had advised him that driving on federal government property, with his boss's permission, was fine. O Hearn Co. Ct. J. confined his reasons to the field of delegated legislation. He was clearly influenced by the accused's conscientious effort to ascertain his legal position and by the fact that in inquiring about his legal status he "went to the source that people ordinarily use to secure information about drivers' licences and the requirements of licensing and in that sense the source was appropriate" (p. 107).
14 The defence was again considered in R. v. Potter (1978), 3 C.R. (3d) 154 (P.E.I.S.C.), where the accused was charged with keeping a gambling device despite the fact that the persons importing the goods to Canada had specifically inquired to customs officials about their legality and customs officials had inspected the shipments and collected duty over a period of years. McQuaid J. considered and praised the decision in Maclean, but decided that based on the jurisprudence of this Court he could not follow the path struck by O Hearn Co. Ct. J. Instead, he ordered an absolute discharge.
15 O Hearn Co. Ct. J. had the opportunity to elaborate his reasoning in R. v. Flemming (1980), 43 N.S.R. (2d) 249, where he upheld an acquittal on a driving while disqualified charge. Flemming's driver's licence was under suspension and he had consulted the Motor Vehicle Bureau about whether he was permitted to steer and brake a car which was being towed. In a thoroughly reasoned judgment, O Hearn Co. Ct. J. found that this Court's decision in Molis, supra, about which I have more to say below, barred a defence of insufficient promulgation but not a defence of officially induced error. On the basis of Molis, however, he rejected his earlier distinction between statutory and regulatory offences. Considering s. 19 of the Criminal Code , O Hearn Co. Ct. J. stated (at p. 272):
If a person does his best to conform his conduct [to] the law but is misled by officials charged with the administration of the law, he is not doing anything at odds with the purpose of the maxim "Ignorance of the law is not an excuse" in its application to criminal law. The mischief that the policy is aimed at has not occurred.
He specifies that the official whose advice is followed must be involved in the administration of the law in question so that following his advice is reasonable, and that the opinion itself should be reasonable in the circumstances. In his conclusion on this issue he states, and I fully agree (at p. 274):
Moreover, most people would consider it radically unjust for the same government to prosecute an individual for an offence that it had already assured him was not an offence, through one of its bureaus.
Such prosecution, I would assert, may bring the administration of justice into disrepute.
16 The Nova Scotia Court of Appeal recognized an officially induced error of law as a defence in R. v. MacDougall (1981), 60 C.C.C. (2d) 137. MacDougall's licence had been cancelled following a criminal conviction. He received an "order of revocation" and when he commenced appeal proceedings, received a "notice of reinstatement". After he was informed by his lawyer that his appeal had been dismissed, he continued driving until receiving a second "order of revocation". In that interim, he was charged with driving without a licence. Macdonald J.A. for the majority stated (at p. 158):
Assuming . . . that the error of the respondent as to revocation was one of law I am prepared to say that the facts as found by the trial Judge give rise to a defence of justification based upon reliance by the respondent on a previous course of conduct on the part of the Registrar. This defence might be classified as officially induced error or perhaps as a form of colour of right.
Upholding the trial court's acquittal, he concluded (at p. 160):
The defence of officially induced error has not been sanctioned, to my knowledge, by any appellate Court in this country. The law, however, is ever-changing and ideally adapts to meet the changing mores and needs of society. In this day of intense involvement in a complex society by all levels of Government with a corresponding reliance by people on officials of such Government, there is, in my opinion, a place and need for the defence of officially induced error, at least so long as mistake of law, regardless of how reasonable, cannot be raised as a defence to a criminal charge.
17 This Court reversed this decision on other grounds, [1982] 2 S.C.R. 605. However, in his judgment for the unanimous Court, Ritchie J. wrote (at p. 613):
It is not difficult to envisage a situation in which an offence could be committed under mistake of law arising because of, and therefore induced by, "officially induced error", and if there was evidence in the present case to support such a situation existing it might well be an appropriate vehicle for applying the reasoning adopted by Mr. Justice Macdonald. In the present case, however, there is no evidence that the accused was misled by an error on the part of the Registrar.
Clearly, this Court has not foreclosed the possibility of raising officially induced error of law as a defence or excuse. Significantly, the MacDougall decision also affirmed the validity of the s. 19, ignorance of the law does not excuse, provision. Accordingly, the excuse and the traditional rule are not viewed as contradictory.
18 The defence of officially induced error of law was accepted by Ferris Prov. Ct. J. in R. v. Ross, [1985] Sask. D. 5845-02. Ross did not have an appropriate licence to drive the truck he had been driving for several years. He had inquired about this at the Highway Traffic Board on several occasions as he was concerned about his insurance. On each occasion he was assured that he was appropriately licensed. He also stopped at weigh scales dozens of times per year and had his licence inspected. Ferris Prov. Ct. J. held that this constituted an excuse to a charge of obstruction of justice when he continued to drive after police officers told him not to because he did not have a proper licence.
19 In 1986, the Ontario Court of Appeal acknowledged the defence in the context of regulatory offences in R. v. Cancoil Thermal Corp. (1986), 27 C.C.C. (3d) 295. Cancoil was charged under the Occupational Health and Safety Act, R.S.O. 1980, c. 321, after removing a protective shield from a piece of machinery. A Ministry of Labour inspector had approved operation of the machine without the shield, but an employee subsequently suffered a serious injury which the shield would have prevented. The court overturned the original acquittal on the basis of another error, but stated (at p. 303) that the defence of officially induced error should be available at the new trial:
The defence of "officially induced error" is available as a defence to an alleged violation of a regulatory statute where an accused has reasonably relied upon the erroneous legal opinion or advice of an official who is responsible for the administration or enforcement of the particular law. In order for the accused to successfully raise this defence, he must show that he relied on the erroneous legal opinion of the official and that his reliance was reasonable. The reasonableness will depend upon several factors including the efforts he made to ascertain the proper law, the complexity or obscurity of the law, the position of the official who gave the advice, and the clarity, definitiveness and reasonableness of the advice given.
The court distinguished this defence from the defence of due diligence, which would also be available to Cancoil.
20 In R. v. Provincial Foods Inc. (1992), 111 N.S.R. (2d) 420, Palmeter C.J. Co. Ct. accepted the defence of officially induced error of law when a vegetable seller relied on the advice of an applications clerk in the Building Inspection Division of the City of Halifax that no permit was required to run his business in a particular building. The defence was also successful in R. v. Dubeau (1993), 80 C.C.C. (3d) 54 (Ont. Ct. (Gen. Div.)). Dubeau was acquitted of a charge of carrying on the business of firearms and ammunition sale without a permit after selling approximately 30 guns at a series of garage sales. Ferguson J., relying on Cancoil Thermal, supra, considered that the accused had asked the local firearms officer specifically about permits for garage sales, and had written a letter on the advice of that officer to the head office in Toronto. These actions, in combination with the complexity of the law, led to an acquittal.
21 Recently, in R. v. Erotica Video Exchange Ltd. (1994), 163 A.R. 181, James Prov. Ct. J. held that two of three corporate accused charged under the same provision as the accused in this case, had made out a "lawful justification or excuse" because of their reliance on the approval of the obscene videos they had retailed by the British Columbia Film Board. James Prov. Ct. J. considered detailed evidence of the organization, mandate and functioning of the British Columbia Film Board before coming to this conclusion. A third accused, who had relied upon approval by Quebec's Régie du cinéma, was not excused, on the basis that there was not sufficient evidence about that body. It is unnecessary in this case to consider the role of approval by film boards in provinces other than that where business was carried out and criminal charges were laid.
22 Both Stuart and Kastner have interpreted this Court's decision in Molis, supra, as foreclosing the opportunity for developing an officially induced error of law defence. In light of these interpretations, I will clarify the extent of the decision in Molis. In that case, writing for a unanimous Court, I asserted that no defence of ignorance of a regulation exists (at p. 361) and I concluded (at p. 364):
. . . th