Class 3: Mistake of Fact/Mistake of Law 100%

Question 1

What is mistake of fact?

If believed, what function does a mistake have?

If that function is used what happens?

Answer 1

A mistake of fact arises when an accused person honestly holds a mistaken belief about the circumstances of a situation.

That mistaken belief can sometimes negate or undermine the mens rea

It lowers the mens rea

Question 2

What is mistake of law?

Answer 2

A mistake of law arises when an accused is mistaken about the actual state of the law. On that basis, they commit an act thinking that it was lawful/justified when it wasn’t.

Question 3

What are we talking about when we reference a “mistake”

What are the two mistakes?

Answer 3

An accused person who honestly believes something, but their honest belief is mistaken. They are wrong about the law or about a fact

Question 4

Generally, when does a mistake happen (aka the mistake defence)

Answer 4

When a person honestly believes something to be true but it is not true

Question 5

Example:

if I took a bag that I thought was mine but it was actually Adams.

Can I use a mistake?

Answer 5

Yes it was a mistake of fact. The mistake of whose backpack it was.

Question 6

Example:

I thought it was legal to possess 1kg of marijuana, but the law is actually 30g. If I had 1kg, can I use mistake of law?

Answer 6

No mistake of law is GENERALLY not a valid defence.

Just because he did not intend to break the law MEANS nothing

Question 7

True or false: ignorance of the law is a defence

Answer 7

False it is not a defence

Question 8

Thinking about mistake of fact

1) How does mistake of fact apply to subjective mens rea?

2) How does mistake of fact apply to objective negligence?

3) When there is a due diligence defence, how does mistake off act apply?

4) How does mistake of fact apply to absolute liability?

Answer 8

1. Where there is subjective mens rea, the mistake needs to be honestly held with reasonableness only relevant to assessment of credibility. It does not have to be reasonable.
2. Where the fault element is objective negligence, the mistake must be both honest and reasonable
3. Where there is a due diligence defence, the mistake must be both honest and reasonable; with an onus of proof on the accused in the case of regulatory offences;
4. Where the offence is one of absolute liability, mistake of fact is not a defence

Question 9

If someone is holding a bag of cocaine but they honestly thought it was sugar can this work as a defense?

If so what would it negate?

Is the crime requires subjective mens rea, would this change anything?

Is the crime requires objective mens rea, would this change anything?

Answer 9

1) Yes mistake of fact

2) Negates the mens rea component

3) If subjective, then it just needs to be honestly held even if unreasonable.

4) If objective, it has to be both honestly held and reasonable.

Question 10

What if I had a bag of cocaine but I honestly thought it was a bag of LSD.

Can I claim mistake of fact?

Answer 10

Cannot use mistake of fact as it does not negate the mens rea.

Question 11

If I was charged and the test was objective negligence, when can I claim mistake of fact?

Answer 11

Where the fault element is objective negligence, the mistake must be both honest and reasonable

Question 12

If you have strict liability, tell me about mens rea and actus reus

Answer 12

Mens rea is presumed if you have the actus reus

Question 13

If you have a strict liability crime, and the other party claims due diligence defense (mistake of fact) what is the standard?

Answer 13

When there is a due diligence defense, the mistake must be both honest and reasonable, with an onus of proof on the accused

Question 14

For absolute liability, what does the crown have to prove in regards to mens rea and actus reus?

Answer 14

Crown must prove actus reus, NO MENS REA requirement

Question 15

Can mistake of fact be used for absolute liability?

Answer 15

No. Mistake of fact is not a defence for absolute liability

Question 16

R. v. Hess and R. v. Nguyen

Facts: These two people raped a child. The provision that was in the CC “made it an offence that someone would be guilty whether or not they believed the person was under 14”

Crown did not have to proof that the accused knew the person was under 14.

This means an accused would be charged even if they didn’t know the kid was under 14. Hess and Nguyen argued this was unconstitutional as they cannot use a mistake of fact as a defence.

Issue: Was it constitutional that you can’t use mistake of fact?

Answer 16

Holding/Analyis:

An offence that precludes a mistake of fact defence may be unconstitutional

Thus they threw this out

Question 17

For sexual assault cases, after the Hess and Nyguen cases, what was added now that a defendant can make the defence of mistake of age aka mistake of fact?

Does this defence work?

Answer 17

In order to use mistake of age aka mistake of fact in a sexual assault case, we now have the “reasonable steps” provision which only allows a mistake of age defence if the accused took all reasonable steps to find out the complainants age.

Rarely works. It literally says “all reasonable steps” It is a very high barrier

Question 18

What is the doctrine of mens rea? (think generally)

Answer 18

Doctrine of mens rea: a person should not be punished unless that person knew he was committing the prohibited act or would have known that he committed the prohibited act.

Question 19

R v Morrison 2016

Facts: Morrison was charged with luring. The section said that if the person with whom the accused was communicating said she was underage, then the accused is presumed to have believed that representation, absent evidence to the contrary. Morrison argued this violated POI.

Issue:
1) Did this violate POI?
2) Does the reasonable steps provision violate the charter?
3) Can the crown try and substitute wilful blindness to infer knowledge for this case specifically (aka awareness of a Childs age)
4. What about recklessness?

Answer 19

Holding/Analysis

Court first said it did violate the POI.

The fact that a representation of age was made to the accused does not lead inexorably to the conclusion that the accused believed that representation, even absent evidence to the contrary. This contravenes the presumption of innocence.

The reasonable steps provision does not violate the charter.

As we know prior, wilful blindness is allowed to infer knowledge. Thus, if the crown does prove he was willfully blind, they have knowledge.

However, recklessness or negligence is not enough as they are states of mind that do not entail any concrete belief about age. They are not sufficient to prove the required knowledge needed.

Question 20

Mistake of age is what type of defense

Answer 20

Mistake of fact

Question 21

What is the legal age of consent in CND?

Answer 21

16

Question 22

Is claiming a mistake of age work for a luring offence?

If so, what would they need to argue.

Answer 22

Yes, It can negate the mens rea.

They would argue they took all reasonable steps to determine.

Question 23

R v. Landue

Facts: Landue claimed he was so drunk, he made a mistake and didnt realize he was fucking a dead person.

Issue: Can he use mistake of fact?

Answer 23

Holding/Analysis

The intention to commit a crime although not the precise crime charged, will provide the necessary mens rea.

He cannot rely on the mistake of fact to rebut the inference of mens rea in this case

Question 24

Generally, if you have an involuntary act, what will you get if true?

Answer 24

Acquittal

Question 25

R v. Kundeus

Facts: Accused charged with trafficking LSD. The accused had offered the officer mescaline; which turned out to be LSD; but mescaline is not a restricted drug. Defence argued they didnt know it was a drug, and it was legal to sell mescaline.

Issue: Can he claim mistake of fact?

Are people presumed to act voluntarily and intend their consequences?

Answer 25

Holding/Analysis

People are presumed to act voluntarily and intend the consequences of their actions.

Where the accused has an honest belief that amounts to non-existence of mens rea, it is open to them to rebut the presumption that a particular condition was voluntarily induced

Question 26

Can the defence of taking all reasonable steps work for a statutory rape claim?

Answer 26

Yes

Question 27

In order to prove mistake of fact, you need to show what generally?

Does this apply to all cases?

Answer 27

That you took all reasonable steps

Majority but it is not a defence for absolute liability

Question 28

If you don’t think its against the law, can you claim defence of law?

Answer 28

No.

Ignorance of the law is no excuse.

Question 29

When can you claim ignorance of the law?

What are the two exceptions?

Answer 29

Color of right

Officially induced error

Question 30

R v Campbell and Mlynarchuk

Facts: Accused was charged with immoral performance (stripping) Defence argued they don’t have actus reus. They claimed they were told by a SCC that they were legal to do this.

Issue:

1) Was this a mistake of law?
2) What are the two ways you can claim mistake of law?

Answer 30

Holding/Analysis

They said there was no mistake of fact. There was an issue of law, and thus a mistake of law.

While a mistake can be a defence, in this case it was not a defence. ignorance of the law is not a defence.

1) Color of right
2) Officially induced error.

Question 31

R v Prue

Facts: Charged with driving while they weren’t allowed to drive

They claimed they did not know they were prohibited (that they didn’t know they couldn’t drive)

Issue:

1) Is a mistake of suspension of driving based in law or in fact?

Don’t stress if you don’t get this, not really relevant

Answer 31

Crown argued for mistake of law

Court found it was a mistake of fact. A mistake of suspension is a problem of fact not law.

Remember if mistake of law, that is not a valid defence.

Question 32

R v McDonald

Facts: McDonald had a firearm licence which allowed him to have a gun in Alberta. But he was in Halifax and he was charged with possession of a firearm. McDonald argued he thought the licence was in all of CND.

Issue:

Can ignorance of the law be a defence for mistake of law?

Answer 32

Holding/Analysis:

Only mistake of fact can operate as a defence; ignorance of the law cannot unless colour of right and officially induced error.

This was a MISTAKE OF LAW

Question 33

What does “colour of right” as an exception to mistake of law mean?

When does this come up?

Is belief in moral entitlement enough?

Answer 33

Colour of right : an honest belief on the part of the accused that he had the right to possess the property/own the property

(GENERALLY an honest belief on the part of the accused that they had the right to possess the property in question)

This does not include mere belief in a moral entitlement

It comes up in theft and property crimes

Question 34

What does “officially induced error” as an exception to mistake of law mean?

Will you get acquittal? If not, what do you get?

How many elements are there?

Answer 34

A person using this defence is claiming that an official has given them erroneous advice that they relied on. But for that advice, they wouldn’t commit a criminal offence.

There are 6 elements

YOU ARE NOT GRANTED an acquittal, you are given a stay if you win.

Question 35

R. v. Dorosh

Facts: He purchased a van and cleaning unit and they had a contract where they exchanged items. Dorosh gave the victim a trailer. When the deal fell apart, Dorosh wanted his trailer back but in reality, the deal was done and he couldn’t get the it back. He stole it and claimed colour of right as a defence.

Issue:

What does colour of right mean?

Is belief in a moral entitlement enough?

Answer 35

Colour of right: An honest belief on the part of the accused that he had the right to possess the property.

This does not include mere belief in a moral entitlement

Question 36

R. v. Drainville

What is a colour of right?

What is it used for?

Is it for a moral right?

Answer 36

Color of right is a belief that you have the right of possession for a property.

Used for mistake f law.

For colour of right the honest belief must be to a legal right, not a moral right.

Question 37

Levis (City) v. Tetrault 2006 SCC

Facts: T was charged with driving without a licence. he claimed due diligence defence and officially induced error as the city who gave him the licence said it was good.

Is this officially induced error? What are the six factors?

Answer 37

The accused must prove

(1) that an error of law or of mixed law and fact was made;

(2) that the person who committed the act considered the legal consequences of his or her actions;

(3) that the advice obtained came from an appropriate official;

(4) that the advice was reasonable;

(5) that the advice was erroneous; and

(6) that the person relied on the advice in committing the act.