Mistake of Fact Flashcards
Strategies for defence
- Force Crown to prove all elements BARD; Motion for no evidence
- Attack the Charge on Constitutional Grounds.
- Obtain special verdict of NCRMD
- Assert no MR for action; Automatism, Mistake of Fact/Law, Consent
- Assert justification/excuse
Self-defence, provocation, necessity, duress.
Characterization of the Mistake of Fact Defence
Where accused mistakenly believes that circumstance A exists but in fact circumstance B occurred or is alleged to have occurred.
If A was true, no crime, no MR.
If B is true, crime
Convince trier of fact on a balance of probabilities.
Reasonable steps in ascertaining age
Complainant’s physical appearance
Complainant’s behaviour
Ages and appearances of those whose company complainant has been found
Relevant activities
Times, places and other circumstances in which the accused observed the complainant.
Quasi-objective test for ascertaining consent
Ascertain circumstances
Would a reasonable person, in the circumstances take further steps to determine consent before engaging in sexual activity?
If yes, then defence NOT open to accused.
If no, the accused was acting reasonably in ascertaining consent, then defence may be open.
Assault where alleged consent due to fraud
Fraud as to accused’s identity
Posing as someone’s spouse in a darkened room
Dishonesty in relation to HIV/STI’s status and unprotected sex – no consent (Cuerrier).
If the victim consented on the basis of fraud (misrepresentation, lying, omissions) & there is a realistic possibility of transmission of HIV, then guilt.
However, where low risk due to ART and condom use, no significant risk of bobily harm
Consenting to Bodily Harm
There is no specific provision allowing or disallowing consent to bodily harm.
However, case law has determined that the only time one can consent to assault is if there is some “social utility” to the activity giving rise to the bodily harm:
Example: sports like boxing, ultimate fighting, martial arts; stunt actions.
Officially Induced Error
if accused persons rely on advice given by a public official whose duty it is to give such advice, than that person may be absolved from criminal liability arising from the officially induced error.
Colour of Right (s.322(1))
No conviction of theft if accused honestly believed that s/he had a LEGAL right to the property.
Hemmerly (1976): accused takes money from victim at gunpoint. Claims the money was owed to him due to a drug transaction.
No legal claim to money, therefore upheld robbery conviction.
