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What is Mistake of Fact or Law Defence in Canadian Criminal Law?

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The adage “ignorance of the law is no excuse” to justify a criminal act generally holds true in Canadian law. In fact, Section 19 of Canada’s Criminal Code clearly states, “Ignorance of the law by a person who commits an offence is not an excuse for committing that offence.” This follows common law principles that “mistake of law,” as ignorance of the law is commonly referred to, cannot be used to excuse criminal offences.

While this seems relatively straightforward, there are some legal situations where mistake of law may be used as a criminal defence. Along with a few narrow and exceptionally rare exceptions that may be used to counteract Section 19 with mistake of law, Canadian law allows what is known as the “mistake of fact” defence. To work as a criminal defence, though, the defendant must be able to prove the legitimacy of the mistake and that it is not a defence strategy. Mistake of fact is not a direct defence against a criminal charge. Instead, it is an indirect defence designed to limit criminal liability based on the defendant’s activity arising from an incorrect assumption of fact rather than criminal intent.

Confused yet?

Don’t be because nuances complicate the ease of understanding this defence strategy. But read on because the Greater Toronto Area criminal defence lawyers at Mass Tsang enjoy educating our clients about all elements of the law and will strive to help you understand how our court system addresses mistake of fact or law defences.

Note that none of the information in this blog should be construed as “legal advice.” It is strictly for educational purposes, and anyone facing criminal charges should always seek the services of a skilled criminal lawyer to ensure the best possible outcome. Mass Tsang lawyers have successfully defended thousands of criminal cases and can help you mount an effective criminal defence if needed.

Potential Mistake of Law Exceptions

To establish guilt and gain a criminal conviction, the Crown has to prove—“actus reus”—that the offender was responsible for the criminal conduct and then prove—“mens rea”—that the offender intentionally and/or knowingly committed the crime. This proof must also meet the “beyond a reasonable doubt” threshold.

As noted above, Section 19 of the Criminal Code specifically prevents the mens rea from being used to mount a “mistake of law” defence. However, we also noted that there might be a couple of rare legal situations in which mistake of law could arise as a valid and allowable criminal defence. A prime example of this could occur if someone violates a recently passed law that has not been officially published or otherwise promulgated. In a related situation, the mistake of law defence could be made viable if the defendant’s crime was committed to some degree based on erroneous legal information provided to them from a government official.

OK, So What is Mistake of Fact, and How Does it Differ?

The mistake of fact concept is similar to mistake of law, but the former can be more readily used as a viable defence, even though it is not a distinct defence against a criminal charge. Instead, mistake of fact is a means of rendering the intent—mens rea—needed for conviction moot. To prove mistake of fact, the defendant must prove that the criminal activity occurred due to an honest and reasonable mistake rather than purposeful illegal activity.

A prime example of a mistake of fact case can arise when someone accidentally takes another’s property. A woman arrested for theft because she took another woman’s purse lying on a counter at a party might have a valid defence if she can prove that she thought the bag was hers. As a defendant, she would have to prove at a minimum that she owned a purse just like that one at the time of the incident. Other affirmative defence evidence—such as that she had brought her own purse to that party and other people had seen her with it—would bolster her case and help show her lack of intent.

Mistake of fact defences are not only applicable to property crimes but may be valid for any situations in which a person violated the law due to an incorrect understanding of fact rather than criminal purpose. The effectiveness of the defence hinges on legitimacy and reasonableness. As an affirmative defence, it is up to the defendant to show that the mistake or misunderstanding of the facts occurred honestly and was not an unreasonable interpretation of the situation.

A sexual assault defendant claiming mistake of fact based on incorrectly believing that the victim consented to intercourse typically has to surmount a high threshold in this regard. While the defendant may have legitimately thought that the victim desired intercourse, attributing consent to her moans of pleasure will not likely pass as reasonable. In fact, the Supreme Court of Canada has addressed the issues of legitimacy and reasonableness in the context of the mistake of fact defence in several of its decisions, including Pappajohn v R [1980] 2 S.C.R. 120 and R v Sansregret [1985] 1 S.C.R. 570 . These cases helped establish the thresholds of what counts as legitimate and reasonable in the use of mistake of fact defences in sexual assault cases.

The mistake of fact defence cannot be used to defend against strict liability offences because this category of criminal violations does not require the proof of intent needed to secure a conviction. When proving guilt in strict liability cases, the Crown only needs to prove that the accused was responsible for the criminal act. Impaired driving-related offences are categorized as strict liability offences.

Consult with Mass Tsang for your Criminal Defence

The criminal defence lawyers of Mass Tsang may turn to the mistake of fact defence when their client’s alleged criminal actions arise due to a misunderstanding of specific facts relating to the situation or to an otherwise honest mistake. Mass Tsang lawyers examine all facets of every criminal case when strategizing the best defence for our Ontario clients. We strive to develop criminal defence strategies that will secure optimum outcomes for our clients. If you or a loved one is facing criminal charges in the Greater Toronto Area, contact the highly skilled lawyers at Mass Tsang to secure an the most favorable outcome.

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