Litigator and Paralegal SCOPE contributor Darryl Singer examines the defence of “officially induced error,” in light of a recent case involving an e-bike operator whose driver’s licence had been suspended.
The accused in the recent Ontario Superior Court of Justice case of R. v Clifford, 2014 ONSC 2388 (CanLII) introduces a relatively rare defence in criminal proceedings, that of “officially induced error.”
This somewhat novel defence can be used by an accused to establish that she lacked the requisite mens rea to commit the offence because of some misunderstanding of the law.
In simple terms, this could be used to fight a parking ticket on the grounds that the signage indicated to a reasonable person that it was legal to park in a particular space when in fact it was not. The defence could also be used in a scenario, such as a bail violation for consuming alcohol. An accused may not be legally culpable if, although the court record indicates that refraining from alcohol is one of the terms of the bail, the actual document given to the accused did not have that particular prohibition checked off.
Essentially, the “officially induced error” defence operates in exceptional circumstances to defeat the maxim that “ignorance of the law is no excuse.” This idea that being unaware of the law is not in and of itself a defence to a charge of breaching that law, is well settled in Canada. In fact, it is the operative rule in most instances.
But what if the accused’s understanding of the law has been as a result of information provided by an authorized representative of the state? The leading cases on the topic are the Supreme Court of Canada decisions in R v Jorgensen  4 SCR 55, and Lévis (City) v. Tétreaul  1 SCR 420.
Madam Justice E. Gillese provides a most helpful overview of the requisite elements of the defence in her decision dismissing the defence of officially induced error, in R. v Pea (2008) 93 OR (3d) 67 (ONCA). In order for the defence to apply to rebut the presumptive position that ignorance of the law is no excuse, there are five elements that must be met:
- The accused must have considered the legal consequences of his actions and sought legal advice.
- The legal advice must have been obtained from appropriate government officials who were involved in the administration of the law in question (in other words they must be state actors with apparent authority).
- The legal advice must have been erroneous.
- The accused must have relied upon that advice.
- The accused’s reliance must have been objectively reasonable.
- The accused must meet all elements of this test. While the onus is on the defence to meet establish that the exception applies, the burden is on the balance of probabilities.
In Clifford Mr. Clifford was under a five-year prohibition from operating a motor vehicle. The resourceful Mr. Clifford purchased an e-bike, which he believed was not a “motor vehicle” within the meaning of the Criminal Code. The basis for this belief — the officially induced error — was that in his several post-suspension roadside interactions with the police, he was on his e-bike and they did not charge him.
In each case, the officer was aware of the driving prohibition imposed upon Mr. Clifford, stopped him when he was on his e-bike, and ultimately let him go on his way. Clifford had actually had a discussion with one of the officers about the prudence of riding the e-bike while his licence was suspended. Clifford argued that as the police knew about his use of the e-bike and his licence suspension, they had in three separate occasions not charged him, and thus he assumed this to mean that the e-bike was not in violation of his driving prohibition.
Reasons for Defence Failure
The defence ultimately failed because of the specific facts of the case. The Court found that at no time did any of the officers explicitly or even impliedly advise Clifford he could use the e-bike. Further, he did not actually seek out the advice. In one instance, the officer actually advised him that another officer might very well have charged him for driving the e-bike while under driving suspension. In another, the officers had a discussion about it and advised Clifford that they declined to lay charges at that time because they were uncertain as to whether or not the e-bike was a “motor vehicle.”
The Court found that that at no time did the police ever advise Mr. Clifford that he could lawfully use the e-bike. Although the Court in Clifford did not go through the formal five-part test set out by the Court of Appeal, they seemed to arrive at the same conclusion with a more simple analysis of the facts. Even if Justice Koke had gone through the test, a dismissal of the appeal and upholding of the conviction was the only logical conclusion. For example:
- it is arguable as to whether or not Mr. Clifford considered the legal consequences of his actions or simply attempted to be creative and buck the system;
- the police were indeed state actors with authority to enforce the law in question, but on the facts of the case it appears they did not actually provide any legal advice to Mr. Clifford;
- as they did not give any advice, there was no advice to be erroneous;
- although Clifford said he relied on the advice, what he actually relied upon was an assumption the failure to charge him on three separate occasions was tantamount to explicit advice; and
- his reliance, for the reasons above, was not reasonable.
The lesson to be drawn from the recent decision in Clifford is that, absent a reasonable argument on all five points of the test, the defence of officially induced error is unlikely to succeed.