Mistake of Law under the Charter
Criminal Law Quarterly, Vol. 40, p. 476, 1998
17 Pages Posted: 24 Jun 2008
Date Written: January 1, 1998
The purpose of this article is to suggest that complete exclusion of mistake of law as a defence is inconsistent with s. 7. The argument draws on two sources. First, I criticize the dichotomy between "mistake of law" and "mistake of fact". Many legally relevant mistakes, including some which could occur quite innocently, cannot easily be placed into one of these two boxes; a more satisfactory approach, recommended by Mewett and Manning, is to ask whether the mistake the accused made is a mistake about a circumstance about which the Crown has to prove some knowledge, or about which the accused is permitted to demonstrate lack of knowledge. If not, the mistake is no defence; but if so, the mistake may be a defence, depending on how it relates to the elements of the offence.
Second, I examine two recent cases which suggest that the Charter may mandate the availability of a defence of mistake of law in some situations. In these cases, the accused may have made a very understandable mistake about something which is most easily categorized as a mistake of law; yet the courts held that it was unfair to impose liability on the accused. These results can only be rationalized on the understanding that where the accused's mistake is irrelevant to the elements of the offence as defined by the legislature, it may nonetheless be unfair to convict the accused; unfair, that is, to relieve the Crown completely of the burden of proof on this issue. This article suggests that this type of argument, familiar under s. 7 of the Charter with respect to the factual elements of the offence, should also have some application to what are usually considered the legal elements of the offence.
Suggested Citation: Suggested Citation