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FWCA - Defences

. R. v. Gollon

In R. v. Gollon (Ont CA, 2023) the Court of Appeal considers the 'due diligence' and the 'mistake of fact' defences under FWCA s.101:
Defence of due diligence or mistake of fact under s. 101 of the FWCA

[19] In oral submissions, the appellants raised an argument not raised in their factum or in the courts below. They argued that their misinterpretation of the s. 32(1) exemption establishes a defence under s. 101 of the FWCA, which provides for due diligence and mistake of fact defences. This court will not normally entertain arguments not made in a party’s factum; however, we will deal with this submission briefly in the circumstances.

[20] We reject this argument. The appellants’ mistake of fact argument ignores the well-established distinction in penal law between mistake of fact and mistake of law. Misinterpretation of the governing law is a mistake of law and does not provide a defence.

[21] Nor is a mistake of law capable of establishing a due diligence defence: R. v. Pontes, 1995 CanLII 61 (SCC), [1995] 3 S.C.R. 44, at paras. 33-34; La Souveraine, Compagnie d’assurance générale v. Autorité des marchés financiers, 2013 SCC 63, [2013] 3 S.C.R. 756, at para. 61. Further, even if the mistake of law problem did not foreclose a due diligence defence, there was no evidence (or agreed facts) of steps taken by the appellants which could found a due diligence defence. Although it was an agreed fact that Mr. Gollon understood that he did not require a commercial baitfish licence because he was purchasing the baitfish from a seller with a commercial baitfish licence and transporting the baitfish to the U.S. for commercial purposes, there was nothing in the agreed statement of facts about why he believed this. As noted, no defence of due diligence or mistake of fact was raised in the courts below.


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