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Criminal - Officially-Induced Error. Canada (Privacy Commissioner) v. Facebook, Inc.
In Canada (Privacy Commissioner) v. Facebook, Inc. (Fed CA, 2024) the Federal Court of Appeal considered the criminal and regulatory defence of 'officially-induced error':[126] The doctrine of officially induced error is a defence that can be raised against criminal or regulatory violation accusations. See for instance: Lévis (City) v. Tétreault; Lévis (City) v. 2629-4470 Québec inc., 2006 SCC 12, [2006] 1 S.C.R. 420 at paras. 20-26; La Souveraine, Compagnie d’assurance générale v. Autorité des marchés financiers, 2013 SCC 63, [2013] 3 S.C.R. 756 at para. 57. ... . Lévis (City) v. Tétreault; Lévis (City) v. 2629-4470 Québec inc.
In Lévis (City) v. Tétreault; Lévis (City) v. 2629-4470 Québec inc. (SCC, 2006) the Supreme Court of Canada sets out the defence of 'officially-induced error':D. Defence of Officially Induced Error
20 Because the respondent company argues that it was misled by erroneous information obtained from an SAAQ official regarding the procedure for paying the fees relating to the registration of its vehicle, we must now consider the nature and availability of the defence of officially induced error. This Court has never clearly accepted this defence, although several decisions by Canadian courts have recognized it to be relevant and legitimate.
21 First of all, to place the nature and limits of this defence in the proper perspective, it should be noted that ignorance of the law is not accepted in Canadian criminal law as a means to erase or mitigate criminal liability, despite occasional criticism of the inflexibility of this rule (D. Stuart, Canadian Criminal Law: A Treatise (4th ed. 2001), at pp. 323‑31). Section 19 of the Criminal Code, R.S.C. 1985, c. C-46, states that ignorance of the law is not an excuse for committing an offence. Pursuant to art. 60 C.P.P., this principle applies to regulatory offences created by Quebec legislation. As a result of art. 60, the rules and principles of Canadian criminal law relating to the definition and conduct of available defences against criminal charges apply in Quebec penal law (G. Létourneau and P. Robert, Code de procédure pénale du Québec annoté (6th ed. 2004), at pp. 8‑9 and 88).
22 This Court has firmly and consistently applied the principle that ignorance of the law is no defence. It has given effect to this principle not only in the context of the criminal law itself, but also in cases involving regulatory offences (Molis v. The Queen, 1980 CanLII 8 (SCC), [1980] 2 S.C.R. 356; Pontes). However, the inflexibility of this rule is cause for concern where the error in law of the accused arises out of an error of an authorized representative of the state and the state then demands, through other officials, that the criminal law be applied strictly to punish the conduct of the accused. In such a case, regardless of whether it involves strict liability or absolute liability offences, the fundamental fairness of the criminal process would appear to be compromised. Although the Court has not ruled on this point, Lamer C.J. responded to these concerns, in concurring reasons in R. v. Jorgensen, 1995 CanLII 85 (SCC), [1995] 4 S.C.R. 55, by proposing to recognize the defence of officially induced error and attempting to define the conditions under which the defence would be allowed.
23 In that case, which involved a charge of selling obscene material, Lamer C.J. carefully reviewed the development of this defence by the courts. He pointed out that the defence had surfaced gradually in criminal law and had been applied by trial and appeal courts to both crimes and regulatory offences (Jorgensen, at paras. 12‑24). He noted that the judges of this Court, including Ritchie J. in R. v. MacDougall, 1982 CanLII 212 (SCC), [1982] 2 S.C.R. 605, at p. 613, had at times appeared to acknowledge the appropriateness of such a defence (Jorgensen, at para. 17). Later, Gonthier J., too, discussed the framework and nature of the defence of officially induced error in his dissenting reasons in Pontes, at p. 88 (Jorgensen, at para. 23).
24 In Lamer C.J.’s view, this defence constituted a limited but necessary exception to the rule that ignorance of the law cannot excuse the commission of a criminal offence:Officially induced error of law exists as an exception to the rule that ignorance of the law does not excuse. As several of the cases where this rule has been discussed note, the complexity of contemporary regulation makes the assumption that a responsible citizen will have a comprehensive knowledge of the law unreasonable. This complexity, however, does not justify rejecting a rule which encourages a responsible citizenry, encourages government to publicize enactments, and is an essential foundation to the rule of law. Rather, extensive regulation is one motive for creating a limited exception to the rule that ignorantia juris neminem excusat.
(Jorgensen, at para. 25) 25 Lamer C.J. equated this defence with an excuse that has an effect similar to entrapment. The wrongfulness of the act is established. However, because of the circumstances leading up to the act, the person who committed it is not held liable for the act in criminal law. The accused is thus entitled to a stay of proceedings rather than an acquittal (Jorgensen, at para. 37).
26 After his analysis of the case law, Lamer C.J. defined the constituent elements of the defence and the conditions under which it will be available. In his view, the accused must prove six elements:(1) that an error of law or of mixed law and fact was made;
(2) that the person who committed the act considered the legal consequences of his or her actions;
(3) that the advice obtained came from an appropriate official;
(4) that the advice was reasonable;
(5) that the advice was erroneous; and
(6) that the person relied on the advice in committing the act.
(Jorgensen, at paras. 28‑35) 27 Although the Court did not rule on this issue in Jorgensen, I believe that this analytical framework has become established. Provincial appellate courts have followed this approach to consider and apply the defence of officially induced error (R. v. Larivière (2000), 2000 CanLII 8295 (QC CA), 38 C.R. (5th) 130 (Que. C.A.); Maitland Valley Conservation Authority v. Cranbrook Swine Inc. (2003), 2003 CanLII 41182 (ON CA), 64 O.R. (3d) 417 (C.A.)). I would also note that, in this appeal, neither the prosecution nor the intervener, the Attorney General of Canada, has questioned the existence of this defence in Canadian criminal law as it presently stands. At most, the Attorney General of Canada has suggested another condition in addition to those enumerated by Lamer C.J., namely that the act was committed contemporaneously with the reception of the information. I do not think this addition is necessary. The Attorney General of Canada’s concerns relate more to the need to demonstrate that the advice was reasonable and that the accused relied on it. It should be noted, as the Ontario Court of Appeal has done, that it is necessary to establish the objective reasonableness not only of the advice, but also of the reliance on the advice (R. v. Cancoil Thermal Corp. (1986), 1986 CanLII 154 (ON CA), 27 C.C.C. (3d) 295; Cranbrook Swine). Various factors will be taken into consideration in the course of this assessment, including the efforts made by the accused to obtain information, the clarity or obscurity of the law, the position and role of the official who gave the information or opinion, and the clarity, definitiveness and reasonableness of the information or opinion (Cancoil Thermal, at p. 303). It is not sufficient in such cases to conduct a purely subjective analysis of the reasonableness of the information. This aspect of the question must be considered from the perspective of a reasonable person in a situation similar to that of the accused.
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