Guidance, Culpability, and Mistake of Law

AuthorMichael Plaxton
[ 449 ]
cha pter 1 2
So far, my discussion of mistake has focused on mistake of fact,
largely because this might appear to be an area in which the courts
have more-or-less free rein to cra the law as they please. As we have
seen, appearances are deceiving. Judges, paying tacit fealty to the
notion that criminal oences serve a guidance function, have pro-
ceeded on the basis that they must construe fault requirements in
such a way that Parliament’s “message” to the public will not be dis-
torted. Parliament takes the lead; judges follow.
Next to mistake of fact, mistake of law looks comparatively easy.
It is dicult to think of a legal doctrine more widely familiar than
“ignorance of the law is no excuse.” Moreover, this is a principle
that has found statutory expression. Section  of the Criminal Code
states: “Ignorance of the law by a person who commits an oence
is not an excuse for committing an oence.” The provision dates
back (with only slight modications) to the  Bill, and found its
inspiration in the  English Dra Code. But separate and apart
from its legislative history, it has deep roots in the English common
Criminal Code, RSC , c C- [Criminal Code].
 Bill, s .
UK, HC, Report of the Royal Commission Appointed to Consider the Law Relating to
Indictable Oences (London: HMSO, ), s  [ Dra Code].
[ 450 ] , ,  
law. Though mistakes of fact can oen have exculpatory force, it is
unusual for mistakes of law to do so. This is true whether or not the
oence is a true crime or a regulatory oence.
Given what I have said about mistakes of fact, it is not dicult
to see why, even if Parliament had not pronounced on the matter,
the courts would be reluctant to recognize mistake of law as a valid
defence. It would be all too easy for ordinary members of the pub-
lic to excuse their failure to conform to Parliament’s guidance by
appealing to their ignorance of what can oen seem to be a highly
technical, even esoteric, set of legal rules and principles. Thus, in
Jorgensen, Lamer CJ observed that the rule that ignorance of the law
does not excuse “encourages a responsible citizenry, encourages gov-
ernment to publicize enactments, and is an essential foundation to
the rule of law.”
The supposedly sweeping nature of the ignorantia juris rule has
oen been subjected to criticism. Hamish Stewart has suggested that
“[i]ncentives to avoid ignorance of the law could be maintained with
a rule that made . . . good-faith eorts a defence.” But that is not at
all obvious. The member of the public who has taken steps, but not
all possible steps, to learn the (let us suppose) intricate and technical
legal rules that govern a sphere of conduct may be only too happy
to believe that she has done all that can reasonably be expected of
her — that her narrow understanding of the law is based on what
others (surely) will regard as a “good faith eort.” If the point of the
rule, that ignorance of the law is no excuse, is to exhort members
of the public to do everything they can to inform themselves of the
legal principles and rules that will, in turn, guide them in their exer-
cise of practical reason, it is no good to (however inadvertently) send
the message that they will be held to a lesser standard. And, since
members of the public themselves will be the people applying the
See Glanville Williams, Criminal Law: The General Part, d ed (London: Stevens & Sons,
) at , n .
 See R v Molis, []  SCR  [Molis]; R v Pontes, []  SCR  at paras –
R v Jorgensen, []  SCR  at para  [Jorgensen].
Hamish Stewart, “Mistake of Law Under the Charter” ()  Criminal Law Quarterly
 [Stewart, “Mistake of Law”].

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