Mistake and Moral Proximity

AuthorMichael Plaxton
[ 405 ]
cha pter 1 1
In the last chapter, I argued that fault requirements have been con-
strued in such a way that they do not interfere with the guidance
function of the criminal law. But any argument resting on guidance
needs to address the elephant in the room: the fact that the people
who will be applying this guidance are, well, people. They will fail to
perceive facts about the world that might otherwise alert them to the
need for legal guidance in the rst place. They will make mistakes.
Since Parliament intends to guide human beings, at least some of these
mistakes must be germane to culpability. In many circumstances,
however, mistakes of fact cannot exculpate. This is so notwithstand-
ing trenchant and long-standing arguments for “symmetry” in the
criminal law. This chapter explores a few of the circumstances in
which mistakes of fact exculpate, but mostly emphasizes the fact that
many will not. In illustrating that simple point, I want to make a
less simple but more important one — namely, that the substantive
criminal law is ruled more by the principle of moral proximity than
the principle of symmetry.
[ 406 ] Sovereignty, reStraint, and guidance
Earlier, I observed that the principle of voluntariness reects the value
that the criminal law places on the idea of citizens as choosing beings.
Criminal oences do not target involuntary behaviour because, by
denition, it cannot be shaped or guided by them. The paradigm
examples of involuntariness are those in which the defendant had
no physical control over himself or a vehicle that he was responsible
for operating in a particular way at the relevant time. In such cases,
the defendant may be entirely aware of the law’s demands at the time,
and perfectly willing to comply with them, but be physically unable
to do so. That being the case, the notion of guidance becomes, in
eect, a non-starter and the oence has no purchase.
Suppose, now, that the proto-defendant does have physical con-
trol over himself but lacks awareness of some circumstance or risk
that would make salient the fact that a given oence says anything at
all about how he should behave. He goes to a yard sale and, believing
that he is purchasing a second-hand television from its owner, in fact
takes “possession” of stolen goods. He reaches across a kitchen table
and, momentarily unaware of the location of his coee relative to his
arm, knocks it into the lap of another patron. He tells a story in jest
to a group of friends about a “great investment opportunity” involv-
ing a penny stock, knowing they won’t take it seriously, but unaware
that an especially gullible stranger is listening and planning to invest
his life’s savings.
See Chapter .
See, for example, R v Lucki (),  WWR (NS)  (Sask Mag Ct).
R v Theroux, []  SCR  at  and  [Theroux]. In R v Kerr, []  CCC  at
 (Man CA), it was suggested that an individual who engages in a prank, even if not
mistaken, lacks intention. The defendant in Kerr, however, was charged with the; his
“prank” was stealing an ashtray. The decision implicitly reects the view of some courts
that, in order for a defendant to have had “fraudulent” intent, he or she must have had
a particular motive for taking the goods in question. See also R v Wilkins, []  CCC
 (Ont CA); R v Mathe (),  CCC (d)  (BCCA); R v Dalzell (),  CCC
(d)  (NSCA). For the reasons given by Morris Manning & Peter Sanko, Manning,
Mewett & Sanko: Criminal Law, th ed (Markham: LexisNexis, ) at , this
position is incompatible with Theroux, and almost certainly wrong. See also R v Brais
(),  CCC (d)  (BCCA).
[ 407 ]
Mistake and Moral Proximity
In all of these situations, the problem is not that the proto-de-
fendant embarked upon his course of action in spite of the guidance
provided by the provisions governing possession, assault, and fraud.
The problem is that, so far as he knew, those provisions did not
speak to the permissibility of the course of action in which he was
engaging. He thought he was purchasing a used television, not con-
traband. The Code has nothing to say about that. He thought he was
grabbing the bill for his meal, not pouring hot coee onto another
person’s lap. The assault provisions say nothing that would preclude
him from doing the former. He thought he was telling a joke to a
group of people who would appreciate its lack of sincerity, not dup-
ing an individual into taking a risky nancial gamble. The oence of
fraud doesn’t pre-empt that decision.
Why does it matter that the proto-defendant, in each of the above
scenarios, did not subjectively appreciate the state of aairs in which
he conducted himself? Why not focus, instead, on the fact that he (at
least arguably) ought to have known, and condemn him for his failure
to take greater care? Because in each instance, the oence in question
targets a wrong that individuals can commit as citizens, rather than as
parents, or drivers, or managers of an industrial plant. With respect
to all of the above oences, the presumption is that Parliament did
not intend to transform or otherwise meddle in ordinary, day-to-day
activities, with a view to regulating them. And so, the proto-defend-
ant is not expected to read the oences in question as exhorting him
to exercise care in purchasing used goods, or in telling jokes, or in
reaching for coee. He is expected to avoid taking possession of bags
of cocaine when he encounters them. But to follow that advice, he
must subjectively appreciate that he is indeed encountering a bag of
cocaine. If he doesn’t, then Parliament’s guidance on that matter is
useless to him.
It is in this light that we can make sense of the famous remark in
Tolson that “[h]onest . . . mistake sounds in fact on the same footing as
absence of the reasoning faculty, as in infancy, or perversion of that
See Chapter , Section B.

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