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OFFICIALLY INDUCED ERROR

R. v. Jorgensen, [1995] 4 SCR 55

...

                In order for an accused to rely on an officially induced error as an excuse, he must show,


after establishing he made an error of law (or of mixed law and fact),

that he considered his legal position,

consulted an appropriate official,

obtained reasonable advice and

relied on that advice in his actions.  


When considering the legal consequences of his actions, it is insufficient for an accused who wishes to benefit from this excuse to simply have assumed that his conduct was permissible.  


The advice came from an appropriate official if that official was one whom a reasonable individual in the position of the accused would normally consider responsible for advice about the particular law in question.  If an appropriate official is consulted, the advice obtained will generally be presumed to be reasonable unless it appears on its face to be utterly unreasonable.  The advice relied on by the accused must also have been erroneous, but this fact does not need to be demonstrated by the accused.  Reliance on the official advice can be shown by proving that the advice was obtained before the actions in question were commenced and by showing that the questions posed to the official were specifically tailored to the accused's situation.

                  A successful application of an officially induced error of law argument will lead to a judicial stay of proceedings.  As a stay can only be entered in the clearest of cases, an officially induced error of law argument will only be successful in the clearest of cases.  


Finally, the question of whether officially induced error constitutes an excuse in law is a question of law or of mixed law and fact.  While a jury may determine whether the accused is culpable, and hence whether this argument is necessary, it is for a judge to determine whether the precise conditions for this legal excuse are made out and if a stay should be entered.  


The elements of officially induced error are to be proven on a balance of probabilities by the accused.

Jim O'Neil, LL.B.

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