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MISTAKE OF FACT


R. v. Manuel, 2008 BCCA 143 (CanLII);  leave to appeal to SCC refused.

...


[15]           The appellants claim that their honest belief in certain facts gave them the honest belief that they had the legal right to compel motorists not to use Sun Peaks Road, and that any mistake about whether they had that legal right is a mistake of fact.


[16]           This Court has held that mistake of fact is available as a defence where the belief under which the accused claims to have acted involves both fact and law.  Mistakes of mixed fact and law are, for the purpose of the defence, considered mistakes of fact and not in conflict with s. 19 of the Code, which provides that ignorance of the law is no excuse for the commission of a criminal offence.


[17]           In R. v. Davidson, the Crown argued that the mistake the accused claimed to have made encompassed a mistake of law and that s. 19 of the Code was a bar to the defence of mistake.  In response to this argument, Nemetz J.A., for the majority, said (at 515-516):


I am unable to accept this proposition. If indeed there was a mistake of law, then juxtaposed with that mistake was a mistake of fact, namely, the mistaken belief of the appellant that the mineral claims had been duly recorded in his name under the circumstances described.  As was said by Dixon, J., in Thomas v. The King (1937), 59 C.L.R. 279 at p. 306; approving the judgment of Jessel, M.R., in Eaglesfield v. Marquis of Londonderry, [1876] 4 Ch.D. 693 at p. 702 (C.A.), "But, in any case, in the distinction between mistakes of fact and of law, a mistake as to the existence of a compound event consisting of law and fact is in general one of fact and not a mistake of law." As Rand, J., put it in R. v. Shymkowich, 110 C.C.C. 97 at pp. 99-100, 19 C.R. 401, 1954 CanLII 77 (S.C.C.), [1954] S.C.R. 606:


A claim to ownership of a chattel, although it may depend on matter of law, is, in most cases, a question of fact, or its legal basis may, in the ordinary sense of the word, be subsumed in "fact".         [Emphasis added.]


[18]           Thus, for the purposes of the appeal, the defence claimed by the appellants was the defence of mistake of fact:  they honestly believed in a set of circumstances which, if they existed, would mean that their people held title to the land over which Sun Peaks Road passed and that they had the legal right to exclude others from using the land, with the result that they did not have the intent to compel others to abstain from doing something the others had the lawful right to do.


[19]           Whether the appellants’ beliefs were true – that is, whether the Secwepemc Nation had title to the land and could legally exclude all others from using it – was not in issue.  Regardless of whether the appellants were mistaken about title and its consequences, if their beliefs were honestly held or there was a reasonable doubt that their beliefs were honestly held, the defence would be made out.


[20]           Whether reasonable grounds existed for the appellants’ beliefs was relevant in determining whether the beliefs held were honest:  R. v. Beaver, 1957 CanLII 14 (S.C.C.), [1957] S.C.R. 531 at 538; Davidson at 515; Pappajohn at 151, 155-156.


Jim O'Neil, LL.B.

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