R v Hughes, 2020 NUCA 15

ᓄᓇᕘᒥ ᐅᓐᓂᓗᖅᓴᖅᑐᓄᑦ ᐃᖅᑲᖅᑐᐃᕕᒃ Nunavunmi Apiqhuidjutainut Uuktuffaarutit Nunavut Court of Appeal Cour d'appel du Nunavut Citation: R v Hughes, 2020 NUCA 15 Date: 20201126 Docket: 01-19-008-CAS Registry: Iqaluit Between: Her Majesty the Queen Respondent - and - Dean Hughes Appellant _______________________________________________________ Reasons for Decision of The Honourable Mr. Justice Jack Watson _______________________________________________________

Summary Conviction Appeal

_______________________________________________________ Reasons for Decision of The Honourable Mr. Justice Jack Watson _______________________________________________________ I. Introduction [ 1 ] The appellant challenges the decision of Bychok J of the Nunavut Court of Justice dated September 12, 2019 which found, after a hearing on August 23, 2019, that the appellant had, on July 23, 2019, breached the conditions of a conditional sentence order. That order had originally been made for a duration of 9 months dating from its imposition on October 23, 2018.

But, as described below, the duration of the order was extended due to intervening events. [ 2 ] On September 12, 2019, having found the breach of the order, Bychok J terminated the conditional sentence order and directed that the appellant was to serve what was (at that time) the remainder of the conditional sentence in custody. The decision on breach, the rejection of reasonable excuse, the termination of the order and the committal to imprisonment were all done pursuant to s 742.6(9) of the Criminal Code . [ 3 ] The appellant served the balance of the conditional sentence order before this appeal was heard.

The appeal continued, however, as against the breach / excuse decisions. The appeal had been originally grounded by the terms of the Notice of Appeal as seeking “An order granting the appeal and overturning the finding of breach”. It is clear, however, that the remedy sought concerned both the finding of breach and the rejection of reasonable excuse. [ 4 ] Counsel for both the appellant and the Crown did not disagree that the breach and excuse findings, taken together, could be treated as “a disposition made under

section ... 742.6(9)” within the meaning of part (

c) of the definition of a “sentence” under s 785 of the Criminal Code .

Section 785 is the

interpretation provision applicable to

summary conviction matters under

Part XXVII of the Code . The original conditional sentence order applied to

summary conviction offences so

Part XXVII applies. II. Appeal Jurisdiction [ 5 ] My jurisdiction to adjudicate this appeal would arise under s 812(2) of the Criminal Code . The appellant’s appeal itself would be authorized by s 813(a)(ii) of the Code . Although the parties did not dispute it, I believe that it would be helpful for me to address my jurisdiction in this respect. [ 6 ] As noted above, the parties did not

part company from the view that the appeal was a “sentence” appeal in relation to

summary conviction offences under s 785 of the Criminal Code despite the appellant having completed the imprisonment consequence resulting from the breach/ excuse decision under appeal. [ 7 ] In R v McDonald , 2016 NUCA 4 , my colleague, Schutz JA, exercised

summary conviction appeal jurisdiction in a case where the topic was the sanction decision made after a breach finding. In R v Netser , 2012 NUCA 6 , my colleague, Rowbotham JA, exercised appeal jurisdiction in finding the putative sanction there consequential to a breach to be illegal. Accordingly, neither of those cases addressed the specific question of jurisdiction that I am discussing here which has to do with whether an appeal against sentence can continue to proceed against the breach / excuse decision separately from the consequences decision when the consequences were finished.

I was unable to find an authority that led the way on this topic for me. [ 8 ] In my view, counsel for the appellant is correct that, quite apart from the imprisonment consequence element, the breach / excuse decision constitutes in and of itself a “disposition” within the definition of “sentence” under

section 785 of the Code . Accordingly, service of the prison term does not make the appeal moot. I note that the other forms of decisions ‘included’ within the definition of a “sentence” under s 785 are in the one instance a “declaration” and in the others an “order”.

Parliament has used an analogous set of terms as ‘included’ in the definition of “sentence” for indictable offence appeals under s 673 of the Criminal Code . [ 9 ] By this approach, Parliament avoided the circularity of saying in s 785 and 673 that a “sentence” also includes what is more traditionally viewed as a “sentence”, namely imprisonment or a fine.

Those punishments are clearly identified as sentences under s 718.3 of the Code. [ 10 ] In part, my conclusion that an appeal lies from the breach / excuse decision by itself is grounded upon the fact that s 742.6(9) of the Code refers to an adjudicative function, and not merely to an administrative function. That is so howsoever much this may resemble a parole proceeding or other administrative process respecting a pre-existing sentence. The words of

section 742.6(9) commence thus: “ Where the court is satisfied, on a balance of probabilities, that the offender has without reasonable excuse , the proof of which lies on the offender, breached a condition of the conditional sentence order, the court may ....” [Emphasis added]. [ 11 ] In other words, the presiding judge must make anterior judicial findings (

a) on the breach and (

b) on the absence of reasonable excuse before being empowered to impose one of the optional consequences. Several optional consequences following those

adjudications (including “take no action”) are listed as within the judge’s further discretion. [12] While counsel before me compares the overall process under s 742.6(9) to an “administrative hearing” [Factum para 25, seebelow], I do not interpret counsel for the appellant as suggesting that the

section did not define an adjudicative process under the criminallaw. Rather, I take counsel for the appellant as submitting that Parliament’s stipulations as to burden of proof and objectivity of standardsmade the process established by this provision look somewhat like either an administrative regime or, more directly, like a regulatoryoffence process which might, arguably, give rise to a due diligence defence.

Counsel however, invokes authority relating to regulatoryoffences to bring due diligence into play, citing R v Starosielski, 2001 ABPC 208 at para 134, which in turn reaches back to the classic Rv Sault Ste Marie (City), (SCC), [1978] 2 SCR 1299 at p 1326. I discuss this submission in the Discussion part of myreasons below. [13] On the facts and submissions in this case, it is not necessary to delve into those interesting questions of burden of proof(lowered for prosecutor on breach and reversed to offender on excuse): compare R v Partridge, 2007 NUCJ 17.

Regardless of how s742.6(9) may look, counsel for the appellant submits that the appeal from the breach / excuse decision by itself is properly grounded as asentence appeal and it is not moot because the consequence is finished. Whether proceedings under s 742.6(9) of the Code should betreated as akin to a regulatory prosecution with a common law defence of due diligence being available is a different point, discussedbelow. [14] As a backup position, counsel for the appellant did compare the circumstances of this appeal to administrative law situationsin a different manner.

Mootness is sometimes invoked in bar to applications for judicial review.

In this respect counsel referred to theadministrative law notion of a significant question of law or jurisdiction being one which is “evasive of review” – meaning that thepractical reality of the case in which the legal question arises tends to be “done” before the review can proceed. [15] The fact that an important legal question is “evasive of review” in that sense is often raised by applicants for judicial review topersuade (and justify) the court going ahead with the judicial review even if the circumstances were ‘done’ in that practical sense.

Anecessary element of this justification for proceeding with the appeal is also that the important legal questions arising can be expected tocontinue to arise in similar situations in future.

In such a situation, it may be that the judicial review is either not moot, or the courtshould exercise discretion to deal with it anyway. [16] The comparison made here by counsel for the appellant was effectively that if a breach / excuse decision under s 742.6(9) ofthe Code was to be found to be not independently subject to appeal merely because its practical consequence was finished before anappeal process could get rolling, it would mean breach / excuse decisions would be “evasive of review”. [17] Counsel for the appellant suggested, in effect, that it would be legal error to fuse the parts of s 742.6(9) into a single all ornothing event as the right of appeal would then become illusory in many if not most cases as to the breach / excuse decisions.Recognition that a distinct right of appeal from the breach / excuse findings remains despite completion of the consequence that followedfrom it, on the other hand, would be consistent with the bifurcated procedural treatment Parliament has given to contempt of court:compare ss 10(1) and (2) of the Criminal Code. [18] It might be added that closing the door to appellate review of the breach / excuse decision – because the consequence is overwith – also runs the risk of courts being in a position, by their

interpretation and application of s 742.6(9) of the Code, of effectivelymaking substantive criminal law in Parliament’s stead. It could effectively lead to unreviewable expansion of what is a ‘breach’ orunreviewable reduction of what is an ‘excuse’. [19] Judicial expansion of criminal exposure has been excluded (except for contempt under s 9 of the Criminal Code) in Canadalong before the Canadian Charter of Rights and Freedoms was incorporated into the Constitution: see Frey v Fedorak, (SCC), [1950] SCR 517 and R v W (DL), 2016 SCC 22 at paras 15-18, 57-58, [2016] 1 SCR 402; and compare United States v.

Hudson,7 Cranch 32, 34 (1812). On the other hand, excuses and defences can evolve and even grow: s 8(3) of the Code; W(DL) at paras 64-65. [20] This appeal is, in my view, not moot. There is substance to the appellant’s contention about a right of appeal arising againstthe breach and excuse decisions by themselves in combination (as they must be under the Code to justify consequences irrespective ofthe allocation of burden of proof) as a matter of statutory construction.

Courts should not interpret a structure of statutory provisions –here s 742.6(9) and ss 785 and 813 – such as to make the structure overall and any of its parts ineffective. Rather, courts are to interpretthe provisions to give the provisions “such fair, large and liberal construction as best ensures the attainment of [their] objects”: s 12 ofthe

Interpretation Act, RSC 1985 c I-21. The existence of a right of appeal is self-evidently “remedial” for the purposes of s 12 of theInterpretation Act. [21] As recently stated by the Judicial Committee of the Privy Council in Attorney General of the Turks and Caicos Islands vMisick & Ors, [2020] UKPC 30 at paras 40 and 60, the common law recognizes a “principle of effectiveness - ie where possible, anenactment will be construed so that its provisions are given force and effect rather than rendered nugatory”.

Each word of a statute issupposed to given a real meaning: Alberta v The Canadian Copyright Licensing Agency, 2012 SCC 37 at para 47, [2012] 2 SCR 345.In relation to conditional sentences in R v Proulx, 2000 SCC 5 at para 28, [2000] 1 SCR 61, the language enacted was to be read to bemeaningful. [22] Likewise, enabling statutes should be read so the court or tribunal executing them can operate effectively: compare OceanPort Hotel Ltd. v British Columbia, 2001 SCC 52 at paras 41-42, [2001] 2 SCR 781.

Similarly, rendering a statutory arrangementcoherent and effective may displace the presumption that the statute adopted the common law: Sullivan on the Construction of Statutes,5th ed (Markham, Ont: LexisNexis, 2008) cited in Jackson v Canadian National Railway, 2013 ABCA 440 at para 38, 566 AR 247.

Therelevant part of Sullivan’s 6th Edition (2014) is cited in W(DL) at para 21. [23] Generally, statutory provisions are to be read according to a textual, contextual and purposive analysis to find a meaning thatis harmonious with the Act as a whole with first focus on the text to discern Parliamentary intent: Canada Trustco Mortgage Co vCanada, 2005 SCC 54 at para 10, [2005] 2 SCR 601. All in all, the rule of law rather insists on statutes being given an

interpretation thatavoids their being rendered effectively useless even if only in part.

[ 24 ] Before leaving this point, however, I hasten to add that I am not suggesting that an appeal should lie from a decision as to breach / excuse before the consequence is imposed thereon. The grammar of s 742.6(9) of the Code does not suggest that. For good reason, interlocutory appeals are generally barred – and often by express enactments – for an analogous reasoning to the above reason to allow appeals to continue. The analogous reason is that an interlocutory appeal would interfere with the operation of the first instance court: see R v Awashish , 2018 SCC 45 at para 10 , [2018] 3 SCR 87.

Accordingly, I am emphasizing that an appeal from a breach / excuse decision can persist even if the consequence is completed, and not suggesting that such an appeal can originate before the consequence is started. The process should play out to the end either way. [ 25 ] In my view, the fact that (

a) there are two court conclusions which must be reached judicially by the court as a pre-condition to imposing a consequence is (or is not) selected by the court under s 742.6(9) of the Code, and that (

b) the definition of “sentence” under s 785 of the Code refers to a “disposition” as compared to an “order” or “declaration” under other provisions are strongly suggestive of what Parliament’s intent is respecting this set of provisions.

Parliament intended to allow appeals from breach / excuse decisions to continue regardless of whether the outcome following the breach / excuse decision is ‘done’ because they constitute a disposition under s 742.6(9) of the Criminal Code . [ 26 ] Alternatively, even if I were to have concluded that there was a mootness issue caused against the appeal, I am persuaded to find that there were important legal questions involved in this case that were evasive of review and to also take judicial notice of the reality that there would often be decisions on breach and excuse under s 742.6(9) of the Code where the disposition would be “done”.

I would do that if necessary. [ 27 ] In this respect, counsel for the appellant added – and counsel for the Crown very fairly conceded – that \ there was still something “at stake” for the appellant in proceeding with the appeal as to the breach and excuse decisions. That was because the decision as to an unexcused breach would appear on the appellant’s ‘criminal record’ as an entry in itself.

In referring to the ‘criminal record’ of the appellant I am referring not only to the national CPIC record maintained by the RCMP but also to a more localized record keeping system regarding police ‘events’ in Nunavut. (Nunavut does not appear to differ from other jurisdictions in Canada in the sense of having both the national police databank and a practical local police databank.) [ 28 ] Counsel for the appellant submitted that the breach decision, therefore, was not only juridically significant, it was practically significant for the appellant as its existence would be a blot on his record that would be accessible in future.

As pointed out in R v Zora , 2020 SCC 14 at paras 5 and 57 , 388 CCC (3d) 1, entries for breaches of court orders in criminal records can become part of a vicious cycle where increasingly numerous and onerous conditions of control are imposed upon conviction, which will be harder to comply with, leading to the accused accumulating more breach charges. This is not uncommon in cases of persons with alcohol or other addictions. Other aspects of Zora are discussed below. [ 29 ] I turn now to the circumstances which illuminate the significant legal questions raised here, III.

Circumstances [ 30 ] The original 9-month conditional sentence order was made in relation to two convictions being: (1) a conviction for an offence under s 270(1)(

a) of the Criminal Code (assaulting a peace officer in the execution of his duty) and (2) a conviction under s 129(

a) of the Criminal Code (resisting two peace officers in the execution of their duties). Those offences were both said to have occurred on May 4, 2018. [ 31 ] To fully understand what is involved here, it is helpful to start the narrative back at the original imposition of the conditional sentence order on October 23, 2018. The order was imposed by Cooper J of the Nunavut Court of Justice following a trial. The count of assaulting a peace officer related to a guard at a police station in Arctic Bay.

The young guard, Scott Kilukishak, then 22, and 5’ 2” tall, was looking after two prisoners on May 4, 2018, when he heard a vehicle drive up. He thought it was the RCMP officers coming back from a town patrol. He then heard knocking at the door. When he opened the door, the appellant came in the building and into the kitchen area asking the guard if his wife or girlfriend CU was there. She was, in fact, in the cell area. The appellant was drunk. [ 32 ] When guard Kulikishak told the appellant that he should not be in there, the appellant started punching at him and tried to get past him.

The youthful guard chose not to punch back. He moved to “just lift him out, throw him out the door and close the door on him” suffering a torn shirt in the process in part because the appellant was holding onto a railing. The guard then called his superior Cpl Yves LaPierre. The young guard was outmatched in size by the appellant but he testified that his adrenaline had kicked in as he got scared. [ 33 ] Cpl LaPierre and Cst Byer had gone to make a turn about the community. They had earlier lodged CU because she had been found outside intoxicated with an infant and yelling at a residence about being locked out.

The appellant was inside the residence No 57 talking back. After lack of success in getting her to go to her mother’s residence in light of the cold weather – during which conversation with CU became somewhat irate and abusive to the officers –- the officers took the baby to the other residence and decided to house CU for the night. Accordingly, CU was there when the appellant arrived. When they returned after the second tour, the officers found the young guard was upset, showing signs of being roughed up.

He reported to them about what happened. [ 34 ] The officers decided they would arrest the appellant for the assault of the guard. They went back to residence No 57 where he was. As matters developed, the arrest there was difficult. A Taser was ultimately deployed on the appellant to regain control but it does not appear to have been to much effect. The scuffle was in the proximity of other people, some of whom also seemed intoxicated and chose to disapprove of the arrest verbally and to get too close. Cpl LaPierre was concerned about their remonstrations and proximity.

Fortunately, nothing major appears to have happened and the appellant was removed. Cst Byer’s version of the events was to a similar effect. Cooper J found the appellant guilty of the two counts. [ 35 ] Crown counsel proposed a term of actual imprisonment of 4-5 months. Counsel for the appellant suggested a suspended sentence. After hearing submissions of counsel and from the appellant, Cooper J chose to impose the 9-month conditional sentence order, with the first 4 months involving house arrest at the residence No 57 where the appellant lived with CU. CU was in court to support him

at that time. [AB 74/23-77/27]. He and CU have 4 children [AB 88-89]. [ 36 ] In mathematical terms, the 9-month conditional sentence order then imposed, if service thereof had been uneventful, could have been expected to expire on or before July 22, 2019. Before that happened, however, the appellant entered guilty pleas to further counts of uttering threats and resisting arrest before Bychok J and he was sentenced on December 20, 2018 for those offences. [ 37 ] The circumstances there related to events on November 27, 2018. The appellant had passed out on a couch in residence 293, occupied by ET.

ET did not want him to stay there. The officers roused him and handcuffed him for removal. CU was also there. When the appellant was placed inside the police truck, he got upset and aggressive. He continued in that frame of mind and deportment until he arrived at the station where he scuffled with the police again and made threats to kill Cst Byer. He later settled down.

He entered guilty pleas when he appeared in court. [ 38 ] For those offences of November 27, 2018, Crown counsel proposed a total term of 90 days imprisonment for those counts [AB 85/4-12] and also proposed that Bychok J impose a 3-month ‘collapse’ of part of the conditional sentence order running from November 27 to “a date in February 2019” [AB 85/6-9]. Crown counsel went on that after the ‘collapse’ period, the appellant would then commence to “serve a total of 90 days on the new charges” and the “CSO would, of course, be suspended during the time being served pursuant to

Section 742.7 of the Criminal Code ” [AB 85/12-14]. [ 39 ] Based upon this arithmetic – and without expressly referring to whether s 6 of the Prisons and Reformatories Act , RSC 1985 c P-20 would apply to the new offence sentences – Crown counsel anticipated that at the end of these periods, “Mr Hughes would be released back with approximately five months left to serve on the Conditional Sentence Order in the community” [AB 85/12-16].

Crown counsel did not venture a specific calculation of to what date the rest of the conditional sentence order would then run. [ 40 ] Crown counsel sought to justify that joint submission made to Bychok J by saying that the effect of it would be to impose an imprisonment term for the offences subject to the conditional sentence order of a length substantially similar to what the Crown originally suggested back in October, 2018 (4-5 months, see para 35 above) and that the appellant would then serve an additional period under social control to reflect the present offences [AB 86/1-9]. [ 41 ] Defence counsel agreed.

Counsel provided a history of the appellant’s life and circumstances. Defence counsel also said that the appellant had spent 24 days in custody from the latest group of offences until his present appearance, and that he and Crown counsel agreed there should be 1 to 1 credit for that [AB 89/15-19]. Defence counsel considered the Crown’s approach to be “very reasonable”. [ 42 ] Bychok J asked for clarification of both counsel on this topic. He was told by Crown counsel that the 24 days could either apply to the suspension period ordered, or to the sentence for the more recent counts [AB 89/22-90/13].

By suggesting that the ‘collapse’ period be back-dated to start on November, 27, 2018, the time already spent in custody would be accounted for in the outcome. In other words, the proposal as to the suspension period, if Bychok J addressed the matter that way, was to run the start of the suspension period from the date of the offences on November 27, 2018 [AB 90/8-18]. This discussion brought into play the intricacies of s 742.6(10) and s 742.6(11). [ 43 ] Bychok J heard further from the appellant in person.

He then went along with the joint submission, suspending the conditional sentence order for 90 days, commencing November 27, 2018 (provided for under s 742.6(10)(

b) of the Criminal Code ) and with a further 66 days suspension (allowable under s 742.6(9)(c)(

i) of the Code ). I assume that the parties and Bychok J proceeded on the basis that s 6 of the Prison and Reformatories Act did not apply to that period under s 742.6(13) of the Code . Bychok J then imposed 45 days consecutive on the two new counts for a total of 90 days to which s 6 of the Prison and Reformatories Act would seem, at least to me, to apply. No one mentioned that statutory topic. [ 44 ] Counsel and Bychok J then said that what would be left on the conditional sentence order was “approximately five months” [AB 96/3-9]. No one told the appellant what that meant.

It is not plain that any of them had pulled out a calculator, nor were they asked to do so. [ 45 ] Attempting rough math now, it would seem that the suspension of the conditional sentence would have run to around February 26, 2019, and the prison term to around April 26, 2019. If there then were something less than 5 months left on the conditional sentence order it would seem to expire on or before September 28, 2019. There’s the rub that led to the problem here.

As noted below, the supervising Community Corrections Officer later told the appellant in July, 2019, that the conditional sentence order would expire on July 22, 2019. [ 46 ] The next stage of the relevant chronology is reflected in an agreed statement of facts, which was presented in relation to fresh allegations of breach of the conditional sentence order that came before Bychok J again on August 15, 2019.

The originating document in connection with that breach proceeding was a “Breach Report” signed by the assigned Community Corrections Officer Sipuraq Allurut and was dated July 24, 2019. [ 47 ] That Breach Report alleged three types of breaches relating to three conditions of the conditional sentence order. One such alleged breach was said to be of condition No 1 of the conditional sentence order. That condition bound the appellant to “keep the peace and be of good behaviour”.

The other two alleged breaches concerned condition No 8 of the order to “abstain absolutely from the possession or consumption of any intoxicating substances (including alcohol) unless a physician lawfully prescribes the substance and condition No 9 of the order, to “not be in any residents [sic] that has alcohol. If alcohol is present, You must immediately go to your Mother [sic] house [address].” [ 48 ] In my view, s 742.6(3) connotes that the “allegation” of the breach is the focus of the breach proceedings.

I note with interest the analysis offered in R v Pissuk , 2016 NUCJ 26 regarding the type of evidence offered on a breach hearing under s 742.6(9) of the Code. Pissuk speaks to the evidence, and does not define what is in law an “allegation” as such. Whether or not a simplified procedure is contemplated for breach cases under s 742.6(9) of the Code , there must be something that describes what the “allegation” is. No one suggested to me that the language of the Breach Report, referring to 3 alleged breaches of 3 different conditions, did not constitute the “allegation[s]”.

[49] In my view, the document setting out the “allegation[s]” has, as a matter of fair process, a controlling significance as to whatthe hearing under s 742.6(9) of the Code is about. In other words, each allegation should be treated like a count in an information andindictment.

As such, and subject to the possibility of amendment, the ‘fair notice’ to which the offender may be entitled in proceedingsunder s 742.6(9) of the Code centres on the clarity and specifics of each allegation. [50] A conversion of a conditional sentence order to actual imprisonment directly affects liberty under s 7 of the Charter: compareTran v Canada, 2017 SCC 50 at paras 25 to 34, [2017] 2 SCR 289. It follows, therefore, that identifiable and long accepted principles offundamental justice (comparable to listed headings in s 11 of the Charter) such as fair notice appropriate to the context would apply.

I donot offer a definition of what the ‘fair notice’ must be. I only say that the appellant was entitled to rely on the Breach Report asspecifying the allegations, subject, as said, to an amendment thereof which is itself fair taking place during the process. [51] There is no problem here with the fact that Bychok J addressed the breach / excuse hearing when Cooper J did the originaltrial.

Section 742.6(3.1) of the Code allows the Court to be personified by the available judge in such situations. [52] Another point is that the agreed statement of facts used to substantiate the allegation was by agreement treated as sufficientevidence for adjudication although, as things turned out, the Crown also called Cst Byer. Cst Byer added to the prosecution’s case thatthe appellant made drunken threats to the police on July 24, 2019 when arrested for two assault counts. Cst Byer also reportedallegations of the appellant’s sister to the effect that the appellant had assaulted her.

Counsel for the appellant disputed that element ofthe matter, suggesting there may be a defence at the upcoming trial of those assault counts. The trials of the assault counts had notoccurred prior to the hearing of this appeal. [53] Under

Part XXIII of the Code, a sentence proceeding can proceed on “facts agreed”: s 724(1) of Code.

Section 655 of theCode allows agreed facts on indictable trials and the common law does too. Pissuk adds that viva voce evidence may also be considered,if admissible. The Criminal Code itself permits documentary evidence.

Overall, the guidance of R v McIvor, 2008 SCC 11, [2008] 1SCR 285 should not be overlooked. [54] Crown counsel in oral submissions to Bychok J summarized the agreed facts as including that: due to confusion regarding the termination date thereof, that Mr Hughes was informed by his officer, Ms Allurut, that the conditionalsentence order would be complete on July 22nd, that on July 24th members of the RCMP responded – I’m reading here directly—toreports of an altercation at House 213 in Arctic Bay and upon entering they found that the accused was intoxicated and involved in analtercation with his brother, in breach of two conditions of his conditional sentence order, condition one and condition two.

I will speakbriefly to condition three if you have the allegation before you. Condition three deals with a specific situation in which it was obviouslythe intention of the Court to keep Mr Hughes away from alcohol, and if he was somewhere that there was alcohol, he was to go to House213, the house of his mother, to avoid being, I would imagine, in the presence of alcohol. He was found at House 213 so the Crown isnot alleging that there was a breach of that. I believe there was alcohol at that residence at that time.

That would put him in theimpossible position of having to be at the place where the alcohol was in breach. It becomes a circular nonentity. So only condition oneand condition two of the conditional sentence order, according to the allegation of breach, could possibly be made out.” [AB 98/21-99/14]. [55] The reference to conditions 2 and 3 in those remarks plainly refers to alleged breaches of means conditions 8 and 9, being thesecond and third allegations in the Breach Report.

The Agreed Statement of Facts specifically said that both on July 23, 2019, and onJuly 24, 2019, “the accused verily believed he was no longer bound by a CSO” [E-6 paras 5-6]. In other words, there can no doubt thatthe appellant must have relied on what he was told by the official charged with the responsibility of supervising his compliance with theconditional sentence order – the community corrections officer – that the order was over.

Bychok J said that the agreed facts were notprecise on this point but he ultimately inferred that the appellant’s belief was based on reliance on what the community correctionsofficer said to him [AB 141/18-142/3]. [56] Although the appellant was present during the court proceedings in December, 2018, no one suggests that he could nothonestly and reasonably think that the conditional sentence order had expired.

It is necessary to mention that fact to make clear that in myview events in open court when the offender is present would be relevant to the application of any form of excuse, or officially inducederror of law. Such an appearance in court might abnegate the reasonableness of an alleged belief in ‘official information’ given to anoffender by a supervising official or any other belief for that matter.

For example, if the Court ordered the accused person to appear ondate XX, the accused should be paying attention. [57] On the facts in this case, the discussion about the extension of the conditional sentence order was months earlier than whatthe supervising officer said and it was not unambiguously informative to a person in the position of this appellant. That said, it is justpossible that in a different case the subject offender might get or even seek mixed signals from authorities and then mightopportunistically choose to read those tea leaves in the most advantageous way for himself.

Such a state of mind would not, arguably, besupportable as excused mistake of law in relation to the breach / excuse decision on the reasonable belief element regardless of the originof the putative belief: compare R v Suter, 2018 SCC 34 at paras 64-65, [2018] 2 SCR 496. That would be like giving yourself legaladvice which is certainly no better than if your lawyer gives it to you. In light of s 19 of the Criminal Code, that excuse is not strong:compare R v Eizenga, 2011 ONCA 113 at para 79, 270 CCC (3d) 168.

More on this under the heading Discussion below. [58] Crown counsel at the hearing in her submissions to Bychok J turned immediately to whether the appellant had a defence ofofficially induced error under R v Jorgensen, (SCC), [1995] 4 SCR 55.

She also referred to R v MacDonald, 2014 SCC3, [2014] 1 SCR 37 which had to do with whether a mistake about the scope of a firearms licence would be available as a defence to acharge under s 95 of the Code. [59] In the end, Crown counsel submitted that the appellant did not have an officially induced error defence because, in her view,while some of the criteria of the defence were met, not all of them were. She also suggested that, as an excuse more broadly, the positionfor the appellant was not “workable on a broad scale” [AB 110/11].

It is unnecessary to dwell on her position because, on appeal, Crowncounsel takes the changed position that in actuality the appellant did have such an officially induced error defence on both of the two

remaining allegations of breach namely as to breach of the no alcohol consumption condition and as to the keep the peace condition. [ 60 ] Significantly, Crown counsel at the hearing before Bychok J also agreed that the date of expiry of the conditional sentence was not a pure question of law but “there is a factual component to it as well” [AB 107/1].

Crown counsel before me on appeal also accepts that this should be characterized as an “error of law or mixed fact and law”. [ 61 ] Linked to the logic that the very existence of the order was largely a question of fact in this case – having regard to the fact that the appellant did not suggest that he would have been in any position to dispute its coercive effect on him if he knew it existed – counsel for the appellant submits that the entire topic of officially induced error of law can be set aside and that the appeal can succeed on a simpler basis.

The appellant’s counsel calls this mistake of fact and an available defence on that basis.

This position for the appellant is covered more under the Discussion part of these reasons further below. [ 62 ] Except for noting the fact that the appellant’s counsel also raised the interesting case of R v Irngaut , 2019 NUCJ 4 , 53 CR (7th) 203, appeal struck for lack of jurisdiction 2020 NUCA 4 [2020] Nu J No 19 (QL), I can skip over the position of counsel in the record below and move directly to what Bychok J made of what was put to him. [ 63 ] The reasons of Bychok J picked up on what Crown counsel before him had argued, namely that the defence in issue was that of officially induced error of law.

Bychok J in so doing might have been influenced by the fact that in Irngaut , Sharkey CJ held that an honest belief error on the part of youthful Irngaut to the effect that “the ban on harvesting caribou was not in effect” induced by comments of Sgt Qattalik to that effect, was not a mistake of fact. Irngaut is fairly close to this case in the material features of the alleged defence. Applying R v Gauchier and Legrande , 2014 ABCA 192 , 575 AR 355, Sharkey CJ said Irngaut suffered from “a mistake about his 'legal right' to shoot the caribou” which was therefore an error of law.

Sharkey CJ, however, went on to find the strict requirements of the test for officially induced error were made out. [ 64 ] More important to this appeal is something else that Bychok J drew from the submission of Crown counsel, namely the idea that in order to meet the officially induced error defence, the appellant had to show that his conduct in the allegations would have excused the keep the peace condition, assuming the appellant knew that condition was still in effect. [ 65 ] Bychok J put it this way: The Prosecutor asserted that it is not objectively reasonable for someone to assault and threaten others, “Whether they were aware of the conditional sentence order being expired or not. [AB 140/6-11] [...] On its face if the offender has not shown that he did in fact consciously and proactively consider the potential legal consequences of his desired action to start drinking alcohol again before he did so. [AB 142/8-12] Respecting the sixth Jorgensen test, one might arguably assert that by necessary implication the offender relied on the supervisor’s advice when he decided to drink.

I find, therefore, that the offender has satisfied the six-part Jorgensen test, and that he may rely on the excuse of officially induced error, and I stay the alcohol allegation. [AB 142/20-26] I turn now to the failure to keep the peace and be of good behaviour allegation. There’s a fundamental difference in the nature of the two breach allegations before the Court. The alcohol provision in the conditional sentence order was an optional condition which the sentencing Judge believed to be indicated by the facts of the case.

Once the offender was told reasonably that he was no longer bound to abstain from alcohol, in my view he was free to do so. To keep the peace, however, is a mandatory condition required in all conditional sentence orders and that’s by virtue of Criminal Code

section 742.3(1) (a). Furthermore, every Canadian is required by law to keep her Majesty’s public peace. It is simply not reasonable to assert that the offender could breach the peace because his supervisor said his conditional sentence order had expired. Put another way, it would not be reasonable for the offender’s supervisor to say to the offender in effect, “Your order has expired, so you’re free to do whatever you want, including breaches of the peace.

There is only one reasonable inference available to the Court on the Agreed Statement of Facts and the evidence of Constable Byers, that this offender did not pause to consider the legal consequences of his desired course of action. Had he considered his situation, he would have known that he would not be exempt from potential criminal charges because his supervisor said his order had expired. With respect to this allegation, the offender has not satisfied the second part of the Jorgensen test . In these circumstances, the excuse of officially induced error is not available to the offender.

The same argument attaches to the assertion that the offender was relying on his supervisor’s advice when he breached the peace. No one under any circumstances has authority to exempt another person from respecting the laws of the land, whether inadvertently or not. Had the offender paused long enough to consider his situation, he would have realized this fact. The Agreed Statement of Facts does not establish that the offender relied on the supervisor’s advice. It merely asserts that he “verily believed” the order had expired.

The offender has failed to satisfy the sixth part of the Jorgensen test, so the excuse of officially induced error is not available to him. I accept Constable Byer’s evidence, and I apply the law as set out in the Queen v Partridge 2007 decision of this Court. I find that the prosecution has established the breach of the peace on a balance of probabilities. I find that the offender breached his conditional sentence order to keep the peace and be of good behaviour on July 23 and 24, 2019.

I find that the offender did not have a reasonable excuse to breach this condition of the order. [AB 142/20-145/7, emphasis added in various places above]

[ 66 ] As covered in the Discussion below, it is possible to accept a significant part of what Bychok J was driving at here. But at least one part of it, in my respectful view, was incorrect quite apart from the issues on which this appeal rests as therein talked about below. [ 67 ] As to his reasoning whereby he distinguished ‘optional’ conditions from statutory conditions in relation to magnitude, I respectfully disagree with this approach. I do not discern a structural class distinction between conditions of a conditional sentence order in terms of juridical significance.

Facts underlying breaches of optional conditions may or may not reflect more damage to social values or reflect greater danger to the public than breaches of the keep the peace conditions. [ 68 ] Counsel for the appellant below suggested that the appellant might have decided to bang a pot out in the street and wake everybody up and potentially breach the good behavior condition because it would amount to causing a disturbance.

Whether or not that is an accurate example, the reasoning reveals that sometimes breaches of ‘optional’ conditions can be more serious in their effects or their implications than that sort of a ‘keep peace’ provision. [ 69 ] To explain this, I would refer, albeit in the context of long-term offender provisions, to what Ritter JA said in R v W(HP) , 2003 ABCA 131 at para 41 , 175 CC (3d) 56: 41 A judge sentencing for a breach of a condition of a long-term offender order must properly characterize the role of such a condition.

If the role of the condition is central to management of the risk of recidivism, then its breach will be more serious than would be the case if the role of the condition is an ancillary aid to management of such risk. A strong indicator of the role of the condition of abstinence is whether alcohol or substance abuse played a significant

part in the commission of offences in the past. [Emphasis added] [ 70 ] Similarly, another comparison can be made to R v Zimmerman , 2011 ABCA 276 at paras 14-15 , 513 AR 374 where the Court noted that two different groups of breaches of a s 810.2 of Criminal Code recognizance were both serious, one set for its implication of a “sinister purpose” and the other set for its role to defeat monitoring. In sum, the gravity of breaches turns on their facts, not their classification as statutory or optional. IV.

Discussion [ 71 ] It is first appropriate to describe the positions on appeal, and then to examine whether there is a “mistake of fact” defence, or a “mistake of mixed fact and law excuse” or a “mistake of law excuse” and if so, what the effect of the situation is. Submissions of the Parties [ 72 ] Counsel for the appellant initially says this case comes down to a defence of honest mistake of fact and only alternatively does counsel address the defence of officially induced error of law.

Counsel says that the appellant simply was not culpable for breach of the conditional sentence order because it was proven on a balance of probabilities that he did not know the order was still in effect and that was a mistake of fact. An element of what Bychok J concluded is challenged by the appellant as a ‘submission

interpretation’ error.

Bychok J commenced the foregoing analysis with the premise that both counsel had agreed that the “foundational facts give rise to the need for the Court to apply the Jorgensen test.” [ 73 ] Counsel for the appellant summarizes the submissions before Bychok J this way: 18 The essence of the Crown position appears to have been the incorrect assertion that because s. 742.6(9) of the Criminal Code allows for a “reasonable excuse”, the breach allegation could not be analogized to either a strict liability or an absolute liability offence but was akin to a criminal offence where the Crown had to prove mens rea.

Accordingly, the Crown submitted that the appropriate legal test to determine whether the Appellant had a reasonable excuse for his conduct was whether he met the requirements of officially induced error as would be the case for a criminal offence. Footnote 12 – Crown Submissions, Appeal Book pp. 105-113 19 The defence position was that the breach allegation was akin to a strict liability offence and, as such, the defence of due diligence and mistake of fact were normally available to provide a reasonable excuse. So too was an exceptional excuse of mistake of law such as officially induced error.

The defence submitted that the Appellant's belief that the CSO had ended could be considered a mistake of fact and afford an excuse. However, the primary defense submission was that it was a mistake of law and that the excuse of officially induced error was made out on the evidence. Footnote 13 – Defence Submissions, Appeal Book 113-129. [ 74 ] Seen in that light, it strikes me that Bychok J was attempting to follow what he thought was the main thread of argument. If he was mistaken in

part in interpreting the submissions made to him, nothing much turns on that since ultimately his decision was reviewable at large here now. The appellant’s counsel encapsulated his position as follows: 21 The Appellant's first ground of appeal is that the presiding judge applied the wrong test in requiring that the Appellant prove officially induced error. The Appellant had a clear and very reasonable excuse of mistake of fact that was not considered by the hearing judge.

Requiring him to prove officially induced error denied him the benefit of the much broader set of reasonable excuses that the Criminal Code permits. 22 Alternatively, the hearing judge erred in determining that the Appellant would have had to seek advice about the legality of the specific activities that resulted in the breach of his CSO. If this were a case of mistake of law, the only legal question that the Appellant could have sought advice on was whether his CSO was still in effect.

He did not have to establish anything more. [ 75 ] The Crown’s response before me involves a concession, but it is carefully limited. Crown counsel puts the position this way: 5. The Appellant argues that the trial judge applied the wrong test in requiring that the Appellant prove officially induced error insofar as the Appellant had a reasonable excuse of mistake of fact.

6. In the alternative, the Appellant argues that “the hearing judge erred in determining that the Appellant would have had to seek adviceabout the legality of the specific activities that resulted in a breach of his Conditional Sentence order. If this were a case of mistake oflaw, the only-legal question that the Appellant could have sought advice on was whether his CSO was still in effect. He did not have toestablish anything more.” (p. 6 Appellant's factum) 7.

The Respondent submits that the error made was an error of law or mixed fact and law, and as such, the Jorgenson test for officiallyinduced error was applicable. The respondent submits that on a strict reading, step 2 of the Jorgenson test is not made out; however, therespondent also submits that this unique situation has resulted in an unfairness to the Appellant. This is because he did not knowinglybreach any term of his CSO, including the condition that he keep the peace and be of good behaviour.

Rather, any guilty mind he mayhave had revolved solely around the criminal offences he was alleged to have committed on 24 July 2019. [76] The parties therefore join issue on whether there is a “mistake of fact” defence, or a “mistake of mixed fact and law excuse”or a “mistake of law excuse” and if so, what the effect of the situation is. [77] The standard of review for the decision of Bychok J on these issues is correctness on law and palpable and overriding error onfacts, but I do not need to dwell on standard of review.

In some cases, and this is one, it can be said that past the rhetoric of standard ofreview is the real question whether deference should be given to the decision, or whether the appeal court should step into the shoes ofthe first instance court and reach its own conclusion. Concepts of law dominant this entire discussion and I must adjudicate accordingly.

Mistake of Fact [78] The appellant contends that howsoever simplified the process under s 742.6(9) of the Code may be, it is still the case that (aswith any other criminal provisions with prison jeopardy involved) Parliament is presumed to have intended that the alleged offender havesome level of mens rea comprised of something that could be characterized as ‘fault’, as minimal as that culpable state of mind might be:compare Zora at para 33 citing R v H (AD), 2013 SCC 28 at para 23, [2013] 2 SCR 269. [79] Put another way by the famous Antonin Scalia in “The Rule of Law as a Law of Rules” (1989) 56 University of Chicago LawReview 1175 at p 1179: “Rudimentary justice requires that those subject to the law must have the means of knowing what it prescribes.

It is said that one ofEmperor Nero's nasty practises was to post his edicts high on the columns so that they would be harder to read and easier to transgress...... Predictability, or as Llewellyn put it, 'reckonability' is a needful characteristic of any law worthy of the name.” [80] Bychok J appropriately turned his mind to the question of what the offender had to believe in order to be excused. But, in theappellant’s submission, he started his analysis in the wrong place.

The appellant’s counsel submits that Bychok J should have firstidentified the case as a situation where the prosecution had to prove a level of “fault” to begin with as part of the ‘breach’ phase of theanalysis under s 742.6(9) of the Code. The appellant’s counsel says the initial reasoning mis-step is evidenced by his reasoning todistinguish between the alcohol abstinence condition and the keep the peace condition. [81] The appellant’s counsel refers to a number of authorities which venture an opinion about what might constitute a mistake offact operative as defence.

The shared problem with all the examples offered by the appellant’s counsel is that none of them relate to aproceeding under s 742.6(9) of the Code, and all of them consider the distinction between a mistake of law and a mistake of fact in thecontext of a specific form of charge. [82] The nature of the charge involved is, furthermore, crucial to whether or not there is a zone of “fact” which forms part of theessential elements of the charge on trial and thus the proof of which is properly imposed upon the Crown. [83] Important in this group, and a predecessor to Zora, that the appellant’s counsel refers to is R v Docherty, (SCC), [1989] 2 SCR 941.

In that case, the offence was not merely ‘breach’ of probation but, by Parliament’s language, the offence is“wilfully failing or refusing to comply with a probation order” [see para 13]. Parliament went further to command rules of disclosure andwarning to ensure the probationer understands his legal predicament when entering into the probation order.

Further, it was a truecriminal offence under the Code, and not a breach allegation under s 742.6(9) of the Code related to the execution of an existingsentence. [84] The Supreme Court in Docherty held that when the trial judge accepted that the accused did not believe he was in breach ofthe probation order by the ‘care / control’ offence of which he was convicted, the accused had an answer to the “wilfully” element of thebreach offence, and that the “wilfully” element was not automatically met by proof of the mens rea for the underlying offence: “Themens rea of an underlying offence cannot, in my view, be treated as the intent required under s. 666(1).” [see para 29]. [85] In my view, Docherty is distinguishable.

It is not authority for a proposition that where Parliament builds an allegation ofbreach based upon the state of mind arising from an underlying offence as under s 742.6(9) of the Code, a further culpability of state ofmind is always required to be proven by the Crown. [86] The case of R v Ilczyszyn (1988), (ON CA), 45 CCC (3d) 91 offered for the appellant also does not, in myview, assist the appellant. In that case, the Criminal Code offence concerned contravention of a child custody order and it expresslyrequired specific intent to “deprive” the other parent of the possession of the child under that order.

The Court of Appeal agreed that forthe terms of that offence, the reference to an order in the offence and the charge “must mean an order which the accused knows of, andwhich is valid and subsisting at the time of the alleged abduction”.

The Crown was required to prove that the accused intended to deprivethe other parent of possession “in contravention of a valid and subsisting custody order”. [87] The Court of Appeal agreed with earlier authority that “An accused's mistaken belief that his conduct did not contravene thecriminal prohibition is not a defence.” But there the error concerned the civil law and the trial judge had acquitted on the existence oferror about civil law rights and how that related to the required specific intent. Put another way, the accepted form of mistake defence in

Ilczyszyn is merely another example of where Parliament imposes a required element in its definition of the offence which requiredelement by its terms gives rise to a defence. [88] An analogy to this line of authority might be said to be cases dealing with the ‘colour of right’ defence which the crimedefinition chosen by Parliament may specify as a required element. Parliament did so with respect to theft under s 322 of the CriminalCode.

In R v DeMarco (1973), (ON CA), 13 CCC (2d) 369 at p 372 the requirement as to ‘colour of right’ had effect.In modern day terms the colour of right defence does require an ‘air of reality’ in the evidence in order to be effective, but it can involvean erroneous opinion based upon a misunderstanding of facts: compare R v Simpson and Farrell, 2015 SCC 40 at paras 31-38, [2015] 2SCR 827.

In other words, once again, the manner in which Parliament words a specific offence may, in light of how the evidenceunfolds, mean that a defence of mistake of fact may still be considered operative even if built into it there is a form of an error of civillaw. But that is not what we have here. [89] Zora leads to a similar result, namely that a crime definition may allow for a mistake defence arising from Crown’s case. Theoffence there was under s 145(3) of the Criminal Code.

For that offence of breach of terms of a recognizance, Parliament made essentialproof by the Crown of “subjective fault” at least in part because Parliament is presumed to intend a criminal offence to involve subjectivefault. For the offence defined it is necessary for the Crown to proven the accused “fails without lawful excuse, the proof of which lies on[the accused], to comply with the condition ...”. [para 36]. [90] The Supreme Court in Zora explained that the existence of language referring to a statutory defence of “lawful excuse” played“no role in the

interpretation of the mens rea of the offence” but merely provided an additional defence not otherwise available (paras 36-37). The Supreme Court refused to characterize s 145(3) as creating an objective and ‘duty-based’ offence as compared with actingcontrary to the condition.

The Supreme Court did not see the case as alike to a situation where there is a legal standard, as arising in aduty to a specific vulnerable person, such that it would render the standard meaningless to admit of a subjective degree of fault. [91] Moreover, Zora pointed out that to make conduct a criminal offence in and of itself, even objective fault for a specific offencerequires a marked departure from the conduct of a reasonable person and volition for the conduct itself. By comparison,

section 742.6(9)of the Criminal Code provides for an alternative to imprisonment where the autonomy of self-control would simply be taken away. Abreach allegation under s 742.6(9) of the Code represents a situation where the offender who was given that autonomy by grace hasacted in a manner inconsistent with the permissiveness allowed by the order.

An offender subject to a conditional sentence order is givena structure of limits to which the offender is entrusted and expected to conform. [92] The appellant also cites two trial level decisions which I do not find persuasive on this topic: R v Eby, 2007 ABPC 81 and R vGrenon, 2019 QCCQ 6439.

I need not analyze them. [93] The appellant’s counsel closes out his discussion of a mistake of fact defence with reference to MacDonald and LeGrande.Along with Irngaut, those cases, in my view, more support the position of the Crown that the defence argument on behalf of theappellant belongs, if at all, under officially induced error of law. [94] Before leaving this point, I would add that I am not persuaded to see proceedings under s 742.6(9) of the Code as analogous toregulatory prosecutions.

Even if they were analogous, I am not persuaded that the due diligence defence approach gets the appellantanywhere. [95] Even where it applies, due diligence is not a general sort of defence based on good intentions or lack of negligence or a desirenot to break the law.

Due diligence involves a positive onus on the claimant and an objective standard to be met by the claimant: Lévis(City) v Tétreault, 2006 SCC 12 , [2006] 1 SCR 420 and the onus is not made out by a vague good faith abstraction. [96] The due diligence defence requires proof that the accused person took reasonable steps to avoid the specific conduct whichwould constitute the offence. In La Souveraine, Compagnie d'assurance générale v.

Autorité des marchés financiers, 2013 SCC 63 atparas 56-57, [2013] 3 SCR 756 wrote: 56 The due diligence defence is available if the defendant reasonably believed in a mistaken set of facts that, if true, would haverendered his or her act or omission innocent. A defendant can also avoid liability by showing that he or she took all reasonable steps toavoid the particular event (Sault Ste. Marie, at p. 1326).

The defence of due diligence is based on an objective standard: it requiresconsideration of what a reasonable person would have done in similar circumstances. 57 However, this defence will not be available if the defendant relies solely on a mistake of law to explain the commission of the offence.Under Canadian law, a mistake of law can ground a valid defence only if the mistake was an officially induced error and if theconditions laid down in R. v. Jorgensen, (SCC), [1995] 4 S.C.R. 55, with respect to the application of such a defence aremet.

A defendant can therefore gain nothing by showing that it made a reasonable effort to know the law or that it acted in good faith inignorance of the law, since such evidence cannot exempt it from liability. [Emphasis added] [97] The Supreme Court in La Souveraine expressly disagreed with the submission that the due diligence defence applied as anissue of fact because the company was “unaware that its broker did not hold a license in Quebec”. As noted above, the defence refers totaking all reasonable steps to avoid the particular event.

It does not refer to due diligence “to find out and verify the nature of theapplicable law”. Dura lex, sed lex. [98] Similarly, as stated in R v Kal Tire, 2020 ABCA 200 at para 22, [2020] AJ No 565 (QL) quoting from R. v Alexander (1999) (NL CA), 171 Nfld & PEIR 74 at para. 18 (NLCA): 18 The defence of due diligence requires the acts of diligence to relate to the external elements of the specific offence that is charged.The accused must establish on a balance of probabilities that he or she took reasonable steps to avoid committing the statutorily-barredactivity.

It is not sufficient simply to act reasonably in the abstract or to take care in a general sense. In R. v. Kurtzman (1991), (ON CA), 4 O.R. (3d) 417 (Ont. C.A.), Tarnopolsky, J.A. observed at p. 429 that “The due diligence defence must relate tothe commission of the prohibited act, not some broader notion of acting reasonably.” [Emphasis added]

[99] In light of this, and without reaching a final conclusion on the matter, I find there is arguable merit in what Bychok J saidabout there being no general defence of being misled or being ignorant of matters of general crime law such as assault offences. That isso whether or not an official seemingly offers an advance ‘pass’ to the accused about the topic. On this, I refer back to cases of self-advice.

It has been the law for a very long time that even if one comes from a place or culture where the activity is considered lawful, andone is unaware that it is criminal here, the offender still does not have a mistake of law defence: R v Esop, (1836) 173 ER 203; R vBarronet and Allain, (1852) 169 ER 633. [100] As pointed out in Immeubles Jacques Robitaille inc. v.

Québec (City), 2014 SCC 34, [2014] 1 SCR 784 estoppel againstofficial prosecutorial action does not apply to clear offences even in the case of regulatory offences (let alone criminal offences).Consequently, it cannot be due diligence to rely on such an opinion inferred from something said by officialdom: 29 In short, the doctrine of estoppel cannot be relied on as a defence in the case of a regulatory offence. It is well established that thisdoctrine cannot be raised in a public law context in the face of a clear legislative provision.

In the instant case, the by-law is clear, and itcreates a strict liability offence on grounds related to the public interest and does not authorize the municipality to consent to a non-conforming use. [Emphasis added] [101] There is more that could be said, but, in the end, I am not persuaded by the appellant’s first ground of appeal that he had adefence of mistake of fact or a defence of due diligence available to him under these circumstances.

I so conclude regardless of thehonesty of his belief in what the community corrections officer may have said to him about when his conditional sentence order wasexpected to expire, which was a couple of days before his arrest. Mistake of Law, Mistake of Mixed Fact and Law [102] Both of these forms of mistake are covered in the circumstances of this case by the proposed defence of officially induced errorwhich the Crown concedes is applicable here. Counsel below and here invoked and analyzed the cumulative set of rules set out inJorgensen. [103] This is hardly a young idea.

Lord Hale in Pleas of the Crown, 1680, referred to the proposition that “Every person of the age ofdiscretion and compos mentis is bound to know the law, and presumed to do so.” Sir William Blackstone, a century later (1772) said inhis Commentaries on the Laws of England Book IV, Subtopic V wrote: For a mistake in point of law, which every person of discretion not only may, but is bound and presumed to know, is in criminal cases nosort of defense.

Ignorantia juris, quod quisque tenetur scire, neminem excusat [ignorance of the law, which everyone is presumed toknow, does not excuse], is as well the maxim of our own law, (FN 24) as it was of the Roman. (FN 25) [104]

Section 19 of the Criminal Code uses language which tracks from its Latin source: Ignorance of the law 19 Ignorance of the law by a person who commits an offence is not an excuse for committing that offence. *** Ignorance de la loi 19 L’ignorance de la loi chez une personne qui commet une infraction n’excuse pas la perpétration de l’infraction. [105] It has been suggested that drawing a distinction between ignorance of law and mistake of law is “pure sophistry”: E.R. Keedy,“Ignorance and Mistake in the Criminal Law”, (1908) 22 Harvard Law Review 75 at p 95.

Similarly, Lamer J as he then was hinted atdoubt of the “merit of such a distinction” in R v Molis, (SCC), [1980] 2 SCR 356, notably when used to distinguishignorance of the existence of the law and mistake as to its meaning. [106] That said, and despite Keedy’s view, a distinction something like the one he discounted seems to be exist in the language ofCheek v United States, [1991] USSC 2, 498 U.S. 192 which, like the discussion in the earlier part of these reasons, refers to a statutorycrime definition which expanded the scope of available defences.

Be that as it may, the thinking in Canadian cases such as Jorgensenfocuses on the substantive merits of the situation and not on semantics. Canadian law also recognizes that situations where mistake oflaw may arise are variable. [107] In Jorgensen Lamer CJC summarized the criteria this way: 36 In

summary, officially induced error of law functions as an excuse rather than a full defence. It can only be raised after the Crownhas proven all elements of the offence. In order for an accused to rely on this excuse, she must show, after establishing she made an errorof law, that she considered her legal position, consulted an appropriate official, obtained reasonable advice and relied on that advice inher actions. Accordingly, none of the four justifications for the rule that ignorance of the law does not excuse which Stuart outlined isundermined by this defence. There is no evidentiary problem.

The accused, who is the only one capable of bringing this evidence, issolely responsible for it. Ignorance of the law is not encouraged because informing oneself about the law is a necessary element of theexcuse. Each person is not a law unto himself because this excuse does not affect culpability. Ignorance of the law remains blameworthyin and of itself. In these specific instances, however, the blame is, in a sense, shared with the state official who gave the erroneousadvice. [108] Another encapsulation of the purpose and scope of the defence appeared in R v Bedard and Rangers, 2017 SCC 4 at para 1,

[2017] 1 SCR 89, where McLachlin CJC said: The defence of officially induced error of law is intended to protect a diligent person who first questions a government authority about the

interpretation of legislation so as to be sure to comply with it and then is prosecuted by the same government for acting in accordance with the

interpretation the authority gave him or her. [ 109 ] The 6 criteria for application of the excuse of officially induced error of law (to which a seventh criteria about ‘rarity’ was proposed by counsel below) were drawn out of the reasons in Jorgensen and set out in their familiar six-part form in Ville de Levis 2006 SCC 12 at para 26 , [2006] 1 SCR 420: 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 ). [ 110 ] The Supreme Court in Levis at para 27 said “this analytical framework has become established”.

Nonetheless, one detects in some cases a variant on criterion (6) that the reliance must also be reasonable. [ 111 ] To this listing of criteria, La Souveraine adds these observations: 68 This Court has held many a time that the fact that a defendant has exercised due diligence to find out and verify the nature of the applicable law is not a defence (City of Lévis, at para. 22). It has characterized the rule with respect to ignorance of the law as “an orienting principle of our criminal law which should not be lightly disturbed” (Jorgensen, at para. 5 , per Lamer C.J.).

In City of Lévis , at paras. 22-27, LeBel J. noted that this rule has the same weight in regulatory law. 69 The rule with respect to ignorance of the law exists to ensure that the criminal justice system functions properly and that social order is preserved. G. Côté-Harper, P. Rainville and J. Turgeon explain this rule, conveyed by the maxim “ignorance of the law is no excuse”, as follows ( Traité de droit pénal canadien (4th ed. 1998), at p. 1098): [TRANSLATION] The presumption of knowledge of the law becomes the quid pro quo for the principle of legality.

The legislature assures citizens that it will not punish them without first telling them what is prohibited or required. But in exchange, it imposes on them an obligation to ask for information before acting... . Fear of social disorder and anarchy is the main argument of those who want to uphold the maxim.

To accept an unrestricted possibility of hiding behind a subjective excuse of ignorance would be dangerous and improper. 70 In Jorgensen , Lamer C.J. also endorsed this view, quoting the following passage on the rationale for the rule against a defence based on mistake of law: Don Stuart identifies four aspects of the rationale for the rule against accepting ignorance of the law as an excuse: [page787] 1. Allowing a defence of ignorance of the law would involve the courts in insuperable evidential problems. 2. It would encourage ignorance where knowledge is socially desirable. 3.

Otherwise every person would be a law unto himself, infringing the principle of legality and contradicting the moral principles underlying the law. 4. Ignorance of the law is blameworthy in itself. (Canadian Criminal Law: A Treatise (3rd ed. 1995), at pp. 295-98) [para. 5] 71 It should nonetheless be noted that if the rule that ignorantia juris non excusat - ignorance of the law excuses no one - were absolute, this could seriously hinder the application of another cardinal rule of our criminal justice system: there can be no punishment without fault.

The overlap between these rules is all the more significant given the current simultaneous proliferation of regulatory measures and penal statutes. Indeed, several authors have pointed out that it is now impossible for citizens to have comprehensive knowledge of every law: [TRANSLATION] The presumption of knowledge of laws was acceptable and defensible in the past because those laws concerned only serious offences and crimes against morality. The situation is very different today, and the criminal or penal law must be interpreted by consulting an abundant case law.

The much-discussed multiplication of penal statutes must also be considered, and no one, not even criminal lawyers and other specialists in such matters, can profess to know all of them. The situation created by this proliferation of statutes is aggravated by the problem of their publication, which, although formal, is often not really effective.

(Côté-Harper, Rainville and Turgeon, at p. 1099) [112] As to whether the defence of officially induced error applies in the case at bar, the appellant’s second ground of appeal contendsthat the fact that the appellant was (innocently) misled as to the completion date for the conditional sentence order in July, 2019, he wasentitled to assume that what he did would not violate the conditional sentence. This ground has substance. In what follows I do notconsider it necessary to preciously track all the 6 criteria in Jorgensen because the facts here speak for themselves.

I will just hit thehighlights. [113] As noted, the erroneous legal advice to the appellant emanated from the very official with authority to file Breach Reports (andthe very official who did so). It was perfectly understandable that the appellant would think that such person would know whether theorder is in existence or not. It would be a different and more difficult question to decide whether any advice from that person about whatmight constitute a breach of the order could be relied upon. But this is not a case about

interpretation of the order or any limits of itsconditions. [114] Saying this is not to suggest that the appellant had, or could have had, a reasonable excuse within the meaning of s 742.6(9) ofthe Criminal Code for beating up anybody. His excuse would only go so far as being that if he committed some fault-based activity, theconditional sentence would not be engaged by doing so.

I agree with Bychok J that the appellant’s being under even the honest belief thathis conditional sentence had expired was not a license to commit new crimes or experiment with what might otherwise violate the law incarrying on with his life as usual. [115] The appellant’s counsel submits that Bychok J’s error was reflected in the distinction he drew between the alcohol abstinencecondition breach and the keep peace breach.

It should be recalled that nothing in what the community corrections officer said to theappellant was an inducement directed to the appellant to go back to drinking excessively any more than it was an inducement to go andhit people or threaten the police. The common element between the alleged breaches as addressed by the erroneous legal explanation ofthe officer was that the conditional sentence order was no longer in place. [116] Accordingly, the advice given was that the order would not be transgressed against because it is over.

This is not amisconception about the extent of the order nor did this advice purport to distinguish between what might or might not be considered abreach of the order. It was advice that the order would not exist. The advice did not tell him how to behave in the future. [117] As counsel submissions point out, the situation might be different if the advice sought and received from the communitycorrections officer was merely whether or not the appellant could start drinking again.

If that was all the advice amounted to, namely thathe was no longer forbidden from drinking, then the distinction drawn by Bychok J might arguably be sound. Nothing in that type ofadvice could operate to defend the appellant from being brought to book for breach of the keep peace condition. [118] Indeed, as noted above in relation to Immeubles Jacques Robitaille, the community corrections officer could not havesuggested that the appellant could do what he wanted to that extent. Indeed, one has to doubt whether Attorney General could immunizethe appellant in advance in that way under our law.

One might note the references to the grant of dispensations given by King Charles Ithat was part of the provocation for the English Civil War as discussed in R v Armstrong, 2012 BCCA 242 referring to R v Catagas(1977), (MB CA), 38 CCC (2d) 296 where it was written: 32 Chief Justice Freedman wrote a memorable judgment on behalf of a five-judge court. He began by recounting the struggles in 17th-century England that had led finally to the triumph of Parliament over the Crown and the abolition of the notion that the Crown couldsuspend the operation of a duly enacted law of Parliament.

He quoted the principle of parliamentary supremacy as formulated inHalsbury's Laws of England (3rd ed.) as follows: The Crown may not suspend laws or the execution of laws without the consent of Parliament; nor may it dispense with laws, or theexecution of laws; and dispensations by non obstante of or to any statute or part thereof are void and of no effect, except in such cases asare allowed by statute. [Quoted at p. 397 of Catagas; see also Maitland, Constitutional History of England (1909) 304-05, quoted inCatagas at 398.] [119] One thing that got Charles I into a jam was his regular abuse of emerging capitalism by his abuse of

An Act concerningMonopolies and Dispensations with penall Lawes and the Forfeyture thereof, 21 Jac 1 c 3. That Act was, it appears, the first statutoryclear expression of ‘patent’ law which could operate to protect patent protection for “new manufactures within this realm”. But the Actalso was designed to knock out the crony monopolies that provided a cash flow to the Crown.

Charles evidently used dispensations formonopolies as a revenue raising device as had his predecessors Elizabeth I and James I despite the Statute of Monopolies which wassponsored, we are told, by Lord Coke. [120] Against this background, and even recognizing that it is well established and a matter of Constitutional law for there to bepolice charging discretion and prosecutorial discretion built into the administration of criminal justice in this country – compare R vBeaudry, 2007 SCC 5, [2007] 1 SCR 190 and R v Anderson, 2014 SCC 41, [2014] 2 SCR 167 – it is also not a viable excuse for anyonefor the commission of a crime that they simply believed that they would not be prosecuted for it: see R v Arrowsmith [1975] QB 678, 60Cr App R 211. [121] All that said, the main criticism by the appellant of the reasoning of Bychok J is that he excluded the defence of officiallyinduced error for the keep peace condition even though he accepted that it was made out in its 6 criteria for the alcohol abstentioncondition breach. [122] Crown counsel put the core issue here colorfully by referring to the following passage from R v Mabior, 2012 SCC 47 at para14, [2012] 2 SCR 584 pp 593-594: 14 … It is a fundamental requirement of the rule of law that a person should be able to predict whether a particular act constitutes acrime at the time he commits the act.

The rule of law requires that laws provide in advance what can and cannot be done: Lord Bingham,The Rule of Law (2010). Condemning people for conduct that they could not have reasonably known was criminal is Kafkaesque and

anathema to our notions of justice. After-the-fact condemnation violates the concept of liberty in s. 7 of the Canadian Charter of Rights and Freedoms and has no place in the Canadian legal system. [ 123 ] Crown counsel concedes that, on the facts here, the appellant would have reasonably relied on the advice of the person empowered to take direct action to enforce the conditional sentence order against the appellant that after July 22, 2019 the order would not be in effect.

When the order was originally made, it would in fact have expired as indicated. [ 124 ] To be precise, I harbour reservations about whether the appellant could reasonably have understood the statement of the community corrections officer to be accurate on this point, having regard to the fact he was in court when something different (though imprecise) was said.

But the fact finding is to the contrary about the appellant’s state of belief and I cannot say that that finding is unreasonable having regard to the individual circumstances of the appellant. [ 125 ] For his part, Crown counsel expresses a further reservation as to what Crown counsel calls criterion 2 of Jorgensen , namely that “the person who

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