283 In the Canadian Supreme Court case of R v Jorgensen [1995] 4 SCR 55, the accused were convicted of an offence of knowingly selling obscene material. Lamer CJ held that the accused were to be excused from conviction on the basis of an officially induced error of law by virtue of the Ontario Film Review Board's approval of the films in question (at [2]). While this did not negative the mens rea of the offence, his Honour stated that reasonable reliance on this type of official advice was a sufficient basis for a judicial stay of proceedings to be entered. In so concluding Lamer CJ emphasised that a stay could only be entered in the clearest of cases and that the excuse did not offend the maxim that ignorance of the law was no excuse, rather, it provided an exception to this provision "which ensures that the morally blameless are not made criminally responsible for their actions" (at [2]).
284 After detailing the development of the defence in the United States and Canada (at [12]-[24]), Lamer CJ went on to describe its elements in these terms (at [28]-[36]):
28 The first step in raising an officially induced error of law argument will be to determine that the error was in fact one of law or of mixed law and fact. Of course, if the error is purely one of fact, this argument will be unnecessary. Unlike Professor Barton, I do not agree that officially induced error should be used to eradicate the distinction between mistakes of fact and mistakes of law. This distinction is important for all the reasons that I believe the principle that ignorance of the law does not excuse must stand firm. Distinguishing between mistakes of fact and those of law remains conceptually important. Mistakes of law will only be exculpatory in narrowly defined circumstances.
29 Once it is determined that the error was one of law, the next step is to demonstrate that the accused considered the legal consequences of her actions. By requiring that an accused must have considered whether her conduct might be illegal and sought advice as a consequence, we ensure that the incentive for a responsible and informed citizenry is not undermined. It is insufficient for an accused who wishes to benefit from this excuse to simply have assumed that her conduct was permissible.
30 The next step in arguing for this excuse will be to demonstrate that the advice obtained came from an appropriate official. One primary objective of this doctrine is to prevent the obvious injustice which O Hearn Co. Ct. J. noted -- the state approving conduct with one hand and seeking to bring criminal sanction for that conduct with the other. In general, therefore, government officials who are involved in the administration of the law in question will be considered appropriate officials. I do not wish to establish a closed list of officials whose erroneous advice may be considered exculpatory. The measure proposed by O Hearn Co. Ct. J. is persuasive. That is, the official must be one whom a reasonable individual in the position of the accused would normally consider responsible for advice about the particular law in question. Therefore, the Motor Vehicle Registrar will be an appropriate person to give advice about driving offences, both federal and provincial. The determination of whether the official was an appropriate one to seek advice from is to be determined in the circumstances of each case.
31 My colleague Sopinka J. argues that, in this case, allowing OFRB approval to constitute an excuse is an impermissible delegation of power from one level of government to another. In my view, this argument does not bar officially induced error from constituting an excuse which is considered after culpability has been proven. There is no issue of the action of a provincial board precluding criminal prosecutions. Indeed, we must recall that it is the provincial Attorney General who makes the decision to prosecute offences, even when the offence charged is in the Criminal Code . The advice of officials of any level of government may induce an error of law and trigger this provision provided that a reasonable person would consider that particular government organ to be responsible for the law in question. The determination relies on common sense rather than constitutional permutations.
32 Several other types of advice have been considered in the cases dealing with this excuse, for example advice from private lawyers and reliance on judicial pronouncements. As these examples are beyond the scope of this case, I make no comment at this time on whether these types of advice may provide the basis for officially induced error of law.
33 Once an accused has established that he sought advice from an appropriate official, he must demonstrate that the advice was reasonable in the circumstances. In most instances, this criterion will not be difficult to meet. As an individual relying on advice has less knowledge of the law than the official in question, the individual must not be required to assess reasonableness at a high threshold. It is sufficient, therefore, to say that if an appropriate official is consulted, the advice obtained will be presumed to be reasonable unless it appears on its face to be utterly unreasonable.
34 The advice obtained must also have been erroneous. This fact, however, does not need to be demonstrated by the accused. In proving the elements of the offence, the Crown will have already established what the correct law is, from which the existence of error can be deduced. Nonetheless, it is important to note that when no erroneous advice has been given, as in MacDougall , supra , this excuse cannot operate.
35 Finally, to benefit from this excuse, the accused must demonstrate reliance on the official advice. This can be shown, for example, 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.
36 In summary, officially induced error of law functions as an excuse rather than a full defence. It can only be raised after the Crown has proven all elements of the offence. In order for an accused to rely on this excuse, she must show, after establishing she made an error of law, that she considered her legal position, consulted an appropriate official, obtained reasonable advice and relied on that advice in her actions. Accordingly, none of the four justifications for the rule that ignorance of the law does not excuse which Stuart outlined is undermined by this defence. There is no evidentiary problem. The accused, who is the only one capable of bringing this evidence, is solely responsible for it. Ignorance of the law is not encouraged because informing oneself about the law is a necessary element of the excuse. Each person is not a law unto himself because this excuse does not affect culpability. Ignorance of the law remains blameworthy in and of itself. In these specific instances, however, the blame is, in a sense, shared with the state official who gave the erroneous advice.