In a previous Instructor e-Note
we discussed strict liability offenses and noted that, once a breach of occupational health and safety law is proven, “with only narrow exceptions” the defendant’s only defence is due diligence. Here’s one of the exceptions: “officially induced error.”
The defence of officially induced error was upheld in a decision by Supreme Court of Canada Chief Justice Antonio Lamerin in the 1995 case of R. v. Jorgensen. The argument applies in certain situations in which a person follows the erroneous legal advice of a government official. The Justice reasoned, “It is certainly reasonable for someone to have assumed he knows the law after consulting a representative of the state acting in a capacity which makes him expert of that particular subject.” According to the Chief Justice, there are five required elements to the defence:
the accused must have considered the legal consequences of its actions and sought legal advice,
the legal advice obtained must have been given by an appropriate official,
the legal advice was erroneous,
the person receiving the advice relied on it, and
the reliance was reasonable.
The risk of creating a defence of officially induced error is one reason enforcement officers are not typically permitted to assist employers in reaching compliance.