Workers Health & Safety Centre

Defining "Officially Induced Error"

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.