CRM 200 Lecture Notes - Lecture 10: Mens Rea, Mescaline, Premedication
3 May 2018
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CRIM 200 – Criminal Law- Lecture 10: Mistake of Fact and
Provocation
Mistake of Fact: Introduction
• Mistake of fact connected to the mens rea of the particular offence
• Not a full defence as compared to self-defence and necessity
• A set of circumstances pertaining to a prohibited act that make it more difficult for the
prosecution to prove the fault element of a particular offence
• Connected to a specific fault element, subjective element of knowledge, mistake of fact
must also be connected to that specific element
Mistake of Fact and Drug Offences:
R. v. Beaver (1957)
• established that in order for a person to have a requisite fault
element for possession based drug offences, they had to have
subjective knowledge that the drug they were holding was illegal
or harmful.
• Mistake of fact issue - tried to raise evidence towards the end that
he was mistaken of the substance that was in the bag and that he
thought it as sugar… successful
o Possession = subjective fault element if knowledge
o Mistake of fact is always connected to the fault element of
the offense
R. v. Burgess (1970)
• established the principle that an accused who has knowledge that
they’re in possession of an illegal substance cannot raise a mistake
of fact defence.
• In possession of what they thought was hash but it was actually
opium.
• Even though it was a different drug it is still not a mistake of fact
and they were still convicted
o The accused will not have a defence when they make a
mistake of fact in the nature of the drug
o If they know it’s a drug, but argued that didn’t know which
type of drug = not a defence
o If you have knowledge of the possession of substance it
does not matter if you know the exact type of substance it
is
R. v. Kundeus
(1975)
• Trafficking LSD that he thought was Mescaline. Cannot raise a
mistake of fact defence.
• Not successful in the last two cases
• Defence that is directly connected to the mens rea of the
offence
• If fault element is subjective – the mistake of fact is also based on
the subjective.
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• If fault element for he offense is objective – the mistake of fact is
also judged based on the objective standards
Mistake of Fact and Sexual Assault
R. v. Pappajohn
(1980)
• A case of rape.
• There was some level of confusion of whether or not sex had taken
place between a man and a woman, the woman was selling the man
the house.
• The SCC found that the accused could raise a mistake of fact
defence and that the defence would have to correlate with what was
the intention of rape; this would have to be recklessness or intention.
• They argued that since the fault element was subjective, the relevant
mistake of fact was the mistake that was in the accused mind.
• For the purposes of consent, only what was in the actual accused
mind is what matters, any reasonable standard about whether or not
consent was established is not relevant for the purposes of the
mistake of fact defence. It was this precedent
• that was further considered in Seaboyer, below.
o In 1980, sexul asslut does not exist = only rape. That
offence was based on a subjective fault element
(knowledge or recklessness)
o Because of this fault element is subjective, if they want
to claim mistake of fact=
o Honestly believed that consent was present
o The court said that in rape cases at the time, the analysis
for these type of element is not weather the accused
believed that it is reasonable but weather if they held it
o Argued that he did hold this believe –
o Mistaken of fact is always connected to the fault element
R. v. Seaboyer
(1992)
• Another controversial case regarding a mistake of fact defence. A
rape case.
• Question of whether or not the activity was consensual.
• The complainant had also suffered some physical signs of sexual
abuse including bruising.
• Seaboyer, argued that two sections pertaining to so called rape
shield laws that existed at the time were unconstitutional.
o Section 277 and 276 of the CCC both allowed for in
restricted circumstances, prohibitions on questioning of
a sexual assault complainant about prior sexual
reputation and prior sexual activity.
• Section 277 – prohibits the use of evidence of previous sexual
reputation in order to challenge the credibility of a complainant.
o This section is related to the decision in Papajohn and
the mistake of fact defence because papajohn opened
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the door to subjectively held honest belief that their act
was consensual and it was a mistake of fact.
o Court had to decide on the constitutionality of that
section, a prohibition on asking questions about past
reputation of sexual behavior is unconstitutional;
▪ it would impede his ability to make a mistake of
fact defence.
▪ The court disagreed, they decided that section
277 was constitutional and upheld this law to
protect victims of sexual assault.
▪ A person cannot claim an honest belief of
istake of fat ased o a perso’s prior
reputation.
▪ Seaboyer somewhat closed the door that
Pappajohn had opened.
• Section 276 - prohibits the raising of evidence concerning the sexual
activity of the accused with any person other than the accused.
o Different from sexual reputation, sexual activity can
sometimes be relevant if there is some question whether
or not physical evidence in such a case is relevant.
o Seaboyer wished to refute some of the evidence used
against him, y sayig that those ruises ight’e come
from somebody else and challenged the constitutionality
of those charges.
o Infringing his section 7 and section 11 of the charter and
he was successful.
o This section prevented Seaboyer from bringing a full
mistake of fact defence.
• The end result is that an honest mistake as to consent can be raised
as a defence to sexual assault and it not need be reasonable.
o The law needs clarification on section 276 and as such
some work needs to be done on this case and as a result
we get the following section.
Section 273.2
CCC: Definition
of Consent
Section 273.2 CCC:
• 273.2 It is not a defence to a charge under section 271, 272 or 273
that the accused believed that the complainant consented to the
activity that forms the subject-matter of the charge, where
o (a) The aused’s elief arose fro the aused’s
i. Self-induced intoxication, or
ii. Recklessness or wilful blindness; or
o (b) The accused did not take reasonable steps, in the
circumstances known to the accused at the time, to
ascertain that the complainant was consenting (takes away
the honest mistake of fact defence, mixed subjective and
objective fault element)
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find more resources at oneclass.com
Document Summary
Crim 200 criminal law- lecture 10: mistake of fact and. Cannot raise a mistake of fact defence: not successful in the last two cases, defence that is directly connected to the mens rea of the offence. If fault element is subjective the mistake of fact is also based on the subjective: v. kundeus (1975) If fault element for he offense is objective the mistake of fact is also judged based on the objective standards. It was this precedent that was further considered in seaboyer, below: in 1980, sexul asslut does not exist = only rape. 277 was constitutional and upheld this law to protect victims of sexual assault: a person cannot claim an honest belief of (cid:373)istake of fa(cid:272)t (cid:271)ased o(cid:374) a perso(cid:374)"s prior reputation, seaboyer somewhat closed the door that. Section 273. 2, (b) = have both subjective and objective elements. After 1992, if the accused claims mistaken = look at it as objective element.
