As a matter of common sense, a Justice may have difficulty believing your client made an honest mistake when a reasonable person in the same situation would not have been mistaken. If the defendant honestly believed in mistaken facts because he or she shut his or her mind to the truth, the defendant is wilfully blind to the truth and this may be sufficient proof of mens rea. Ignorance of the law is not and excuse for committing the offence. 7. De minimus non curat lex “law does not concern itself with trifles” Rare cases, charges have been dismissed. The court is not bound to strictness at once harsh and pedantic in the application of statutes.
The law permits the qualification implied in the ancient maxim of de minumis no curat lex – Where there are irregularities of very slight consequence, it does not intend that the infliction of penalties should be inflexibly severe. If the deviation were a mere trifle, which, if continued in practice, would weigh little or nothing on the public interest, it might properly be overlooked. It is rarely uccessful. Courts generally defer to the power of the legislature to prescribe conduct which might otherwise appear trifling and the power of prosecution, as agent for the ministry of the attorney general, to exercise its discretion in using its prosecutorial resources as deemed fit. 18.
Charter – Constitutional Challenge re. undue delays Section 80 of the POA states: Every rule and principle of the common law that renders any circumstance a justification or excuse from an act or a defence to a charge continues in force and applies in respect of offences, except in so far as they are altered by or inconsistent ith this or any other act. Any person charged with an offence has the right to be tried within a reasonable time which extends to the corporate accused, and applies equally to regulatory as to criminal offences. The relevant time for assessing unreasonableness is between the date of the charging the defendant and the date of trial.
The factors in assessing the unreasonableness are: length of delay, the waiver of time periods, actions of the defendant, actions of the prosecutor, limitations on institutional resources, and prejudice to the defendant. Absent unusual ircumstances, a motion to stay proceedings due to unreasonable delay under Section 11 of the Charter, where a defendant declines an offer for an earlier trial date, there is no weight for the claim. 19. State of Mind – 3 categories – Intention: may be an intention to commit particular acts, or an intention to bring about certain results. – Knowledge: may refer to knowledge of fairly limited circumstances or actions or knowledge of the effect of those actions. – Recklessness: means awareness that there is a risk of certain behaviour and then acting in an acceptable disregard to that risk. 20.
Absolute Liability – Charter objections Any absolute liability with the possibility of imprisonment is contrary to section 7 of the Charter, and unless saved as a reasonable limit under Section 1, is of no force or effect by section 52(1) of the Charter. 21 . Defence of necessity In urgent situations of clear and imminent peril, when compliance with the law is demonstrably impossible, the defendant has the excuse of necessity. To use the defence of necessity, the elements below must be present. – there must be an imminent risk such that the defendant must act to avoid an immediate peril. – there ust be no reasonable legal alternative to the course of action taken by the defendant. the harm inflicted by the defendant must be less than the harm avoided. – the emergency must not be reasonably foreseeable.