The Mistake of Fact and Criminal Defence

* The following is a guest post by John Adams. NOTE: It is written in the context of US law *

In criminal cases, there are a number of defenses that the accused person can use in the court when facing criminal charges. ‘Mistake of Defense’ is a type of defense that refers to a misunderstanding by someone about the facts of a situation, and this misunderstanding leads a person committing a crime or an illegal act.

The person did not mean to commit the crime, but did accidentally - this defense is considered valid for the intent of crime and for the charges when the person is required to intend or know that he or she is going to commit a crime.

As a Criminal Defense:

When a person uses a mistake of fact as a defense, he or she has little understanding as well as knowledge about the law at the time of the crime occurred. The person does not have an understanding of legal issues nor the intent of committing a crime or has a lack of awareness between right and wrong at that time.

Although, these defenses are valid, however, there are very rare and are not much permitted by the court. The person using the mistake of fact must have circumstances present at the time of the crime or sufficient proof that it is purely a legitimate mistake and not a defense strategy.

When Mistake of Fact is Usable?

The defense of mistake of fact is usable when the defendant was not aware of the fact that his or her actions could result in a crime. In case the person faces charges of larceny but believes that the property he or she took belonged to him or her, this means that there is a valid misunderstanding that can deny the aspect of the intent of committing the crime.

As many theft crimes require the intent of theft, such misunderstanding could separate the prosecution’s case. The defendant can be awarded a not-guilty verdict if the criminal defense attorney lawfully argues and convinces the court that there was a misunderstanding.

The Mistake in the Case:

Usually, given the seriousness of the mistake, it can deny a part or complete charges against the person. For the intent crimes, the absence of intent is an important matter that can remove the particular intent charge and results in the acquittal of the accused.

In theft crimes, the intent is to deprive the owner of his or her property permanently, lack of intent and returning the item upon realizing leads to the removal of the charges of the criminal activity. This mistake is valid, honest and reasonable.


Katie takes her Labrador to the dog park every day. One day she loses the sight of her dog for a few minutes. Upon relocating him, she takes her back home. Later during the day, she notices his collar where the name of some other Labrador is written. Since both looked alike, she mistook someone else’ dog as hers and realized later when she was at home. This is a reasonable mistake of fact.

Using the Mistake Later in the Case:

While there are various ways that the defendant can think of as a defense against criminal charges, the accused cannot use the mistake in later stages of the case. The mistake has to be honest and reasonable. In case of any contradiction provable in the court, the defendant will not have a valid claim of committing a mistake of fact. Willfully taking the property of another person is not a mistake but intentional theft.

The Assistance of an Attorney:

Many accused persons, faced criminal charges, don’t know how to use this defense or don’t understand it at all. In order to use this defense, the person will need to have a criminal defense lawyer who will explain the mistake as valid. The lawyer can present the case with the mistake of fact and can argue against the charges that do not fit. But that is on the condition that accuses have enough proof to show in the courtroom. This way the attorney, can show the lack of knowledge or misunderstood information the person had at the time of the illegal activity.

You are not the Reasonable Person

Berry was charged with the first degree murder of Andrew Christie. Berry testified in his own defence. He admitted to shooting Christie but said he did so in self-defence. Alternatively, he argued provocation.

The jury convicted Berry of second degree murder and the judge set his parole ineligibility of 17years. Berry appealed conviction and sentence- both were dismissed: 2017 ONCA 17.

One of the grounds of appeal related to the trial judge’s instruction on the defences of self-defence and provocation.

As part of his defence Berry called Dr Pollock, a psychologist who testified about Berry’s “reduced cognitive abilities and his personality traits.” [@25]

Dr. Pollock testified that he was of “modest intelligence”, with an IQ in the 5th percentile (meaning that 95% of individuals his age would score higher). In terms of his personality, it was Dr. Pollock’s opinion that the appellant was anxious, self-centred, emotionally detached, socially awkward, and suspicious of other people. Because of these characteristics, persons with the appellant’s profile are easily slighted and are particularly sensitive to perceived threats or provocation; they have a tendency to misinterpret their social perceptions and experience challenges trying to solve difficult problems in times of stress. [@25]

With respect to self-defence the trial judge agreed “to charge the jurors were entitled to consider both the appellant’s diminished intelligence and his psychological makeup on the issue of his subjective state of mind” @68. However, with respect to the objective component of the test the judge instructed the jury that they could only consider Berry’s “diminished intelligence but not his psychological makeup.” [@68]

The Court found no error in this decision. From an evidentiary perspective, the Court held that Dr Pollock’s evidence did not establish:

a sufficient causal connection between the appellant’s “border-line IQ”/“modest intelligence” (5th percentile), and the appellant’s personality characteristics the defence sought to highlight as possible explanations for his reaction (being anxious, excitable, distrustful of others). [@71]

In this case, Berry’s psychological makeup was not attributable to anything beyond his control and as such had no place in the objective component of the self-defence inquiry. Did Berry believe that he had no choice but to shoot the victim and was that belief objectively reasonable? @73  Permitting Berry to rely on the evidence of his psychological makeup as an explanation for his actions would improperly conflate the subjective and objective components of the test. [@73]

The Court reached a similar conclusion with respect to the defence of provocation. The test on the defene of provocation has both a subjective and objective component.

First, was the wrongful act or insult of such a nature to deprive an ordinary person of the power of self-control.

Second, did the accused act on that insult, suddenly, before any time for passion to cool.

The Court summarized the trial judge’s instructions as follows:

In applying the accused person test – i.e., in tackling the suddenness of the reaction and whether the appellant’s passion had time to cool – the trial judge told the jurors they could consider the appellant’s individual characteristics and personal reaction (i.e., both his intellectual limitations and his particular psychological makeup as characterized by Dr. Pollock). But in applying the ordinary person test – i.e. whether the wrongful act or insult was sufficient to deprive the ordinary person of the power of self-control – the trial judge told them they could not do so. [@78]

In finding that the trial judge had not erred the Court referenced Charron J’s decision in R v Tran, 2010 SCC 58 where Her Honour held that: 

Personal circumstances may be relevant to determining whether the accused was in fact provoked – the subjective element of the defence – but they do not shift the ordinary person standard to suit the individual accused. In other words, there is an important distinction between contextualizing the objective standard, which is necessary and proper, and individualizing it, which only serves to defeat its purpose. [@83]

Although the Court in Berry leaves open the possibility that diminished mental capacity could be relevant to the ordinary person inquiry in the provocation analysis [@84] for now the court says that you and the reasonable person are not one and the same.


Can't Sneak that Third Party in the Back Door

Asogian Gunalingum was charged with kidnapping, extortion and assault. Prior to trial he applied to adduce evidence of a “third party suspect” – namely Victorbalaratnam. The court dismissed the application: 2014 ONSC 6512.

The victim, Veerpal Brar was taken from her home around 8 am on November 11, 2011. She was kidnapped from her home by a man dressed in a suit pretending to be a fence contractor. Brar also recalled that a second man, who she knew to be Vajinder Singh, assisted in the kidnapping. Brar was taken to another residence where she was tied to a cot and terrorized by Singh, the “fence contractor” and a third man. She was rescued by the police two days later.

When the police arrived at the location where Brar was being held captive there was a van in the driveway. It was registered to Nicholas Victorbalaratnam (the third party suspect). When the police attended Victorbalaratnam’s home they found him and Gunalingam – both were arrested.

When the police arrested Gunalingam they seized a pair of pants that had evidence linking him to the kidnapping of Brar. Brar noted that Gunalingam (shown to her in a lineup) “looked a little bit, a little bit like the guy who knocked at my door first, rang the bell, little bit. Little bit”. With respect to Victorbalaratnam she stated she did not know who he was.

The charges against Victorbalartnam were ultimately withdrawn. Gunalingam sought to cross-examine Brar and others suggesting that Victorbalaratnam was in fact the fence contractor – in other words, that Victorbalaratnam not Gunalingam is responsible for the crime. The defence notes, however, that it will not be “adducing or advancing a third party suspect as part of the defence’s case following the Crown’s case” [para 13]. Given this approach and the fact that the “third party suspect evidence” will be elicited in the Crown’s case Gunalingm contends no application is necessary.

The court rejected this contention:

I disagree with Mr. Leport that he is not advancing a third party suspect application. While defence counsel are to be afforded reasonable latitude in cross examination, in my view, any questions that are specifically designed to suggest to the jury that Mr. Victorbalaratnam committed the crime must satisfy the test set out in the leading decisions of R. v. McMillan (1975), 7 O.R. (2d) 750, 23 C.C.C. (2d) 160 (Ont. C.A.) and R. v. Grandinetti, 2005 SCC 5, [2005] 1 S.C.R. 27 (S.C.C.). I see no distinction between Mr. Lepore adducing evidence as part of his case or eliciting evidence as part of cross-examination.
Mr. Lepore is not relying on evidence of Mr. Victorbalaratnam’s motive or disposition to commit the crime. He argues that, since the Crown will lead evidence about Mr. Victorbalaratnam, the jury can draw reasonable inferences from the evidence. The bottom line is that he wants to suggest to the jury that the description of the kidnapper and other pieces of evidence likely point to Mr. Victorbalaratnam as the fence contractor and not the accused.
I do not consider Mr. Lepore’s submissions to be persuasive. In my view, there is no evidence that connects Mr. Victorbalaratnam to the offence. [@15, 18-19].

After reviewing the reasons why there was an insufficient evidentiary link the court held that there was therefore no air of reality to the third party suspect assertion.


Don't believe everything you see on the internet

Daryl Argent posted two ads on Craigslist. The ads indicated that Argent was looking for a woman between the ages of 18 and 30 interested in smoking marijuana and more. Lest there be any doubt about what Argent meant by ‘more’ he thoughtfully included a picture of his genitals and to seal the deal a pic of him holding a bud of marijuana.

To the layperson such an ad may have simply taken at face value: a guy looking for a girl to get high and have sex. To Det Brien Smith of the Child Pornography Unit at the Hamilton Police Service the ad held some potentially hidden meaning. In his training Det Smith had learned that people who are seeking sexual activity with children will often mention the age 18 in their ads. This is because Craigslist does not allow personal erotic ads to specify an age less than 18. Det Smith honed in on Argent’s ad because of his mention of the age 18.

Det Smith posing as a 14year old girl named Carlee responded to Argent’s ad. The response read: pix! im not sure which is bigger…the bud in your hand or your bud! lol!…smoked for first time at my gr8 grad a few weeks ago..yeah! lemme know when you r smokin again some time…luv to try again [para 4]

The two exchanged messages and Carlee revealed that she was 14yrs old, a virgin, in the eighth grade and inexperienced with drugs and sex.  Argent responded with talk of oral sex and condoms for vaginal sex.

Argent was arrested and charged with luring a child to engage in sexual activity. Argent was convicted. He appealed. One of the grounds of appeal was that the trial judge erred in dismissing Argent’s request for a stay of proceedings on the basis of entrapment. The Court of Appeal found no error: 2016 ONCA 129.

Argent argued that the police lacked the reasonable grounds to suspect that criminal activity was taking place. He argued that the fact that the ad specified the age of 18 did not on its own provide the requisite level of suspicion. Moreover, Argent argued that it was ‘Carlee’ and not him who sexualized the content of their communication since she made the double entendre reference to Argent’s bud.

The Court of Appeal rejected these arguments and held that:

[t]he ad included a photo of the appellant’s penis and requested a smoking partner “and more”. The police’s consideration of the use of the age 18 as a flag for potential child abusers was reasonable. This was the lowest age that could be posted.
We do not agree that the officer manufactured the criminal activity by sexualizing the first communication. The photos had already done that. The communications from the officer made it clear from the outset that Carlee was 14, had just graduated from grade 8, was inexperienced sexually, and was under the watch of her mother. The questions posed by the officer were open-ended.  It was the appellant who pursued the discussion of sexual activity. These facts support the officer’s suspicion that criminal activity was underway [paras 12-13]

It is hard to imagine that the Court could have found anything less than sexualized content in Argent’s ad given that he had posted a picture of his genitals along with his request for female pot smoking company. However, an interesting feature in this case is the Court’s acceptance of the fact that the specified age of 18years could in fact mean an age less than 18. Given that the website does not allow ads with the age of less than 18, the court had no difficulty accepting that not everything on the Internet should be taken at face value. Argent wasn’t the victim of entrapment he simply got caught. 


New & Notable: Restrospective Application of new Self-Defence

Pandurevic was charged with first degree murder; Pandurevic sought to claim that he had acted in self-defence. The homicide took place in 2010 and Pandurevic’s trial commenced on April 8, 2013.

At the time of the offence the self-defence provisions found at sections 34-37 of the Criminal Code governed. On March 11, 2013 however, the Citizen’s Arrest and Self-Defence Act [hereafter the Act] came into force.  This new legislation repealed the old self-defence provisions and replaced them with a ‘new’ s.34 which is intended to apply in all instances where self-defence is raised.

Prior to the commencement of his trial Pandurevic brought an application for ‘directions from the court’ on whether the Act applied retrospectively. The Crown opposed the application.

MacDonell J found that despite the presumption that such changes in the law apply prospectively, this Act applies retrospectively: 2013 ONSC 2978.

First, MacDonell J noted that both the opinion of the judiciary and the academicians  was aptly captured by, then professor now, Justice Paciocco who referred to ss.34-37 as “the most confusing tangle of sections known to law” [at para 16].

The Parliamentary response to this criticism culminated in the enactment of  the Act which the Minister of Justice lauded as:

a simple, easy-to-apply rule for each defence. For decades criminal practitioners, the Canadian Bar Association, the Supreme Court of Canada, academics, and many others have criticized the law of self-defence primarily, but also the law of defence of property, as being written in an unnecessarily complex and confusing way. The complexity of the law is not without serious consequence. It can lead to charging decisions that fail to take into account the merits of the defences in particular situations. It can confuse juries, and it can give rise to unnecessary grounds of appeal, which cost the justice system valuable time and resources. The law should be clear and clearly understood by the public, the police, prosecutors, and the court. Bill C-26 meets those objectives. It makes the act more specific and simplifies it without sacrificing existing legal protections [para 18].

Second, MacDonell J referred to the “Technical Guide for Practitioners” [hereafter the Guide] published by the Department of Justice at the time the Act came into force.  The Guide states, inter alia, that:

the new defences extract from the old provisions the common core elements of each defence, and codify those core elements in a single simple framework that is capable of assessing a defence claim in any situation. The new laws give effect to the defences' underlying principles in a more transparent way; they will facilitate jury instructions and allow decision-makers to come to conclusions more easily and simply.


The intent of the new law is to simplify the legislative text itself, in order to facilitate the application of the fundamental principles of self-defence without substantively altering those principles [para 22].

MacDonell J thus concluded that:

When the provisions of the Citizen's Arrest and Self-defence Act are considered in the context of the circumstances leading up to and surrounding its enactment, it is plain that Parliament's aim was not to alter the essential nature of the defence of self-defence. The intention, rather, was to put an end to a situation that was an embarrassment to the rule of law. Parliament sought to substitute clarity and common sense for the incoherence, confusion and occasional absurdity that virtually every informed observer associated with the former statutory scheme, and to rid the administration of justice of the scandalous spectre of juries making decisions not because of the legal instructions they received but notwithstanding them.

When the purpose of the legislation is characterized in this way, it points firmly toward an intention that upon the coming into force of the amendments, judges and juries would immediately begin to assess claims of self-defence under the amended provisions regardless of whether the allegedly defensive acts occurred before or after March 11, 2013. That is, it points toward a retrospective application of the amendments [paras 23-24].

And that:

(...) to apply the amendments prospectively only would frustrate the remedial aims of the legislation by leaving in place for several more years the significant mischief that Parliament manifestly meant to eradicate [para 43].


New & Notable: Biting the Hand that Feeds - Animal Abuse and Self-Defence

On March 14th, 2013, Vernon Gladue killed his wife’s ten-pound shih-tzu— “Buttons”—by throwing her against a door frame, shooting it with a BB gun, and strangling it.  At issue was whether he had a “lawful excuse”, pursuant to section 445(1)(a) of the Criminal Code:

445. (1) Every one commits an offence who, wilfully and without lawful excuse,

(a) kills, maims, wounds, poisons or injures dogs, birds or animals that are not cattle and are kept for a lawful purpose…

Gladue, who had been drinking, had just got into a lengthy argument with his wife.  After about an hour, Gladue tried to kiss Buttons; who responded by biting Gladue’s upper lip, causing a minor bleeding.  The fatal attack ensued.

The next day, Gladue sent his wife some text messages, including: “... dog doesn't bite hand that feeds it an (sic) if it does its gone,” and “Dog bit me an (sic) lost ...” and “Because I've told you, any dog that bites its master am (sic) draws blood dies. You get it?”

The Court found that there was room for some physical response to being bitten: “Pulling the dog away and even dropping it would have been fully justifiable in the circumstances (even if it injured the dog)” [para. 87].  However, once Gladue’s actions were fuelled by anger and a clear intent to cause injury, his conduct went beyond any lawful excuse: 2014 ABPC 45.

Gladue also attempted to argue self-defence.  The Court, however, found that the self-defence provisions in the Criminal Code apply only to human assailants:

Speaking in non-legal terms, one may well be the victim of a dog's ‘assault’ and have to act in ‘self-defence’. That these terms may be utilized colloquially, however, does not mean that they take on the character or legal force of their Criminal Code counterparts [para. 102].

The Court found support in this interpretation from the cases of R. v. Greeley, [2001] N.J. No. 207 and R. v. Barr, [1982] A.J. No. 1021.

The Court also noted that the scope of “lawful excuse” extends even more broadly than “self-defence”.  For one example:

The owner of a pet dog who discovers that the dog suffers from a terminal illness would be justified in having the dog euthanized. Indeed, our society views that as a compassionate response to the dog's plight. The same cannot be said in the context of human beings, however. A parent who discovers that his child suffers from a terminal illness would not be justified in having the child euthanized. Our society would view that as murder.… The policy of our criminal law does not militate in favour of extending Criminal Code provisions relating to ‘Defence of Person’ to animals (or vice versa) for that reason [para. 105].

Similarly, a zookeeper would likely find a lawful excuse in shooting a grizzly bear that was approaching a human infant found within its enclosure.  Applied to humans in the “self-defence” context, the same conduct would likely not be permissible: consider a prison guard shooting an inmate that was approaching an infant found within his cell.

In further support of this dichotomy, the Court found that animals are “property”: the offence in question is found within Part XI of the Code, titled “Wilful and Forbidden Acts in Respect of Certain Property”.

Within the context of the Criminal Code, this separation makes good sense for several reasons.  As remarked by the Court: “I resist the temptation to consider how the defence of self-defence would apply to this case if it were legally available. Did Gladue assault or even sexually assault Buttons by his unwanted kiss?”


New & Notable: No need to bring a knife to a fist fight

On April 3, 2010 Anthony Larose and his friend were waiting for a bus. Larose got angry and threw a rock through the glass of the bus shelter. Hanna, drunk, took issue with Larose and confronted him. A heated verbal exchange followed and Hanna sucker punched Larose in the nose.


While on the ground Larose’s friend handed him a 20cm knife; armed, he got up and saw that Hanna had been joined by his friend Marshall. At his trial, Larose testified that the two men rushed him and he stabbed Hanna twice in the chest and once in the gut. Hanna and Marshall backed away. At some point during the fight the knife was knocked to the ground and Larose went to retrieve it, as he did so, Hanna and Marshall moved towards Larose ultimately rushing him. Larose lashed out striking Hanna in the face and slicing Marshall’s neck. Both men sustained life threatening injuries and Larose fled.

At trial Larose argued that he had acted in self-defence. The trial judge found that there was no air of reality to Larose’s claim of self-defence and refused to leave it with the jury. The British Columbia Court of Appeal agreed with the trial judge: 2013 BCCA 12.

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New & Notable: No good deed goes unpunished

Robert Ellis attacked his parents with a club and sword.  He pleaded guilty to two counts of assault with a weapon.  He was found not criminally responsible (“NCR”) pursuant to s. 16 of the Criminal Code.  He appealed, arguing that his counsel was incompetent and that the NCR finding was unreasonable.  The Ontario Court of Appeal resoundingly and unanimously dismissed the appeal: 2012 ONCA 906


The Crown sought and was granted an assessment of Ellis’ mental condition.  The first psychiatrist said that he was fit to stand trial and was likely criminally responsible. 

The Crown sought and was granted a second assessment.  The second psychiatrist said that Ellis had an NCR defence available to him based on his mental state at the time of the offence. 

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New & Notable: Rejected claim of self-defence does not lead to claim of provocation

Curt Dagenais shot and killed two police officers. He tried to kill another. He was convicted after trial of two counts of first-degree murder. He had alleged that he acted in self-defence. The jury clearly rejected this claim. He appealed. His appeal was dismissed: 2012 SKCA 103.


Dagenais had been at his mother’s home and had been in a dispute with his family including his sister. He had swung her and then almost hit her when he drove away. He went to the RCMP detachment attempting to get his sister evicted from the home. The RCMP would not assist him. He was not happy. He told them “I am not not done with you guys yet”. Shortly thereafter his family called the RCMP to report what had happened. The RCMP decided they had grounds to arrest Dagenais and set out to do so.

The RCMP learned that Dagenais was in his truck across from his mother’s home. Officers Cameron and Bourdages attended in a police truck. Officer Knopp attended in a separate cruiser. As they attempted to arrest Dagenais he fled. The police gave chase. The chase continued until Dagenais went down a trail into the woods. Officer Knopp, who was trailing into the chase came upon the scene. She saw the police truck had t-boned Dagenais’ truck. She then heard a bang and saw a hole in her windshield; she felt heat on the side of her face. She had been shot. Another shot struck her windshield. She saw Dagenais with a rifle. She returned fire. Dagenais fled the scene.  

Officers Bourdages and Cameron had both been shot in the head and killed.

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New & Notable: Affirming the Castle Doctrine

Cedric Forde killed Clive McNabb.  He stabbed him.  At trial he admitted he had done so.  The question that was left for consideration by the jury, however, was whether he was justified in doing so.  Forde alleged that he acted in self-defence when McNabb came at him on his property with a knife.  In charging the jury on the claim of self-defence the trial judge noted that the jury should consider "the availability of other options for Cedric Forde to extricate him from the confrontation with Clive McNabb" [para 30]. 
Forde was convicted and appealed.  On appeal he argued that the trial judge erred in charging the jury that retreat was a relevant consideration.  The Ontario Court of Appeal agreed: R v Forde, 2011 ONCA 592.

McNabb was the former spouse of Forde's common law partner.  Both were also involved in drugs.  On the date of killing McNabb had attended at Forde's place; he apparently had done so as he understood that Joe Grasso was there - Grasso owed McNabb some money for a drug debt.
Ultimately McNabb ended up in Forde's bedroom and an argument ensued between he and Allamby (the common law partner of Forde).  Forde then entered the bedroom and an argument ensued between them.  McNabb came at Forde with a knife and Forde retrieved a knife from the closet and stabbed McNabb once.
Forde was convicted of manslaughter by a jury.  He appealed.
On appeal the central issue was whether retreat was a relevant consideration under section 34(2).  After a review of English, American and Canadian authorities the court offered the following conclusion:
Having regard to these authorities, I reject the Crown's position that while retreat from one’s own home is not a necessary element to claiming self-defence, it may nonetheless be a factor for the jury to consider. By giving an instruction along the lines the Crown suggests, the danger would always remain that the jury would all too quickly leap from the factor of retreat to the inference that there is no entitlement to self-defence. As the case law referred to above establishes, a jury is not entitled to consider whether an accused could have retreated from his or her own home in the face of an attack (or threatened attack) by an assailant in assessing the elements of self-defence under s. 34(2).  [Emphasis added].
DG Mack