Although “officially induced error” – being misled by authorities – is a defence to many types of charges including those under the Occupational Health and Safety Act, it is rarely used successfully like it was in a recent case.
While not an occupational health and safety case, the decision will be of interest to safety professionals and employers.
The defendant was under a Prohibition Order barring him from driving any “motor vehicle” in Canada for a period of 12 months. While operating an “E-bike”, an electric bicycle, he was stopped by police. He was charged with breaching his Prohibition Order. The court accepted his testimony that he had contacted various police forces to ask whether operating the E-bike would violate his Prohibition Order and was told by a Toronto police officer that it would not. The court found that the police officer’s advice was in error: in fact, the operation of the E-bike did violate the Prohibition Order.
The court stated that in order to establish the defence of officially induced error, a defendant must prove that:
-the error was one of law or mixed fact and law – not of fact only
-the defendant actually considered the legal consequences of his actions (he did not simply assume that his conduct was legal)
-the defendant obtained advice from an appropriate public official
-the public official’s advice was reasonable
-the advice was erroneous
-the defendant relied on the advice
Here, the defendant had satisfied all of these factors. The error was one of law (whether operating the E-bike would violate his Prohibition Order); the defendant had thought about whether it was legal for him to operate the E-bike while under the Prohibition Order; he obtained advice from a police officer, an appropriate public official; the police officer’s advice was reasonable, given that E-bikes are a relatively new phenomenon; the advice was erroneous; and the defendant relied on the advice when he set out for his bike ride.
Although the officially induced error doctrine is rarely applied, employers should keep it in mind when seeking advice from Ministry of Labour inspectors. If an employer seeks advice from an inspector regarding the Occupational Health and Safety Act or regulations, reasonably relies on that advice, and the advice turns out to be incorrect, the employer – if charged – may be able to raise the defence of officially induced error. For that reason, employers should carefully document all such advice received from government safety inspectors.
R. v. Kulbacki, 2012 ONCJ 532 (CanLII)
