For years, private City of Toronto parking operators believed that they did not require parking permits. This belief was because of a written non-conforming preexisting use agreement that was grandfathered from the city. Recently, however, parking lot operators are facing restrictions and have been slammed with penalties for lack of a license. In this post, we’ll discuss officially induced errors in the case of private city parking operators and what options are available to fight back.
A Mistake of Law or a Mistake of Fact?
You cannot use the defence that you were unaware something was illegal. All individuals are presumed to know the law. Section 19 of the Criminal Code of Canada states very clearly that “Ignorance of the law by a person who commits an offence is not an excuse for committing that Offence.”
What is An Error of Fact?
Simply misunderstanding the law is not a defence. But if the individual is mistaken about the facts or circumstances in their case there is a possibility of a defence based on a lack of intent to commit a crime. A mistake or error of fact is the circumstance where an individual acts innocently due to an incorrect perception of the facts of the law and commits an offence without intent.
What is an Officially Induced Error?
An officially induced error is a defence made if an individual has violated a regulation because they relied on incorrect advice or an incorrect legal opinion from an official who is responsible for enforcing that law. The individual needs to show that they relied on this wrong information and that it was reasonable to do so.
While not understanding or knowing the law is not a justification for breaking the law if you can prove that you made efforts to try to understand the law or that the law was confusing and obscure and the person you sought advice from was in a position to provide that information, it can be justified as a defence.
Whether a judge accepts your defence or not will depend on if they think that the official you spoke with was in a position to give you the information and if their opinion was reasonable under the circumstances and that it was reasonable for your to follow that opinion.
To sum up, there are five formal elements to the defence of Officially Induced Error:
- The accused must turn his or her mind to the legal issue at hand;
- The accused must seek and obtain advice about the issue from an appropriate authority;
- The advice must be wrong;
- The accused must rely on the erroneous advice;
- The reliance on the advice must be reasonable in the circumstances.
In the case of the Toronto private parking operators, there was a written non-conforming preexisting use grandfathered from the city. The city provided this guidance that the parking operators followed, resulting in fines for the parking operators. The independent parking operators could not offer competitive rates for parking or advertise parking through parking signs.
What Are The Regulatory Legal Options in the Case of Officially Induced Errors?
Regulatory law is a type of law that deals with the decisions and regulations made by government agencies from federal, provincial or municipal levels of government.
An experienced lawyer can help you understand your rights and options in a case of officially induced error. They can also help you understand the distinction between errors of facts and errors of law and demonstrate for a court that following the advice of the city of Toronto was reasonable in this case.
If you have questions about officially induced errors or are facing fines or penalties due to officially induced errors, contact William Jaksa for a consultation. William Jaksa is an experienced criminal defence lawyer with expertise in regulatory law and can help you understand your case and your options.