Stuart O'Connell Criminal Law Blog

A mistake of law occurs only where a person has an honest but mistaken belief in the legality of his or her actions. Although it is not a defence to a criminal charge, mistake of law can nevertheless be used as a mitigating factor in sentencing.   Offenders who honestly but mistakenly believe in the lawfulness of their actions are less morally blameworthy than offenders who — in committing the same offence — are unsure about the lawfulness of their actions or know that their actions are unlawful. R. v. Suter , [2018] 2 SCR 496, 2018 SCC 34 (CanLII), at para. 64  An accused who raises mistake of law as a mitigating factor on sentence has the onus of establishing, on a balance of probability, that the requisite elements of a mistake of law have been made out.  Supra , at para. 68. Stuart O’Connell, O’Connell Law Group (All rights reserved to author). [FN] Confusion or uncertainty as to the lawfulness of one’s actions –while not meeting the le...

It is a well-established principle of the criminal justice system that judges must strive to impose a sentence tailored to the individual case; this, among other things, includes considering the personal circumstances of the offender. Violent actions against an offender for his or her role in the commission of an offence — whether by a fellow inmate, or by a vigilante group — necessarily form part of the personal circumstances of that offender and should therefore be taken into account when determining an appropriate sentence. However, for policy reasons, a sentencing court should only consider this particular collateral consequence to a limited extent:   giving too much weight to vigilante violence at sentencing allows this kind of criminal conduct to gain undue legitimacy in the judicial process. R. v. Suter , [2018] 2 SCR 496, 2018 SCC 34 (CanLII), at paras. 53, 58. Stuart O’Connell, O’Connell Law Group (All rights reserved to author).