🚀 go-pugleaf

alchemy@interlog.com (Morton Goldmacher) wrote:



>Of course they are.  But the Crown must prove that they had knowlege
>of the illegal material.  In a criminal prosecution the Crown must
>show the actual image or text and prove that it is obscene.  They must
>then go on to show that the accused knew about the image or text and
>intentionally  (or at least recklessly) helped to distribute it.  The
>newsgroups which were discontinued were dedicated channels of
>criminally obscene matter; simply by their titles one should see that
>they are probably carrying illegal images.  On the other hand,
>although such images can appear elswhere on the net the isp is not
>likely to come across them and therefore the mens rea, the mental
>aspect of the crime, cannot be established.

Here is the headnote to the case of R. V. Jorgensen, the most recent
S.C.C. ruling on the mens rea of trafficing in illicit porn.  The
actual reasons are too lengthy to reproduce here.  The headnote is a
concise summary of the decision.

R. v. Jorgensen, [1995] 4 S.C.R. 55

Randy Jorgensen and
913719 Ontario Limited	Appellants

v.

Her Majesty The Queen	Respondent

Indexed as:  R. v. Jorgensen

File No.:  23787.

1995:  February 21; 1995: November 16.


Present:  Lamer C.J. and La Forest, L'Heureux-Dube, Sopinka,
Gonthier, Cory, McLachlin, Iacobucci and Major JJ.

on appeal from the court of appeal for ontario

	Criminal law -- Obscenity -- Selling obscene material
-- Mens rea -- Accused charged with "knowingly" selling obscene
material without lawful justification or excuse -- Interpretation
of "knowingly" -- Whether s. 163(2) of Criminal Code requires
that retailer have knowledge of specific acts which make
material obscene in law -- Whether sufficient for Crown to show
that retailer had general knowledge that materials deal with
exploitation of sex -- Criminal Code, R.S.C., 1985, c. C-46, s.
163(2), (8).

	Criminal law -- Obscenity -- Selling obscene material
-- Effect of provincial film board approval -- Accused charged
with knowingly selling obscene material "without lawful
justification or excuse" -- Whether provincial film board
approval of obscene material negates mens rea of offence --
Whether film board approval provides legal justification or
excuse -- Criminal Code, R.S.C., 1985, c. C-46, s. 163(2), (8).

	J is the sole officer of the co-accused company which
owns and operates an adult video store.  Undercover police agents
purchased eight videotapes from that store and, despite the fact
that the Ontario Film Review Board ("OFRB") had approved all of
them, J and his company were charged with eight counts of
"knowingly" selling obscene material "without lawful
justification or excuse" contrary to s. 163(2)(a) of the Criminal
Code.  The trial judge found three of the eight videos to be
obscene within the meaning of s. 163(8) of the Code because
some of their scenes portray explicit sex coupled with violence.
She also found that, with respect to the mens rea for a s. 163(2)
offence, the Crown must prove beyond a reasonable doubt that the
accused are aware of the presence or nature of the matter that
constitutes the subject of the charge in a general sense. It is not
necessary that the Crown prove the accused were aware of the
specific factual contents of the forbidden material at issue. The
trial judge rejected the arguments made by the accused that the
OFRB approval negates any possibility that an accused acted
knowingly, or constitutes a lawful justification or excuse. The
accused were convicted on the three counts relating to the
obscene videos.  The Court of Appeal upheld the convictions.
	Held:  The appeal is allowed and a verdict of acquittal
entered.

	Per La Forest, L'Heureux-Dube, Sopinka, Gonthier, Cory,
McLachlin, Iacobucci and Major JJ.: It is a general rule of
statutory construction that the term "knowingly" used in a
criminal statute applies to all elements of the actus reus, and
there is nothing in the language of s. 163(2), or in its legislative
history, to suggest that the word "knowingly" should be given a
restricted meaning.  In including the word "knowingly" in
s. 163(2), Parliament chose to set an onerous standard of proof
in the case of sellers or retailers.  Thus, to satisfy the mens rea
requirement of the offence under s. 163(2), the Crown must show
not only that the retailer was aware that the subject matter of
the material had as its dominant characteristic the exploitation
of sex, but also that he knew of the specific acts which make the
material obscene in law.  Material is generally obscene if it
involves explicit sex with violence, or explicit sex which is
degrading or dehumanizing.  If the court is unable to specify any
particular scene but still concludes that, overall, the film is
obscene in law, then sufficient proof must be offered to show
that the retailer was aware of the "overall" obscene nature of the
film.

	A retailer, however, will not be immune from charges
merely because he does not know how the law defines obscenity.
This would amount to the defence of mistake of law and it is well
established that ignorance of the law is no defence.  Further,
proof that a retailer had "knowledge" that he was selling obscene
material does not necessarily require the Crown to prove that he
actually viewed the obscene material.  "Knowledge" of the
obscene character of the film can be acquired by means other than
direct viewing.  In this regard, in appropriate circumstances, the
Crown can avail itself of the principles of wilful blindness.
Deliberately choosing not to know something when there are
reasons to believe further inquiry is necessary can satisfy the
mental element of the offence.  The approval of a film by a
provincial censor board may be relevant to the issue of wilful
blindness.

	The accused's reliance on the OFRB approval does not
negate the mens rea of the offence.  The OFRB screens and
classifies films, but it is not its function to determine whether a
film is obscene.  While the approval of a film by a provincial
censor board may be relevant to the determination of community
standards of tolerance, the approval is not relevant with respect
to the issue of the accused's knowledge.  The question whether a
film exceeds community standards of tolerance may be
characterized as a question of mixed fact and law.  As such, the
Crown need not generally prove intent or knowledge where these
mind states are otherwise an essential ingredient of the offence,
nor can the accused rely on a mistake of fact in relation to the
issue.  Accordingly, if the Crown establishes that the accused
knew of the presence of the specific acts or set of facts in the
film which the court finds exceed community standards, that is
sufficient for a conviction.  The Crown need not prove that the
accused knew that the film exceeded community standards.

	Furthermore, approval by a provincial censor board does
not constitute a justification or excuse.  First, one level of
government cannot delegate its legislative powers to another.
Second, approval by a provincial body cannot as a matter of
constitutional law preclude the criminal prosecution of a charge
under the Criminal Code.  In using the words "lawful justification
or excuse", Parliament did not intend that conduct which is
criminalized by s. 163(2) be rendered lawful, or that the person
engaging in it be excused, as a result of a decision of a provincial
body.

	Since there was no evidence in this case to suggest any
knowledge on the part of the accused, beyond the fact that the
videos in question were sex films in the general sense that they
involved the exploitation of sex, the Crown did not satisfy the
mens rea requirements of s. 163(2) and the accused are entitled
to an acquittal.

	The issue of officially induced error of law as an excuse
has not been considered in this appeal because the matter was not
raised either here or in the courts below.  It would be preferable
to address this issue in a case in which it is properly raised and
argued.

	Per Lamer C.J.:  There is agreement with Sopinka J.'s
reasons on the question of the requisite mens rea for the offence
under s. 163(2) of the Criminal Code, and with his conclusion
that the OFRB approval of a film cannot negative the mens rea of
this offence.  On the question of whether the accused acted
"without lawful justification or excuse", while the OFRB approval
of the films did not justify the accused's criminal actions, in the
circumstances of this case it would have permitted the accused
to be excused from conviction on the basis of an officially
induced error of law.  Officially induced error of law is an
exception to the rule that ignorance of the law does not excuse
which is codified in s. 19 of the Criminal Code. Like the other
exceptions to this rule, it ensures that the morally blameless are
not made criminally responsible for their actions.
	Allowing OFRB approval to constitute an excuse is not an
impermissible delegation of power from one level of government
to another.  Officially induced error of law can only be raised
after the Crown has proven all elements of the offence.  As this
excuse is considered only after culpability has been proven, there
is no issue of the action of a provincial board precluding criminal
prosecutions.  Further, advice from an official of any level of
government can meet the test for this excuse.

	There is no particular link between the phrase "without
lawful justification or excuse" and officially induced error of
law.  Where an accused raises an officially induced error of law
argument, the trial judge must assess whether the excuse is
made out in law, regardless of the wording of the offence.
Officially induced error is distinct from a defence of due
diligence and is applicable to regulatory as well as criminal
offences.

	In order for an accused to rely on an officially induced
error as an excuse, he must show, after establishing he made an
error of law (or of mixed law and fact), that he considered his
legal position, consulted an appropriate official, obtained
reasonable advice and relied on that advice in his actions.  When
considering the legal consequences of his actions, it is
insufficient for an accused who wishes to benefit from this
excuse to simply have assumed that his conduct was permissible.
 The advice came from an appropriate official if that official was
one whom a reasonable individual in the position of the accused
would normally consider responsible for advice about the
particular law in question.  If an appropriate official is
consulted, the advice obtained will generally be presumed to be
reasonable unless it appears on its face to be utterly
unreasonable.  The advice relied on by the accused must also have
been erroneous, but this fact does not need to be demonstrated by
the accused.  Reliance on the official advice can be shown by
proving that the advice was obtained before the actions in
question were commenced and by showing that the questions
posed to the official were specifically tailored to the accused's
situation.
	A successful application of an officially induced error
of law argument will lead to a judicial stay of proceedings.  As a
stay can only be entered in the clearest of cases, an officially
induced error of law argument will only be successful in the
clearest of cases.  Finally, the question of whether officially
induced error constitutes an excuse in law is a question of law or
of mixed law and fact.  While a jury may determine whether the
accused is culpable, and hence whether this argument is
necessary, it is for a judge to determine whether the precise
conditions for this legal excuse are made out and if a stay should
be entered.  The elements of officially induced error are to be
proven on a balance of probabilities by the accused.

	Since the accused are entitled to an acquittal in this
case, nothing turns on the application of an officially induced
error of law analysis.  Had the accused had the requisite mens rea
for the s. 163(2) offence, however, they would have been entitled
to a judicial stay of proceedings as a result of officially induced
error of law.  The argument put forward by the accused would
have been one based on error of law -- the conclusion that the
films they retailed were not legally obscene; the accused sought
the OFRB opinion on these films and relied on its advice; and the
OFRB was the appropriate official body to consult when seeking a
determination about whether a film can be legally sold in Ontario.