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Travelling and Mistake of Law

We live in a great time for international travel.  With ever-increasing economic accommodation alternatives ranging from Airbnb to daily seat sales on flights, it has never been so easy to travel.  Traveling can be an exciting and life-changing adventure.

This article only deals with Canadian law.  The point being, before you travel, research the local laws and avoid trouble.

However, it can quickly turn very dangerous if you are uninformed about the judicial system of the country you are visiting.  Being aware of the differences between the Canadian legal system and the one of the country you are visiting is crucial.  In most jurisdictions, mistakes of law do not furnish a defense to an accused, meaning that it is imperative to know the legal system of the country you are entering.

Travelling Abroad

In Canada, the criminal law is, in many ways, a reflection of our own cultural values and norms.   It is a good idea to apply this logic when traveling.  While legal frameworks may be more predictable in common law jurisdictions, there are many other countries in the world that depart significantly from western tradition.

Many foreign nations have very strict laws in relation to drug use, drug possession, public intoxication, and other acts that may seem less serious domestically.   Punishment for various crimes are draconian in certain countries.  In Singapore, for instance, if you are caught singing obscene lyrics, you could face a punishment of up to three months in prison, a fine, or both.

Mistake of Law

Mistake of law is what is commonly referred to as ignorance of the law.  Common law jurisdictions, meaning those that follow English legal tradition, have not allowed ignorance of the law as an excuse to a criminal offense.  For example, the Criminal Code of Canada states at section 19 that “Ignorance of the law by a person who commits an offence is not an excuse for committing that offence.”  This has been upheld by the Supreme Court of Canada in the post-Charter era.

A mistake of fact is similar to a mistake of law, but it can provide a viable defence to an accused.  The difference between the two can sometimes be difficult to discern.  A general example of mistake of law would be if one were selling substance A while believing that substance A was legal or being willfully blind to the fact that it wasn’t.  If, however, one was selling substance A believing it was substance B, which was legal, one would have a defense.

There are exceptions to this rule in Canada, though they are narrow and rare.  If a law has not been officially promulgated or published, a person may not be convicted of violating that law.

There is also a legal defence called colour of right, which may be applied when there is a legal error over who owns property.  As a result, colour of right may offer a defence to theft in certain circumstances.

Officially induced error is another possibility where ignorance of the law may be some excuse.  This can only occur when a person receives erroneous legal advice from an authorised representative of the state, and reasonably relies on that advice. In the Canadian context, reliance on poor legal advice, or even a lower court decision may not be enough to provide a defence to the conduct in question.

There is also the possibility that the fault requirement of a specific offence is written in a way that makes it impossible to commit the offence without a certain level of knowledge.

Remember when traveling: criminal offenses are different everywhere.

Offences Outside of Canada

Section 6(2) of the Criminal Code criminal code states that “Subject to this Act or any Act of Parliament, no person shall be convicted or discharged under section 730 of an offence committed outside Canada.”   There are exceptions to this provision.  It is possible to be convicted in Canada after committing certain acts abroad, including: offences committed on an aircraft, nuclear terrorism, hostage taking, offences against United Nations or associated personnel, offences involving explosive or lethal devices, financing terrorism, terrorism, sexual offences against children, and human trafficking, among others.

Although traveling broadens our perspective, it can also expose us to situations that can end up being dangerous. Keep yourself and your family safe and clear of any legal complications by being proactive and informed ahead of your arrival.  If you or a loved one does end up in a complex legal situation, contact us at Weisberg Law.

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