Consider this scenario. A retailer in the big city is in the risky business of selling videos which are close to the line. He is careful to sell only videos which have been approved by the Ontario Film Review Board. In fact, he regularly seeks and pays for the film review board approval of particular videos before putting them in his store for sale. The police raid his premises and he is charged under the Criminal Code for illegally selling the approved videos.
The retailer defends the charge relying upon the board approval of the videos. He is acquitted on the basis of an officially induced error. In this case, the court made three findings. It held that the Ontario Film Review Board is charged with determining which films may be shown in Ontario, that the general public understands that the board is the body which approves films for play in Ontario, and that the board is the logical choice to look to for anyone seeking advice about whether a film can be legally sold in Ontario.
For the defence to apply, several elements must be proved. The officially induced error must be an error of law. The accused must consider the legal consequences of his actions and seek legal advice. The advice must come from an appropriate official and need not be in writing. The official must be one whom a reasonable person would consider responsible for advice about the particular law in question. Finally, the accused must demonstrate reliance on the erroneous official advice.
The advice of officials of any level of government, federal, provincial, or municipal, may induce an error of law and trigger this defence provided that particular government body is responsible for the law in question. So, if you are thinking of making some changes to your shoreline, and you talk to an official from the Ministry of Natural Resources, and he says: “Go ahead. You don’t need a work permit,” keep good notes of the conversation. You never know when your lawyer will need them.