Molis v. R., [1980] 2 SCR 356

Supreme Court of Canada

Molis v. R., [1980] 2 S.C.R. 356

Date: 1980-10-07

Albert Peter Molis (Plaintiff) Appellant;

and

Her Majesty The Queen (Defendant) Respondent.

1980: June 9; 1980: October 7.

Present: Laskin C.J. and Martland, Ritchie, Dickson, Beetz, Chouinard and Lamer JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO.

Criminal law—Defences—Ignorance of the law—Whether there is a distinction between mistake of law and ignorance of law—Whether ignorance of subordinate legislation may be an excuse—Defence of due diligence—Criminal Code, R.S.C. 1970, c. C-34, s. 19—Food and Drugs Act, R.S.C. 1970, c. F-27—Interpretation Act, R.S.C. 1970, c. 1-23, s. 27(2)—Statutory Instruments Act, 1970-71-72 (Can.), c. 38, s. 11(2).

The appellant and his co-accused Hawkins were charged with trafficking, between January 1, 1976 and August 26, 1976, in a restricted drug, to wit: 3-4 methylenedioxy‑N‑methylamphetamine (hereafter referred to as “M.D.M.A.”), contrary to s. 42(1) of the Food and Drugs Act. Molis and Hawkins had been operating a laboratory where they were manufacturing M.D.M.A. When they started manufacturing this substance, it was not listed in Schedule H of the Food and Drugs Act as a restricted drug. M.D.M.A. was added to that Schedule by a regulation that was published in the Canada Gazette, in June 1976. The trial judge directed the jury in such a way as to limit the period of time during which appellant might have illegally manufactured M.D.M.A., being from the time the amendment was published to August 26. However, following a voir dire the trial judge ruled as inadmissible evidence that purported to establish that appellant and his partner had been as duly diligent as could be expected in their attempts to ascertain whether it was legal or not to manufacture M.D.M.A. and that they did not know until the time of their arrest that M.D.M.A. had become a restricted drug. The jury found the appellant guilty and the Court of Appeal dismissed the appeal from the conviction. This appeal and that of Hawkins were argued at the same time and this Court had already dealt with the admissibility into evidence of intercepted private conversation (see, supra Hawkins v. The Queen (No. 1), [1980] 2 S.C.R. 353).

The issue now before this Court was predicated on a distinction argued by appellant between ignorance of the existence of a law and mistake in its interpretation, the result of said distinction being that s. 19 of the Criminal

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Code, while being a bar to a defence of mistake of law would not be that of ignorance of law if the accused has exercised due diligence in the ascertainment of that law’s existence.

Held: The appeal should be dismissed.

The trial judge did not err in refusing to submit to the jury ignorance of the law as a defence, as this defence does not exist. Section 19 of the Criminal Code is clear and does not permit a distinction between mistake of the law and ignorance of the law. As to the distinction between ignorance of statute and that of subordinate legislation, s. 27(2) of the Interpretation Act expresses clearly the will of Parliament that s. 19 of the Criminal Code is a bar to any defence of ignorance of law, be the offence one created by an “enactment”, as in the case here. Even if by s. 11 (2) of the Statutory Instruments Act, Parliament has relaxed somewhat the rigours of s. 19 of the Criminal Code, such abatement applies only when a regulation was not published in the Canada Gazette. As to the defence of diligence this Court recognized its existence for certain offences in R. v. Sault Ste. Marie, that defence is that of due diligence in relation to the fulfilment of a duty imposed by law and not in relation to ascertainment of the existence of a prohibition or its interpretation.

R. v. Maclean (1974), 17 C.C.C. (2d) 84; R. v. Sault Ste. Marie, [1978] 2 S.C.R. 1299, referred to.

APPEAL from a judgment of the Court of Appeal for Ontario dismissing an appeal from the appellant’s conviction on a charge of trafficking in a restricted drug. Appeal dismissed.

A.S. Price, for the appellant.

John A. Scollin, Q.C., and David L. Pomerant, for the respondent.

The judgment of the Court was delivered by

LAMER J.—This appeal is from the judgment of the Court of Appeal for Ontario dismissing one Albert Peter Molis’ appeal from conviction in the General Sessions of the Peace at Toronto, in the Judicial District of York, in Ontario, on an indictment that he and an alleged accomplice, one Brian Middleton Hawkins “unlawfully did, at the Municipality of Metropolitan Toronto, in the Judicial

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District of York and elsewhere in the Province of Ontario, between the 1st day of January in the year 1976 and the 26th day of August in the year 1976, both days inclusive, traffic in a Restricted Drug, to wit: 3-4-Methylenedioxy-N-methylamphetamine, contrary to Section 42(1) of the Food and Drugs Act.” (A.C. at p. 1.)

Brian Middleton Hawkins also appealed in separate proceedings from his conviction to the Court of Appeal and then to this Court from that court’s decision dismissing the appeal. Both appeals were argued before us at the same time; furthermore, at the hearing, each appellant added to his grounds of appeal those argued by the other. Let it be said right now that the grounds of appeal raised by Hawkins in his notice of appeal and memorandum which dealt with the admissibility into evidence of intercepted private conversations were dealt with sedente curia. Both appellants were told that their appeal had not succeeded on those grounds and that judgment was reserved in both cases on the other grounds that had originally been raised by appellant Molis. The latter are predicated on a distinction argued by appellant between ignorance of the existence of a law and mistake in its interpretation, the result of said distinction allegedly being that s. 19 of the Criminal Code, while being a bar to a defence of mistake of law, would not be to that of ignorance of law if the accused has exercised due diligence in the ascertainment of that law’s existence.

In view of my disagreement with such an interpretation of s. 19 of the Code, I find it unnecessary to set out here those facts which would have been relevant to the issue of due diligence.

Molis and Hawkins attracted the attention of the Toronto R.C.M.P. drug squad in January 1976. Appellant Molis had been operating since August 1975 a laboratory in partnership with Hawkins through a limited company under the name of “Organic/Inorganic Research and Development Limited”. This laboratory was, at least according to appellant and using his words, “basically to develop a line, test kits for determination of dangerous drugs, to manufacture a line of cosmetics, and to eventually get into the production of

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a limited quantity of research grade chemicals”. (A.C. 2 at p. 201.) The police became concerned after “It had been ascertained that chemicals which in combination with others might produce drugs or substances on the controlled or restricted schedules of the Food and Drugs Act were being shipped to” (appellant’s factum, at p. 2) appellant’s company.

A police investigation revealed that appellant and his partner were manufacturing a chemical substance, 3-4-methylenedioxy-N-methylamphetamine, conveniently referred to as M.D.M.A. This substance is related chemically to another substance called M.D.A. which is a restricted drug listed in Schedule H of the Food and Drugs Act (R.S.C. 1970, c. F-27 and modifications).

It is of importance to know that when appellant started manufacturing M.D.M.A. this substance (M.D.M.A.) was not on the list of restricted drugs, and hence the manufacturing of that substance was perfectly legal, subject to compliance with other laws or regulations with which we are not in any way concerned here. Furthermore, it is to be noted that M.D.M.A. was added to Schedule H and that the required amendment to that schedule was done by a regulation that was published in the Canada Gazette, in June 1976. Notwithstanding said amendment, appellant continued producing M.D.M.A. and was arrested on August 26, near the premises of his company in possession in his briefcase of M.D.M.A. that was subsequently established as having been manufactured at his laboratory. The trial judge directed the jury in such a way as to properly limit the period of time during which appellant might have illegally manufactured M.D.M.A., being from the time the amendment was published in June in the Canada Gazette to August 26. Following a voir dire, the trial judge ruled as inadmissible under the circumstances of the case evidence that purported to establish that appellant and his partner had been as duly diligent as could be expected in their attempts to ascertain whether it was legal or not to

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manufacture M.D.M.A. and that they did not know until the time of their arrest that M.D.M.A. had become a restricted drug.

This ruling was the result of two findings on the part of the trial judge. He first found that:

…ignorance of the accused as to the state of the statute and the regulations and the schedule throughout the period set forth in the indictment, provides no defence, and that evidence proposed to be introduced to prove such ignorance and any steps taken by the accused to obtain knowledge of the law, is inadmissible. (A.C. 2, at p. 227.)

His attention was then drawn to a decision by a county court judge in Nova Scotia in the case of R. v. Maclean[1], where it was held that when interpreting s. 19 of the Criminal Code a distinction is to be made between statutes and subordinate legislation due to the fact that the latter are not normally so discoverable or available as the former. Attorney for appellant drew the judge’s attention to the Maclean case by asking him for some clarification:

…I take it,” said he, “from my interpretation of what you have said, that firstly, even assuming the correctness of Maclean, you feel that the evidence falls short. However, you don’t feel that the decision of Maclean is correct in law. Have I correctly interpreted Your Honour’s reasons?

The judge then replied

No. I think in some instances the decision and result reached by Judge O’Hearn may be correct, but I note the exceptions that he did make at the top of page 101, which I read, that he places certain limitations upon his reasoning, and I do too.

The passage by O’Hearn, Co. Ct. J., to which the judge was alluding is as follows:

The significance of this case as well as of the many exceptions noted in Williams’ work is that Criminal Code, s. 19, is not absolute and cannot be applied without reserve to every situation where the essential mistake is one of law. Apart from the exceptions arising out of specific mental elements of culpability such as fraud, Williams suggests several other approaches to exceptions, of which two seem to be pertinent to this case. The first is the case where the conduct is not

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generally realized to be wrongdoing because people do not categorize it as immoral, or because knowledge of the applicable law is generally confined to a small and special circle to which the accused does not belong. To my mind, it might be objected to the latter category, that if an accused wishes to indulge in an activity that requires special knowledge including knowledge of the applicable law, he can fairly be held to be under an obligation to acquire that knowledge.

His reference to this excerpt makes it clear that the judge then found, and this is the second of the two findings I referred to previously, that there are cases where s. 19 of the Criminal Code is not a bar to a defence of ignorance of the law, but that under the circumstances of the case at bar he felt that on account of the appellant having indulged in an activity requiring special knowledge this defence was not open to him.

The Court of Appeal for Ontario dismissed the appeal saying:

Assuming without deciding that ignorance of a Regulation which has been duly published in the Canada Gazette, pursuant to the Statutory Instruments Act, S.C. 1970‑71‑72, c. 38, might in some circumstances be a defence if all reasonable diligence had been exercised to ascertain its existence, we are all of the view that the inquiries made by the appellants in this case, did not meet the required standard of diligence. (A.C. 2, at p. 403.)

…

…In all the circumstances, we are of the view that the trial judge did not err in refusing to submit to the jury ignorance of law as a defence. Accordingly, the appeals from conviction are dimissed.

Let me say at once that if the defence exists then its success or failure is to be determined by the trier of fact, (in this case the jury), unless the evidence is to be excluded as a result of the application of some evidentiary exclusionary rule, which is not the case here.

Since I am, in any event, of the opinion that the defence does not exist, I find it unnecessary to determine whether the Court of Appeal was right

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in resorting as it did conditionally to s. 613(1)(b)(iii) of the Criminal Code when it found that appellant had in any event not met “the recognized standard of diligence”; also, it is for that reason that I agree with the conclusion of the Court of Appeal that the trial judge did not err in refusing to submit to the jury ignorance of the law as a defence.

In support of his contention before us that the defence is in this case available, appellant makes two sets of distinctions:

—The difference between mistake of law and ignorance of law.

—The difference between ignorance of statute and that of subordinate legislation.

The latter distinction is said to be relevant in determining whether an accused has or has not been duly diligent in ascertaining the existence of legislation by considering the degree of discoverability and of availability of the law applicable to the case under consideration.

Section 19 of the Criminal Code reads as follows:

19. Ignorance of the law by a person who commits an offence is not an excuse for committing that offence.

Appellant argues that when Parliament says ignorance of law, it in effect means mistake of law, i.e. the wrong interpretation of the law, and that ignorance of the existence of a relevant penal provision is a defence if an accused has exercised due diligence in ascertaining the existence of that provision.

Appellant seeks support for the distinction in the fact that most reported cases, where s. 19 has operated as a bar to a defence coined as one of ignorance of law, were in effect situations that amounted to “mistake(s) of law”.

Whatever may be the merit of such a distinction, and this is said without pronouncing on its acceptability, Parliament has by the clear and unequivocal language of s. 19 chosen not to make any distinction between ignorance of the existence of the law and that as to its meaning, scope or application. Parliament has also clearly expressed

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the will that s. 19 of the Criminal Code be a bar to any such defence, be the offence one created by an “enactment”, (s. 27(2) of the Interpretation Act R.S.C. 1970 c. I-23) as is the case here.

Indeed s. 27(2) of the Interpretation Act, supra, says:

(2) All the provisions of the Criminal Code relating to indictable offences apply to indictable offences created by an enactment, and all the provisions of the Criminal Code relating to summary conviction offences apply to all other offences created by an enactment, except to the extent that the enactment otherwise provides.

Parliament has however recognized that, when the commission of an offence is dependent upon a regulation, some consideration should be given to the fact that regulations are less “discoverable” or “available”. As a result Parliament has relaxed somewhat the rigours of s. 19 of the Criminal Code by enacting s. 11(2) of the Statutory Instruments Act, S.C. 1970‑71‑72, c. 38 which states:

11. (2) No regulation is invalid by reason only that it was not published in the Canada Gazette, but no person shall be convicted of an offence consisting of a contravention of any regulation that at the time of the alleged contravention was not published in the Canada Gazette in both official languages unless

(a) the regulation was exempted from the application of subsection (1) pursuant to paragraph (c) of section 27, or the regulation expressly provides that it shall apply according to its terms before it is published in the Canada Gazette, and

(b) it is proved that at the date of the alleged contravention reasonable steps had been taken to bring the purport of the regulation to the notice of those persons likely to be affected by it.

However such an abatement of the rigours of s. 19 of the Criminal Code offers no solace to appellant as his conviction was for the manufacturing of M.D.M.A. during a period posterior to the publication in the Canada Gazette of the relevant amendment.

At the hearing before us, appellant further argued that this Court in the case of R. v. Sault

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Ste.Marie[2] recognized for certain offences the existence of a defence of due diligence. The offence in the present case is worded as follows in the Food and Drugs Act:

42.(1) No person shall traffic in a restricted drug or any substance represented or held out by him to be a restricted drug.

(2) No person shall have in his possession any restricted drug for the purpose of trafficking.

(3) Every person who violates subsection (1) or (2) is guilty of an offence and is liable

(a) upon summary conviction, to imprisonment for eighteen months; or

(b) upon conviction on indictment, to imprisonment for ten years. 1968-69, c. 41, s. 10.

It is clear to me that we are dealing here with an offence that is not to be considered as one of absolute liability and, hence, a defence of due diligence is available to an accused. But I hasten to add that the defence of due diligence that was referred to in Sault Ste.Marie is that of due diligence in relation to the fulfilment of a duty imposed by law and not in relation to the ascertainment of the existence of a prohibition or its interpretation.

For these reasons, I would dismiss the appeal.

Appeal dismissed.

Solicitor for the appellant: Alan S. Price, Toronto.

Solicitor for the respondent: Roger Tassé, Ottawa.