Defence of Officiallly Induced Error

There are five elements to thew defence of officially induced error:

1. the accused must considered the legal consequences of his actions and sought legal advice;

2. government agents involved in administering the law in question had to give the advice;

3. the advice had to be erroneous;

4. the accused had to rely on the advice;

5. that reliance had to be reasonable.

Duty counsel advising the accused not to give breath samples on charges of impaired driving does not speak for the government and the defence does not arise.

R. v. Pea 93 O.R. (3d), 67, (O.C.A.)