S 203(2) of PHW Act states that a person is not guilty of an offence against subsection (1) if

the person had a reasonable excuse for refusing or failing to comply with the direction or
requirement given to them. In addition, given the presence of strict liability, no fault
elements apply, thus only physical elements need to be proven and the defence of mistake
of fact under s 9.2 of the CCC is available. This defence provides that the defendant is not
criminally responsible for the offence if at or before the time of the conduct constituting the
physical element, the person considered whether or not facts existed, and is under a
mistaken but reasonable belief about those facts, where if those facts existed, the conduct
would not have constituted an offence.

This is the case here as defence of ‘honest and reasonable mistake’ as to facts. The Defence
of ‘honest and reasonable mistake’ as to facts favours those who have thoughtfully
considered the facts, as opposed to recklessness which favours those who are careless. The
onus of proof rests on prosecution to disprove the defence beyond reasonable doubt, by
showing that the defendant did not consider the current restrictions/the defendant did not
make a mistake about the facts/ that the defendant did not have a reasonable excuse to
cease wearing a face coverings1. Further this requires a mistake of fact, and not a mistake of
law.

The defence however is only just

S 203(2) of PHW Act states that a person is not guilty of an offence under subsection (1) if
the person had a reasonable excuse for refusing or failing to comply with the direction or
requirement given to them. Additionally, given the presence of strict liability, no fault
elements would apply, thus only physical elements need to be proven. Therefore, the
defence of mistake of fact, under s 9.2 of the CCC, is available. Under this defence, the
defendant will not be criminally responsible for the offense if prior to, or at the time of their
conduct, which constitutes the physical element, they considered whether or not facts
existed. It also provides that the defendant held a mistaken, yet reasonable belief as to
those facts, and in their existence, their conduct would not be an offense. This defence is
favourable to those who have made thoughtful consideration and proportionate measures
to comply with the positive duty of wearing a face covering when leaving premises, in
contrast to those who are merely careless, and thereby reckless.

This defence is therefore applicable in the matter in question. As such, the onus of proof
rests with the prosecution to refute this defence beyond reasonable doubt. This would be
undertaken by establishing that the defendant made no consideration to the current
restrictions, nor made no mistake about the facts in that he had no reasonable excuse to
cease wearing a face covering.

1
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