Chapter One: Constitutional Sources of the Criminal Law and the Criminal Code

Chapter Ten: Objective Fault

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  Strict and absolute liability offences: offences for which subjective or objective fault need not be proven
  
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    Strict liability offences may be defended by establishing that the accused was not negligent
    
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    Absolute liability offences may not defend by establishing they were not negligent.
    
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    Both may be defended on the basis of voluntariness and certain justifications / excuses.
    
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  S. 219(1) Criminal Negligence: “Everyone is criminally negligent who a) in doing anything or b) in omitting to do anything that is his duty to do shows wanton or reckless disregard for the lives or safety of other persons.
  
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  The reasonable person: the accused is at fault if the accused failed to do what the reasonable person would have done; the accused’s subjective state is not the basis for the imputation of fault.
  
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  The reasonable person test is to be applied without incorporating the individual traits but rather in the context of the situation; not personalized but contextualized.
  
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  Standard of Negligence: the type of negligence attracting criminal liability as is conduct that is a “marked departure” from the normal standard of care; the type of negligence attracting civil liability is a mere departure;
  
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  Dual fault offences: some offences have both kinds of fault elements – mens rea and penal negligence
  
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  R v Beatty: accused charged with dangerous driving causing death; question was whether the momentary act of negligence was sufficient to constitute criminal negligence; for negligence to attract criminal liability it must be a “marked departure;” must be blameworthy; not the case here; “even the most able and prudent driver will from time to time suffer from momentary lapses in attention;” judge concluded that there was insufficient evidence to support a finding of a marked departure from the standard of care of a prudent driver.
  
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    Modified Objective Test:
    
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      1. Must be a “marked departure” from the civil norm in the circumstances of the case;
      
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      2. The test cannot ignore that actual mental state of the accused;
      
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        Accused cannot simply state that they were not thinking about the manner of driving.
        
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        Accused can raise a reasonable doubt whether a reasonable person in his or her position would have been aware of the risks arising from the conduct.
        
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        Allowances are made for incapacity and mistake of fact.
        
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  R v DeSousa: concerns a constitutional challenge to s. 269 (unlawfully causing bodily harm); victim was struck on the arm by a piece of glass producing a large gash on her forearm requiring stitches; it was suggested that s. 269 violates s. 7 of the charter or 11(d) of the Charter;
  
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    In order to be charged under s. 269 the accused must have committed an underlying unlawful offence (the predicate offence) and have caused bodily harm to another person as a result of committing that offence; must be a sufficient causal connection;
    
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    The meaning of “unlawful” in the context of s. 269 requires that the act at least be objectively dangerous;
    
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    The underlying offence will have its own mental element to it;
    
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    The test is one of objective foresight of bodily harm for all underlying offences; the act must be both unlawful and one that is likely to subject another person to danger of harm or injury;
    
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    The offence does not violate the charter;
    
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  Strict and Absolute liability distinction:
  
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    True criminal offences: require proof of mens rea
    
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    Public welfare offences: offences which do not contain a subjective fault requirement;
    
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  Strict liability offences: essentially reverse onus provisions for offences of penal negligence; upon the crown proving the basic fact of the prohibited act the accused is taken to be liable unless the accused shows that the accused took reasonable care (on a balance of probabilities);
  
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  R v Chapin: Mrs. Chapin was charged with unlawfully hunting for migratory birds within ¼ mile of a place where bait has been deposited; the basic fact was proven and not in dispute; Mrs. Chapin pleads mistake of fact; question of whether the offence was one of absolute or strict liability; public welfare offences are prima facie strict liability; not criminal in the true sense and therefore not subject to the presumption of full mens rea; strict liability offence;
  
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  Determining Absolute Liability, Strict Liability; and Mens Rea:
  
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    Offences are presumed not to be absolute liability;
    
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    If in the Code it is presumed to be a mens rea offence;
    
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    If provincial legislation it is presumptively a strict liability offence;
    
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    Regulatory provisions or provisions for the protection of the public are presumptively strict liability offences;
    
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    “With intent,” “knowingly,” “intentionally” suggests a mens rea offence;
    
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    The language of neighboring provisions may indicate offence type
    
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    Statutory history may indicate offence type;
    
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    The greater the stigma or penalty the stronger the inference of mens rea status;
    
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    Absolute liability is constitutionally inconsistent with imprisonment
    
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  Non-criminal strict liability offences have been held to be constitutional by the Supreme Court on the basis that:
  
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    There is a difference between true crimes and regulatory offences;
    
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    Conviction for a regulatory offences requires a lesser degree of culpability;
    
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    Constitutional standards developed in criminal law cannot be applied in the same way automatically in the regulatory context; regulated activities involve a choice to enter into that activity and persons must accept the consequences of that responsibility;
    
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    Proof of negligence satisfies the fault requirement
    
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    The imposition of a burden of proof on the accused to prove due diligence on a balance of probabilities does not violate s. 11(d) of the Charter.
    
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  R v London Excavators & Trucking Ltd.: the appellant was convicted of failing to ensure that the measures and procedures required by 228(1)(a) of the Ontario Regulation were complied with; appellant advised the construction team that the area was “clear;” they hit concrete and stopped; they were ordered to remove the concrete which later exploded as it contained a hydro duct; regulatory offences are presumed to be strict liability offences; the defense of mistake of fact is available, however it was not objectively reasonable for the appellant’s foreman and backhoe operator to have accepted and acted on that information without further inquiry, especially given that the information provided to them had been wrong before (i.e. did not know that there was cement there); after hitting the cement the reasonable person would have made a further inquiry;