Facts: the Act made it an offence, punishable by imprisonment, to drive while prohibited to do so.
It’s a principle of fundamental justice that the innocent not be punished – you must have a guilty mind.
Absolute liability offences can offend this principle – they allow for the punishment of the morally innocent. This is not per se a problem, but when imprisonment is a possible punishment, then an absolute liability offence would violate s. 7 rights to liberty and security of the person.
The scope of this breach depends on the meaning of “security of the person” -
So absolute liability + imprisonment = s. 7 breach. The severity of this breach depends on the nature of the punishment and the interests implicated. What would be offensive when applied to a person may be justifiable under Oakes for a corporation.
Generally, for real people, a section 7 breach will only be justified in extreme circumstances.
Generally, the purpose of an absolute liability offence will be identically served by making it a strict liability offence. So it’s not minimally impairing to impose absolute liability in this circumstance, even though it’s for a valid purpose.
In law, there are basically two types of offences:
Mens rea offences requiring proof of fault
Absolute liability offences
Strict liability offences were created by reading objective fault requirements into absolute liability offences. Effectively, they create a reverse onus – the defendant has to show that they exercised due diligence/took reasonable care in the circumstances. This has to be proven on the balance of probabilities.
Distinguishing between types of offences:
Offences appearing in the Code are presumptively mens rea offences
If they’re penal negligence offences, the Crown still retains the persuasive burden. Accused only ever gets tactical burden.
Absolute liability offences must be drafted with precise and explicit language to that effect. Given the prohibition on imprisonment, they’re not typically used (perhaps more often for crimes committed by corporations).
Provincial regulatory offences are typically strict liability. Provinces can create mens rea offences if they’re intra vires.
Look at the language of the provision. Language involving mental activity (“knowingly”, “intentionally”) sounds like mens rea.
Look at the surrounding provisions. If nearby provisions set out mens rea offences, absence of mental language could mean that the provision is not one.
The harder it is to prove negligence, the more likely it’s strict liability.
No absolute liability with imprisonment.
The stronger the punishment, the more likely it’s mens rea.
Strict liability offences are constitutional – regulatory offences involve less moral culpability than true crimes, and they are designed to protect the vulnerable in situations where people or corporations have chosen to enter into a regulated arena. Proof of negligence as sufficient for the fault requirement doesn’t violate s. 7, nor does the reverse onus.
R v Chapin [1979] 2 SCR 121
Facts: Chapin was duck hunting on marshland which her husband was part owner, and was found to have violated a law which prohibited hunting near bait piles. The pile was nearly undetectable.
There are 3 categories of offences (Sault Ste. Marie): mens rea (true criminal offences - requires proof of positive state of mind), absolute liability (no way to avoid liability), and strict liability (defence of due diligence, what a reasonable person would’ve done in the circumstances – defence is available if the accused reasonably believed in a mistaken set of facts which, if true, would render the act or omission innocent, or if they took all reasonable steps to avoid the event)
Mens rea offences are those which involve mental elements – in the statute, there’s no mention of intentionality, and the purpose of the offence (protecting migratory birds) doesn’t seem to require mens rea. It’s not a true criminal offence, but a public welfare offence.
There’s no strict prohibition on hunting, but rather the statute regulates hunting. Public welfare offences are prima facie strict liability. The punishment is severe enough to suggest that there should be a defence available. Difficulty in enforcing a statute doesn’t make it an absolute liability offence.
It would be practically impossible in the circumstances for Chapin to have properly searched for bait in the area, even with notice. You don’t have to take all possible efforts, merely all reasonable efforts, to avoid the crime.
So it seems to be a strict liability offence – you can avoid liability if you can prove that reasonable care was taken in the circumstances.
In order to claim mistake of fact for a penal negligence charge, the mistake itself must have been reasonable in the circumstances. To avoid conviction, there just has to be a reasonable doubt.
R v London Excavators & Trucking Ltd 1998 ONCA
Facts: London Excavators was subcontracted to dig on a hospital site. They struck concrete, and called for the contractor’s assistant supervisor. The supervisor told them to keep digging. The concrete enclosed a hydro duct, which exploded when the backhoe cut through it. The contractors had been told that the utility “locates” had been performed, and that the area was clear to dig; however, no locate had been done for the hydro. The locate was required by statute. The duct could’ve been shut off had the locate been performed.
For strict liability offences, once the actus reus is performed, the onus is on the defendant to demonstrate that they exercised due diligence.
Taking all reasonable steps to avoid the offending event.
What is “reasonable in the circumstances” is an objective determination.
While the contractors held an honest subjective belief that the supervisor’s statement was accurate, it was not reasonable in the circumstances to keep digging. A reasonable person in that circumstance would’ve made further inquiries about the status of the duct, given that they found it unexpectedly and they were operating on the belief that the area was clear. The supervisor’s information was mistaken in the first place, so relying on it further was not objectively reasonable. They should’ve consulted site plans, or contacted a utility representative, or something in order to comply with the statute.
PARTIES AND OTHER FORMS OF SECONDARY LIABILITY
There are two categories of offenders:
Primary offenders who actually commit the prohibited act (primary liability)
Parties who are secondarily liable through participation in the offence
However, both types are equivalent for the purpose of fixing criminal liability. A secondarily liable person is held to have committed the offence.
S. 21 of the Code governs three types of secondary liability:
Mens rea: doing or omitting anything for the purpose of aiding (you must know you’re aiding the commission of an offence, and have some knowledge of the circumstances)
Abetting: psychological encouragement during the commission of an offence
Mens rea: intentional encouragement of the principal offence
Common unlawful purpose: where the parties have a common intention to carry out an unlawful purpose and the person ought to have known that the offence would be committed in carrying out that purpose (21.2)
Proof:
The parties formed a common intention to carry out an unlawful purpose to commit an offence, and to assist each other to carry it out
The principal offender committed another offence while carrying out the unlawful purpose
The accused ought to have known that the commission of the second offence by the principal offender would’ve been a probable consequence of carrying out the unlawful purpose
“ought to have known” is struck out for stigmatic crimes (Logan)
Remember – “purpose” means “intention”, not “desire” – the accused must intend the consequences of their aiding, but they don’t need to like it. But “purpose” excludes recklessness.
There’s also pre-offense counseling (s. 22), where counseling (to procure, solicit, incide, persuade, instigate) is provided before the commission of the offence. Both mens rea and actus reus are established before the crime is committed, so you can be charged even if the crime is committed differently than was planned or if the crime is not committed at all.
You can be convicted for secondary liability even if the primary actor is not found or convicted (23.1).
This interacts with constitutional requirements for mens rea in cases where that arises (murder, manslaughter, war crimes)
Secondary liability must still be proven beyond a reasonable doubt
Presence at the scene of a crime does not amount to secondary liability – it requires some positive action
Factors for aiding and abetting are considered in light of the totality of the circumstances:
