Absolute liability offences
No mens rea required.
Strict liability offences
No mens rea required, but defense of due diligence is available.
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Full Mens Rea
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Objective Fault
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Strict Liability
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Absolute Liability
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Burden
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Crown BARD
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Crown to prove fault BARD
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Accused on a BoP
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n/a
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Standard
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Subjective (this is the presumption, can at times be displaced)
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Fault is measured objectively
(like Creighton, offences of criminal negligence)
“marked and significant departure from the standard which could be expected of a reasonably prudent person in the circumstances”
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Objective
Due diligence defence
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n/a
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R v SAULT STE. MARIE [1978] SCC
FACTS
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The city is charged as a corporation with offence of violating the Ontario statute Water Resources Act - causing or permitting pollutants to be discharged into a clean water source.
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RULING
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Ruling for Crown - no mens rea required, but there is availability of due diligence defence for accused. Concern with requiring full mens rea when applying offences to a legal person [a corporation] that is composed of multiple real people. Further, offence is designed to apply to incompetent persons who might lack subjective fault - not designed solely for deliberate pollution. Court holds not appropriate for public welfare offences to require full mens rea.
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RATIO
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Strict liability offence has a burden of proof on the Crown to prove the actus reus only.
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Accused can make out defence of due diligence by proving on a balance of probabilities either:
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they acted with an honest and reasonable belief they would not break the law; or
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they took all reasonable steps to avoid breaking the law.
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R v CHAPIN [1979] SCC
FACTS
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A is charged with shooting birds within a quarter mile of where bait has been deposited under s. 14 of the Migratory Birds Regulations. The penalty is a fine of between $10 and $300, possibility of up to 6 months in jail and loss of her gun and hunting privileges. Ambiguous what level of mens rea is required by this regulation.
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RULING
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Crown's appeal dismissed with costs (which are generally not awarded against the Crown in a criminal context) - s. 14 creates a strict liability offence
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RATIO
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Public welfare offences are presumed to be strict liability.
The Crown can try to demonstrate that a public welfare offence is absolute liability by showing that allowing the defendant to have a rebuttable defence would severely limit the desired application of the legislation.
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R v RAHAM [2010] ONT CA
FACTS
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A is charged with stunt driving - going more than 50 kph over the speed limit - which is punishable by a fine of $2,000 to $10,000, suspension of driving license and imprisonment up to 6 months. But A was trying to pass a tractor trailer in an oncoming lane when she was clocked at 131 kph in an 80 kph zone.
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RULING
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Crown's appeal allowed, new trial ordered. A argued that the offence was absolute liability as speeding is an absolute liability offence and therefore unconstitutional. Crown rebuts that not all speeding offences must be absolute liability, and that stunt driving is one of them based on its drafting. The Court agrees with the Crown but also notes that just because imprisonment is a possibility does not mean that an offence is strict liability.
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RATIO
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Presumption of constitutionality requires that when both strict and absolute liability interpretations are possible for an offence with a possibility of imprisonment, the constitutional one is preferred.
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CCC s 219 (Criminal Negligence)
** note that criminal negligence itself is not an offence... need a consequence to have an offence ie. “causing death” or “causing bodily harm”
-criminal negligence causing death is another way of describing manslaughter
R v TUTTON (1989) SCC
FACTS
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A believed that their diabetic son had been cured by divine intervention so they did not give him his insulin and he died. They had attempted this in the past and their doctor had told them that if their son did not receive his insulin then he would die. They honestly believed that he had been cured by divine intervention. They were charged with manslaughter by criminal negligence under current s 222(5)(b). A were convicted at trial but the Court of Appeal ordered a new trial which the Crown appealed to the Supreme Court.
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RULING
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An odd case with even number of judges (6, split 3 and 3). The appellant loses if there is not majority, therefore in this case, the tie resulted in appeal dismissed. A argued that standard was subjective and a mistake of fact defence – court disagrees and finds that the test is objective because negligence implies a reasonable person standard. Therefore, A’s subjective belief is not a defence.
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RATIO
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Modified Objective Standard: The test is that of reasonableness, and proof of conduct which reveals a “marked departure and significant (substantial) departure from the standard which could be expected of a reasonably prudent person in the circumstances” – to justify a conviction of criminal negligence.
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Justice Lamer concurring, wants to personalize the test, but Creighton later settles this without personalization. Justice Macintyre’s version is decided by the court eventually and is now the law. This “reasonableness” (p 7-20) is measured by how fault is inferred from the “conduct” which is a little strange because it begins to sound like part of the actus reus. You must take all of the circumstances into account, including what the accused knew at the time.
By punishing people for mindless or thoughtless behaviour the court could be heading toward possible Charter problems. However, objective fault is acceptable for offences without serious stigma and punishment (DeSousa).
R v JF (2008) SCC
FACTS
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A is charged because he failed to prevent/intervene in the conduct of his spouse which caused the death of the child. A is charged with 2 counts: manslaughter, criminal negligence causing death; and death by failing to provide the necessities of life. A is acquitted on one count and convicted on the other despite the fact that the offences are based on the same facts and have the same requirements (actus reus and mens rea).
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RULING
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Appeal dismissed and acquittal entered. The verdicts rendered at trial are inconsistent – while the two counts alleged different underlying offences, A’s guilt depended on exactly the same failure to perform exactly the same duty: the duty to protect his foster child from foreseeable harm from his spouse. The only difference between the offences is possibly in the mens rea: failure to provide the necessaries of life is objective standard based on a “marked departure”, while criminal negligence causing death is objective standard based on a “marked and significant departure”. As such, logically impossible to convict of the latter and not the former.
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RATIO
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Generally, crimes which have an external element of negligence require a standard of a marked departure from the standard of care; manslaughter by criminal negligence requires a standard of marked and substantial departure from the standard of care.
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R v HUNDAL [1993] SCC
FACTS
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A was driving overloaded dump truck, runs a red light in downtown Vancouver and hits a car passing through the intersection on their green light at around 50 to 60 kph. TJ finds A guilty of dangerous driving based on objective fault. CA upholds conviction but on advertent (subjective) negligence.
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RULING
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Ruling for Crown - conviction reinstated. Rejects subjective negligence in favor of objective fault. Not constitutionally necessary to have subjective fault because it is not in special category like murder. SCC gives four reasons standard is objective: (1) the licensing requirement means RP standard is imposed to get a driver's license in the first place; (2) driving is an automatic and reflexive activity, often doesn't require specific intent at any moment; (3) the wording of the CC: "in a manner that is dangerous to the public, having regard to all the circumstances" suggests that an objective standard is required; and (4) statistics that show "all too many tragic deaths and disabling injuries flow from the operation of motor vehicles indicate [a] need to control the conduct of drivers."
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RATIO
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The test for the required mens rea of dangerous driving is a modified objective test - circumstances determine if the accused committed a "marked departure" from what reasonable person standard.
| R v BEATTY [2008] SCC
FACTS
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A is driving his pickup on the highway with good weather. Approaching a corner, he momentarily crosses the center line and kills 3 people in the oncoming lane. Not much evidence about what caused the accident. Evidence that A was driving responsibly up until the moment of the accident - a momentary lack of attention. TJ acquits A because his driving was not a marked departure from RP conduct. CA disagrees, argues that crossing the center line is objectively dangerous and therefore a marked departure from the RP standard.
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RULING
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Ruling for A, acquittal reinstated.
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RATIO
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To determine objective fault, must be satisfied on the basis of all the evidence, including evidence about the accused's state of mind, if any, that the conduct amounted to a marked departure from the standard of care that a reasonable person would observe in the accused's circumstances. If the A offers an explanation, then in order to convict, must be satisfied that a reasonable person in similar circumstances would have been aware of the risk involved in A's conduct.
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FACTUAL DIFFERENCES FROM HUNDAL
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Lack of subjective fault
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Driving according to RP standard prior to accident
R v ROY [2012] SCC
FACTS
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Two friends staying in a motor home. Foggy conditions. A pulls onto highway with his friend in the motor home and has to pull into the oncoming lane in order to do so and is hit by a tractor trailer, killing his friend. A's license has been suspended at the time of the accident. Convicted at trial and Court of Appeal, but appealed to SCC because Beatty occurred in the interim.
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RULING
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Overturned conviction and acquitted A. Reiteration that it is essential not to collapse actus reus and mens rea and thereby reason backwards from the consequences to a marked departure from the RP standard and then to objective fault. Acquits A because this was a bad judgment call, not a marked departure from RP.
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RATIO
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It is essential not to collapse actus reus and mens rea and thereby reason backwards from the consequences to a marked departure from the RP standard and then to objective fault.
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