Mr review 6 ignorance of law 6
Absolute Liability and Burdens of Proof
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- Constitutional Considerations
- R v Pontes 1995 [Offence that precludes defences of mistake of fact/due diligence, mistake of law = Absolute Liability]
- R v Wholesale Travel Group Inc SCC 1991 p 406
Absolute Liability and Burdens of ProofAbsolute liability: you are absolutely liability for any act you commit. Crown must prove AR BYD Lack of voluntariness is still a “Defence” Due diligence and RMF are NOT defences Courts have never liked them – that’s why SSM created strict liability category Offends general notions of justice TO be an absolute liability offence, must say “THIS IS AN ABSOLUTE LIABILITY OFFENCE” or take away defences; otherwise it is SL. AL = designed to ensure the highest measure of security. Constitutional ConsiderationsReference re Section 94(2) of the BC Motor Vehicle Act [Absolute Liability and Imprisonment is an s 7 violation]Note: Presumption of strict liability is common law. Facts: Offence of 94(1) creates absolute liability of driving whether or not defendant knew of prohibition or suspension. Minimum imprisonment 7 days. Issue: Is this offence consistent with the Charter? Does the Court have the power to strike down a statute that creates AL offences? Decision: BCCA: Not consistent with the Charter. Reasons: Lamer J:
Law that has the potential to convict person who has really done anything wrong, who is morally innocent, offends principles of fundamental justice Absolute liability and imprisonment cannot be combined = against s 7 S 7 serves to establish parameters The term “principles of fundamental justice” is not a right, but a qualifier of the right not to be deprived or life, liberty and security, function is to set the parameters of that right Section 8-14 = specific deprivations of the right to life, liberty and security. Illustrative of the meaning, in criminal or penal law, represent principles which have been recognized by common law Absolute Liability and Fundamental Justice in Penal Law Innocent should not be punished What is morally innocent will VARY! A law enacting an absolute liability offence will violate s 7, only if and to the extent that it has the potential of depriving of life, liberty, security Imprisonment deprives person of liberty S 94(2) offends s 7 “liberty” of the charter. It is not salvaged by s 1. Note: BC leg repealed s 94(2) KEY POINTS: Explained what the principles of fundamental justice were. Government argued that s 7 did not give the courts power of “substantive review” Principle of fundamental justice were intended for procedural review only Court rejected this interpretation BC Motor Vehicle allows courts to measure whether laws meet with general tenets of justice overbreadth, vagueness, etc) Criticized and praised AL + Imprisonment = s 7 violation Set groundwork for future charter challenges on MR (stigma analysis) R v Pontes 1995 [Offence that precludes defences of mistake of fact/due diligence, mistake of law = Absolute Liability]BC enacted statute without 94(2) Statute said that person who was convicted of federal driving offence “automatically and without notice prohibited from driving” SCC said this was still AL Since mistake of law was NO EXCUSE, there was no way to avoid the section BUT its not unconstitutional because there is no possibility of imprisonment. R v Ontario Inc; R v Transport Robert ONCA 2003 p 401 [AL offence that imposes minimal fine with low stigma does not trigger “state imposed psychological stress” contrary to s 7 security of the person]Facts: D argues that offence violates s 7, 11(d). Commercial motor vehicles that lose wheel on highway are liable no matter what. Issue: Is it open to legislature to create absolute liability offence where there is no possibility of imprisonment/probation if the D is convicted? (Just a fine of 2-50k) Decision: No violation of s 7 or 11(d). Reasons:
11(d): No violation because lg. has defined an offence so as to eliminate a possible common law defence S 7: S7 can only be enjoyed by human beings, but corporation has standing challenge to constitutionality of penal provision on that basis P must establish violation of the right and deprivation that right does not accord with principles of fundamental justice A argues: Provision infringes on security of person because it allows for conviction of person who is without fault; infringment based on effect of stigma and possible monetary penalty Note: Legislature must state that accused will not go to jail for failure to pay fine, or gets caught by s 7 R v Pontes: Crown says SSC already dealt with this and it did not violate s 7 Security of the person and Absolute Liability Crown States: Due diligence not available…other AR defenses available where wheel became detached in collision with third party Ie. Voluntariness is component of AR. If the wheel detaches because of a collision, ie someone else hits you, you have no voluntary action of driving. Note – if you hit a pothole = still liable. Contextual factors: owners/operates of commercial vehicles, in highly regulated industry for-profit industry, driving is a privilege – not a right In exceptional circumstances, court may impose fine less than minimum Security is restricted to ‘serious state-imposed psychological stress”. Also – no generalized right to dignity or freedom from stigma Offence does not create a true crime (as explained in Wholesale Travel) Diminished stigma of the offence, even when couple with fine, does not trigger s 7 NOTE: there will be situations where security of the person can be engaged. IE. If the fine was 5 million dollars,/lose job, its clear this would psychologically stress someone. R v Wholesale Travel Group Inc SCC 1991 p 406Facts: Corporation charged with several counts of misleading advertising. Offences punished up to one year imprisonment. At trial court held that Competition Act and s 37.3, which created statutory due diligence defence, was inconsistent with ss7 and 11(d). TJ found that statutory due diligence defence in ss 37.3(2)(a),(b) unjustified violation of s 11(d) and requirement for timely retraction in ss37.3(2)(c),(d) imposed absolute liability in violation of s 7. Issue:
Decision: SCC strikes down (c ) and (d) on grounds they conflict with BC Motor Vehicle. Reason: Lamer CJ AR Requires proof that advertising was false or misleading Penalty up to 1 year in jail triggers s 7 S 37.3(2) takes away possibility of MR (A) and (b) allow for morally innocent to avoid liability (Strict liability) BUT (c ) and (d) punish even where person doesn’t know it was false and measures must be taken forthwith = against s 7 BECAUSE All four criteria MUST be met = makes this an absolute liability offence. Wholesale Travel does not have standing to challenge constitutionality. Problem with the provisions is that they are enacted to apply to both individuals and corporations. If it applied exclusively to corporations, corporations would be entitled to raise charter argument So, once they are held to be of no force or effect, they cannot apply to ANY accused, corporate or individual Timely reaction requirement was a form of absolute liability that violated s 7, and could not be justified under s1 Is there a chance that someone morally innocent could still go to jail? YES. Company made error in advertising, despite having good intentions. If company did not know of error, could not comply with (C ) or (d). Would lead to effective AL. Not an infringement of the charter to create an offence for which the mental element is negligence Negligence is the minimum fault requirement where an accused faces possible imprisonment The reverse onus of having the D establish due diligence was constitutional (SCC split 5-4) Because it assumes conviction before presumption of innocence Accused may be convicted while reasonable doubt still exists Directory: cans -> 2014 cans -> Law 205: criminal law full Year can (2005-2006) Jennifer Lau cans -> Chapter One: Constitutional Sources of the Criminal Law and the Criminal Code 2014 -> Charter + evidence 1 cans -> Law 120 criminal cans -> Law 120 – Criminal Law – can silvana Lovera Professor Emma Cunliffe Table of Contents cans -> Testimonial or documentary or real must be: Relevant cans -> Study Tip How to Improve Your English Pronunciation cans -> C’right: overview, 2 cans -> Table of contents section one an introduction to intellectual property Download 0.58 Mb. Share with your friends:
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