A. Absolute Liability Offences

AuthorKent Roach
ProfessionFaculty of Law and Centre of Criminology. University of Toronto

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An absolute liability offence requires the Crown to prove the commission of the prohibited act beyond a reasonable doubt, but does not require proof of any additional fault element such as guilty knowledge or negligence. For offences of absolute liability, "it is not open to the accused to exculpate himself by showing that he was free of fault."4

This form of liability has been controversial. Supporters of absolute liability argue that its imposition can persuade a person or an organization to take additional measures to prevent the prohibited act. Opponents stress that the imposition of absolute liability can punish the morally innocent, and that one who has not acted with subjective fault or negligence cannot be expected to do anything more to prevent the prohibited act.5Courts have recognized offences as requiring absolute liability when they have been convinced that the legislature did not intend the Crown to prove fault or that such a requirement would frustrate the

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purpose of the statute. In R. v. Pierce Fisheries Ltd.,6the Supreme Court held that the possession of undersized lobsters contrary to regulations under the Fisheries Act was an absolute liability offence. Ritchie J. refused to apply the Court’s previous decision in R. v. Beaver7that a person could not be held to possess drugs without subjective knowledge. He reasoned:

I do not think that a new crime was added to our criminal law by making regulations which prohibit persons from having undersized lobsters in their possession, nor do I think that the stigma of having been convicted of a criminal offence would attach to a person found to have been in breach of these regulations.8This approach recognized that regulatory offences did not carry with them the same stigma as criminal offences and that it would be difficult to achieve the objectives of regulatory offences if proof of subjective fault was required. Cartwright J. dissented and, following Beaver, would have required proof that the accused knew about the undersized lobsters.

There are problems with both the decisions in Pierce Fisheries. Under the minority’s approach of requiring subjective mens rea, it would be difficult, if not impossible, to establish that individuals who were directing minds of the corporation9knew that they were catching undersized lobsters. Under the majority’s absolute liability approach, however, the corporation could have been convicted even if it had taken reasonable precautions to ensure that undersized lobsters were not caught by, for example, training its employees properly and using proper equipment. The majority imposed absolute liability that could punish without fault while the minority insisted on proof of subjective fault that would often be very difficult for the state to establish beyond a reasonable doubt in the regulatory context.

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1) The Common Law Presumption against Absolute Liability

In Sault Ste. Marie,10the Supreme Court indicated that it would not interpret public welfare or regulatory offences as absolute liability of-fences unless "the Legislature has made it clear that guilt would follow proof merely of the proscribed act." The Court, in effect, created a common law or judge-made presumption that regulatory offences would be interpreted as requiring strict liability unless the legislature clearly indicated that the offence was an absolute liability offence that would punish the accused who had acted reasonably and with due diligence.

In the actual case, the Court held that the offence of causing or permitting the discharge of pollution was a strict liability as opposed to an absolute liability or subjective mens rea offence. This meant that the accused had an opportunity to establish that it had acted reasonably or with due diligence to avoid the commission of the actus reus. The accused could also establish that it had made a reasonable mistake of fact. The Crown, however, did not have to prove subjective fault or even the fault of negligence beyond a reasonable doubt. The Supreme Court applied its new common law presumption against absolute liability in another case to hold that a prohibition on hunting within a quarter mile of a baited area was a strict liability offence.11The accused would again have an opportunity to demonstrate that it had exercised due diligence to avoid the prohibited act or made a reasonable mistake of fact. Negligence would be inferred as the fault element in these regulatory offences, even though it was not specifically mentioned in these offences. Under the Charter, the courts have generally been reluctant to interpret a statute as imposing absolute liability, unless the legislature has clearly indicated that this is its intent.12As will be seen, an absolute liability offence when combined with imprisonment may violate the Charter.

Offences will, however, be recognized as absolute liability offences if the legislature clearly indicates an intent that they not be interpreted as offences of strict liability. In making this determination courts examine multiple factors, including the subject matter and regulatory pattern of the legislation, the language used to define the offence, and

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the penalties. In the B.C. Motor Vehicle Reference, the legislature clearly indicated such an intent by stating that the offence of driving with a suspended driver’s licence was "an absolute liability offence in which guilt is established by proof of driving, whether or not the defendant knew of the prohibition or suspension."13As will be discussed later, the Court ruled that absolute liability offences, when combined with imprisonment, violated section 7 of the Charter and could not be justified under section 1 especially as compared with the alternative of a strict liability offence.

Even after the British Columbia legislature deleted the specific reference to the offence of driving with a suspended driver’s licence being an offence of absolute liability, the Supreme Court held in a 5:4 decision that the offence remained one of absolute liability.14The majority stressed that the offence applied when the accused had his or her licence "automatically and without notice" suspended after conviction of a number of offences. Given that any mistake that the accused made about whether his or her licence was suspended would be classified as a mistake of law and hence prohibited as a defence,15the majority concluded that the of-fence was one of absolute liability. The minority in this case, however, would have interpreted the offence as one of strict liability. Thus, the minority would allow a defence of due...

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