Although the Supreme Court has disapproved of absolute liability of-fences since its decision in Sault Ste. Marie85and declared them contrary to the principles of fundamental justice in the B.C. Motor Vehicle Reference,86it appears that such offences are constitutionally permissible so long as no imprisonment is imposed.87Absolute liability of-fences would also be permissible if only applied to corporations, which do not enjoy the rights to life, liberty, and security of the person protected under section 7 of the Charter. The Supreme Court has recently affirmed the common law presumption that regulatory offences should be assumed not to be absolute liability but rather to be strict liability offences that allow a defence of due diligence. The defence of due diligence requires an active attempt to prevent the commission of the prohibited act and not mere passivity.88Strict liability offences have survived Charter challenge. The courts have not disapproved of the fault element of simple negligence, but they have noted that the mandatory presumption that the accused is negligent unless it establishes a defence of due diligence on a balance of probabilities does violate the presumption of innocence under section 11(d) of the Charter. The Court in Wholesale Travel Group did not accept that the less drastic alternative of an evidential as opposed to a persuasive burden would adequately advance the objectives of regulatory offences. It expressed concerns that regulatory objectives could be frustrated if accused were acquitted simply because there was a reasonable doubt whether they were negligent in allowing an actus reus to occur.
When a corporation is charged with a criminal offence, the required fault must now under new statutory provisions designed to facilitate the prosecution of corporations be attributed to senior officer(s) who either play an important role in establishing policy or who are responsible for managing an important aspect of its activities. If the criminal offence is based on negligence, the prohibited act under section 22.1 of the Criminal Code must be committed by representative(s) of the corporation (not only employees but also agents and contractors) acting within their scope of authority. No one individual need be responsible for the prohibited act, which can be committed in aggregate by multiple
representatives. Either the responsible senior officer or the senior officers collectively must be at...