R. v. Pontes (P.), (1995) 62 B.C.A.C. 241 (SCC)

JudgeGonthier, Cory, McLachlin, Iacobucci and Major, JJ.
CourtSupreme Court (Canada)
Case DateSeptember 29, 1994
JurisdictionCanada (Federal)
Citations(1995), 62 B.C.A.C. 241 (SCC)

R. v. Pontes (P.) (1995), 62 B.C.A.C. 241 (SCC);

    103 W.A.C. 241

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Her Majesty The Queen (appellant) v. Patrick Pontes (respondent) and The Attorney General of Canada (intervenor)

(24020)

Indexed As: R. v. Pontes (P.)

Supreme Court of Canada

Lamer, C.J.C., La Forest, L'Heureux-Dubé, Sopinka,

Gonthier, Cory, McLachlin, Iacobucci and Major, JJ.

September 21, 1995.

Summary:

The accused was acquitted of driving while prohibited from doing so under s. 92 of the Motor Vehicle Act, contrary to s. 94(1) of the Act. The court held that the combination of ss. 92 and 94(1) created an absolute liability offence for which imprisonment was a penalty, thereby violating s. 7 of the Char­ter because there was no defence of due diligence. The court declared the reference to s. 92 in s. 94 inoperative under s. 52 of the Constitution Act. The Crown appealed.

The Summary Conviction Appeal judge dismissed the appeal. The Crown appealed.

The British Columbia Court of Appeal, in a judgment reported 40 B.C.A.C. 73; 65 W.A.C. 73, dismissed the appeal. The Crown appealed.

The Supreme Court of Canada, Gonthier, La Forest, L'Heureux-Dubé and McLachlin, JJ., dissenting, dismissed the appeal. Sec­tions 92 and 94 created an absolute liability offence, because they effectively eliminated the defence of due diligence. However, s. 7 of the Charter was not violated, because there was no risk of imprisonment due to ss. 4.1 and 72(1) of the Offence Act. Notwith­standing that the ordinary result would be the direction of a new trial, to do so in this case would be unfair and unduly harsh, where the accused was brought before every court level at the Crown's instigation and the appeal was really brought to determine whether the offence was one of absolute or strict liability.

Civil Rights - Topic 768

Liberty - Offences - Absolute liability - Validity - Section 92 of the Motor Vehicle Act provided that a person convicted of certain offences was "automatically and without notice" prohibited from driving for 12 months - Section 94(1) made it an offence to drive while prohibited from doing so - Sections 4.1 and 72(1) of the Offence Act provided that a person con­victed of an absolute liability offence, or who defaulted in paying a fine, was not liable to imprisonment - The Supreme Court of Canada held that ss. 92 and 94(1) created an absolute liability offence, because an accused unaware of his pro­hibition due to lack of notice was ef­fectively prevented from raising the defence of due diligence - The court stated that such lack of knowledge did not violate the principle that ignorance of the law was no defence - However, ss. 92 and 94(1) did not violate s. 7 of the Charter, because an accused convicted of an abso­lute liability offence faced no risk of im­prisonment - See paragraphs 1 to 50.

Civil Rights - Topic 8546

Canadian Charter of Rights and Freedoms - Interpretation - Life, liberty and security of the person - [See Civil Rights - Topic 768 ].

Criminal Law - Topic 228

Statutory defences or exceptions - Mistake or ignorance of law - [See Civil Rights - Topic 768 ].

Motor Vehicles - Topic 4164

Offences - Intent or mens rea - Offences of strict liability - Section 92 of the Motor Vehicle Act provided that a person con­victed of certain offences was "automati­cally and without notice" prohibited from driving for 12 months - Section 94(1) made it an offence to drive while pro­hibited from doing so - The Supreme Court of Canada stated that "an offence of absolute liability is not likely to offend s. 7 of the Charter unless a prison sanction is provided; secondly, an accused charged with an absolute liability offence cannot avoid liability by demonstrating that he exercised due diligence; thirdly, one of the prime bases for distinguishing a strict liability offence from an absolute liability offence is the availability of the defence of due diligence; fourthly, any provincial regulatory offence providing for a term of imprisonment must make a defence of due diligence available to the accused." - See paragraph 26.

Motor Vehicles - Topic 4165

Offences - Intent or mens rea - Of­fences of absolute liability - [See Civil Rights - Topic 768 and Motor Vehicles - Topic 4164 ].

Motor Vehicles - Topic 4165

Offences - Intent or mens rea - Of­fences of absolute liability - The Supreme Court of Canada stated that there were "two methods of determining whether an offence is one of absolute liability. First, ... regard may be had to the overall regula­tory pattern adopted by the legislature, the subject matter of the legislation, the im­portance of the penalty and the precision of the language used. Second, the avail­ability of a due diligence defence must be considered. An absolute liability offence denies an accused the opportunity to put forward a defence of due diligence." - Section 94(1) of the Motor Vehicle Act made it an offence to drive while pro­hibited under s. 92 - Section 92 provided for a driving prohibition "automatically and without notice" upon conviction for certain offences - The court stated that "the words 'automatically and without notice' go far towards establishing that this is indeed an absolute liability offence" - See paragraphs 27 to 29.

Motor Vehicles - Topic 7450

Licensing and regulation of drivers - Offences - Driving while disqualified or suspended - [See Civil Rights - Topic 768 ].

Cases Noticed:

R. v. MacDougall, [1982] 2 S.C.R. 605; 44 N.R. 560; 54 N.S.R.(2d) 562; 112 A.P.R. 562, overruled in part [para. 10].

Reference Re Section 94(2) of the Motor Vehicle Act (B.C.), [1985] 2 S.C.R. 486; 63 N.R. 266; 48 C.R.(3d) 289; 23 C.C.C.(3d) 289; [1986] 1 W.W.R. 481, refd to. [para. 11].

R. v. Wholesale Travel Group Inc. and Chedore, [1991] 3 S.C.R. 154; 130 N.R. 1; 49 O.A.C. 161; 67 C.C.C.(3d) 193; 8 C.R.(4th) 145, refd to. [para. 13].

R. v. Sault Ste. Marie (City), [1978] 2 S.C.R. 1299; 21 N.R. 295; 85 D.L.R.(3d) 161; 40 C.C.C.(2d) 353; 3 C.R.(3d) 30; 7 C.E.L.R. 53, appld. [para. 16].

R. v. Vaillancourt, [1987] 2 S.C.R. 636; 81 N.R. 115; 10 Q.A.C. 161; 68 Nfld. & P.E.I.R. 281; 209 A.P.R. 281; 60 C.R.(3d) 289; 39 C.C.C.(3d) 118, refd to. [para. 25].

R. v. Molis, [1980] 2 S.C.R. 356; 33 N.R. 411, refd to. [para. 34].

R. v. Prue; R. v. Baril, [1979] 2 S.C.R. 547; 26 N.R. 470, overruled in part [para. 36].

R. v. Nova Scotia Pharmaceutical Society et al. (No. 2), [1992] 2 S.C.R. 606; 139 N.R. 241; 114 N.S.R.(2d) 91; 313 A.P.R. 91, refd to. [para. 57].

R. v. Martineau, [1990] 2 S.C.R. 633; 112 N.R. 83; 109 A.R. 321; 58 C.C.C.(3d) 353; [1990] 6 W.W.R. 97; 79 C.R.(3d) 129; 76 Alta. L.R.(2d) 1; 50 C.R.R. 110, refd to. [para. 60].

R. v. Logan, Logan and Johnson, [1990] 2 S.C.R. 731; 112 N.R. 144; 41 O.A.C. 330; 58 C.C.C.(3d) 391; 79 C.R.(3d) 169; 73 D.L.R.(4th) 40; 50 C.R.R. 152, refd to. [para. 60].

R. v. DeSousa, [1992] 2 S.C.R. 944; 142 N.R. 1; 56 O.A.C. 109, refd to. [para. 60].

R. v. Docherty, [1989] 2 S.C.R. 941; 101 N.R. 161; 78 Nfld. & P.E.I.R. 315; 244 A.P.R. 315, refd to. [para. 75].

R. v. Forster, [1992] 1 S.C.R. 339; 133 N.R. 333, refd to. [para. 77].

R. v. Heywood (R.L.) (1992), 20 B.C.A.C. 166; 35 W.A.C. 166; 77 C.C.C.(3d) 502 (C.A.), refd to. [para. 84].

R. v. Tremblay et autres, [1993] 2 S.C.R. 932; 156 N.R. 30; 57 Q.A.C. 161, refd to. [para. 88].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, sect. 7 [para. 23].

Criminal Code, R.S.C. 1985, c. C-46, sect. 19 [paras. 33, 74]; sect. 238(3) [para. 37].

Motor Vehicle Act, R.S.B.C. 1979, c. 288, sect. 92 [para. 3]; sect. 94 [para. 5].

Offence Act, R.S.B.C. 1979, c. 305, sect. 4.1 [para. 7]; sect. 72(1) [para. 8].

Authors and Works Noticed:

LaFave, Wayne R., and Scott, Austin W., Substantive Criminal Law (1986), vol. 1, pp. 575 [para. 76]; 591 to 595 [para. 88].

Mewett, Alan W., and Manning, Morris, Criminal Law (3rd Ed. 1994), pp. 382 to 384 [para. 88].

Ruby, Clayton, Sentencing (4th Ed. 1994), p. 196 [para. 87].

Stuart, Don, Canadian Criminal Law: A Treatise (3rd Ed. 1995), pp. 312 to 321 [para. 88].

Webb, Kernaghan R., Regulatory Offences, the Mental Element and the Charter: Rough Road Ahead (1989), 21 Ottawa L. Rev. 419, p. 452 [para. 109].

Counsel:

George H. Copley, for the appellant;

Terrence L. Robertson, Q.C., and Andrea M. Finch, for the respondent;

Bernard Laprade, for the intervenor.

Solicitors of Record:

Ministry of the Attorney General, Victoria, British Columbia, for the appellant;

Harper, Grey, Easton & Co., Vancouver, British Columbia, for the respondent;

George Thomson, Deputy Attorney Gen­eral, Ottawa, Ontario, for the intervenor.

This appeal was heard on February 28, 1995, before Lamer, C.J.C., La Forest, L'Heureux-Dubé, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major, JJ., of the Supreme Court of Canada.

The judgment of the Supreme Court of Canada was delivered in both official lan­guages on September 29, 1994, and the following opinions were filed:

Cory, J. (Lamer, C.J.C., Sopinka, Iacobucci and Major, JJ., concurring) - see paragraphs 1 to 50;

Gonthier, J. (La Forest, L'Heureux-Dubé and McLachlin, JJ., concurring), dis­sent­ing - see paragraphs 51 to 118.

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