Regulatory offences are an important feature of penal law in Canada and may be enacted by Parliament, the provincial legislatures, or municipalities. Traditionally, courts were in a dilemma of interpreting a regulatory offence to require either absolute liability, for which a con-
viction follows from the commission of the prohibited act, or subjective fault, as is presumed for criminal offences. As will be seen, both of these options were problematic.
An absolute liability offence could punish a person who was morally innocent or without fault. The Supreme Court invalidated an absolute liability offence under section 7 of the Charter on the basis that it could send a person to jail for driving with a suspended licence when that person did not have subjective fault (that is, she did not know or was not aware of the risk that her licence was suspended) and did not have objective fault (that is, a reasonable person in her circumstances would not have known that the licence was suspended). Although absolute liability offences offend the principles of fundamental justice by punishing the morally innocent, they will not violate section 7 of the Charter unless they threaten the accused’s right to life, liberty, and security of the person. The courts have upheld absolute liability offences that could not result in imprisonment.
Requiring proof of subjective fault for a regulatory offence would mean that the Crown would have to prove some form of subjective fault beyond a reasonable doubt even if the conduct was risky and harmful and could have been avoided by reasonable precautions. A compromise between absolute liability and subjective fault has now been adopted for most regulatory offences. In Canada, this halfway house is called a strict liability offence. Because it is based on the fault element of negligence, strict liability offences, unlike absolute liability offences, cannot be criticized for punishing without fault and they would generally not violate section 7 of the Charter even if they imposed imprisonment. Unlike criminal offences, however, the prosecutor does not have to prove the existence of the fault element beyond a reasonable doubt and the prosecutor does not have to establish that the negligence constitutes a marked departure from reasonable standards as required for criminal offences requiring criminal negligence. The fault of negligence for a regulatory offence is presumed to exist once the commission of...