B. Strict Liability Offences
| Author | Kent Roach |
| Profession | Faculty of Law and Centre of Criminology. University of Toronto |
| Pages | 222-229 |
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A strict liability37offence requires the Crown to prove the prohibited act beyond a reasonable doubt, but then gives the accused an oppor-
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tunity to prove due diligence or absence of negligence on a balance of probabilities. Strict liability offences are a halfway house between absolute liability offences and full mens rea offences. They "seek a middle position, fulfilling the goals of public welfare offences while still not punishing the entirely blameless."38In 1978 the Supreme Court indicated that all regulatory offences would be presumed to be strict liability offences, unless there was a clear indication from the legislature that either absolute liability or subjective mens rea was intended.
The blameworthiness of a strict liability offence is negligence. The Crown does not have to prove this fault element; rather, the accused is given an opportunity to establish on a balance of probabilities that it was not negligent.39In Sault Ste. Marie, Dickson J. contemplated that an accused who took all reasonable care, but still committed the prohibited act, would not be convicted of a strict liability offence. Given that regulatory offences are designed to encourage people and corporations to take appropriate safeguards to avoid harmful results, such as pollution or workplace accidents, courts should not require negligence to amount to a marked departure from the conduct of a reasonable person, as they do when applying negligence in criminal offences.40The reasonableness of the accused’s conduct also should be determined on the basis of the circumstances that a reasonable person would have seen, not the circumstances that the accused actually perceived. Thus, any mistake of fact would have to be both honest and reasonable. To avoid a conviction for a regulatory offence, the corporation would have to demonstrate that it took reasonable steps to avoid the prohibited act or that it made an honest and reasonable mistake of fact.41It is important that the accused be given the opportunity to demonstrate that it was not negligent in order to avoid a strict liability offence becoming an absolute liability offence in which guilt is established simply by the prosecution proving the prohibited act beyond a reasonable doubt.
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In Wholesale Travel Group,42the Supreme Court unanimously upheld negligence as a sufficient fault element for an offence of false or misleading advertising. The accused had argued that subjective mens rea was required because of the stigma that would accompany a conviction, and it relied upon dicta in Vaillancourt, which had suggested that proof of subjective mens rea might be required because of the stigma attached to theft. Lamer C.J. stated that a conviction for misleading advertising will not "brand the accused as being dishonest," but, in many cases, would indicate that the accused had been careless. Negligence was sufficient, even if the accused faced imprisonment. Adoption of a higher fault element was a matter of public policy for the legislature. Cory J. similarly concluded that "the demands of s. 7 will be met in the regulatory context where liability is imposed for conduct which breaches the standard of reasonable care required of those operating in the regulated field."43Simple negligence will be a constitutionally sufficient fault element for all regulatory offences.
Although the fault element for a strict liability offence is negligence, the Crown need not prove negligence beyond a reasonable doubt. Rather, the accused must prove a defence of due diligence or lack of negligence on a balance of probabilities. Once the Crown has proved the wrongful act beyond a reasonable doubt, the fault element of negligence is presumed, unless the accused can demonstrate that it took reasonable care or acted under a reasonable mistake of fact. In Sault Ste. Marie,44Dickson J. stressed that the burden of establishing due diligence should fall upon the accused, because it "will generally have the means of proof." This is especially true when, as in the case, it was alleged that "a large and complex corporation" caused pollution. He concluded that the burden was not unfair, "as the alternative is absolute liability which denies an accused any defence whatsoever," and the accused need only prove the defence on a balance of probabilities. The burden on the accused is an important component of the halfway house approach of strict liability offences, because it means that the Crown is not required to prove negligence beyond a reasonable doubt and that the accused is not acquitted because there is a reasonable doubt as to negligence.
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The due diligence defence requires more than passivity from the accused. In Lévis (City) v. Tétreault,45the Supreme Court rejected the idea that an accused who thought that the date on his licence was a renewal notice as opposed to an expiry date had a defence of due diligence. The Court stated that the courts below, which had...
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