C. Vicarious Liability

Author:Kent Roach
Profession:Faculty of Law and Centre of Criminology. University of Toronto

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Vicarious liability occurs when the acts and fault of another person are attributed to the accused for the purpose of determining liability. It is used in tort law as a means of ensuring that employers are not allowed to profit from civil wrongs committed by their employees. Even before the Charter, courts resisted this doctrine on the basis that "criminal law regards a person as responsible for his own crimes only."58A judge-made or common law presumption against holding a person responsible for the acts and faults of another could, however, be displaced by clear legislative intent.59As will be seen in relation to corporate liability for mens rea offences, Canadian courts struggled to avoid holding corporations vicariously liable for crimes committed by their employees.

1) Vicarious Liability and the Charter

In Bhatnager v. Canada (Minister of Employment & Immigration),60the Supreme Court suggested that it might violate section 7 to hold ministers of the government vicariously liable for acts of criminal contempt committed by their officials without their knowledge. Several Charter cases have considered statutes that make the owners of automobiles

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vicariously liable for violations committed by any person driving their cars. In Burt,61the Saskatchewan Court of Appeal concluded:

The principles of fundamental justice simply do not recognize the ascribing to one person of another’s state of mind. Accordingly, where a statute purports to make one person vicariously liable for another’s mens rea offence the statute may be said to offend . . . the principles of fundamental justice.

An offence that bases the accused’s liability on the acts and faults of another may be found to be an absolute liability offence that punishes the accused without fault. At a minimum, a person could not be imprisoned for such an offence.62Many motor vehicle offences that impose vicarious liability on the owner of a vehicle for offences committed with the vehicle contain a limited defence allowing the owner to establish that the vehicle was taken without his or her consent. Courts of Appeal are divided on whether this limited defence make a vicarious liability offence one of absolute or strict liability.63The statutory defence does allow the owner a limited opportunity to show that he or she was not at fault. At the same time, however, it does not exhaust the range of due diligence defences that an...

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