Whatever happened to ... R. v. Sault Ste. Marie: the due diligence defence.

• Author: Bowal, Peter
• Position: Famous Cases

There is an increasing and impressive stream of authority which holds that where an offence does not require full mens rea, it is nevertheless a good defence for the defendant to prove that he was not negligent.

--R. v. Sault Ste. Marie, per Dickson J. at page 1313

Introduction

In 1985, shortly after he became Chief Justice of Canada, Brian Dickson was speaking to a large group of law students at the University of Alberta. The last question he was asked was "what was your favourite judicial decision that you were involved in?"

The Chief Justice paused. The audience sat quietly, enthralled about what case, if any, he would pick from his already prolific 12-year career on Canada's top court. Most assumed he would name one of the seminal interpretive Charter of Rights cases and principles to which he made major contributions.

"My favourite case was Saidt Ste. Marie" he replied confidently. "That case is a good example of creating doctrine to serve important legal purposes. This article describes the decision in the case of R. v. SaultSte. Marie [1978] 2 SCR 1299 and its impact on Canadian law.

Proof of Criminal or Regulatory Guilt

To obtain conviction on a crime, the Crown must, by its own evidence, prove full mental intention (mens red) beyond a reasonable doubt. That is a high standard of proof, one that is justified by the serious consequences that flow from criminal conviction.

Prior to 1978 in Canada, persons accused of public welfare regulatory offences such as liquor law offences, pollution, misleading advertising, traffic infractions and securities offences, were convicted if the Crown prosecutor could merely prove the accused did the offence. No intention at all needed to be proven for these many less serious municipal, provincial or federal regulatory offences. This absolute liability rendered it almost impossible for someone to defend against such charges. If the offence had occurred, one was judged guilty, even though one did not intend to do it or had acted reasonably to prevent the offence from occurring.

Mr. Justice Dickson, writing for a unanimous Supreme Court of Canada in R. v. Sanlt Ste. Marie pointed out that treating all these public welfare offences with the same absolute liability served to punish the innocent and add nothing to deterrence. He wrote at para 1311:

There is no evidence that a higher standard of care results from absolute liability. If a person is already taking every reasonable precautionary measure, is he...