Strict Liability, Absolute Liability, Mens Rea

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Date Retrieved:	2024-04-29
CLNP Page ID:	2280
Page Categories:	Provincial Offences, Highway Traffic
Citation:	Strict Liability, Absolute Liability, Mens Rea, CLNP 2280, <https://rvt.link/8q>, retrieved on 2024-04-29
Editor:	Sharvey
Last Updated:	2024/02/14

R. v. Sault Ste. Marie, 1978 CanLII 11 (SCC), [1978] 2 SCR 1299

Regarding mens rea the distinction between the true criminal offence and the public welfare offence is of prime importance. Where the offence is criminal mens rea must be established and mere negligence is excluded from the concept of the mental element required for conviction. In sharp contrast “absolute liability” entails conviction on mere proof of the prohibited act without any relevant mental element. The correct approach in public welfare offences is to relieve the Crown of the burden of proving mens rea, having regard to Pierce Fisheries, 1970 CanLII 178 (SCC), [1971] S.C.R. 5, and to the virtual impossibility in most regulatory cases of proving wrongful intention, and also, in rejecting absolute liability, admitting the defence of reasonable care. This leaves it open to the defendant to prove that all due care has been taken. Thus while the prosecution must prove beyond reasonable doubt that the defendant committed the prohibited act, the defendant need only establish on the balance of probabilities his defence of reasonable care. Three categories of offences are therefore now recognised (first) offences in which mens rea must be established, (second) offences of “strict liability” in which mens rea need not be established but where the defence of reasonable belief in a mistaken set of facts or the defence of reasonable care is available, and (third) offences of “absolute liability” where it is not open to the accused to exculpate himself by showing that he was free of fault. Offences which are criminal are in the first category. Public welfare offences are prima facie in the second category. Absolute liability offences would arise where the legislature has made it clear that guilt would follow on mere proof of the proscribed act.

Section 32(1) being a provincial enactment does not create an offence which is criminal in the true sense; and further the words “cause” and “permit” which are frequently found in public welfare statutes do not denote clearly either full mens rea or absolute liability and therefore fit much better into an offence of the strict liability class. As the City did not lead evidence directed to a defence of due diligence and the trial judge did not address himself to the availability of such a defence there should be a new trial to determine whether the City was without fault.

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The conflict in the above authorities, however, shows that in themselves the words “cause” and “permit”, fit much better into an offence of strict liability than either full mens rea or absolute liability. Since s. 32(1) creates a public welfare offence, without a clear indication that liability is absolute, and without any words such as “knowingly” or “wilfully” expressly to import mens rea, application of the criteria which I have outlined above undoubtedly places the offence in the category of strict liability.