Strict Liability, Absolute Liability, Mens Rea

Caselaw.Ninja, Riverview Group Publishing 2021 ©
Date Retrieved:	2024-11-23
CLNP Page ID:	2280
Page Categories:	{{{categories}}}
Citation:	Strict Liability, Absolute Liability, Mens Rea, CLNP 2280, <{{{shortlink}}}>, retrieved on 2024-11-23
Editor:	MKent
Last Updated:	2023/09/21

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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.