Beaver v. R. (1957) SCC
This is the leading case for mens rea re: drug offences. The accused believed he was selling sugar, not heroin. The SCC found him Beaver to be possession, which substantiates the notion that there is no possession without knowledge of the character of the forbidden substance.
R. v. Pierce Fisheries Ltd. (1969) Nova Scotia CA
PFL was charged with fishing undersized lobsters in contravention of the Fisheries Act. The issue focused on whether the crime was one of absolute liability in view of the lack of an express mens rea. This case involved no stigma.
R. v. Hickey (1976) Ont. CA
In defending himself, a truck driver by claiming an honest but mistaken belief that he did not exceed the speed limit. The CA found that this was a crime of absolute liability under which reasonable mistake of fact is not a defense.
R. v. Sault Ste. Marie (1978) SCC
SSM was charged with discharging materials that impaired the water quality. The actual polluting had been conducted by a Cherokee Disposal Company, which was hired by SSM to do the dumping. A municipality cannot slough off responsibility by contracting out because it is in a position to control who it hires through contract provisions or municipal bylaws. The recognition of public welfare offences brought a shift in focus from that of the individual interests to those of protecting public/societal interests. The court drew the distinction between what are truly criminal and regulatory offences. There were compelling grounds for the recognition of three categories of offences rather than the traditional two of absolute and strict liability. The three were:
1. Mens Rea Offences - Offences in which mens rea, consisting of some positive state of mind such as intent, knowledge, or recklessness, had to be proved by the Crown through inferences from the act committed or additional evidence. Criminal in the true sense.
2. Strict Liability Offences - Strict liability offences in which there was no necessity for the prosecution to prove the existence of mens rea, the doing of the prohibited act prima facie importing the offence and leaving it open to the accused to avert liability by proving that he still took reasonable care. This was the new category created in SSM in which public welfare offences, in the absence of the magic words of criminal liability, fall. Due diligence defense applies in this context.
3. Absolute Liability Offences - Offences of absolute liability exist where it was not open to the accused to exculpate himself by showing that he was free of guilt. This is viewed as the most efficient way to ensure compliance with minor regulatory legislation and the benefits achieved through them are said to outweigh the by-product of punishing those who may be morally innocent.
When the fault element is negligence, the accused must prove that he took all reasonable care and due diligence to avoid liability.
R. v. Chapin (1979) SCC
Mrs. Chapin was arrested by a conservation officer for baiting waterfowl with grain for the purposes of shooting them in contravention of the Migratory Game Birds Act. It was not a mens rea offence (i.e. a crime in its true sense). The SCC determined this was a case of strict liability rather than absolute liability because the accused was permitted to absolve herself of responsibility by showing she took the care a reasonable person in the circumstances. If this was post-Charter, it could not have been an absolute liability offence because the legislation included a sentence that gives rise to the possibility of a deprivation of liberty contrary to s.7 of the Charter.
Motor Vehicle Reference (1986) SCC
This case dealt with the issue of mens rea and absolute liability offences. The SCC found that a law enacting an absolute liability offence violates s.7 of the Charter – only if and to the extent that it has the potential of taking away the liberty of the accused. This could only be saved if it were justified under s.1. Lamer made it clear that few instances would garner s.1 acceptance. Among these were natural disasters, the outbreak of war or administrative expedience. The SCC considered. The SCC determined that absolute liability offences are more palatable in relation to corporations regarding the environment and other sensitive areas. The only defenses that might apply to absolute liability relate to incapacity or automatism.
R. v. Wholesale Travel Group (1991) SCC
WTG was charged with false advertising under the federal Competition Act. It offered vacations at “wholesale prices” that were marked up from wholesale. The accused claimed that the subjective standard should apply due to the stigma that would flow from a conviction; however, the SCC found that the stigma for misleading advertising is not the same as, for example, theft in Vaillancourt. Such a conviction regarding false advertising would only carry the stigma of carelessness. Court found that negligence was sufficient and that it would be up to Parl. to decide whether a higher fault element is necessary. The reverse onus (accused having the persuasive burden to discharge) for proving a due diligence defense in regulatory offences was deemed constitutional. In dissent, Lamer thought the reverse onus was unconstitutional. Iacobucci J. found that the reverse onus provision violated s.11d but was saved under s.1. Cory J. found no violation of s.11d. The justification of the reverse onus in this case rests on the characterization of the offence as regulatory.
Summary: Regulatory Offences
1. Express Fault Requirements – Crown must prove fault
2. Strict Liability – Crown proves act. Accused must prove due diligence
3. Absolute Liability – Crown proves act
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