Absolute Liability, Strict Liability & Full Mens Rea in Ontario

If you are trying to defend an alleged regulatory offence or are arrested for a criminal offence and enter the criminal justice system in Ontario, it’s essential to understand what you’re being accused of. That can be challenging with all the legal jargon involved.

A strong defence starts with understanding the type of offence you’re alleged to have committed. You may hear the terms “regulatory offence”, “strict liability offence”, “absolute liability” and “mends rea” used in connection with your charge—depending on its nature and severity.

Let’s find out more about what these terms mean.

Within the Canadian legal system, regulatory offences are non-criminal violations of federal or provincial statutes or regulations. They are sometimes called “public welfare offences”.

Most of these offences relate to conduct in business, health and safety or the environment. Regulations are set out in legislation such as the following Acts:

• The Highway Traffic Act
• The Environmental Protection Act
• The Occupational Health and Safety Act
• The Fish and Wildlife Conservation Act
• The Liquor License Act

Violations do not generally result in a criminal record or jail time. Usually, no appearance before a judge is even necessary. Administrative processes are responsible for apportioning fines or other penalties to offenders, including restrictions on business activities, which can result in reputational damage.

Regulatory offences are classified depending on the government’s burden of proof for establishing liability. In most cases, specific guilty intent is not required to establish guilt—in contrast to many criminal charges, where the burden of proof is higher and criminal intent beyond a reasonable doubt is often required to convict an individual.

It should be noted that the threat of imprisonment may exist for repeat offenders or in the most serious regulatory offence cases.

Some offences in Ontario require no guilty intent for a conviction. That is to say, even if the individual did not intend to break the law, he/she could still be convicted and face the associated penalties.

The prosecution only needs to prove that a defendant committed an unlawful act, not that the defendant intended to commit the unlawful act.

If a driver uses a cell phone to text while driving and this results in an accident—or a police officer observes the incident—the driver may be charged with careless deriving, which is a strict liability offence under the Highway Traffic Act.

To achieve a conviction, the prosecution would NOT need to prove that the driver intended to behave recklessly or cause the accident—or even that he/she was aware of breaking the law. If it can be proven that the accident occurred due to the driver’s lack of due care and attention, a guilty verdict could follow with fines and jail time possible.

Strict liability defences require a different defence strategy from other offences. In the example above, one strategy could be to prove that the driver did, in fact, exercise due diligence and took reasonable precautions to avoid the crash—but this type of defence is not always available.

In absolute liability offences, the defendant cannot use the “due diligence” defence. Neither can the defence of necessity or the claim that it was an accident be used. In other words, this type of offence “is not open to the accused to exculpate himself by showing that he was free of fault.”

The prosecution does not need to prove intent in such cases and must only prove that an unlawful act or omission occurred for a conviction.

An example of an absolute liability offence from the Highway Traffic Act is failing to stop at a stop sign. This type of offence is sometimes referred to as “strict liability minus exceptions”.

Absolute liability offences attract different penalties to strict liability offences, with little possibility of jail time but significant fines possible.

With mens rea offences, the prosecution is required to prove both the physical act (“actus reus”) and the mental element (intent or guilty mind) beyond a reasonable doubt to achieve a conviction.

While many non-criminal infractions do not require this, many criminal cases do. A good example would be tax fraud, where an individual makes a false statement on a tax return. The intent to disregard the regulations of the Income Tax Act (rather than simply making an honest mistake) must be proven for a criminal conviction.

While “mens rea” is often regarded simply as “criminal intent”, the term refers to several mental states that may affect criminal proceedings:

• Intention: the conscious desire or purpose to achieve a particular outcome, i.e. the aim of committing the alleged offence.
• Recklessness: the conscious disregard for a substantial and unjustifiable risk posed by one’s actions.
• Negligence: a failure to exercise reasonable care, resulting in harm or injury to another individual.
• Strict liability: See above.

Mens rea is a cornerstone of Canadian criminal law, where intention and the criminal mind must often be considered before deciding on culpability for crimes—and imposing the severe penalties associated with many offences.

Those involved in the legal system in Ontario may need to consider concepts like intent, recklessness, and negligence when preparing a defence or prosecution, as must juries and judges when deciding on guilt and sentencing.

With all regulatory and criminal offences, the key to escaping the most serious potential consequences is to work on a defence strategy with a qualified criminal defence lawyer.

For legal advice about the next steps, speak to one of our criminal defence lawyers in Ottawa during a free consultation. Contact us directly online or call us at 613-223-4089.