Principles of Fundamental Justice
The proof requirement for these offences is beyond a reasonable doubt, without any additional fault element.
In R v. Pontes, the defendant was convicted of driving without a licence, without knowing that his licence had expired. Ignorance of the law in this case was no excluse, and he was held to a strict liability of actus reus alone, without any necessary mens rea.
The majority decision stated,
…the absolute liability offence created by s. 94(1) and s. 92 does not contravene the Charter …no person is liable to imprisonment for an absolute liability offence, and that the non-payment of a fine will not result in imprisonment. Thus, an accused convicted under ss. 94(1) and 92 faces no risk of imprisonment and there is, accordingly, no violation of the right to life, liberty and security of the person under s. 7 of the Charter.
Because regulatory offences are not stigma crimes and do not bear the risk of imprisonment, they were not considered contrary to s. 7, which states,
Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
As a result, the proof burden on the Crown for such offences is limited to the actus reus alone.
Ignorance of the Law
But because the regulation contained no language such as “knowingly” or “wilfully,” this knowledge was irrelevant to Pierce’s violation and they were held liable. Offendors are responsible for knowing the law, especially pertinent regulations in their industry.
Cartright J. dissented in this case,
Applying the principle of construction of a statute which makes possession of a forbidden substance an offence, as laid down by this Court in Beaver v. The Queen, infra, to the words of the charge against the respondent, the express finding of fact that the respondent had no knowledge, factually or inferentially, that any of the lobsters on its premises and under its control were undersized necessarily leads to a finding of not guilty.
The challenge with the approach in Pierce is that a corporation would be liable even if taking reasonable precautions to avoid any violations.