Common Law Presumptions
Due to the challenges inherent to absolute liability offences, the Supreme Court provided that regulatory offences would be presumed as strict liability.
In R v. Sault Ste. Marie, the city was charged with allowing refuge to be dumped into public water ways of Cannon Creek and Root River. This pollution would be contrary to the The Ontario Water Resources Commission Act, R.S.O. 1970, c. 332, which at that time stated,
…every municipality or person that discharges, or deposits, or causes, or permits the discharge or deposit of any material of any kind into any water course, or on any shore or bank thereof, or in any place that may impair the quality of water, is guilty of an offence and, on summary conviction, is liable on first conviction to a fine of not more than $5,000 and on each subsequent conviction to a fine of not more than $10,000, or to imprisonment for a term of not more than one year, or to both fine and imprisonment.
Creating a Third Category of Offences
The case had been taken to the Court of Appeal, who stated that mens reus was required, which is the distinguishing feature between absolute liability and strict liability. Dickson J. eluciated this distinction in his judgement:
…there are compelling grounds for the recognition of three categories of offences rather than the traditional two:
1. Offences in which mens rea, consisting of some positive state of mind such as intent, knowledge, or recklessness, must be proved by the prosecution either as an inference from the nature of the act committed, or by additional evidence.
2. Offences in which there is no necessity for the prosecution to prove the existence of mens rea; the doing of the prohibited act prima facie imports the offence, leaving it open to the accused to avoid liability by proving that he took all reasonable care. This involves consideration of what a reasonable man would have done in the circumstances. The defence will be available if the accused reasonably believed in a mistaken set of facts which, if true, would render the act or omission innocent, or if he took all reasonable steps to avoid the particular event…
3. Offences of absolute liability where it is not open to the accused to exculpate himself by showing that he was free of fault.
True criminal offences would be under the first category, and public welfare offences would be prima facie under the second category as lacking the required mens reus.
Public welfare and regulatory offences would not be considered absolute liability unless explicitly stated by the statute in question. Dickson J. indicated that an individual who hires a company that dumps pollution would not likely be liable, but a company or munipality might be.
Criteria for determining inclusion in the third category of absolute liability were:
- overall regulatory pattern adopted by the Legislature
- subject matter of the legislation
- importance of the penalty
- precision of the language
The following year, the British Columbia Legislature created the Motor Vehicle Act. In 1979 the statute contained an explicit absolute liability offence for driving without a licence, irrespective of whether the driver knew of the suspension.
These findings were importan because they established s.7 as substantive rights beyond produral rights of due process and beyond the intent of drafters of the Charter. It was later relied upon by R. v. Morgentaler to legalize abortion, and Chaoulli v. Quebec to challenge prohibitions against private health insurance.