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Criminal Law and the
Criminal Justice System
CRM 2300B
Fall 2024
Week 8
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Final exam
Date: Sunday, December 8
Time: 2 p.m.
Location: MRN 150 (140 Louis-Pasteur)
Duration: 3 hours
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The special case of regulatory offences:
strict and absolute liability in Canada
 Chapter 6 deals with the regulatory offences
that arise under both federal and provincial
or territorial legislation, as compared with
the “true crimes” that are embodied in the
Criminal Code of Canada or the Controlled
Drugs and Substances Act.
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The special case of regulatory offences:
strict and absolute liability in Canada
 Regulatory offences are concerned with the
enforcement of a regulatory scheme that
addresses inherently legitimate activities,
such as engaging in trade and commerce,
advertising, and driving on the highways.
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The special case of regulatory offences:
strict and absolute liability in Canada
 The body of “quasi-criminal law,” consisting
of regulatory offences under both federal
and provincial or territorial legislation, is
immense and affects almost every aspect of
Canadians’ daily lives.
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The special case of regulatory offences:
strict and absolute liability in Canada
 However, regulatory offences do not
represent serious breaches of basic
community values, as is the case with “true
crimes.”
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The special case of regulatory offences:
strict and absolute liability in Canada
 Indeed, regulatory offences merely impose
penalties (usually financial) on those whose
conduct falls below a standard of reasonable
care: this standard has been established to
protect all Canadians from the potentially
harmful consequences of inherently
legitimate activities that are carried out in a
negligent manner.
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The special case of regulatory offences:
strict and absolute liability in Canada
 Those individuals who are convicted of ‘‘true
crimes” are considered to be “morally
culpable” because they have engaged in
inherently unlawful activities.
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The special case of regulatory offences:
strict and absolute liability in Canada
 On the other hand, those accused persons,
who are convicted of regulatory offences,
are generally not considered to be “morally
culpable:” they are being penalized merely
because their conduct did not meet the
prescribed standard of reasonable care that
is expected of everyone who engages in
activities that provide perfectly legitimate
services to members of the public.
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The special case of regulatory offences:
strict and absolute liability in Canada
 Historically, Canadian courts adopted the
view that all regulatory offences imposed a
régime of absolute liability: the Crown
merely had to prove the actus reus elements
of the offence to gain a conviction and no
consideration whatsoever was given to the
question of whether or not the accused
person was in any way to blame for what
had happened.
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The special case of regulatory offences:
strict and absolute liability in Canada
 Eventually, a more flexible judicial strategy
began to emerge in relation to the
disposition of cases involving regulatory
offences.
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The special case of regulatory offences:
strict and absolute liability in Canada
 This strategy was based on the notion that it
should be possible for defendants, who are
charged with regulatory offences, to
advance the defence that they were not
negligent.
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The special case of regulatory offences:
strict and absolute liability in Canada
 This approach became known as the “half-
way house” because it finds a middle ground
between requiring the Crown to prove all the
mens rea elements of an offence beyond a
reasonable doubt and automatically
convicting an accused person merely
because he or she has committed the actus
reus of a regulatory offence.
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The special case of regulatory offences:
strict and absolute liability in Canada
 The “half-way house” approach provides
that the Crown merely has to prove that the
accused committed the actus reus elements
of the regulatory offence in question.
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The special case of regulatory offences:
strict and absolute liability in Canada
 At that point, the burden of proof shifts to
the accused to establish his or her innocence
by proving on the balance of probabilities
that he or she was not negligent.
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The special case of regulatory offences:
strict and absolute liability in Canada
Sault Ste Marie case (1978), the
Supreme Court of Canada endorsed the
“half-way house” approach and ruled that it
should be applied to most, but not all.
 In the
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The special case of regulatory offences:
strict and absolute liability in Canada
 Since the decision in the
Sault Ste Marie
case, Canadian criminal law has recognized
three categories of criminal offences:
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The special case of regulatory offences:
strict and absolute liability in Canada
A.
Offences in which the wording of the
statute requires that the Crown prove full
mens rea.
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The special case of regulatory offences:
strict and absolute liability in Canada
B.
Strict liability offences, in relation to which
the Crown need not prove any mens rea
elements, but which nevertheless permit
the accused to raise the defence of “due
diligence”.
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The special case of regulatory offences:
strict and absolute liability in Canada
C.
Absolute liability offences, in relation to
which there is no necessity for the Crown to
prove the existence of mens rea and which
do not permit the accused to avoid liability
by proving that he or she acted with “due
diligence.”
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The special case of regulatory offences:
strict and absolute liability in Canada
 In the view of the Supreme Court of Canada
the vast majority of regulatory offences
should be treated as offences of strict
liability.
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The special case of regulatory offences:
strict and absolute liability in Canada
 The Court indicated that there is a number
of factors that should be examined before a
regulatory offence is designated as being
one of strict or absolute liability:
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The special case of regulatory offences:
strict and absolute liability in Canada
i.
ii.
iii.
iv.
The overall regulatory pattern of the
statute
The subject matter of the regulatory
offence
The severity of the penalty
The precise wording of the regulatory
legislation
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The special case of regulatory offences:
strict and absolute liability in Canada
 In the case of
Wholesale Travel Group Inc.
(1989); the Court ruled that placing the onus
on the accused to prove “due diligence” did
not render the relevant legislation invalid
under the Charter.
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The special case of regulatory offences:
strict and absolute liability in Canada
 Also, there is the possibility that strict
liability may, in rare cases, be imposed in
relation to so-called “quasi-regulatory
offences” under the Criminal Code.
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The special case of regulatory offences:
strict and absolute liability in Canada
 The next major topic concerns the impact of
the Charter on the constitutional validity of
offences that impose absolute liability in
relation to regulatory offences.
 The leading Supreme Court of Canada
decision in this area is Reference Re Section
94(2) of the Motor Vehicle Act (1985).
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The special case of regulatory offences:
strict and absolute liability in Canada
 The Court ruled that the imposition of
absolute liability will nearly always render a
regulatory offence invalid under the Charter
if it is coupled with the possibility of
imprisonment.
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The special case of regulatory offences:
strict and absolute liability in Canada
 The Court left open the question of whether
the criterion of potential imprisonment
includes imprisonment by way of default in
payment of a fine.
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The special case of regulatory offences:
strict and absolute liability in Canada
Wholesale Travel Group Inc. case
(1991) is discussed as a vehicle for
illustrating the circumstances in which the
courts will strike down certain elements of
regulatory legislation on the basis that they
impose absolute liability coupled with the
potential of imprisonment.
 The
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The special case of regulatory offences:
strict and absolute liability in Canada
 However, the Supreme Court of Canada’s
decision in Pontes (1995) is also highlighted
insofar as it emphasizes that absolute
liability per se does not infringe the accused
person’s right to liberty that is guaranteed
by section 7 of the Charter: it is only the
potential for imprisonment that renders
absolute liability offences constitutionally
suspect.
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The special case of regulatory offences:
strict and absolute liability in Canada
Rube case (1992), which
was considered by the B.C. Court of Appeal
and the Supreme Court of Canada.
 There is also the
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The special case of regulatory offences:
strict and absolute liability in Canada

Rube illustrates the tendency of Canadian
courts to make every effort to avoid
classifying a regulatory offence as one of
absolute liability because they wish to avoid
declaring the relevant legislation invalid.
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