Strict Liability Notes

Strict Liability Three classes of criminal offences, originally propounded in R v City of Sault Ste Marie (SC Canada) 1. "Mens rea offences": Prosecution must prove MR (state of mind) such as intention, knowledge, or recklessness beyond reasonable doubt. i. Regardless of whether the defence raises an issue of MR. 2. "Strict liability offences": prosecution does not have to prove MR. Proof of actus reus beyond reasonable doubt prima facie imports liability but it is open to the defendant to avoid liability by proving that he took all reasonable care and thus lacked mens rea. i. The accused bears a legal onus to prove absence of fault on a balance of probabilities. i. Prosecution need not prove MR to reasonable doubt, but defence must disprove MR to balance of probabilities. 3. Absolute liability offences: it is not open to the defence to escape liability by proving that he took all reasonable care, as in (2). Actus reus is sufficient. Civil Aviation Department v MacKenzie MacKenzie flew his plane too low, caught electrical wires, which fell endangering two fishermen below. Charged with 'dangerou s flying' essentially. Majority's justifications for imposing a legal burden of proof on the accused for Category #2 offences * It could always be worse: this scheme is actually beneficial to the accused, because the other alternative is to impose absolute liability for all PWO, because mens rea for PWO has traditionally been regarded as irrelevant. ? Creating #2 offences out of #3 offences helps accused. * The accused knows best what he did: the accused is in the best position to share with the Court what he did (if anything) to avoid violating the PWO, it would be difficult for the prosecution to prove beyond reasonable doubt that the accused did nothing to avoid the violation. ? Proving a negative is philosophically impossible. * Relax, these are not true crimes: these are just PWO, and Woolmington's 'golden thread' only applies to "truly criminal" situations. ? Administrative/public law ? Woolmington = murder, in that case it was suggested that if the accused was to argue killing his wife was an accident, then t he prosecution bore the burden of convincing the jury this was not the case. McMullin J (dissenting): Problems with adopting Sault Ste Marie * Shouldn't Parliament be doing this? * There is no set definition/method for deciding what a PWO is ? Aren't all criminal and quasi-criminal laws created to improve or protect the 'public welfare'? * If anything, the onus should be on offenders for #1 offences? ? Category #1 crimes give the defendant no onus of proof. Why a greater burden for less serious offences under Category #2? # Can think of this the other way: don't make legal burden on serious issues, while can afford to place burden on defendant in lesser cases. * Woolmington shouldn't be artificially limited. * Strawbridge and Creedon were working fine. * The Supreme Court of Canada is a final CA, NZ's CA is not. The Millar 'general approach' Step One Is there a clear legislative intent as to which of the three classes the offence belongs to? If no... Step Two Is there overriding judicial history (precedent), that assigns the offence to one of the three classes? If no... Then we presume the offence is in Class #1 Step 3 Can the presumption be displaced? Is there anything "really weighty enough" to do so? Note if we can classify the offence as a PWO, the presumption is displaced Find out later how to recognise a PWO. If yes Step 4 Is the offence class #2 or #3? Usually if we get this far, the answer will be #2 Guidelines * If either are reasonable interpretations, we should adopt the one more favourable to the accused (which is #2 - Sweet v Parsley) * PWOs are prima facie in #2 (MacKenzie) * #3s are rare and exceptional (MacKenzie; Millar; Tell) * If the potential penalty is 'severe' it should be a #2. ? If punishment is imprisonment, probably #2. ? If the punishment will stop them from carrying out their occupation (suspended licences), this would be a relatively severe punishment (MacKenzie). ? Fines: > $1000, start calling a fine 'severe'. * By this stage there is no clear intent (due to step 1...) Step 5 Since it is a class #2 offence, what are the available defences that the accused can attempt to prove "absence of fault" on a balance of Criminal Page 9 Millar: General Approach Yes Step 1 If no Is there a clear legislative intent? Step 2 Yes Is there overriding judicial history? If no Presume it is in Class #1 If no, class #1 Always go on Step 3 If yes Presumption displaced? Anything really weighty enough? PWO? Step 4 Rarely or occasionally Class #3 Usually #2 Class #2 or Class #3 Step 5 If Class #2, what are the possible ways to prove "absence of fault"?

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