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NOTES

The Ont. C.A. reversed this.  How would this have been decided under Creighton?

Constitutional aspects of fault

Reference Re Section 94(2) of the Motor Vehicle Act (B.C.) (1986) 48 C.R. (3d) 289 (S.C.C.)

FACTS

The impugned section of the Act created an absolute liability offence (driving without a licence, etc.), the breach of which would entail a mandatory prison sentence.

ISSUE

Is the impugned section (and all absolute liability offences involving imprisonment) consistent with the Charter?

HELD

No. Absolute liability can’t be justified.  Strict liability would do.

RATIO

The Government of B.C. has not demonstrated as justifiable that the risk of imprisonment of a few innocent is, given the desirability of ridding the roads of B.C. of bad drivers, a reasonable limit in a free and democratic society.  Making it a strict liability offence with a defence of due diligence would allow those few who did nothing wrong to remain free.

NOTES

Courts must interpret s. 7 of the Charter as giving them the right to review legislation substantively, not only procedurally. We needn’t worry about the American debate about inexorable judicial revisions of public policy because our Constitution has checks and balances in ss. 1, 33 and 52.  

Courts must secure persons’ protection under s. 7 while avoiding adjudication on the merits of public policy.

A law enacting an absolute liability offence will violate s. 7 of the Charter only if and to the extent that it has the potential of depriving of life, liberty, or security of the person. (Absolute liability per se does not offend s. 7 of the Charter.

R. v. Cancoil Thermal Group Corp. (1986) 52 C.R. (3d) 188 (Ont. C.A.)

FACTS

Owners of a company took the guard off a piece of machinery, ostensibly in violation of an Ontario statute, and an employee cut his fingers down to the first joint. A violation of the impugned Act entailed a possible prison sentence.

ISSUE

Should the impugned section of the act be treated as an absolute liability offence?

HELD

No. New trial ordered.

RATIO

To avoid a violation of s.7 of the Charter, [the impugned provision] must be treated as creating a strict liability offence.  The defence of due diligence was available to the respondents.

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