The Ont. C.A. reversed this. How would this have been decided under Creighton?
Reference Re Section 94(2) of the Motor Vehicle Act (B.C.) (1986) 48 C.R. (3d) 289 (S.C.C.)
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.
Is the impugned section (and all absolute liability offences involving imprisonment) consistent with the Charter?
No. Absolute liability can’t be justified. Strict liability would do.
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.
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.)
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.
Should the impugned section of the act be treated as an absolute liability offence?
No. New trial ordered.
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.