R. v. Wholesale Travel Group  3 S.C.R. 154
False advertising case. Only one of many issues concerns us for the purposes of this course…
In strict liability offences, should we presume negligence and shift merely an evidentiary burden on the accused?
No. To impose such a limited onus is inappropriate and insufficient in the regulatory context. Thus, the question is not whether the accused has exercised some care, but whether the degree of care exercised was sufficient to meet the standard imposed.
Express fault requirementsAbsolute Liability
Crown must prove fault.Crown must prove act.
Crown proves act. Accused must prove due diligence.
Fault for Crimes: Due diligence defence is the minimum standard of fault for a regulatory offence threatening the liberty interest. What is sufficient for Criminal Code offences?
Simpson v. R. (1981) 20 C.R. (3d) 36 (Ont. C.A.)
Accused charged with attempted murder.
Can we say that an accused “ought to have known” that harm is likely to cause death? What is the minimum standard of fault for murder or attempted murder?
No. Minimum standard is subjective knowledge. New trial ordered.
To substitute for that state of mind (subjective knowledge) an intention to cause bodily harm that the accused knows or ought to know is likely to cause death is to impose liability on an objective basis. To do this is to err in law.
Constructive Murder: ss. 229(c) and 230
Vaillancourt v. R.  2 S.C.R. 636
The appellant robbed a pool hall with an accomplice. The accomplice used a gun despite the appellant’s objections and after having tricked the reluctant appellant into thinking that the gun was unloaded. During the robbery, the accomplice struggled with a client and shot and killed him. He then ran off and was never found. The cops arrested the appellant at the scene. The appellant challenged the constitutionality of s. 230(d) of the Criminal Code (now repealed), which imposed liability whether or not the person means to cause death and whether or not he knows that death is likely to be caused to any human being (i.e. felony/constructive murder).