Strict Liability vs. Absolute Liability in Canada – What is the Difference

Suddenly finding yourself on the wrong side of the law can be frightening. A regulatory offence can significantly change your life and impact your finances, reputation, and possibly your freedom. Compounding matters is the complicated legal jargon being thrown at you. You may find yourself wondering, are regulatory offences the same as crimes? And what is the difference between strict and absolute liability in Canada?

At Posner Craig Stein, LLP, we believe that a vigorous defence of your rights starts with an understanding of the charges you’re facing. That’s why we’ve provided the following explanation of the difference between these two similar offences and what they mean practically. Keep reading to learn more, and don’t hesitate to contact our team ( Toronto criminal lawyer ) for help to protect your rights and to safeguard your freedoms.

Understanding Regulatory Offences

In Canada, regulatory offences (also known as public welfare offences) are non-criminal violations of federal or provincial statutes or regulations that are typically related to the conduct of business, health and safety, or the environment. Examples of these regulations in Ontario include the following:

• The Highway Traffic Act;
• The Occupational Health and Safety Act;
• The Liquor License Act;
• The Environmental Protection Act; and
• The Fish and Wildlife Conservation Act

Violations of these regulations are punishable by fines and other penalties and may be addressed through administrative processes rather than through the criminal court system.

Criminal offences have two distinct elements: the actus reus, or guilty act, and the mens rea, or the guilty mind. In simpler terms, someone cannot be convicted of a crime unless the prosecution can show that they acted with intent – beyond a reasonable doubt. The key distinction between regulatory offences and criminal offences is that regulatory offences do not always require specific guilty intent. Practically speaking, someone could be liable for a regulatory offence even if they had no intent to cause harm or break the law.

Convictions for regulatory offences can result in significant fines, restrictions on business activities, and in some cases, imprisonment – although this is usually reserved for the most serious offences and/or for offenders with a history of similar behaviour (recidivists).  Such convictions may also result in real damage to a business’s reputation and operations.

Regulatory offences are classed in several different ways depending on the government’s burden of proof for establishing liability.

What Is Strict Liability?

As with other regulatory offences, strict liability offences only require the prosecution to prove that a defendant committed an unlawful act, not that the defendant intended to commit the unlawful act. For example, careless driving has been established by the Supreme Court as a strict liability offence. The prosecution wouldn’t need to prove that a driver who caused an accident was behaving in a deliberately reckless manner to have violated the regulation or even that they knew they were breaking the law at the time of the crash. It would only need to prove that the accident occurred as a result of the driver’s lack of due care and attention.

One of the most common defence strategies against strict liability offences is to demonstrate that the defendant exercised due diligence. In these circumstances, if a driver charged with careless driving could show that s/he was exercising due diligence behind the wheel and took reasonable precautions to avoid the crash, then the prosecution would fail.

What Is Absolute Liability?

Absolute liability offences are sometimes called strict liability minus exceptions. In an absolute liability case, the accused cannot rely on the defence strategy of establishing due diligence, necessity, or that the act was an accident. The technical definition of absolute liability means the offence “is not open to the accused to exculpate himself by showing that he was free of fault.”

Absolute liability offences also differ from strict liability offences in that punishment for conviction of an absolute liability offence is not as severe.  While significant fines are available to the prosecution, jail time is generally off the table.

Defence strategies vary significantly depending on the type of criminal offence the Crown charges an individual with. An experienced defence lawyer can review your case and advise you on your options.

Discuss Your Case with an Experienced Canadian Criminal Defense Lawyer

At Posner Craig Stein, LLP, we know what’s on the line regarding regulatory offences. Our legal team offers discreet service backed by exceptional results. Our goal is to provide top-tier advocacy. To that end, we are ready to review your situation thoroughly before providing strategic defence solutions aimed at securing the favourable outcome you deserve.

Let our criminal defence lawyers help you navigate the complex Canadian legal system. Contact us today to arrange a legal consultation with a professional and courteous criminal defence lawyer.