CRM 200 Lecture Notes - Lecture 4: Due Diligence, Regulatory Offence, General Idea
3 May 2018
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LECTURE 4 - Strict Liability and Due Diligence
Introduction
• Due diligee defee is pre-eiet defee to puli elfare offees hih are
presumed to be strict liability in nature
• Regulatory defences are presumed to be strict liability in nature
• Essence of strict liability offence is that in order to avoid conviction defendant must
prove, on balance of probabilities, that he/she had honest but mistaken belief in facts
which, if true, would render act innocent, or that he/she exercised all reasonable care to
avoid committing the offence
• Honest but mistaken belief
• If ou do’t eliee hoestl, so the ore ureasoale it appears ill ot e
held
• While due diligence defence frequently consists of showing honest and reasonable
belief in certain state of facts, in principle defence is that all reasonable care was taken
• Mistake of law or fact? important to know, the defendant exercised due
diligence and it rendered them unable to know them the truth
• Your istake of la is ot a defee (I did’t kow it was a law)
• Under approach adopted by Supreme Court in Sault Ste Marie, accused has both
opportunity to prove due diligence and burden of doing so
• Objective standard is applied under which conduct of accused is assessed against that of
reasonable person in similar circumstances: Levis (City) v Tetreault, SCC (2006)
• NOT the view of the accused; subjective
• OBJECTIVE standard: how a reasonable person would have done
• Courts criticize this he ou osider the aused’s irustaes, that
makes it more subjective
Operation of Defence
• There is no onus(duty) on prosecution to prove negligence on part of accused for
regulatory offences
• It is not enough just to raise reasonable doubt when assessing due diligence defence –
• Crown is not required to disprove due diligence beyond a reasonable doubt
• Burden on accused to raise reasonable doubt is not as great as burden on accused in
strict liability offence to establish due diligence by a balance of probabilities:
• R v Strang, NSCA (1992)
• Since burden of proof rests on accused,
• he/she must establish on balance of probabilities by credible evidence the
defence of mistake of fact or the absence of negligence –
• whether the defence meets this burden is for the trial judge:
• R v MacLellan, NBCA (1983)
• Trial judge must decide on evidence whether the accused has established defence on
balance of probabilities –
• issue is not to be decided by giving accused benefit of the doubt;
find more resources at oneclass.com
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• due diligence defence is not something for Crown to disprove:
• R v Kinghorne, NBQB (1998);
• R v Defaria, 2008 ONCJ 687 at para. 16
Evidentiary Threshold
• Court is not to gamble(risk) on cause of failure in question, then attempt to apply the
test of reasonableness
• Due diligence defence flawed by unexplained failure to demonstrate what happened,
and why, and steps taken to prevent the occurrence:
• R v ITT Industries of Canada, Ont.C.A. (1993)
• Ho are ou eer goa eerise due diligee if ou a’t sho ho the
accident happened in the first place?
• The burden is on defendant on how the accident happened and if they
exercised due diligence
• Very hard to prove a negative – NEGLIGENT
• Due diligence defence must relate to the incident in question, otherwise it will not be
relevant to the time of the alleged commission of the offence:
• R v Cooke, Sask. QB (1989)
• Must be able to show that you took reasonable steps
• Has to be specific to the event!!
• Just because you have a general idea is not the same thing
• It is an error to place burden of proof of disproving diligence on the Crown;
• the onus is on the defendant to establish, on a balance of probabilities, that it
took all reasonable steps to avoid the particular event
Statutory Due Diligence Defence
• Some statutes provide defence based on reasonable care, as where accused took
• all reasoale are, or
• reasoale diligee or
• all due diligee
• Corrupt practice – stigma attached for a politician when they are caught
• THIS is why they should have MENS REA (a higher standard)
• Where defences for strict liability offences are prescribed(set), unless the statute
otherwise provides,
• they exclude the common law defence of due diligence which might otherwise
be available –
• such statutory defences were necessary to avoid injustice, and to make
administration of such statutes tolerable and effective:
• R v Consumers Distributing Co. Ltd., Ont.C.A. (1980)
• Income Tax Act, s.153(1) –
• duty on corporations to withhold taxes and other source deductions from
eploee’s salar, ad to reit suh aouts to Reeier Geeral of Caada
• S.227.1(1) –
• corporation is liable for unremitted amounts,
find more resources at oneclass.com
find more resources at oneclass.com
Document Summary
Lecture 4 - strict liability and due diligence. Operation of defence: there is no onus(duty) on prosecution to prove negligence on part of accused for regulatory offences. Qb (1989: must be able to show that you took reasonable steps, has to be specific to the event! Just because you have a general idea is not the same thing. It is an error to place burden of proof of disproving diligence on the crown; the onus is on the defendant to establish, on a balance of probabilities, that it took all reasonable steps to avoid the particular event. Importance: if you have an exotic use, you are held to a higher standard. 1. nature and gravity of adverse effect. 2. foreseeability of the effect, including abnormal sensitivities. 7. what efforts have been made to address the problem. 8. over what period of time, and promptness of response. 9. matters beyond control of accused, including technological limitations.
