R. v. Pontes

R. v. Pontes
Collection
Supreme Court Judgments
Date
1995-09-21
Report
[1995] 3 SCR 44
Case number
24020
Judges
Lamer, Antonio; La Forest, Gérard V.; L'Heureux-Dubé, Claire; Sopinka, John; Gonthier, Charles Doherty; Cory, Peter deCarteret; McLachlin, Beverley; Iacobucci, Frank; Major, John C.
On appeal from
British Columbia
Subjects
Constitutional law
Criminal law
Notes
SCC Case Information: 24020
Decision Content
R. v. Pontes, [1995] 3 S.C.R. 44
Her Majesty The Queen Appellant
v.
Patrick Pontes Respondent
and
The Attorney General of Canada Intervener
Indexed as: R. v. Pontes
File No.: 24020.
1995: February 28; 1995: September 21.
Present: Lamer C.J. and La Forest, L'Heureux‑Dubé, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major JJ.
on appeal from the court of appeal for british columbia
Constitutional law ‑‑ Charter of Rights ‑‑ Fundamental justice ‑‑ Provincial motor vehicle offence ‑‑ Absolute or strict liability ‑‑ Accused charged with driving motor vehicle while prohibited ‑‑ Whether s. 94(1) of British Columbia Motor Vehicle Act, when read in conjunction with s. 92, creates absolute liability offence which violates s. 7 of Canadian Charter of Rights and Freedoms ‑‑ Ignorance of the law -- Notice.
Criminal law ‑‑ Provincial motor vehicle offence ‑‑ Absolute or strict liability ‑‑ Accused charged with driving motor vehicle while prohibited ‑‑ Whether combined effect of ss. 94(1) and 92 of British Columbia Motor Vehicle Act creates absolute or strict liability offence.
The accused was charged with driving a motor vehicle at a time when he was prohibited from driving under s. 92 of the British Columbia Motor Vehicle Act, contrary to s. 94(1) of that Act. Section 92 provides that a person convicted of an offence under certain sections of the Act, including s. 94(1), is "automatically and without notice" prohibited from driving a motor vehicle for 12 months. Section 94(1) provides that a person who drives a motor vehicle on a highway while he is prohibited from driving under certain sections of the Act, including s. 92, commits an offence and is liable to a fine and to imprisonment. The accused was acquitted at trial. The trial judge found that s. 94(1), in combination with s. 92, created an absolute liability offence for which imprisonment was a penalty, thereby contravening s. 7 of the Canadian Charter of Rights and Freedoms . Pursuant to s. 52 of the Constitution Act, 1982 , the reference to s. 92 in s. 94(1) was declared of no force or effect. The summary conviction appeal court and the Court of Appeal upheld the trial judge's decision.
Held (La Forest, L'Heureux-Dubé, Gonthier and McLachlin JJ. dissenting): The appeal should be dismissed.
Per Lamer C.J. and Sopinka, Cory, Iacobucci and Major JJ.: The fundamental aspect of the offence created by ss. 94(1) and 92 of the Motor Vehicle Act is that a person convicted of the underlying offence is "automatically and without notice" prohibited from driving a motor vehicle. The words "automatically and without notice" in s. 92 go far towards establishing that this is an absolute liability offence. The removal in 1986 of s. 94(2), which provided that s. 94(1) was an absolute liability offence, does not change the offence into one of strict liability since the situation has not been altered in any significant manner. Furthermore, the defence of due diligence must be available to defend a strict liability offence. When, as a result of the wording of the section, the only possible defence an accused could put forward is his ignorance of the fact that his licence had been suspended by the provisions of the provincial statute, which constitutes a mistake of law and therefore is not available as a defence, an accused is denied the defence of due diligence. Here, because the prohibition on driving in s. 92 is automatic and without notice, s. 94(1) effectively prevents an accused who is unaware of the prohibition from raising that defence. In those circumstances, the offence ought to be characterized as one of absolute liability.
Nevertheless the absolute liability offence created by s. 94(1) and s. 92 does not contravene the Charter . This conclusion flows from the application of s. 4.1 and of s. 72(1) of the British Columbia Offence Act. These sections respectively indicate that, notwithstanding the provisions of any other Act, no person is liable to imprisonment for an absolute liability offence, and that the non‑payment of a fine will not result in imprisonment. Thus, an accused convicted under ss. 94(1) and 92 faces no risk of imprisonment and there is, accordingly, no violation of the right to life, liberty and security of the person under s. 7 of the Charter .
The legislature could convert the offence to one of strict liability by permitting the defence of due diligence to be raised. If there was any concern that those accused of the offence would defend on the basis that they had no knowledge of its effect, a provision requiring that notice be given of its consequences could be added.
In this case an order directing a new trial would ordinarily be the appropriate result. In the present circumstances, however, to direct a new trial would be unfair and unduly harsh to the accused, who has been brought before every level of court at the Crown's instigation. This appeal was lodged solely to determine whether the offence in question was one of absolute or strict liability. That question is now resolved and the appeal should be dismissed.
Per La Forest, L'Heureux‑Dubé, Gonthier and McLachlin JJ. (dissenting): The Motor Vehicle Act is public welfare or regulatory legislation. The impugned provisions are aimed at keeping bad drivers off the road; they are not prohibitions which are "criminal in the true sense". As a result, this offence is prima facie one of strict liability. Further, the legislature has not clearly indicated that the offence created by the combination of ss. 92 and 94(1) is one of absolute liability. The phrase "automatically and without notice" simply highlights that the 12‑month statutory prohibition is to take effect immediately and by operation of law without any requirement that notice be given by the Superintendent of Motor Vehicles or received by a driver who is prohibited from driving under the statute. An accused cannot seek solace in the failure to provide notice of the applicable statutory prohibition, since ignorance of the law is never an excuse for breaking the law. As well, the impugned provisions allow for the defences of reasonable mistake of fact and due diligence. Accordingly, the prima facie characterization of this public welfare legislation as being of strict liability is confirmed.
A strict liability offence requires the minimal mental element of negligence in order to ground a conviction. Negligence consists in an unreasonable failure to know the facts which constitute the offence, or the failure to be duly diligent to take steps which a reasonable person would take. Since ignorance of the law is not an excuse for breaking the law, due diligence consists in taking steps to fulfil a duty imposed by law and not in the ascertainment of the existence of a statutory prohibition or its interpretation. Exceptionally, where knowledge that conduct is prohibited is itself part of the mens rea, the absence of knowledge provides a good defence.
Here, s. 92 creates the 12‑month driving prohibition which is effective automatically and without notice upon conviction of one of the underlying offences. The factual element comprising the actus reus consists in the driving of a motor vehicle having previously been convicted of one of the underlying offences. Since there is no mens rea specified, it must be inferred from the actus reus and, because this is a regulatory offence, the mens rea consists in negligence in relation to any of the elements of the actus reus, but not in relation to the existence of this statutory prohibition or its interpretation, since that would be ignorance or mistake of law. Consequently, a person charged with driving while under a statutory prohibition can avoid conviction if he demonstrates, on the preponderance of the evidence, that he made a reasonable mistake of fact as to the existence of his conviction, or that he exercised due diligence to ascertain whether he had been convicted of one of the underlying offences. Defences are available in relation to all the factual elements of the actus reus, and this adequately meets the minimal constitutional requirement of fault for a public welfare or regulatory offence such as driving while under a statutory prohibition. Sections 92 and 94(1) of the Motor Vehicle Act are therefore entirely consistent with s. 7 of our Charter without any further requirements.
Since the impugned provisions already allow for due diligence in relation to all the factual elements of the actus reus, the due diligence called for by the majority, presumably as a principle of fundamental justice under s. 7 of the Charter , to cure the alleged constitutional deficiency in the provisions is nothing less than due diligence in relation to the existence of a legislative prohibition pertaining to a regulated activity or its interpretation -- that is, a defence of ignorance of the law. Our system of laws, however, has long held as axiomatic that ignorance of the law is not an excuse for breaking the law. This cornerstone of our law remains secure even after the passage of the Charter , and there is no conflict between it and the principles of fundamental justice. To expand the defence of due diligence to comprehend a defence of ignorance of the law undercuts the mistake of law rule and will render many of our laws unenforceable; as a corollary, this Court's decision in Molis appears to be impliedly overturned without any explanation. Furthermore, the impugned prohibition is a regulatory offence incident to a licensed activity. A regulated actor is deemed to have voluntarily accepted the terms and conditions attaching to the privilege of participating in a regulated activity. As a result, he cannot be described as morally innocent when he commits a regulatory offence. Finally, a legislature may choose, as a matter of policy, to provide a defence of ignorance of the law in relation to some, all or none of the statutory conditions of engaging in a regulated activity. Such a policy decision remains a matter over which the relevant representative body is entirely sovereign.
The provision of some form of notice of the law would convert the offence into one of full mens rea, since the accused would then be driving with actual subjective knowledge that he was prohibited under provincial legislation. Rather than an offence of full mens rea, the province chose a solution appropriately tailored to the regulatory context: an offence of strict liability. That solution adequately meets the exigencies of our Charter and is therefore a valid policy choice of full force and effect without any further requirement of notice.
Cases Cited
By Cory J.
Overruled in part: R. v. MacDougall, [1982] 2 S.C.R. 605; R. v. Prue; R. v. Baril, [1979] 2 S.C.R. 547; applied: R. v. City of Sault Ste. Marie, [1978] 2 S.C.R. 1299; referred to: Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486; R. v. Wholesale Travel Group Inc., [1991] 3 S.C.R. 154; R. v. Vaillancourt, [1987] 2 S.C.R. 636; Molis v. The Queen, [1980] 2 S.C.R. 356.
By Gonthier J. (dissenting)
R. v. City of Sault Ste. Marie, [1978] 2 S.C.R. 1299; R. v. MacDougall, [1982] 2 S.C.R. 605; R. v. Prue; R. v. Baril, [1979] 2 S.C.R. 547; R. v. Vaillancourt, [1987] 2 S.C.R. 636; R. v. Nova Scotia Pharmaceutical Society, [1992] 2 S.C.R. 606; Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486; R. v. Martineau, [1990] 2 S.C.R. 633; R. v. Logan, [1990] 2 S.C.R. 731; R. v. DeSousa, [1992] 2 S.C.R. 944; Molis v. The Queen, [1980] 2 S.C.R. 356; R. v. Docherty, [1989] 2 S.C.R. 941; R. v. Forster, [1992] 1 S.C.R. 339; R. v. Heywood (1992), 77 C.C.C. (3d) 502; R. v. Tremblay, [1993] 2 S.C.R. 932; R. v. Wholesale Travel Group Inc., [1991] 3 S.C.R. 154.
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms, s. 7 .
Constitution Act, 1982, s. 52 .
Criminal Code, R.S.C., 1985, c. C‑46, ss. 19 , 220 , 221 , 236 , 249(1) (a) [rep. & sub. c. 27 (1st Supp.), s. 36 ; repl. 1994, c. 44, s. 11], 253 [rep. & sub. c. 27 (1st Supp.), s. 36 ; rep. & sub. c. 32 (4th Supp.), s. 59 ], 254(5) [rep. & sub. c. 27 (1st Supp.), s. 36 ], 255 [idem; am. c. 1 (4th Supp.), s. 18 (Sch. I, item 7)], 259(4) [rep. & sub. c. 27 (1st Supp.), s. 36 ; am. c. 32 (4th Supp.), s. 62 ].
Highway Safety Code, R.S.Q., c. C‑24.2, ss. 105 [repl. 1993, c. 42, s. 1], 106.1 [idem, s. 3], 550.1 [ad. idem, s. 28].
Highway Traffic Act, R.S.O. 1990, c. H.8, ss. 52, 53.
Motor Vehicle Act, R.S.B.C. 1979, c. 288, ss. 86(1) [rep. & sub. 1982, c. 36, s. 18; am. 1985, c. 77, s. 3], 88 [rep. & sub. 1982, c. 36, s. 19; am. 1985, c. 52, s. 56; am. 1987, c. 46, s. 6], 92 [rep. & sub. 1982, c. 36, s. 19; am. 1982, c. 73, s. 1; am. 1984, c. 30, ss. 52 and 53; am. 1985, c. 52, s. 60; am. 1985, c. 77, s. 4; am. 1986, c. 19, s. 4]; 94(1) [rep. & sub. 1982, c. 36, s. 19; am. 1984, c. 30, s. 57], (2) [rep. & sub. 1982, c. 36, s. 19; rep. 1986, c. 19, s. 5], 220.1(1) [en. 1982, c. 73, s. 2], 220.3(1) [idem].
Motor Vehicle Amendments Act, 1986, S.B.C. 1986, c. 19, s. 5.
Offence Act, R.S.B.C. 1979, c. 305, ss. 4.1 [en. 1990, c. 34, s. 10], 72(1) [am. 1989, c. 38, s. 32].
Authors Cited
LaFave, Wayne R., and Austin W. Scott, Jr. Substantive Criminal Law, vol. 1. St. Paul, Minn.: West Publishing, 1986.
Mewett, Alan W., and Morris Manning. Mewett & Manning on Criminal Law, 3rd ed. Toronto: Butterworths, 1994.
Ruby, Clayton. Sentencing, 4th ed. Toronto: Butterworths, 1994.
Stuart, Don. Canadian Criminal Law: A Treatise, 3rd ed. Scarborough, Ont.: Carswell, 1995.
Webb, Kernaghan R. "Regulatory Offences, the Mental Element and the Charter : Rough Road Ahead" (1989), 21 Ottawa L. Rev. 419.
APPEAL from a judgment of the British Columbia Court of Appeal (1994), 89 B.C.L.R. (2d) 271, 1 M.V.R. (3d) 87, 19 C.R.R. (2d) 281, 40 B.C.A.C. 73, 65 W.A.C. 73, affirming a judgment of Hood J. (1992), 37 M.V.R. (2d) 162, dismissing the Crown's appeal from a judgment of Cronin Prov. Ct. J. rendered June 14, 1991, acquitting the accused on a charge of driving a motor vehicle while prohibited. Appeal dismissed, La Forest, L'Heureux-Dubé, Gonthier and McLachlin JJ. dissenting.
George H. Copley, for the appellant.
Terrence L. Robertson, Q.C., and Andrea M. Finch, for the respondent.
Bernard Laprade, for the intervener.
The judgment of Lamer C.J. and Sopinka, Cory, Iacobucci and Major JJ. was delivered by
1 Cory J. -- The sole issue to be resolved on this appeal is whether the combined effect of ss. 94(1) and 92 of the Motor Vehicle Act, R.S.B.C. 1979, c. 288, creates an offence of absolute liability or strict liability.
Factual Background
2 The respondent was charged with driving a motor vehicle in the city of Vancouver on August 3, 1990, at a time when he was prohibited from driving pursuant to s. 92 of the Motor Vehicle Act.
Relevant Statutory Provisions
3 Section 92 of the Motor Vehicle Act provides in part:
92. (1) For the purpose of this section, "convicted" includes the granting of an absolute or conditional discharge.
(2) A person who is convicted of
(a) an offence under section 88, 94, 220.1(1) or 220.3(1), or
(b) a motor vehicle related Criminal Code offence
is automatically and without notice prohibited from driving a motor vehicle for 12 months from the date of sentencing, the date that the passing of sentence is suspended, the date of being granted an absolute or conditional discharge. . . .
4 Prior to December 1985, s. 92 contained a third subsection which provided:
(3) Subsection (2) does not apply where neither the defendant nor his agent or counsel appear before the court at the time of conviction.
5 Section 94 of the Motor Vehicle Act provides in part:
94. (1) A person who drives a motor vehicle on a highway or industrial road while
(a)he is prohibited from driving a motor vehicle under section 90, 91, 92 or 92.1 of this Act . . . or
(b)his driver's licence or his right to apply for or obtain a driver's licence is suspended under section 82 or 92 as it was before its repeal and replacement came into force . . .
commits an offence and is liable,
(c)on a first conviction, to a fine of not less than $300 and not more than $2 000 and to imprisonment for not less than 7 days and not more than 6 months, and
(d)on a subsequent conviction, regardless of when the contravention occurred, to a fine of not less than $300 and not more than $2 000 and to imprisonment for not less than 14 days and not more than one year.
6 Prior to 1987, s. 94 contained the following subsection:
(2) Subsection (1) creates an absolute liability offence in which guilt is established by proof of driving, whether or not the defendant knew of the prohibition or suspension.
7 Section 4.1 of the Offence Act, R.S.B.C. 1979, c. 305 (amended in 1990) provides:
4.1 Notwithstanding section 4 or the provisions of any other Act, no person is liable to imprisonment with respect to an absolute liability offence.
8 Further, s. 72(1) of the Offence Act provides that the failure to pay a fine will not result in a jail term:
72. (1) Subject to subsection (6), but notwithstanding any other provision of this Act, any other Act, regulation, municipal bylaw or order made by a justice, no justice shall, except under the Small Claims Act, order that a person be imprisoned by reason only that he defaults in paying a fine.
9 It should be noted that neither the provisions of s. 4.1 of the Offence Act nor the absence of any jail term for the non‑payment of fines was argued in the courts below. Obviously, if the offence is one of absolute liability, but there is no risk of imprisonment, then the provision will not offend s. 7 of the Canadian Charter of Rights and Freedoms . Similarly, if the statutory provisions are found to create a strict liability offence, then by definition a defence of due diligence must be available to the accused and there will be no infraction of s. 7 of the Charter . The sole difference will be that if the offence is found to be one of strict liability, the possible sanction of a term of imprisonment may be retained.
Courts Below
Provincial Court
10 Cronin Prov. Ct. J. found that s. 94 of the Motor Vehicle Act, in combination with s. 92, created an absolute liability offence for which imprisonment was a penalty, with the result that the offence violated s. 7 of the Charter . He concluded that a person who was unaware of the fact that he had been prohibited from driving pursuant to s. 92 of the Motor Vehicle Act could still drive his motor vehicle, honestly believing that he was entitled to do so, yet if he was charged under s. 94 he would have no defence available to him. This, he held, would follow from the decision in R. v. MacDougall, [1982] 2 S.C.R. 605, which held that ignorance of the fact that one's licence had been revoked or suspended was ignorance of the law and therefore did not constitute a defence.
11 Cronin Prov. Ct. J. found that the situation presented to him was the same as that which faced the Court in Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486. He declared that the reference to s. 92 in s. 94 of the Motor Vehicle Act should be declared inoperative pursuant to s. 52 of the Constitution Act, 1982 . In light of his finding that the legislation was invalid, he found the accused not guilty.
Summary Conviction Appeal Court
12 In careful and extensive reasons, Hood J. upheld the decision of the trial judge: (1992), 37 M.V.R. (2d) 162. It was his opinion that in order to constitute a strict liability offence that conformed with s. 7 of the Charter , s. 94 of the Motor Vehicle Act had to provide for a minimum fault requirement of negligence. This required that the defence of due diligence or reasonable care be available to an accused. In his view, the question to be resolved in the case was whether the combination of ss. 94 and 92 of the Motor Vehicle Act, in reality, left this defence open to an accused.
13 It was his opinion that the decision in R. v. Wholesale Travel Group Inc., [1991] 3 S.C.R. 154, did not go so far as to require an accused to know that he had been prohibited from driving. On this point he wrote (at pp. 177‑78):
While the essential ingredients of subjective mens rea, i.e., intent or knowledge of the wrongfulness of the act on the part of the accused (a positive state of mind) are not required, in my opinion knowledge of the essentials of the actus reus are required where the minimum fault requirement is negligence; for it seems to me that like intention, negligence presupposes knowledge of the circumstances making up the actus reus. If the accused does not have knowledge of a particular event, it is difficult to see how he can carry out any duty imposed by that event. I find it difficult to see how it can be said that the defence of due diligence was open to the accused when he did not know of the fact that he was prohibited from driving, and therefore was unaware of the duty imposed on him by that prohibition. No care on his part could save him from conviction and imprisonment. Not knowing of the duty imposed on him by the law, he would not have done anything factually in discharge of that duty which could be later scrutinized on the issue of due diligence.
14 Hood J. emphasized that these words did not mean that ignorance of the law was a defence. He stated that the situation was quite different in the case at bar "which concerns knowledge of an essential element of the actus reus and involves some voluntariness or awareness on the part of the accused" (p. 178). It was his opinion that it did not matter if the lack of knowledge of the essential element also constituted ignorance of the law. He found that "[i]t is the lack of knowledge of the essential element of the actus reus which prevents the defence of due diligence from being available. This is not to say that ignorance of the law is a defence" (p. 178). On this question, he concluded that, in the alternative, if there was a conflict between the principle that ignorance of the law is no defence and the requirements of s. 7 of the Charter , then the Charter must prevail.
15 Hood J. distinguished the decision in MacDougall, supra, on the basis that in MacDougall the accused had general knowledge of the provisions of the Nova Scotia Motor Vehicle Act and therefore of the duties imposed upon him. Further, he observed that it did not appear that the defence raised in the case at bar, namely that because of the nature of the prohibition under s. 92, an accused charged under s. 94 simply would not have available to him a defence of due diligence, was argued in MacDougall.
16 Hood J. held that s. 94 of the Act, when read in combination with s. 92, created an absolute liability offence. He reached this conclusion by applying both the traditional approach to the classification of offences set out in R. v. City of Sault Ste. Marie, [1978] 2 S.C.R. 1299, and as well the constitutional approach outlined by this Court in Re B.C. Motor Vehicle Act, supra.
17 With regard to the traditional approach, he found that there had been no significant change in s. 94 with the invalidation of s. 94(2) following the Re B.C. Motor Vehicle Act decision. He observed that as things presently stood, an accused could still be convicted under that section whether or not he knew that he had been prohibited from driving. He found that the combined effect of ss. 92 and 94 was "to remove from the accused any opportunity to prove that his action in driving his motor vehicle while prohibited from doing so was due to an honest and reasonable mistake of fact, or that he acted without guilty intent" (p. 187). He concluded that the offence still remained one of absolute liability.
18 Applying the constitutional approach, he also concluded that the combination of ss. 94 and 92 offended the principles of fundamental justice and thus contravened s. 7 of the Charter . As a result of the enactment making the driving prohibition automatic and without notice, the legislation effectively withdrew from the accused any possible defence of due diligence. This defence of due diligence was required in order to make negligence offences comply with the requirements of s. 7 . On this aspect he wrote (at p. 190):
In order for s. 94 to withstand Charter scrutiny it must require as an essential element a minimum mens rea or fault requirement of negligence and leave open or available to an accused at the least the defence of due diligence. It would then conform to s. 7 of the Charter and the principle of fundamental justice. It does not do so.
. . .
[B]y making the prohibition automatic and without notice, the legislature effectively withdrew from the unknowing accused all possible defences of due diligence. As I have already said, an accused having no knowledge of the prohibition would have no knowledge of the duty imposed upon him. No care on his part could save him. He would never be in a position to show that he took all reasonable care to avoid breaching the statute. Generally, the situation is this. The accused has knowledge of the essential elements of the actus reus, the prohibited act, but does not know that it is illegal; for example, driving a motor vehicle in a certain manner or manufacturing certain chemicals. He bona fide believes that what he is doing is legal. He is mistaken. This is what is meant by ignorance of the law or mistake of law. It is no defence.
But here the situation is different. I am reasonably confident that the accused would know the law, i.e., that it is illegal for a person to drive his motor vehicle when he is prohibited from doing so. What he is ignorant of, or mistaken about, is the very fact that he has been prohibited from driving. His ignorance goes to an essential element of the actus reus; which must be a conscious or voluntary act on the part of the accused. Where the actus reus is the offence, and negligence must be the minimum fault, the defence of due diligence cannot be said to be open to the accused who has no knowledge of an essential element of the actus reus. This is so, in my opinion, even if it can be said that the lack of knowledge of the essential element of the actus reus at the same time constitutes ignorance of the law.
Court of Appeal
19 The Court of Appeal adopted the reasons of Hood J. and dismissed the appeal: (1994), 89 B.C.L.R. (2d) 271, 1 M.V.R. (3d) 87, 19 C.R.R. (2d) 281, 40 B.C.A.C. 73, 65 W.A.C. 73.
Analysis
Categories of Offences
20 It may be helpful to undertake a very brief review of the reasons of Dickson J. (as he then was) in Sault Ste. Marie, supra. In that case, he noted that there were three categories of offences. First, he referred to the traditional criminal law offence, which required proof of either an intent to commit the prohibited act or a reckless disregard for the consequences of committing that act. Second, at the opposite end of the scale was the absolute liability offence which did not permit of any explanation by the accused; the performance of the act alone was sufficient to establish culpability. Third, between these two categories was the offence of strict liability. In that category of offence, the accused could escape liability by demonstrating that he had exercised due diligence by taking all reasonable steps to avoid the commission of the prohibited act, or that he reasonably believed in a mistaken set of facts which, if true, would render the act or omission innocent.
21 Dickson J. described the offences in this manner (at pp. 1325-26):
1.Offences in which mens rea, consisting of some positive state of mind such as intent, knowledge, or recklessness, must be proved by the prosecution either as an inference from the nature of the act committed, or by additional evidence.
2.Offences in which there is no necessity for the prosecution to prove the existence of mens rea; the doing of the prohibited act prima facie imports the offence, leaving it open to the accused to avoid liability by proving that he took all reasonable care. This involves consideration of what a reasonable man would have done in the circumstances. The defence will be available if the accused reasonably believed in a mistaken set of facts which, if true, would render the act or omission innocent, or if he took all reasonable steps to avoid the particular event. These offences may properly be called offences of strict liability. . . .
3.Offences of absolute liability where it is not open to the accused to exculpate himself by showing that he was free of fault. [Emphasis added.]
22 He then went on to indicate how a distinction could be made between offences of strict liability and absolute liability and described the manner in which the various offences could be categorized (at p. 1326):
Offences which are criminal in the true sense fall in the first category. Public welfare offences would prima facie be in the second category. They are not subject to the presumption of full mens rea. An offence of this type would fall in the first category only if such words as "wilfully", "with intent", "knowingly", or "intentionally" are contained in the statutory provision creating the offence. On the other hand, the principle that punishment should in general not be inflicted on those without fault applies. Offences of absolute liability would be those in respect of which the Legislature had made it clear that guilt would follow proof merely of the proscribed act. The overall regulatory pattern adopted by the Legislature, the subject matter of the legislation, the importance of the penalty, and the precision of the language used will be primary considerations in determining whether the offence falls into the third category.
23 Subsequent to this decision, the question arose as to what minimal intent should be required in light of the passage of s. 7 of the Charter . That section provides:
7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
24 In Re B.C. Motor Vehicle Act, supra, Lamer J. (as he then was) found that absolute liability offences which provided for a term of imprisonment as a sanction contravened s. 7 of the Charter . At page 515 of that decision he wrote:
I am therefore of the view that the combination of imprisonment and of absolute liability violates s. 7 of the Charter and can only be salvaged if the authorities demonstrate under s. 1 that such a deprivation of liberty in breach of those principles of fundamental justice is, in a free and democratic society, under the circumstances, a justified reasonable limit to one's rights under s. 7 .
25 This principle that provincial regulatory offences which provide for a sanction of imprisonment require a minimum mental state was again confirmed in R. v. Vaillancourt, [1987] 2 S.C.R. 636. At page 652, Lamer J. wrote:
In effect, Re B.C. Motor Vehicle Act acknowledges that, whenever the state resorts to the restriction of liberty, such as imprisonment, to assist in the enforcement of a law, even, as in Re B.C. Motor Vehicle Act, a mere provincial regulatory offence, there is, as a principle of fundamental justice, a minimum mental state which is an essential element of the offence. It thus elevated mens rea from a presumed element in Sault Ste. Marie, supra, to a constitutionally required element. Re B.C. Motor Vehicle Act . . . inferentially decided that even for a mere provincial regulatory offence at least negligence was required, in that at least a defence of due diligence must always be open to an accused who risks imprisonment upon conviction. [Emphasis added.]
26 From the cases which followed the passage of the Charter , the following can be derived: first, generally speaking, an offence of absolute liability is not likely to offend s. 7 of the Charter unless a prison sanction is provided; secondly, an accused charged with an absolute liability offence cannot avoid liability by demonstrating that he exercised due diligence; thirdly, one of the prime bases for distinguishing a strict liability offence from an absolute liability offence is the availability of the defence of due diligence; fourthly, any provincial regulatory offence providing for a term of imprisonment must make a defence of due diligence available to the accused. I would leave open for future consideration the situation presented by an absolute liability offence punishable by fine with the possibility of imprisonment for its non‑payment in those circumstances where the legislation provides that the imposition and collection of any fine is subject to a means test.
Does Section 94, in Combination with Section 92, Create an Absolute Liability Offence?
27 There are, I believe, two methods of determining whether an offence is one of absolute liability. First, as suggested in Sault Ste. Marie, supra, regard may be had to the overall regulatory pattern adopted by the legislature, the subject matter of the legislation, the importance of the penalty and the precision of the language used.
28 Second, the availability of a due diligence defence must be considered. An absolute liability offence denies an accused the opportunity to put forward a defence of due diligence. Conversely, in order for an offence to be one of strict liability, the defence of due diligence must be available.
29 Considering first, the wording of the Act, it will be remembered that it provides that a person convicted of an underlying offence is "automatically and without notice" prohibited from driving a motor vehicle for 12 months from the date of sentencing. Section 94 provides that a person who drives a motor vehicle on the highway while he is prohibited from driving under s. 92 commits an offence and is liable:
(c)on a first conviction, to a fine of not less than $300 and not more than $2 000 and to imprisonment for not less than 7 days and not more than 6 months, and
(d)on a subsequent conviction, regardless of when the contravention occurred, to a fine of not less than $300 and not more than $2 000 and to imprisonment for not less than 14 days and not more than one year.
The fundamental aspect of the offence is that a person convicted of the underlying offence will be automatically and without notice prohibited from driving a motor vehicle. The words "automatically and without notice" go far towards establishing that this is indeed an absolute liability offence.
30 In Re B.C. Motor Vehicle Act, supra, it was found that s. 94, as it was then worded, created an absolute liability offence. At the time of that decision, s. 94 contained a subs. (2) which read:
(2) Subsection (1) creates an absolute liability offence in which guilt is established by proof of driving, whether or not the defendant knew of the prohibition or suspension.
That provision was found to contravene the Charter and was deleted from the Act in 1986. However, I am of the view that the removal of that subsection does not change the offence into one of strict liability. As all the judges in the courts below have found, the situation has not been changed in any significant manner by the deletion of that subsection. The deleted subsection did no more than emphasize and reiterate that this was an absolute liability offence. Yet, the same conclusion can be reached from a consideration of the remaining wording of s. 94. Section 94(1)(a) still refers to s. 92 which, in turn, provides that a driver will "automatically and without notice" be prohibited from driving for a period of 12 months. In effect, the combination of s. 92 and s. 94 provides for the conviction of the prohibited driver whether or not he knows that he is prohibited from driving.
31 Section 94 goes further. Because the prohibition to drive in s. 92 is automatic and without notice, s. 94 effectively prevents an accused who is unaware of the prohibition from raising a defence of due diligence. At this point, it may be helpful to explore the nature of the defence of due diligence and how and when it may be utilized.
Defence of Due Diligence
32 The decision in Sault Ste. Marie, supra, established that a person accused of a strict liability offence may avoid conviction by proving, on the balance of probabilities, either that he had an honest but mistaken belief in facts which, if true, would render the act innocent, or that he exercised all reasonable care to avoid committing the offence. That is to say, he did what a reasonable person would have done in the circumstances to avoid the occurrence of the prohibited act. In my view, if neither of these two facets of the defence of due diligence is available to an accused, the offence cannot be said to be one of strict liability. By definition, a strict liability offence requires that the defence of due diligence be available. Put another way, if the offence does not permit a due diligence defence, then it cannot be a strict liability offence.
33 In determining whether either facet of the defence of due diligence is available in this case, it is important to remember the well-established principle, incorporated in s. 19 of the Criminal Code, R.S.C., 1985, c. C‑46 , that a mistake of law is no excuse. In other words, a mistake as to what the law is does not operate as a defence.
34 The application of this principle leads to the conclusion that an accused cannot put forward as a defence that he made diligent inquiries as to the legality of his actions or status. The submission of such a defence was specifically rejected in Molis v. The Queen, [1980] 2 S.C.R. 356. In that case, the accused was charged with trafficking in a drug restricted under the Food and Drugs Act . The drug which the accused had begun manufacturing had been unrestricted but later became restricted. At trial, the accused testified that he had exercised due diligence to ascertain the state of the law. This defence was rejected. At page 364 Lamer J. wrote:
It is clear to me that we are dealing here with an offence that is not to be considered as one of absolute liability and, hence, a defence of due diligence is available to an accused. But I hasten to add that the defence of due diligence that was referred to in Sault Ste. Marie is that of due diligence in relation to the fulfilment of a duty imposed by law and not in relation to the ascertainment of the existence of a prohibition or its interpretation. [Emphasis added.]
35 These principles must be kept in mind in the assessment of the Crown's contention that the decision of this Court in MacDougall, supra, constitutes a complete answer to the characterization of the offence. In that case, following a conviction for failing to remain at the scene of an accident, the accused was prohibited from driving by the operation of s. 250(1) of the Nova Scotia Motor Vehicle Act. The accused subsequently drove while prohibited and was charged with that offence. At trial, he testified that he did not know of the prohibition. Ritchie J., on behalf of the Court, held that the offence was one of strict liability, but that the defence of lack of knowledge of the prohibition was tantamount to a defence of ignorance of the law which, in light of the provision of s. 19 of the Criminal Code , could not provide a defence. Reliance is placed by the Crown upon this portion of the reasons of Ritchie J., found at p. 608:
I am in agreement with all of the judges in the courts below, including the dissenting judge in the Court of Appeal, in finding that as the offence here charged is one concerning the public welfare it was properly characterized as "an offence of strict liability" within the meaning of the classification stipulated by Mr. Justice Dickson (supra) and th