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Absolute versus Strict liability

Posted: Mon Sep 28, 2015 2:10 pm
by jsherk
Is there a list somewhere that shows which HTA charges are absolute and which are strict liability?

Thanks

Re: Absolute versus Strict liability

Posted: Tue Sep 29, 2015 11:01 am
by ynotp
For those who don't know both Absolute Liability and Strict Liability do not require "mens rea" (intent) to be proven in order to support a conviction but with Strict Liability offences you may use the defense due diligence.

If an HTA offence is regarded as one or the other depends largely on precedents that take into account the wording of the legislation, and potential penalties.

You would be free to argue in court how the offence is to be treated, but in the absence of a compelling argument the established precedent will the one the JP will use. Using a due diligence defense is risky because it means you have to admit in court what you are accused of and hope the JP finds you credible enough to garner reasonable doubt.

Every day offences that courts have repeatedly ruled fall into Absolute liability are Speeding (under 50) and Fail to Stop.

Strict Liability offences include Careless Driving, Stunt Driving, Drive without insurance, and Drive under suspension.

Re: Absolute versus Strict liability

Posted: Tue Sep 29, 2015 11:11 am
by jsherk
I think not wearing seatbelt was recently ruled Strict Liability.

Re: Absolute versus Strict liability

Posted: Tue Sep 29, 2015 11:22 am
by ynotp
In R v. Gupta? It was applied to where the driver was charged for minors not wearing seat belts that somehow became unbuckled in transit.

Re: Absolute versus Strict liability

Posted: Tue Sep 29, 2015 11:29 am
by jsherk
So they could still prosecute you (as the driver) as Absolute Liability then?

Re: Absolute versus Strict liability

Posted: Tue Sep 29, 2015 12:04 pm
by ynotp
I don't think it would matter because it would be next to impossible to use due diligence in any credible way when were are talking just the driver.

Re: Absolute versus Strict liability

Posted: Tue Sep 29, 2015 12:11 pm
by jsherk
Just a thought... What about if I stop a red light, my coffee gets knocked over onto the passenger side floor, I take my seat belt off to reach over and pick it up (while the vehicle is still stopped at the light), then put my seat belt back on before proceeding.

Re: Absolute versus Strict liability

Posted: Tue Sep 29, 2015 12:49 pm
by Stanton
jsherk wrote:Just a thought... What about if I stop a red light, my coffee gets knocked over onto the passenger side floor, I take my seat belt off to reach over and pick it up (while the vehicle is still stopped at the light), then put my seat belt back on before proceeding.
There's some case law (York Regional Municipality v. Tassone) from the Court of Appeal that deals with that scenario. The Court stated: "Accidents occur even when vehicles are stopped at traffic lights. In our view, s. 106(3) must be interpreted as requiring the driver to wear a seat belt continuously from the time he or she puts the vehicle in motion on the highway to the time the driver leaves the highway, parks the vehicle in a position in which the vehicle can be left unattended, or gets out of the vehicle."

To the best of my knowledge that decision still stands.

Re: Absolute versus Strict liability

Posted: Tue Sep 29, 2015 12:59 pm
by screeech
There is no list to say what offences are strict or absolute liability. If there is a specific offence you need to know about, do research in case law on that particular charge. There is often a determination made in case law.

Re: Absolute versus Strict liability

Posted: Tue Sep 29, 2015 1:07 pm
by jsherk
thanks everybody