Beyond R. v. Sault Ste. Marie: The Creation and Expansion of Strict Liability and the Due Diligence Defence

Abstract

The Supreme Court of Canada decision in R. v. Sault Ste. Marie created strict liability offences as a middle ground between mens rea offences and absolute liability offences. Strict liability offences allow the defence of due diligence, where the accused has exercised a reasonable standard of care in protecting against the event which occurred. This article examines the acceptance, incorporation and development of strict liability offences and the due diligence defence by Canadian courts, legislatures and industry. In Canadian courts, strict liability and the due diligence offence arise in quasi-criminal, public welfare offences. The reverse onus imposed by the due diligence defence was challenged and upheld in a Charter case. Cases have shown that corporations and directors may be held directly and vicariously liable for the actions of employees and contractors under strict liability principles. Legislatures at both the provincial and federal level have incorporated strict liability and the due diligence defence into a wide variety of quasi-criminal statutes. Industry has responded by taking positive steps to ensure it is complying with legislated standards. The article notes that strict liability is a logical and timely development for Canadian law, as the "due diligence" defence encourages industry's co-operative efforts in the protection of the public interest without hindering regulatory and legal enforcement of public welfare legislation.