• Joseph Gelinas

Absolute Liability vs Strict Liability vs Mens Rea

Updated: Sep 14, 2019

Today I am going to do a quick overview of the categories of intent for offences and what must be proven against a Defendant for each category of offences. Each category has different elements of intent which must be proven to acquire a conviction. The more serious the penalty for an offence the more due process is afforded to a Defendant and the more complex are the elements which must be proven.

Absolute Liability- Absolute liability offences are the most basic and common forms of offences. For a prosecutor to acquire a conviction for an absolute liability offences, the prosecutor must only prove beyond a reasonable doubt that the illegal action was committed by the Defendant. The intention of the party has no bearing on whether a Defendant is guilty of the offence. Common absolute liability offences include by-law offences and highway traffic act offences. Jail time is not possible for absolute liability offences.

Strict Liability- Strict liability offences are the second most basic form of offences. The prosecutor must prove beyond a reasonable doubt that the action was committed by the Defendant however, even if the illegal action had been committed the Defendant is entitled to a defence of due diligence. For a Defendant to be entitled to a defence of due diligence they must prove on a balance of probabilities that they took every precaution reasonably necessary to avoid committing the illegal action. The burden is on the Defendant to establish due diligence if it can be proven that they committed the action. If the penalty allows for it, a Defendant can face jail time if they are convicted. Common strict liability offences include careless driving and street racing/stunt driving.

Mens Rea- Mens Rea offences require the prosecutor to prove beyond a reasonable doubt that both the Defendant committed the illegal action and that the Defendant intended to commit the illegal action. It is not required to be proven that the Defendant knew the action was illegal. The mens rea element gives rise to a multitude of defences that are not available to other offences. These are the most serious of offences and can include the most serious of penalties. All criminal offences are mens rea offences but not all mens rea offences are criminal charges.

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R. v. Tavukoglu, 2009 ONCJ 606 (CanLII)

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