Do Offences Fall Within Different Levels of Seriousness?

Three Types of Offences Exist In Law. The Three Are Criminal Offences, Strict Liability Offences, and Absolute Liability Offences. Criminal Offences Are the Most Serious Offences and Require An Element of Intention For a Finding of Guilt. Guilt For Strict Liability Offences and Absolute Liability Offences May Occur Without Intent.

A Helpful Guide For How to Identify Various Categories of Offences and the Form of Guilt That Applies to Such a Charge

Man in suit standing within room used for regulatory offence hearings In most offences per provincial laws, an accused person may be found guilty and become liable for financial penalties or jail terms even if the offence was committed unintentionally.  Unlike the requirement of intent which applies to criminal charges, unintentional conduct may still lead to a finding of guilt rather than innocence for charges applicable to other types of offences.

The possibility of guilt despite unintentional conduct was reviewed within the key precedent setting case of R. v. Sault Ste. Marie, [1978] 2 S.C.R. 1299, wherein the Supreme Court recognized that there are three categories of offences which are:

  • Offences that are criminal in the true sense whereas such require proof of a malicious intent or “guilty mind” which is known as and referred to in law by the Latin term of mens rea;
  • Offences of strict liability where proof of mens rea is unnecessary; however, where it is shown that the accused person acted with due diligence in attempting to avoid the offence, such is an allowable excuse for committing the offence and the accused person should be found without guilt and acquitted of the charge; and
  • Offences of absolute Liability where mere proof that the prohibited act occurred is sufficient for a finding of guilt and whereas guilt arises regardless of the lack of intention to commit the unlawful conduct or even in circumstances where the accused person acted with due diligence efforts to avoid committing the unlawful conduct.

Presumption of Strict Liability Over Absolute Liability

The article Distinguishing Regulatory Offences From Crimes Per the Criminal Code explains that a regulatory offence under a provincial statute is unable to constitute as criminal conduct.  In Sault Ste. Marie, the Supreme Court also found that regulatory offences are considered by default as being within the category of strict liability unless either there is a clearly worded element of knowledge, purpose or intent, or unless the offence is clearly coded within the statute as an absolute liability offence.

Strict Liability and the Presumption of Innocence

It is long established in common law that a person who commits an act unintentionally, or without the element of a guilty mind, is innocent.  Accordingly, for laws that fall within the regulatory scheme and that may involve conduct that occurs without any intent to violate the law, such raises the question of whether it is fair to expose an unintentional offender to the risk of substantial penalties including possible imprisonment.

This question was considered within the Supreme Court case of R. v. Wholesale Travel Group Inc., [1991] 3 S.C.R. 154 only a few years following the enactment of the Constitution Act, 1982 and the Charter of Rights and Freedoms whereas the question specifically arose as to whether a strict liability offence, being an offence without guilty intentions, was constitutional.

Within the Wholesale Travel Group case, the presumption of innocence afforded by section 7 and section 11(d) of the Charter of Rights and Freedoms was reviewed and the Supreme Court held that offences for which mens rea was unnecessary were nevertheless constitutional subject to the availability of a defence of due diligence.  The Court further explained that in a strict liability offence, it is up to the defendant to raise the due diligence defence, and it is also up to the accused person prove the due diligence effort to avoid committing the offence.  To preserve the premise that the morally innocent should be unpenalized, the Supreme Court recognized that for strict liability offences an accused person may put forward as a valid defence evidence that shows on the balance of probability that the accused person took reasonable care to avoid or prevent committing the offence or that the accused person was acting on a reasonably held but mistaken belief in facts that if true would render the act innocent.

Nevertheless, regardless of whether the offence carries the element of intent or the possibility of due diligence defence, it always remains the duty of the prosecution to prove that the wrongful act actually occurred and was committed by the accused person.

Absolute Liability Offences

Offences of absolute liability are those where the Legislature makes it clear that proof of a prohibited act itself is sufficient for finding of guilt; and with these types of offences, just like with strict liability, a lack of intent is insufficient as an excuse.  In addition, for absolute liability offences, the defence of due diligence, or taking reasonable care to avoid the offence, or a mistaken reasonable belief of facts, is unavailable. The absolute liability offences are generally fairly straight forward such as the failing to stop for a red light or the spilling of fuel from an aquatic vessel.  The absolute liability offences generally result in simple monetary penalties and carry very little social stigma and are without a risk of imprisonment.  Due to the nature of absolute liability offences, once the conduct is proven by the prosecution, a very limited range of defences, rather “excuses”, may still be available to the defendant.  The possible excuses include the defence of impossibility, necessity, duress or coercion, and will be explained within a separate article.

Summary Comment

There are three separate categories or types of offences being, criminal offences, strict liability offences, and absolute liability offences.  Of the three, criminal offences are the most serious and require the element of mens rea, which is Latin word for a guilty mind, with an intention to commit the offence.  The strict liability offences and absolute liability offences are without an element of intention and a finding of guilt may occur even where there was an intention to avoid committing the offence.


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