Sault Ste. Marie was responsible for the disposal of garbage in their city. They entered into an agreement with a third party to dispose of garbage in a particular area. This party created a landfill that leaked into the nearby river causing pollution. S. 32(1) of the Ontario Water Resources Act (now s. 30(1)) stated that every person or municipality that discharged, deposits or causes or permits the discharge or deposit of pollution into water is liable under summary conviction at the first offence for a fine of not more than $5000, and on subsequent offences of a fine not more than $10,000 or to imprisonment for less than a year. The charge was dismissed at trial as the judge held that the city was not itself responsible for the disposal operations, but a conviction was entered at trial on the basis of strict liability under the Act.
- What is a public welfare offence and is it a strict liability offence?
Appeal and cross-appeal dismissed, new trial ordered.
Dickson, writing for a unanimous court, goes through all of the reasons for and against public welfare offences in other jurisdictions and comes to the conclusion that they are to have a lesser fault requirement than true crime offences (those in the Code). However, when they are serious and have the risk of hefty fines or imprisonment the defendant should not be absolutely liable; they should have the chance to excuse themselves if they can show, on a balance of probabilities, that they lived up to reasonable standards in the situation. He defines three types of offences:
- True crimes: offences that require mens rea.
- Offences of strict liability: offences in which there is no necessity for the Crown to prove the existence of mens rea but the defendant can get off by proving that they acted reasonably in the circumstances. Public welfare offences tend to fall in this category, as they are not in the Code, but have the risk of large fines or imprisonment associated with them.
- Offences of absolute liability – The Crown does not need to prove mens rea, and the defendant has no chance to exculpate himself by showing he was acting reasonably. These are generally only offences with very minor fines as punishment.
He goes on to state that another reason why specific offences fall under the latter two headings are because they are created in provincial statutes. Provinces have no control over criminal law under the Constitution Act therefore they cannot be "true crimes".
- There are three different types of offences: true crimes, strict liability offences, and absolute liability offences.
- Offences that are created in provincial statutes can only be absolute or strict liability offences, because provinces have no jurisdiction to enact criminal law.
- In general, public welfare offences are strict liability offences.