Licensed Paralegal

The reason that you were speeding doesn’t matter

Canada, as well as other jurisdictions, has defined differing levels of legal liability for some offences; these are called Strict Liability and Absolute Liability. Many offences such as speeding, regulatory offences, and the like are ‘absolute liability’ offences, meaning that the accused does not need mens rea (Latin, meaning ‘guilty mind,’ or the intent to commit a crime or an illegal act).

In R. v. City of Sault Ste-Marie, the Supreme Court of Canada defined an absolute liability offence as an offence “where it is not open to the accused to exculpate himself by showing that he was free of fault.” Even if there was no intention, no knowledge of an offence, there is still a liability. For instance, if you thought fishing season was open (and it isn’t), you can still be charged and convicted even if you truly believed fishing season was open, even if you were told so.

This can be compared to a strict liability offence (where an accused can raise the defense of due diligence) and mens rea offences (where the Crown has to prove that the accused had some positive state of mind). Assault, for instance, is the intentional application of force to another. If the application of force is unintentional, it’s not assault – it’s recklessness or negligence.

Generally, criminal offences are presumed to be mens rea offences, and regulatory offences are presumed to be strict liability offences. Therefore, most offences are not absolute liability offences, and usually will require an explicit statement in the statute. 

To determine if an offence is an absolute liability offence, the courts must look at:

  • The overall regulatory pattern;
  • The subject matter of the legislation;
  • The importance of the penalty; and
  • The precision of the language used in the statute.

The combination of an absolute liability offence and the possible sentence of jail is a violation of section 7 of the Canadian Charter of Rights and Freedoms and unconstitutional. Specifically, jail violates a person's liberty and an absolute liability offence is not in accordance with the principles of fundamental justice.

So it does not matter why you were speeding; you are absolutely liable. But this does not mean that there is nothing that can be done to challenge a traffic ticket.