The Type Of Offence You Have

The good news is that provincial offences are presumed to be strict liability offences unless there is proof otherwise.

In a recent ruling, R. v. Kanda, 2008, the Ontario Court of Appeal examined the language of the Highway Traffic Act to determine the kinds of offences it contains.

Here are some examples:

• mens rea - 104(2.2) No parent or guardian of a person under sixteen years of age shall authorize or knowingly permit that person to ride on or operate a bicycle on a highway unless the person is wearing a bicycle helmet as required by subsection (2.1). [Emphasis added.]
• strict liability - 75(4) A person having the control or charge of a motor vehicle shall not sound any bell, horn or other signaling device so as to make an unreasonable noise, and a driver of any motor vehicle shall not permit any unreasonable amount of smoke to escape from the motor vehicle, nor shall the driver at any time cause the motor vehicle to make any unnecessary noise, but this subsection does not apply to a motor vehicle of a municipal fire department while proceeding to a fire or answering a fire alarm. [Emphasis added.]
• absolute liability - 84.1(1) Where a wheel becomes detached from a commercial motor vehicle, or from a vehicle being drawn by a commercial motor vehicle, while the commercial motor vehicle is on a highway, the operator of the commercial motor vehicle and the owner of the vehicle from which the wheel became detached are guilty of an offence...
  (5) It is not a defence to a charge under subsection (1) that the person exercised due diligence to avoid or prevent the detaching of the wheel. [Emphasis added.]

Do Your Homework

Examine the wording of your charge and the Act carefully. The court concluded that the Ontario legislature knows the language necessary to clearly indicate the type of charge. If they haven't, then you have a very good chance of convincing the court that your charge is, by default, a strict liability offence. This gives you an excellent defence against your charge: you did what any other well intentioned, reasonable person would have done in that situation.

Bad News

Sadly there is one important exception. Unlike other Canadian provinces, Ontario's courts have interpreted speeding to be an absolute liability charge. This interpretation became even more awkward when Ontario passed stunt driving legislation which included the possibility of imprisonment if you speed 50km/hr over the limit. If imprisonment is a potential penalty, the Supreme Court of Canada ruled that the charge cannot be considered an absolute liability offence.

To resolve this discrepancy, in R. v. Raham, 2010 Ontario's highest court interpreted that up to 49km/hr over the limit, the charge is an absolute liability offence. At 50km/hr over the limit, the charge becomes a strict liability offence and a defendant can use a due diligence defence.

In other words, if you are driving faster than the posted limit, no excuse or explanation will get you off the hook. BUT if you speed up and go really fast, then you can provide a reasonable explanation! Only in Ontario folks. Only in Ontario.

Be Careful

If you are considering using a due diligence defence, be careful. What you did may not be reasonable. Remember, the justice has to agree with you. You have to be very convincing. A good test before your trial is to ask an IMPARTIAL person if they think what you did was reasonable. If they have any reservations, don't argue with them, rethink your strategy or the way you describe it.

Admitting Guilt?

Wait a minute! Some of these strategies sound like pleading guilty with an explanation (Option 2 on the back of your ticket). Option 2 has been reworded to "Plea of Guilty - Submission as to Penalty" to clarify what that option means. You are pleading guilty and you will present arguments why you shouldn't face the full penalty.

There is a very important difference. When you plead guilty under Option 2, you are guilty. The justice can't find you innocent anymore. The trial is over. The verdict is in. You've already said you're guilty. The only thing left to do is determine how much to fine you.

If you request a trial under Option 3, you are pleading not guilty. The prosecutor can prove that you committed the illegal act. But if there are mitigating circumstances: no "guilty mind" (mens rea) or you didn't think you were breaking the law (morally innocent), it forces the justice to find you innocent. They can't convict an innocent person. The point is that your explanation is given BEFORE the trial ends and the verdict is rendered.