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Due diligence available for seat belt violation

The Ontario Court of Appeal has ruled that a driver may raise the defence of due diligence in fighting a failure to wear seat belt charge.

In R. v. Wilson, 2014 ONCA 212 a police officer was conducting spot checks while standing near a corner when he watched the accused stop at a stop sign. The officer noticed that Wilson’s seatbelt was hanging by his shoulder, directed him to pull over and issued him a Provincial Offences Notice for failing to wear a seatbelt, contrary to s. 106(2) of Ontario’s Highway Traffic Act.

At his trial Wilson said he had placed a coffee in a cup holder in the backseat of his car. While he was driving he noticed that it was spilling on his laptop. He testified that when the officer observed him, he had just pulled up to a stop sign and removed his seatbelt so he could straighten the cup. He said there was no other traffic around at the time and he intended to put his seatbelt back on as soon as he fixed the cup.

Wilson was convicted after the Justice of the Peace held that failing to wear a seatbelt was an absolute liability (no-fault) offence.

Wilson appealed his conviction to the Ontario Court of Justice arguing, among other grounds, that the offence for a driver failing to wear a seatbelt was one of strict rather than absolute liability. The judge agreed, concluding that s. 106(2) was a strict liability offence, affording him a due diligence defence. A new trial was ordered.

The Crown challenged the ruling classifying the offence as one of strict liability before Ontario’s highest court.

A strict liability offence lies “between the extremes of true criminal offences that require proof of a guilty state of mind (intention, knowledge or recklessness) and public welfare offences imposing absolute liability, where conviction will follow upon proof that the accused did the prohibited act with no consideration of the accused’s state of mind or degree of fault.”

With a strict liability offence, the prosecution makes its case by proving the prohibited act was committed, but the accused may avoid conviction by proving, on a balance of probabilities, that they took reasonable care to avoid the prohibited act.

In most cases, Ontario’s Highway Traffic Act does not clearly specify the level of fault required. The courts are left with the task of determining which of the three categories the offence falls within. As for s. 106(2), the Ontario Court of Appeal found the offence of a driver failing to wear a seatbelt was one of strict liability and that there wasn’t anything in the way the offence is defined to rebut the strong presumption of strict liability, as articulated in R. v. Sault Ste. Marie, (1978) 2 S.C.R. 1299, where the Supreme Court of Canada held that “punishment should in general should not be inflicted on those without fault.”

First, there wasn’t anything in the language of the statute to displace the presumption of strict liability. Second, s. 106 is a detailed statutory scheme regarding seatbelts and does not specify the level of fault required. Third, as the appeal court noted, “it is not impossible to imagine situations where a driver finds him or herself not securely seat belted despite having taken reasonable steps to secure the belt.”

Fourth, although a s. 106(2) offence involves a simple act entirely within the control of the driver, it is quite possible that a driver could take reasonable steps to fasten his or her seat belt only to find that the belt did not close properly or had come undone. Although the defence of due diligence will be rare, the small chance of success should not deprive the driver of the opportunity to present it.

Finally, the presence of statutory exceptions to wearing a seatbelt – driving in reverse, medical reasons or work-related need – did not have any bearing on the classification of the offence.

“The exceptions exclude the prosecution of certain individuals who have very specific needs and reasons not to wear a seat belt,” said Justice Sharpe. “The exceptions neither arise from nor relate to the concept of due diligence.”

In conclusion, the court noted that a due diligence defence will not be made out by acting generally in a reasonable way. Rather, “a defence of due diligence to this charge would only be made out where, although the driver was found not wearing his or her seat belt when driving, the driver had taken all reasonable care to wear the seat belt.”

The Crown’s appeal was dismissed.