The almighty and the overlooked: Classification of offences in Canada
Arguably one of the more “over looked” considerations by frontline enforcement officers is that of the actual classification scheme of offences in Canada. You may be asking yourself, “Is he alluding to the difference between a traffic violation and having open liquor in an unlicensed public place?” The short answer to this question is “no.”
November 10, 2018 By Brian Lass
In 1978, the Supreme Court of Canada heard the case of R v. Sault Ste. Marie (City). This case revolved around an environmental offence: disposing waste materials by an open water source. More so than the “subject matter” however, R v. Sault Ste. Marie (City) became a precedent case for a very different reason. Namely, the presiding Justice set in stone a bold sentiment; that there are only three types of offences in Canada:
• Mens Rea
• Strict Liability
• Absolute Liability
Imagine…regardless of all the varying legislation, which exists town-to-town, city-to-city, province-to-province, in the form of municipal bylaws, federal or provincial regulatory offences, etc., that there are only three types of offences in all of Canada. And each of course comes with its own threshold and burden of proof.
Now, before I continue, a very relevant question can indeed (and should) be posed here:
Why does a frontline enforcement officer need to know (and understand) the classification scheme of offences?
As we know from my previous article, a very large part of an officer’s role is that of what we are calling “court process and procedure.” Namely this means gathering and providing evidence (in all forms) in respect of a charge that he/ she laid – further providing the necessities of which prosecution needs so as to solidify a reasonable prospect of conviction.
With the above in mind, when an Officer is compiling evidence in respect of a charge (i.e. writing their memo book notes, obtaining CCTV imagery or photographs, etc.), this evidence is of course aimed at a “purpose.” But, is this “purpose” only for the reasons of proving whether or not the accused did the actual “physical act” of which he or she is alleged to have done? This is an area which arguably gets overlooked.
To best provide a simplified answer to the question “why does an officer need to understand the classification of offences,” I can articulately utilize only one word as an answer: “focus.”
An officer’s evidence needs to be more than just focused on the actual “illegal act” itself. More specifically, the “focus” should be aimed at the respective threshold or burden of proof pertaining to the “type” of offence in question, as per the classification scheme of offences. There can sometimes be a lot of very important relevant and material evidence that gets overlooked, which in fact may very well be the difference between whether or not a specific threshold or burden of proof is met.
To better understand the paragraph above, let us examine the actual classification scheme of offences more closely – one by one – and dissect the burden of proof associated with each type of offence.
Most commonly associated with Criminal Offences under the Criminal Code of Canada, Mens Rea is Latin for “the guilty mind.” The Crown/ prosecution has the burden of proving “intent” (the Mens Rea). Depending on the offence, intent could include knowledge or recklessness. A typical tell-tale sign of a Mens Rea offence is a long-form wording, which eludes to doing something “knowingly.”
Speaking to Mens Rea, intent can be most easily proven by way of admissions that the defendant may make (of which is a whole other topic). Further, intent can be proven by way of a “common sense approach,” in which people ordinarily intend the “usual or assumed” consequences of their actions.
As an officer who has laid a charge respective of a Mens Rea offence, you will want to make sure that you are articulating (in your evidence) anything that lends itself to the notion that the accused “knew” and even “understood” what he or she was doing.
As an example; perhaps the offence was “knowingly provided false information to a proper authority.” Could it be that the defendant provided false verbal identification and was arrested for obstruction of a peace officer? Perhaps during a search incident to arrest, you found a wallet in the defendant’s pant pocket, which contained a photo driver’s license that confirmed their true identity? Perhaps during your search, you even came across an item in that same wallet which was dated for that day (suggesting even further that the accused had recent access to that wallet). This is most certainly the type of information you want to be sure to record and elaborate on, as it can paint quite a clear and concise picture for a trier of fact in court at trial.
Sometimes referred to as a “Reverse Onus” offence, all provincial/ regulatory offences are presumed to be that of Strict Liability. This type of offence (much like all other offences) includes the prosecution needing to prove the Actus Reus beyond a reasonable doubt. However (and in light of the term “Reverse Onus”), the defendant then has the burden to prove on a “Balance of Probabilities” that he or she:
• Had a belief in a mistaken fact or set of facts, of which if they were true, would absolve the defendant from guilt. Or,
• Took all reasonable care in the matter not to commit the illegal act.
If the defendant can meet the above noted threshold, this is most commonly referred to as a defence of “due diligence.” As such, an officer who has laid a charge in respect of a Strict Liability offence, will want to focus his or her evidence around three main factors;
1) As with any offence, the officer must compile evidence which “speaks” to the actual illegal act (Actus Reus) being committed beyond a reasonable doubt.
2) The officer must compile and provide all evidence that speaks to the defendant, having been given “notice” that what he or she is alleged to have done was contrary to the law. In other words, the officer must bring to light all evidence which will “outweigh” any suggestion that the defendant had a “reasonable mistake of fact”. There are a number of ways in which the officer can best demonstrate this in his or her evidence – including, but not limited to;
a.) Recording the presence of signage, inclusive of what the signage graphically depicted, the size of the signage, the location of the signage in relation to the defendant at the time of the alleged offence, how the signage was posted (i.e. fastened by metal bolts in to a concrete pole), the material used to make the signage (i.e. a metal sign versus a “sticker,”) etc.
b.) Recording the presence of “marking systems” or “barrier type systems” (i.e. universally recognized yellow painted markings on the ground, metal chain-link fences, etc.) and their relation/ proximity to the alleged offence.
c.) Taking note of auditory announcements/ notifications, including the frequency of the announcements, what exactly the announcements stated, etc.
d.) Taking note of any and all evidence which speaks to the defendant’s familiarity or regularity with the location of the alleged offence. As an example, perhaps the location was a subway station during the regular morning weekday rush hour commute, and the defendant was wearing a business suit and tie, dress shoes, carrying a brief case, and had a CIBC Bank employee ID hanging from his belt. The aforementioned is all information which would be relevant and should be documented, as it speaks to the defendant “knowing and understanding” his surroundings and therefore having a presumed understanding of proper decorum and behaviour in the respective environment.
3) The officer must compile and provide all evidence which speaks to the defendant not having taken all reasonable care in the matter, so as to not commit the alleged offence. In other words, the officer will want to bring to light all the “reasonable and legal alternatives” that existed in the scenario, of which the defendant could have done, as opposed to the illegal act in question.
However, with the aforementioned in mind, one alternative that always exists is “to do nothing.” As such, the officer will want to highlight the blatant illegality of the action in question – as, if an activity cannot be carried on legally, then it should not be carried on at all. By noting all the immediate and at “face-value” inferences in the scenario, which lend to the obvious and impending illegalities of the act in question (i.e. safety concerns, etc.), it will be much harder for the defendant to demonstrate that he or she took reasonable care in the matter.
An Absolute Liability offence can best be described as an “either you did or did not” type of offence. The defendant is actually liable whether at “fault” or not. In other words, proving intent and/or demonstrating mistake of fact or reasonable care are not considerations. As such, Absolute Liability offences have the lowest threshold or burden of proof; in that the Actus Reus (actual illegal act itself) merely has to be proven beyond a reasonable doubt.
To better paint a picture in respect of the above paragraph, let’s take the following example:
Perhaps the offence in question is “Fail to Produce Valid Ticket When Directed” and it is being enforced by a fare inspector for a public transportation agency. The aforementioned offence is an example of an Absolute Liability offence, in that either the defendant did or did not produce a valid ticket when directed.
Although only the Actus Reus (illegal act) is the main focal point of an Absolute Liability offence (technically speaking), a best practice for officers would be to still record any and all evidentiary considerations of which would be applicable to either Mens Rea, Strict Liability, or both for that matter.
By doing so, it will be easy to paint a very vivid picture for the trier of fact in court – further potentially bringing to light the circumstances as to how the illegal act was likely incepted and/or committed at the time.
There are defences which exist and can be brought in light of an Absolute Liability offence by the defendant. Although they are not all that common (or likely), they do exist and include the defence of Automatism and the more practical defence of Necessity. As such, you will want to record all of your observations, which can speak to negating any plausible defence to the illegal act in question.
Brian Lass is a special constable and acting prosecutor with GO Transit/ Metrolinx in Toronto.
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