Due Diligence: Difference between revisions
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{{HeaderDefences}} | {{HeaderDefences}} | ||
==General Principles== | ==General Principles== | ||
{{seealso|Regulatory and Provincial Offences}} | {{seealso|Regulatory and Provincial Offences}} | ||
Once the Crown proves the elements of a regulatory or provincial offence or otherwise establishes a duty upon the accused, the onus is on the accused to establish due diligence. This must be proven on a balance of probabilities.<ref> | Once the Crown proves the elements of a regulatory or provincial offence or otherwise establishes a duty upon the accused, the onus is on the accused to establish due diligence. This must be proven on a balance of probabilities.<ref> | ||
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</ref> | </ref> | ||
The conduct of the accused is measured against that of "a reasonable person in similar circumstances".<ref> | The conduct of the accused is measured against that of "a reasonable person in similar circumstances".<ref> | ||
Lévis (City) v Tétreault; Lévis (City) v 2629-4470 Québec inc., [http://canlii.ca/t/1n0zk 2006 SCC 12] (CanLII), [2006] 1 SCR 420{{perSCC|LeBel J}} at para 15 ( “the accused in fact has both the opportunity to prove due diligence and the burden of doing so. An objective standard is applied under which the conduct of the accused is assessed against that of a reasonable person in similar circumstances.”)<br> | ''Lévis (City) v Tétreault; Lévis (City) v 2629-4470 Québec inc.'', [http://canlii.ca/t/1n0zk 2006 SCC 12] (CanLII), [2006] 1 SCR 420{{perSCC|LeBel J}} at para 15 ( “the accused in fact has both the opportunity to prove due diligence and the burden of doing so. An objective standard is applied under which the conduct of the accused is assessed against that of a reasonable person in similar circumstances.”)<br> | ||
</ref> | </ref> | ||
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===Reasonable Care=== | ===Reasonable Care=== | ||
Due diligence requires the accused to "take all reasonable steps" or "all reasonable care" to avoid the harm that resulted. <ref> | Due diligence requires the accused to "take all reasonable steps" or "all reasonable care" to avoid the harm that resulted. <ref> | ||
R v British Columbia Hydro and Power Authority, [http://canlii.ca/t/1f4qc 1997 CanLII 4373] (BC SC), [1997] BCJ No. 1744 (S.C.){{perBCSC|Lamperson J}}, at para 55 ("In other words, an accused must take all reasonable steps to avoid harm. However, that does not mean an accused must take all conceivable steps.")<br> | ''R v British Columbia Hydro and Power Authority'', [http://canlii.ca/t/1f4qc 1997 CanLII 4373] (BC SC), [1997] BCJ No. 1744 (S.C.){{perBCSC|Lamperson J}}, at para 55 ("In other words, an accused must take all reasonable steps to avoid harm. However, that does not mean an accused must take all conceivable steps.")<br> | ||
Pontes, at | ''R v Pontes'', [http://canlii.ca/t/1frgr 1995 CanLII 61] (SCC), [1995] 3 SCR 44{{perSCC|Cory J}}{{at|32}}<br> | ||
</ref> | </ref> | ||
Due diligence defence is also available where the accused "had an honest but mistaken belief in facts which, if true, would render the act innocent".<ref> | Due diligence defence is also available where the accused "had an honest but mistaken belief in facts which, if true, would render the act innocent".<ref> | ||
Pontes at para 32<br> | {{ibid1|Pontes}} at para 32<br> | ||
</ref> | </ref> | ||
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''R v Carpentier'', [http://canlii.ca/t/1m1bb 2005 MBCA 134] (CanLII){{perMBCA|Steel JA}}{{at|27}}<br> | ''R v Carpentier'', [http://canlii.ca/t/1m1bb 2005 MBCA 134] (CanLII){{perMBCA|Steel JA}}{{at|27}}<br> | ||
Ariganello at para 18<br> | Ariganello at para 18<br> | ||
R v Defaria [2008] OJ No 5427, [http://canlii.ca/t/223td 2008 ONCJ 687] (CanLII){{perONCJ|Duncan J}}{{at|16}}</ref> | ''R v Defaria'' [2008] OJ No 5427, [http://canlii.ca/t/223td 2008 ONCJ 687] (CanLII){{perONCJ|Duncan J}}{{at|16}}</ref> | ||
This is considered from the perspective of a reasonable person in similar circumstances.<ref> | This is considered from the perspective of a reasonable person in similar circumstances.<ref> | ||
La Souveraine, Compagnie d'assurance générale v Autorité des marchés financiers, [http://canlii.ca/t/g1xm8 2013 SCC 63] (CanLII){{perSCC|Wagner J}}, a accused can "avoid liability by showing that he or she took all reasonable steps to avoid the particular event .... The defence of due diligence is based on an objective standard: it requires consideration of what a reasonable person would have done in similar circumstances.") | ''La Souveraine, Compagnie d'assurance générale v Autorité des marchés financiers'', [http://canlii.ca/t/g1xm8 2013 SCC 63] (CanLII){{perSCC|Wagner J}}, a accused can "avoid liability by showing that he or she took all reasonable steps to avoid the particular event .... The defence of due diligence is based on an objective standard: it requires consideration of what a reasonable person would have done in similar circumstances.") | ||
</ref> | </ref> | ||
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==Industry Standards and Practices== | ==Industry Standards and Practices== | ||
Compliance with industry standard practice is a factor that weighs in favour of due diligence but it not determinative.<ref> | Compliance with industry standard practice is a factor that weighs in favour of due diligence but it not determinative.<ref> | ||
see R v Emil K. Fishing Corp.; | see ''R v Emil K. Fishing Corp.; R v Kukuljan'', [http://canlii.ca/t/21qzn 2008 BCCA 490] (CanLII), [2008] BCJ No. 2326; 304 DLR (4th) 725{{perBCCA|Groberman JA}} leave refused<br> | ||
''R v Bui'', [2005] OJ No 1456(C.J.){{NOCANLII}}<br> | ''R v Bui'', [2005] OJ No 1456(C.J.){{NOCANLII}}<br> | ||
</ref> | </ref> | ||
Industry standards and practice cannot be of any value to due diligence if it is established that the standard is insufficient. It then cannot be used as a shield against responsibility.<ref> | Industry standards and practice cannot be of any value to due diligence if it is established that the standard is insufficient. It then cannot be used as a shield against responsibility.<ref> | ||
R v London Excavators & Trucking Ltd., (1997) 26 C.C.E.L.(2d) 132 (Ont. P.C.), [http://canlii.ca/t/6gwm 1998 CanLII 3479] (ON CA){{perONCA|Catzman JA}}<br> | ''R v London Excavators & Trucking Ltd.'', (1997) 26 C.C.E.L.(2d) 132 (Ont. P.C.), [http://canlii.ca/t/6gwm 1998 CanLII 3479] (ON CA){{perONCA|Catzman JA}}<br> | ||
R v Pilen Construction of Canada Ltd. [1999] OJ No 5650, affd [2001] OJ No 2980 (S.C.J.){{NOCANLII}}<br> | 'R v Pilen Construction of Canada Ltd.'' [1999] OJ No 5650, affd [2001] OJ No 2980 (S.C.J.){{NOCANLII}}<br> | ||
Libman, Regulatory Offences in Canada, at page 7-27 (“…a defendant cannot hide behind commonly accepted standards of care if, in the circumstances, due diligence warrants a higher level of care.”)<br> | Libman, Regulatory Offences in Canada, at page 7-27 (“…a defendant cannot hide behind commonly accepted standards of care if, in the circumstances, due diligence warrants a higher level of care.”)<br> | ||
</ref> | </ref> | ||
Revision as of 21:04, 16 January 2019
- < Criminal Law
- < Defences
General Principles
Once the Crown proves the elements of a regulatory or provincial offence or otherwise establishes a duty upon the accused, the onus is on the accused to establish due diligence. This must be proven on a balance of probabilities.[1] The conduct of the accused is measured against that of "a reasonable person in similar circumstances".[2]
This defence is, by definition, only applicable to "strict liability" offences and not "absolute liability" offences.[3]
- ↑
e.g. R v Ariganello, 2013 ONCJ 13 (CanLII), per Baldwin J
R v Pontes, 1995 CanLII 61 (SCC), [1995] 3 SCR 44, per Cory J, at para 32
- ↑
Lévis (City) v Tétreault; Lévis (City) v 2629-4470 Québec inc., 2006 SCC 12 (CanLII), [2006] 1 SCR 420, per LeBel J at para 15 ( “the accused in fact has both the opportunity to prove due diligence and the burden of doing so. An objective standard is applied under which the conduct of the accused is assessed against that of a reasonable person in similar circumstances.”)
- ↑
Pontes, at para 32
see also Regulatory and Provincial Offences
Reasonable Care
Due diligence requires the accused to "take all reasonable steps" or "all reasonable care" to avoid the harm that resulted. [1]
Due diligence defence is also available where the accused "had an honest but mistaken belief in facts which, if true, would render the act innocent".[2]
It is not necessary that the accused take all conceivable steps, however.[3]
In assessing due diligence, WD test for credibility does not apply.[4]
This is considered from the perspective of a reasonable person in similar circumstances.[5]
This does not mean that the accused would be required to perform acts that would put the accused in unreasonable danger.
- ↑
R v British Columbia Hydro and Power Authority, 1997 CanLII 4373 (BC SC), [1997] BCJ No. 1744 (S.C.), per Lamperson J, at para 55 ("In other words, an accused must take all reasonable steps to avoid harm. However, that does not mean an accused must take all conceivable steps.")
R v Pontes, 1995 CanLII 61 (SCC), [1995] 3 SCR 44, per Cory J, at para 32
- ↑
Pontes, ibid. at para 32
- ↑ BC Hydro and Power Authority at para 55
- ↑
R v Carpentier, 2005 MBCA 134 (CanLII), per Steel JA, at para 27
Ariganello at para 18
R v Defaria [2008] OJ No 5427, 2008 ONCJ 687 (CanLII), per Duncan J, at para 16 - ↑ La Souveraine, Compagnie d'assurance générale v Autorité des marchés financiers, 2013 SCC 63 (CanLII), per Wagner J, a accused can "avoid liability by showing that he or she took all reasonable steps to avoid the particular event .... The defence of due diligence is based on an objective standard: it requires consideration of what a reasonable person would have done in similar circumstances.")
Industry Standards and Practices
Compliance with industry standard practice is a factor that weighs in favour of due diligence but it not determinative.[1]
Industry standards and practice cannot be of any value to due diligence if it is established that the standard is insufficient. It then cannot be used as a shield against responsibility.[2]
- ↑
see R v Emil K. Fishing Corp.; R v Kukuljan, 2008 BCCA 490 (CanLII), [2008] BCJ No. 2326; 304 DLR (4th) 725, per Groberman JA leave refused
R v Bui, [2005] OJ No 1456(C.J.)(*no CanLII links)
- ↑
R v London Excavators & Trucking Ltd., (1997) 26 C.C.E.L.(2d) 132 (Ont. P.C.), 1998 CanLII 3479 (ON CA), per Catzman JA
'R v Pilen Construction of Canada Ltd. [1999] OJ No 5650, affd [2001] OJ No 2980 (S.C.J.)(*no CanLII links)
Libman, Regulatory Offences in Canada, at page 7-27 (“…a defendant cannot hide behind commonly accepted standards of care if, in the circumstances, due diligence warrants a higher level of care.”)