Due Diligence
| This page was last substantively updated or reviewed March 2019. (Rev. # 82179) |
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General Principles
All offences of strict liability do not require the Crown to prove any mens rea, there only needs to be an actus reus proven. For any of these offences, it is open to the accused either to raise a defence of due diligence by establishing that reasonable care was taken or by raising a defence of mistake of fact.[1]
Once the Crown proves the elements of a regulatory or provincial "strict liability" 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.[2] The conduct of the accused is measured against that of "a reasonable person in similar circumstances."[3]
This defence is, by definition, only applicable to "strict liability" offences and not "absolute liability" offences.[4]
- ↑ R v Sault Ste. Marie, 1978 CanLII 11 (SCC), [1978] 2 SCR 1299, per Dickson J
- ↑
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 ("...a person accused of a strict liability offence may avoid conviction by proving, on the balance of probabilities, either that he had an honest but mistaken belief in facts which, if true, would render the act innocent, or that he exercised all reasonable care to avoid committing the offence.")
- ↑
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, supra, at para 32 (".. if neither of these two facets of the defence of due diligence is available to an accused, the offence cannot be said to be one of strict liability. By definition, a strict liability offence requires that the defence of due diligence be available. Put another way, if the offence does not permit a due diligence defence, then it cannot be a strict liability offence.")
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, supra, at para 55
- ↑
R v Carpentier, 2005 MBCA 134 (CanLII), 203 CCC (3d) 251, per Steel JA, at para 27
R v Ariganello, 2013 ONCJ 13 (CanLII), per Baldwin J, at para 18
R v Defaria, 2008 ONCJ 687 (CanLII), [2008] OJ No 5427, per Duncan J, at para 16 ("...the matter in issue was due diligence... . In my view, it would be illogical and inappropriate to give the defendant the benefit of reasonable doubt on credibility when he bears the burden of proof on a balance of probabilities. I am firmly of the view that W.D. has no application to regulatory offences where the defence of due diligence is to be assessed by the trial court.") - ↑ La Souveraine, Compagnie d'assurance générale v Autorité des marchés financiers, 2013 SCC 63 (CanLII), [2013] 3 SCR 756, 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., 1998 CanLII 3479 (ON CA), (1997) 26 C.C.E.L.(2d) 132 (Ont. P.C.), per Catzman JA
R v Pilen Construction of Canada Ltd. [1999] OJ No 5650, affd [2001] OJ No 2980 (SCJ)(*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.”)