R. v. Pontes [1995] 3 S.C.R. 44: Motor Vehicle Act provides that a person convicted of an offence under certain sections of the Act is "automatically and without notice" prohibited from driving a motor vehicle for 12 months -- creates absolute liability offence -- Ignorance of the law

Present: Lamer C.J. and La Forest, L'Heureux-Dubé, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR BRITISH COLUMBIA

Constitutional law -- Charter of Rights -- Fundamental justice -- Provincial motor vehicle offence -- Absolute or strict liability -- Accused charged with driving motor vehicle while prohibited -- Whether s. 94(1) of British Columbia Motor Vehicle Act, when read in conjunction with s. 92, creates absolute liability offence which violates s. 7 of Canadian Charter of Rights and Freedoms -- Ignorance of the law -- Notice.

Criminal law -- Provincial motor vehicle offence -- Absolute or strict liability -- Accused charged with driving motor vehicle while prohibited -- Whether combined effect of ss. 94(1) and 92 of British Columbia Motor Vehicle Act creates absolute or strict liability offence.

The accused was charged with driving a motor vehicle at a time when he was prohibited from driving under s. 92 of the British Columbia Motor Vehicle Act, contrary to s. 94(1) of that Act. Section 92 provides that a person convicted of an offence under certain sections of the Act, including s. 94(1), is "automatically and without notice" prohibited from driving a motor vehicle for 12 months. Section 94(1) provides that a person who drives a motor vehicle on a highway while he is prohibited from driving under certain sections of the Act, including s. 92, commits an offence and is liable to a fine and to imprisonment. The accused was acquitted at trial. The trial judge found that s. 94(1), in combination with s. 92, created an absolute liability offence for which imprisonment was a penalty, thereby contravening s. 7 of the Canadian Charter of Rights and Freedoms. Pursuant to s. 52 of the Constitution Act, 1982, the reference to s. 92 in s. 94(1) was declared of no force or effect. The summary conviction appeal court and the Court of Appeal upheld the trial judge's decision.

Held (La Forest, L'Heureux-Dubé, Gonthier and McLachlin JJ. dissenting): The appeal should be dismissed.

Per Lamer C.J. and Sopinka, Cory, Iacobucci and Major JJ.: The fundamental aspect of the offence created by ss. 94(1) and 92 of the Motor Vehicle Act is that a person convicted of the underlying offence is "automatically and without notice" prohibited from driving a motor vehicle. The words "automatically and without notice" in s. 92 go far towards establishing that this is an absolute liability offence. The removal in 1986 of s. 94(2), which provided that s. 94(1) was an absolute liability offence, does not change the offence into one of strict liability since the situation has not been altered in any significant manner. Furthermore, the defence of due diligence must be available to defend a strict liability offence. When, as a result of the wording of the section, the only possible defence an accused could put forward is his ignorance of the fact that his licence had been suspended by the provisions of the provincial statute, which constitutes a mistake of law and therefore is not available as a defence, an accused is denied the defence of due diligence. Here, because the prohibition on driving in s. 92 is automatic and without notice, s. 94(1) effectively prevents an accused who is unaware of the prohibition from raising that defence. In those circumstances, the offence ought to be characterized as one of absolute liability.

Nevertheless the absolute liability offence created by s. 94(1) and s. 92 does not contravene the Charter. This conclusion flows from the application of s. 4.1 and of s. 72(1) of the British Columbia Offence Act. These sections respectively indicate that, notwithstanding the provisions of any other Act, no person is liable to imprisonment for an absolute liability offence, and that the non-payment of a fine will not result in imprisonment. Thus, an accused convicted under ss. 94(1) and 92 faces no risk of imprisonment and there is, accordingly, no violation of the right to life, liberty and security of the person under s. 7 of the Charter.

The legislature could convert the offence to one of strict liability by permitting the defence of due diligence to be raised. If there was any concern that those accused of the offence would defend on the basis that they had no knowledge of its effect, a provision requiring that notice be given of its consequences could be added.

In this case an order directing a new trial would ordinarily be the appropriate result. In the present circumstances, however, to direct a new trial would be unfair and unduly harsh to the accused, who has been brought before every level of court at the Crown's instigation. This appeal was lodged solely to determine whether the offence in question was one of absolute or strict liability. That question is now resolved and the appeal should be dismissed.

Per La Forest, L'Heureux-Dubé, Gonthier and McLachlin JJ. (dissenting): The Motor Vehicle Act is public welfare or regulatory legislation. The impugned provisions are aimed at keeping bad drivers off the road; they are not prohibitions which are "criminal in the true sense". As a result, this offence is prima facie one of strict liability. Further, the legislature has not clearly indicated that the offence created by the combination of ss. 92 and 94(1) is one of absolute liability. The phrase "automatically and without notice" simply highlights that the 12-month statutory prohibition is to take effect immediately and by operation of law without any requirement that notice be given by the Superintendent of Motor Vehicles or received by a driver who is prohibited from driving under the statute. An accused cannot seek solace in the failure to provide notice of the applicable statutory prohibition, since ignorance of the law is never an excuse for breaking the law. As well, the impugned provisions allow for the defences of reasonable mistake of fact and due diligence. Accordingly, the prima facie characterization of this public welfare legislation as being of strict liability is confirmed.

A strict liability offence requires the minimal mental element of negligence in order to ground a conviction. Negligence consists in an unreasonable failure to know the facts which constitute the offence, or the failure to be duly diligent to take steps which a reasonable person would take. Since ignorance of the law is not an excuse for breaking the law, due diligence consists in taking steps to fulfil a duty imposed by law and not in the ascertainment of the existence of a statutory prohibition or its interpretation. Exceptionally, where knowledge that conduct is prohibited is itself part of the mens rea, the absence of knowledge provides a good defence.

Here, s. 92 creates the 12-month driving prohibition which is effective automatically and without notice upon conviction of one of the underlying offences. The factual element comprising the actus reus consists in the driving of a motor vehicle having previously been convicted of one of the underlying offences. Since there is no mens rea specified, it must be inferred from the actus reus and, because this is a regulatory offence, the mens rea consists in negligence in relation to any of the elements of the actus reus, but not in relation to the existence of this statutory prohibition or its interpretation, since that would be ignorance or mistake of law. Consequently, a person charged with driving while under a statutory prohibition can avoid conviction if he demonstrates, on the preponderance of the evidence, that he made a reasonable mistake of fact as to the existence of his conviction, or that he exercised due diligence to ascertain whether he had been convicted of one of the underlying offences. Defences are available in relation to all the factual elements of the actus reus, and this adequately meets the minimal constitutional requirement of fault for a public welfare or regulatory offence such as driving while under a statutory prohibition. Sections 92 and 94(1) of the Motor Vehicle Act are therefore entirely consistent with s. 7 of our Charter without any further requirements.

Since the impugned provisions already allow for due diligence in relation to all the factual elements of the actus reus, the due diligence called for by the majority, presumably as a principle of fundamental justice under s. 7 of the Charter, to cure the alleged constitutional deficiency in the provisions is nothing less than due diligence in relation to the existence of a legislative prohibition pertaining to a regulated activity or its interpretation -- that is, a defence of ignorance of the law. Our system of laws, however, has long held as axiomatic that ignorance of the law is not an excuse for breaking the law. This cornerstone of our law remains secure even after the passage of the Charter, and there is no conflict between it and the principles of fundamental justice. To expand the defence of due diligence to comprehend a defence of ignorance of the law undercuts the mistake of law rule and will render many of our laws unenforceable; as a corollary, this Court's decision in Molis appears to be impliedly overturned without any explanation. Furthermore, the impugned prohibition is a regulatory offence incident to a licensed activity. A regulated actor is deemed to have voluntarily accepted the terms and conditions attaching to the privilege of participating in a regulated activity. As a result, he cannot be described as morally innocent when he commits a regulatory offence. Finally, a legislature may choose, as a matter of policy, to provide a defence of ignorance of the law in relation to some, all or none of the statutory conditions of engaging in a regulated activity. Such a policy decision remains a matter over which the relevant representative body is entirely sovereign.

The provision of some form of notice of the law would convert the offence into one of full mens rea, since the accused would then be driving with actual subjective knowledge that he was prohibited under provincial legislation. Rather than an offence of full mens rea, the province chose a solution appropriately tailored to the regulatory context: an offence of strict liability. That solution adequately meets the exigencies of our Charter and is therefore a valid policy choice of full force and effect without any further requirement of notice.

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