Here‘s a thought-provoking article from the Wall Street Journal on the increasing number of offences, under U.S. criminal law, which do not require the state to prove that the accused had mens rea, or a “guilty mind”. It is somewhat surprising that this development should occur in the United States – birthplace of the Bill of Rights, which has inspired constitutional protection of citizens’ fundamental legal rights in liberal democracies around the world.
Canadian jurisprudence provides an interesting contrast to the recent U.S. experience. Ever since the Supreme Court of Canada’s decision in R. v. Sault Ste. Marie, which predated the Canadian Charter of Rights and Freedoms, Canadian courts have recognized three different categories of criminal or regulatory offences:
1) “true criminal” offences, which require proof of criminal intent beyond a reasonable doubt;
2) strict liability (or “public welfare”) offences, where it is open to the accused, once the prohibited act has been proven beyond a reasonable doubt, to avoid liability by proving that she or he exercised all due care to avoid the infraction; and
3) absolute liability offences, where proof of the prohibited act automatically results in conviction, without regard to the accused’s intent.
In subsequent decisions following the adoption of the Charter, the Supreme Court has provided further guidance on the state’s ability to create offences which do not require proof of criminal intent. In Re B.C. Motor Vehicle Act, the Court found that an absolute liability offence which included the possibility of a prison sentence was contrary to the principles of fundamental justice guaranteed by s. 7 of the Charter. However, in R. v. Wholesale Travel Group, the Court found that strict liability offences, as recognized in R. v. Sault Ste. Marie, are consistent with the Charter, even though they place a reverse onus on the accused to establish due diligence.
Canadian jurisprudence has struck a balance between requiring the state to prove a guilty mind in the case of true criminal offences, and allowing a reverse onus, or even absolute liability in some cases, for regulatory offences designed to protect public welfare, many of which regulate workplace activities.
Time will tell how U.S. courts reconcile the development of offences which do not require proof of a “guilty mind” with the protections of the Bill of Rights.