Ellis Don and Strict Liability for Provincial Offences:
Where has Sault Ste. Marie Gone?
Jeff Kehoe
Introduction
In R. v. Ellis Don,’ the Ontario Court of Appeal held that the principle of
strict liability approved by the Supreme Court of Canada in R. v. Sault Ste.
Marie2 violates the presumption of innocence in s. 11 (d) of the Canadian Char-
ter of Rights and Freedoms.’ The strict liability standard, as defined in Sault Ste.
Marie, operates to relieve the Crown of proving mens rea beyond a reasonable
doubt in prosecuting regulatory offences, and instead places the persuasive bur-
den on the accused to prove due diligence on a balance of probabilities. After
finding a violation of s. 11(d), a majority of the Court in Ellis Don went on to
* Student-at-Law, Constitutional Law and Policy Division, Attorney General of Ontario. The
views expressed in this paper are my own, and in no way represent the views of the Attorney Gen-
eral of Ontario. I would like to thank Philip Tunley and Donald Bur for their comments and their
insights.
McGill Law Journal 1991
Revue de droit de McGill
‘(1990), [1991] 1 O.R. (3d) 193 (C.A.) [hereinafter Ellis Don].
2[1978] 2 S.C.R. 1299, 85 D.L.R. (3d) 161 [hereinafter Sault Ste. Marie cited to S.C.R.].
The values and principles enunciated by a unanimous Court in Sault Ste. Marie are best sum-
marized in the judgment of Dickson J., as he then was. Mr. Justice Dickson set out three categories
of offences: mens rea offences, strict liability offences and absolute liability offences. Only the first
two categories were examined in Ellis Don. The first category encompasses those offences which
are criminal in the true sense, where the prosecution must prove “some positive state of mind such
as intent, knowledge or recklessness” (supra at 1325). Public welfare offences, such as the provi-
sion at issue in Ellis Don, would primafacie fall into the second category: strict liability offences.
Here, the prosecution need not prove mens rea:
the doing of the prohibited act prima facie imports the offence, leaving it open to the
accused to avoid liability by proving that he took all reasonable care … The defence
will be available if the accused reasonably believed in a mistaken set of facts, which
if true, would render the act or omission innocent, or if he took all reasonable steps to
avoid the particular event (supra at 1326).
The Court adopted the strict liability standard in Sault Ste. Marie because, as Dickson J. wrote
(supra at 1325) “[p]ublic welfare offences obviously lie in a field of conflicting values.” The con-
flicting values were stated as follows:
It is essential for society to maintain, through effective enforcement, high standards of
public health and safety. Potential victims of those who carry on latently pernicious
activities have a strong claim to consideration. On the other hand, there is a generally
held revulsion against punishment of the morally innocent (supra at 1323-24).
3Part I of the Constitution Act, 1982, being Schedule B of the Canada Act 1982 (U.K.), 1982,
c. 11 [hereinafter Charter].
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find that the regulatory provision at issue4 could not be justified under s. 1 of
the Charter.
By removing the persuasive burden on the accused, and replacing it with
the evidential burden of raising a reasonable doubt, the Ellis Don decision has
the potential to dramatically affect the manner in which the vast majority of pro-
vincial prosecutions are conducted. More importantly, it may affect the degree
of vigilance and attention accorded to safety standards by those subject to par-
ticular regulatory schemes, including occupational health and environmental
protection measures.
The decision in Ellis Don follows the Ontario Law Reform Commission’s
recent Report on the Basis of Liability for Provincial Offences.5 The Liability
Report recommended that the persuasive burden on the accused be dropped
from many provincial offences, and be replaced with the evidential burden of
raising a reasonable doubt (mandatory presumption).6 Both the Liability Report
and the Ellis Don decision are examples of the mechanical application of crim-
inal law principles to provincial regulatory schemes. Neither the Commission
nor the Court of Appeal made any substantive attempt to examine whether the
purpose behind the presumption of innocence, or the notion of fault itself, may
be different in the context of provincial regulatory offences than in the case of
true crimes. Nor did either body point to significant changes in these notions
since the Sault Ste. Marie decision with the advent of the Charter, so as to war-
rant such a major shift in our understanding of the operation of the presumption
of innocence in the regulatory context.
This Comment will critically examine the character of judicial scrutiny evi-
dent in Ellis Don, and analyze those portions of the Liability Report which are
relevant to the constitutionality of reverse onus provisions in strict liability
offences. The reasoning of the Court of Appeal in Ellis Don, particularly if it
is accepted by other courts in the country,7 has the potential to dramatically
affect a large number of regulatory offences in Canada. The strict liability stand-
ard with a reversal of the burden of proof is a measure adopted frequently by
legislatures across the country in dealing with regulatory offences. Environmen-
tal legislation, which often contains the type of provision under attack in Ellis
Don, is particularly vulnerable. All such provisions risk being altered or struck
down if Ellis Don-type reasoning prevails. The final section of this comment
4The provision in question was s. 37(2) of the Occupational Health and Safety Act, R.S.O. 1980,
c. 321 [hereinafter O.H.S.A.], which contains a reversal of the burden of proof: “it shall be a
defence for the accused to prove that every precaution reasonable in the circumstances was taken.”
5(Toronto: Ontario Law Reform Commission, 1990) (Chair: R.S. Abella) [hereinafter Liability
61bid. at 53-54.
7Leave to appeal the Ellis Don decision to the Supreme Court of Canada was granted June 14,
Report].
1991 (no. 22297).
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will address the specific situation confronting environmental legislation in
Canada.
I. The Ellis Don decision
A. The Facts and Issues
The respondent, Ellis Don Limited, was the general contractor in charge of
construction of the building where the accident occurred, and fell within the def-
inition of “constructor” in s. 1 of the Occupational Health and Safety Act.’ The
accident occurred when an elevator installation worker attempted to start pre-
liminary work in the elevator shaft on the thirteenth floor. After removing a pro-
tective barrier, the worker stepped onto a wooden “platform ‘9 erected inside the
shaft. On the date in question, the structure was only temporarily supported; it
could not sustain the worker’s weight and he fell thirteen floors to his death. The
respondents were charged under the O.H.S.A. Regulations with failure to
“ensure” that the structure erected in the shaft was capable of supporting the
weight required for a “platform.”
The specific issue in the case concerned whether s. 37(2) of the O.H.S.A.,
which requires employers and “constructors” to prove that all reasonable pre-
cautions have been taken, violates s. 11(d) of the Charter, and whether it can
be justified under s. 1.
B. Section 11(d) and the Presumption of Innocence
The Court of Appeal, consisting of Houlden, Galligan and Carthy JJ.A.,
unanimously held that the reverse onus placed on the accused by s. 37(2) of the
O.H.S.A. infringes s. 11 (d) of the Charter. The Court based its conclusions on
its own prior decision in R. v. Wholesale Travel Group and Cheodre.0 IIr Jus-
8Supra, note 4.
9Ellis Don argued at first instance that the structure was not a “platform” within the meaning
of the O.H.S.A. Regulations, R.R.O. 1980, Reg. 691, s. 61 [hereinafter O.H.S.A. Regulations],
which provides:
61 A runway, ramp or platform other than a scaffold platform shall
(a) be designed, constructed and maintained to support…all loads that may be
expected to be applied to it …; and
(c) be securely fastened in place.
Ellis Don therefore submitted in oral argument before the Court that the structure was never
intended to support the weight of a worker, but was merely a debris catcher. See, supra, note 1
at 206, Galligan J.A.
10(1989), [1990] 70 O.R. (2d) 545, 63 D.L.R. (4th) 325 [hereinafter Wholesale Travel]. Whole-
sale Travel involved a prosecution under ss 36 & 37 of the Combines Investigation Act, R.S.C.
1970, c. C-23 [hereinafter Competition Act], which make false advertising an offence. S. 37, which
contains a complex reverse onus provision and a statutory defence, was challenged under s. 11(d)
of the Charter. The Ontario Court of Appeal held two to one, Zuber J.A. dissenting, that the pro-
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tice Galligan, who gave the fullest discussion of the s. 11(d) issue in Ellis Don,
found that the presumption of innocence will be violated whenever an accused
must establish a defence on a balance of probabilities. Describing the distinction
between true crimes and regulatory offences as a “distinction without a legal
difference,”” he found that a reverse onus clause violates s. 11(d) even in the
regulatory context, because a court could be required to convict an accused
despite the existence of a reasonable doubt. 2
With nothing more than a mechanical application of recent Charter deci-
sions, the Court of Appeal overruled a long-standing and well accepted common
law standard, which had been sanctioned by the Supreme Court of Canada in
Sault Ste. Marie. The Court did not engage in the type of substantive analysis
necessary to explain the basis for such a significant departure in the law.
What is most unsettling is that the only statement made by Galligan J.A.
with respect to the scope of the right is made not in his discussion of s. 11 (d)
of the Charter, but rather in his analysis under s. 1. While discussing the pos-
sible justification of s. 37(2) of the O.H.S.A. under the minimal impairment
test, 3 Mr Justice Galligan states:
[I]t is now settled that s. 11(d) of the Charter implies proof of guilt beyond a rea-
sonable doubt … It is a common place that it is unacceptable for someone to be
convicted of an offence when there is a reasonable doubt. 14
This statement is puzzling as a proposition under the minimal impairment test,
as it would be more appropriately discussed with respect to the scope of the
right to be presumed innocent under s. 11 (d). The words of Galligan J.A. seem
to imply that since the enactment of the Charter, a complete shift in our con-
ception of the appropriate burden of proof has occurred. While the statement
that no one is to be convicted where there is a reasonable doubt as to guilt is
vision violated s. 11(d) because the accused could be convicted despite a reasonable doubt as to
its innocence.
Wholesale Travel was heard on appeal by the Supreme Court of Canada on February 18, 1991.
Judgment is forthcoming.
“Supra, note 1 at 200.
12lbid. at 202.
‘3R. v. Oakes, [1986] 1 S.C.R. 103, 26 D.L.R. (4th) 200 [hereinafter Oakes cited to S.C.R.] sets
out the well-known test for determining whether a legislative provision is “reasonable” and
“demonstrably justified in a free and democratic society” (Charter, s. 1). In brief, the test involves
two branches. The government must prove first, that the limiting measure is “of sufficient impor-
tance to warrant overriding a consitutionally protected right or freedom” (Oakes, stpra at 138,
quoting R. v. Big M DrugMart Ltd., [1985] 1 S.C.R. 295 at 352, [1985] 3 W.W.R. 481), and second,
that the effects of the impugned measure on the protected right are proportional to the objective
sought. Under the second branch, the impugned provision must pass the rational connection test
(see infra, note 47 and accompanying text), the minimal impairment test (see infra, note 51 and
accompanying text), and the proportionality test.
‘4Supra, note 1 at 202.
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obviously correct in the context of true crimes, it is not as clearly applicable to
regulatory offences. In the latter case it is instead a “common place,” through
the operation of Sault Ste. Marie and subsequent provincial legislation, that reg-
ulatory offences are prosecuted under a strict liability standard with a persuasive
burden on the accused.
Houlden J.A. also briefly remarks upon the distinction between true crimes
and regulatory offences in his discussion of s. 1. In addressing the issue of pro-
portionality, 5 Houlden J.A. adopts a large passage from the Ontario Law
Reform Commission Liability Report.6 That passage rejects what it terms the
“rigid distinction”‘ 7 between true crimes and regulatory offences, thus refusing
to accept the Sault Ste. Marie approach to categorization. The Liability Report
concludes that the seriousness of some provincial offences and of the possible
penalties faced by an accused upon conviction, make it too difficult to distin-
guish such offences from crimes. The reasons why this difficulty is viewed as
insurmountable remain virtually unexplained. 8 The only comment offered by
the Commission as to why the Sault Ste. Marie approach is no longer appropri-
ate is simply that the case was decided in an era of parliamentary supremacy,
when courts were compelled to acknowledge that a legislature could insist on
absolute liability; ‘ its right to implement a strict liability regime could not be
denied.
Others argue that the Commission has confused the analysis. Kent Roach
accuses the Liability Report of losing its focus “in a forest of abstraction.”2 He
faults the Commission for misapplying “criminal law orthodoxy and abstract
analysis of sections 7 and 11(d) of the Charter”‘” to provincial regulatory
offences.
The Ontario Court of Appeal in Ellis Don can be similarly faulted for mis-
applying their reasoning in Wholesale Travel to a case involving a very different
regulatory context.22 The Court made no concrete attempt to examine the dis-
tinctions between the federal competition legislation at issue in Wholesale
15 See Oakes, supra, note 13.
16Supra, note 1 at 211-12, quoting the Liability Report, supra, note 5 at 3.
17Ibid.
18This question is, in part, addressed in R. v. Wigglesworth, [1987] 2 S.C.R. 541 at 560-62, 45
D.L.R. (4th) 235, Wilson J. [hereinafter Wigglesworth cited to S.C.R.].
19Supra, note 5 at 12.
20K. Roach, “Report on the Basis of Liability for Provincial Offences” (1990) 69 Can. Bar Rev.
802 at 802.
21Ibid.
22It is to be noted that the history of the impugned provision in Wholesale Travel differs signif-
icantly from the O.H.S.A. section at issue in Ellis Don. While the O.H.S.A. is clearly regulatory
in nature, the false advertising provisions were only recently added to the Competition Act, having
originated in the Criminal Code, R.S.C. 1927, c. 36. For further discussion of this issue, see infra,
note 26 and accompanying text.
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Travel and the provincial worker safety legislation in Ellis Don in terms of how
the scope of protection afforded under s. 11(d) might vary in different contexts.
In some respects, the challenged provision in Wholesale Travel more
closely resembles a true crime than a regulatory provision. The case of Thomson
Newspapers Inc. v. Canada’ confirms that regulatory offences are different
from true crimes, in terms of both the nature of the conduct regulated and the
purposes behind its regulation. The typical concern of the criminal law system
is to reinforce society’s fundamental values. The activities which it prohibits,
such as violence or dishonesty, are viewed as violations of “common sense
standards of humanity”’24 meriting society’s disapproval and punishment. Regu-
latory offences, in contrast, are not generally designed to address conduct which
is by its very nature morally or socially reprehensible, and therefore worthy of
criminal sanction. Such offences relate instead to activities with respect to
which society wishes to maintain a minimum standard of conduct, and they aim
to ensure that the maintenance of a productive economic system remains con-
sistent with the values of individual liberty.’
The offence at issue in Wholesale Travel was false advertising,26 an offence
which is premised upon dishonesty, involving the perpetration of a fraud against
an unsuspecting buyer. It is therefore closely associated with criminal conduct,
and carries with it substantial stigma upon conviction. In fact, until 1968, the
offence of false advertising was to be found in the Criminal Code.” The social
concerns which prompted s. 37(2) of the O.H.S.A., as well as the level of stigma
to which an accused may be subject upon conviction, make the impugned pro-
vision in Ellis Don clearly distinct from that in Wholesale Travel.2″ These dis-
23[1990] 1 S.C.R. 425 at 509-11, 67 D.L.R. (4th) 161 [hereinafter Thomson cited to S.C.R.]. At
issue in the case was whether an accused enjoys the same right to protection against unreasonable
search and seizure provide by s. 8 of the Charter when charged under s. 17 of the Competition Act,
as under a criminal offence.
In distinguishing regulatory from criminal offences, La Forest J. quotes from the Law Reform
Commission of Canada, Criminal Responsibility for Group Action (Working Paper No. 16)
(Ottawa: Law Reform Commission of Canada, 1976) at 12.
24Thomson, ibid. at 509. La Forest J. is quoting from the Law Reform Commission of Canada,
Our Criminal Law (Report No. 3) (Ottawa: The Law Reform Commission of Canada, 1976) at 3,
5 & 7.
2Thomson, ibid. at 510.
26Competition Act, s. 37.
27Trade offences can be traced back to the Criminal Code, supra, note 22, ss 498-498A. A spe-
cific prohibition with respect to false advertising was added in a later revision of the Criminal
Code, S.C. 1953-1954, c. 51, s. 306, which remained in the Code until 1960. S. 306 was subse-
quently repealed, and was added as an amendment to the Combines Investigation Act, S.C.
1968-69, c. 38, s. 116 as s. 33D. In all versions, false advertising was an indictable offence pun-
ishable by imprisonment.
2SCarthy J.A. in Ellis Don, drew a further distinction between criminal and regulatory offences.
He stated that while criminal cases focus on the question of “did the accused do it,” regulatory
prosecutions examine “what standard of conduct is acceptable” (supra, note 1 at 224). Although
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tinctions could and should have been taken into account by the Court of Appeal
when it considered the scope of the operation of the presumption of innocence
in Ellis Don. The result of this cursory treatment is sterile jurisprudence in an
area of the law crucial both to the provinces, and to the people whom the reg-
ulatory provisions are designed to protect.
Without rigorous analysis, the Court in Ellis Don has mechanically
extended classic British criminal law principles of the presumption of inno-
cence29 to regulatory offences, thus ignoring strong legislative and judicial prec-
edent according to which different standards are to be applied.” The differences
between regulatory offences and the criminal law were carefully reviewed in
Sault Ste. Marie before the Supreme Court decided to adopt the strict liability
standard, and further support for the distinction is to be found in cases decided
since the Charter. The Court in Ellis Don nevertheless failed to consider the
Charter case law which had approved Sault Ste. Marie reasoning with respect
to strict liability.3
The Ontario Law Reform Commission falls into the same trap as the
majority in Ellis Don, adopting criminal law principles and applying them to
in the case of false advertising the community is concerned to some extent with the “acceptable
standard of conduct” of its merchants, of greater concern in this type of prosecution is “did the
accused do it” deliberately (supra).
29The classic British case defining the presumption of innocence in the criminal law context is
Woolhzington v. Director of Public Prosecutions, [1935] A.C. 462 at 481-82 (H.L.) [hereinafter
Woolmhington]. It requires the Crown to prove every element of the offence beyond a reasonable
doubt. The Supreme Court in Sault Ste. Marie expressly rejected the argument that the criminal
law notion of the presumption of innocence in Woolmington precluded it from adopting the strict
liability standard. The Chief Justice wrote (supra, note 2 at 1316):
There is nothing in Woolmington’s case, as I comprehend it, which stands in the way
of adoption, in respect of regulatory offences, of a defence of due care, with a burden
of proof resting on the accused to establish the defence on the balance of probabilities.
30Although the “halfway house” of strict liability was expressly adopted in Sault Ste. Marie, its
development had begun centuries before, increasing rapidly in importance toward the end of the
nineteenth century. See generally, R. v. Stephens (1866), L.R. 1 Q.B. 702; Fitzpatrick v. Kelly
(1873), L.R. 8 Q.B. 337; Sherras v. deRutzen, [1895] 1 Q.B. 918. From this period on, a distinction
has been recognized between true crimes and conduct prohibited in the public interest. Many of
the early public interest provisions developed in response to abuses relating to unsafe conditions
in the workplace, the contamination of food, and pollution. These first statutes provided for abso-
lute penal liability. Strict liability was first recognized in Ontario in R. v. Hickey (1976), 29 C.C.C.
(2d) 23, 68 D.L.R. (3d) 88 (Div. Ct.), rev’d on other grounds 30 C.C.C. (2d) 416, 70 D.L.R. (3d)
689 (C.A.).
31The strict liability standard was implicitly approved in the Reference re Section 94(2) of the
Motor Vehicle Act (B.C.), [1985] 2 S.C.R. 486, 24 D.L.R. (4th) 536 and Vaillancourt v. R., [1987]
2 S.C.R. 636, 47 D.L.R. (4th) 399. The standard was expressly adopted in R. v. Lee’s Poultry Ltd.
(1985), 17 C.C.C. (3d) 539 at 542-45, 43 C.R. (3d) 289 (Ont. C.A.) [hereinafter Lee’s Poultry];
R. v. Cancoil Thermal Corp. (1986), 27 C.C.C. (3d) 295, 52 C.R. (3d) 188 (Ont. C.A.); R. v. Gray
(1988), 44 C.C.C. (3d) 222, [1989] 1 W.W.R. 66 (Man. C.A.); R. v. Sutherland (1990), 55 C.C.C.
(3d) 265 (N.S.C.A.).
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regulatory provisions without substantive analysis. Although the Liability
Report did find some authority that the Woolmington criminal law principle of
the presumption of innocence had been extended to provincial offences, a 1971
New Brunswick County Court decision” is weak support for such a startling
proposition. The Liability Report expressly rejected “the Sault Ste. Marie com-
promise,”33 reasoning that because proof of a “lack of fault is squarely placed
on the accused, there can be little doubt that under the Charter, the reverse onus
is prima facie unconstitutional.”‘ The Commission treated Whyte v. R.,35 a
criminal case, as governing authority in the application of s. 11(d) to both the
due diligence defence and the burden of proof in provincial regulatory offences.
The Liability Report declares:
Whyte now makes it clear that it is not possible to argue, as some have, that this
reversal of the onus of proof does not involve a violation of the presumption of
innocence since it is merely the creation of a defence. Primafacie, the reversal of
the burden of proof in strict liability offences infringes section 11 (d) of the Char-
ter.36
The majority of the cases discussed by the Commission in dealing with the
reverse onus in the regulatory context are in fact criminal cases.’ Despite its
express rejection of the distinction between true crimes and regulatory offences
with respect to s. 11 (d), the Commission makes no decided effort to explain why
criminal law principles ought to govern.
Neither the Commission nor the Court of Appeal in Ellis Don developed
a flexible approach to the determination of appropriate standards of fault and
32R. v. Vincent (1971), 4 N.B.R. (2d) 289 (Co. Ct.), cited in the Liability Report, supra, note 5
at 23.33Liability Report, ibid. at 47.
341bid. It should be noted that this report stands alone in the face of several other Law Reform
Commission reports in Canada, which concluded that placing the burden on the accused is appro-
priate in the context of regulatory offences. See Law Reform Commission of Canada, The Meaning
of Guilt: Strict Liability (Ottawa: Law Reform Commission of Canada, 1974); Law Reform Com-
mission of Canada, Our Criminal Law, supra, note 24 at 32-33; University of Alberta, Institute of
Law Research and Reform, Defences to Provincial Charges (Edmonton: Institute of Law Research
and Reform, 1984) at 38; Law Reform Commission of Saskatchewan, Proposals for Defences to
Provincial Statutes (Saskatoon: Law Reform Commission of Saskatchewan, 1986) (Chair: D.A.
Schmeiser) at 13.
31[1988] 2 S.C.R. 3, 64 C.R. (3d) 123 [hereinafter Whyte cited to S.C.R.], quoted in the Liability
Report, supra, note 5 at 27.
36Liability Report, ibid.
371n its examination of reverse onus provisions in the provincial regulatory context, the Commis-
sion discusses the following criminal cases (ibid. at 19-39): Woolmington, supra, note 29; Oakes,
supra, note 13; Whyte, supra, note 35; Vaillancourt, supra, note 31; Re Boyle and the Queen
(1983), 41 O.R. (2d) 713, 35 C.R. (3d) 34 (C.A.); Schwartz v. R., [1988] 2 S.C.R. 443, 55 D.L.R.
(4th) 1 [hereinafter Schwartz cited to S.C.R.]; R. v. Nagy (1988), 67 C.R. (3d) 329 (Ont. C.A.). The
only non-criminal cases discussed in the chapter are: Sault Ste. Marie, supra, note 2; Wholesale
Travel, supra, note 10; Lee’s Poultry, supra, note 31; and Wigglesvorth, supra, note 18.
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burdens of proof under s. 11(d) which could be adapted to different categories
of offences. The Crown argued in Ellis Don that the principles pronounced by
the Supreme Court in Sault Ste. Marie could be constitutionalized under s.
11 (d), and become part of the substantive understanding of the presumption of
innocence. There may be certain problems of uncertainty in such an approach.”
Nevertheless, if the Charter is to reflect community values while at the same
time protecting the rights of vulnerable individuals and groups in society, it
must be flexible enough to respond to different social goals and objectives in
different regulatory contexts. Sound and fair principles have been developed by
provincial legislatures applying the strict liability standard to regulatory
offences in the years following Sault Ste. Marie. The values articulated in that
case with respect to the operation of strict liability and the presumption of inno-
cence in regulatory offences continue to be valid today. At minimum, they
deserve a full and complete hearing before being expunged entirely from our
notions of the presumption of innocence.39
C. Reasonable Doubt and Section 11(d)
According to Galligan J.A. in Ellis Don, placing a persuasive burden upon
the accused to prove due diligence on a balance of probabilities is a violation
of s. 11(d), under any circumstances. The Charter would not be infringed, how-
ever, by requiring the accused to satisfy an evidential burden by raising a rea-
sonable doubt.40 The operation of this standard is described by Galligan J.A.:
As a practical matter once the Crown proves each essential element of the offence
charged the accused is likely to be convicted unless it can point to evidence in the
Crown’s case or adduce evidence to suggest that it used due diligence. This
amounts to no more than the imposition of a practical evidential burden upon an
accused at the end of the Crown’s case which, if not met, will probably result in
a conviction.
41
38The Ontario Law Reform Commission points out that it may be difficult at times to determine
whether a particular offence constitutes a true crime or a regulatory offence (supra, note 5 at 3).
These cases are not the norm, however, and a principled approach to discerning these differences
could be worked out if the courts retain the categories set out in Sault Ste. Marie. On this point,
the Wigglesivorth case, ibid. at 558, requires “reasonable consistency” in the application of rights
under s. 11 in the range of “offences” to which it applies.
39The move away from Sault Ste. Marie principles is particularly puzzling given that academics
in other jurisdictions are trying to convince their own governments to adopt the strict liability
standard for regulatory offences. A recent article in the United States advocated the adoption of
a Sault Ste. Marie-style offence categorization system in public interest legislation. See, W. Tille-
man, “It’s a Crime: Public Interest Laws (Fish and Game Statutes) Ignore Mens Rea Offences –
Towards a New Classifications Scheme” (1989) 16 Am. J. Crim. L. 279 at 306. In New Zealand,
the Court of Appeal adopted the idea in Civil Aviation Department v. Mackenzie, [1983] N.Z.L.R.
78.40Supra, note I at 200.
411bid. at 200-01.
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In discussing what standard of judicial scrutiny should be attached to this
evidential burden on the accused, Galligan J.A. concluded that s. 11(d) is not
infringed by requiring the accused to adduce sufficient evidence to give “an air
of reality” to the defence of due diligence. On this point, he writes:
In such a case, if the accused does not come forward with evidence showing that
it took every reasonable precaution … a court would be entitled to infer that the
defence of due diligence was not available to it. A similar concept is found in
those cases which say a defence need only be left to the jury if there is evidence
which gives it an air of reality [emphasis added].42
While Galligan J.A. does not name the source of the “air of reality” notion,
it may have been drawn from the criminal case of Pappajohn v. R.,43 in which
McIntyre J. commented that a defence of mistake of fact in the criminal law
may only be left to the jury when there is an “air of reality” to the defence. 4
In regulatory matters such as Ellis Don, the “air of reality” criterion would mean
that an accused might not be required to present affirmative proof of due dili-
gence, as long as it could adduce sufficient evidence to suggest that it might
have so acted. While it may be reasonable to leave such wide discretion to a
judge deciding when a defence may appropriately be left to a jury, in regulatory
prosecutions the judge often sits alone as trier of fact. Under those circumstan-
ces, the term “air of reality” is insufficiently precise to provide a workable legal
standard for determining evidentiary requirements. Further, the expression
offers little guidance to lower courts, who will find it difficult to apply with any
degree of consistency.
In addition, the “air of reality” standard does not articulate how the eviden-
tial burden would operate in practice. It remains unclear, for example, whether
an accused who is required by law to take particular safety measures must raise
a reasonable doubt as to each individual precaution, or whether it will be suf-
ficient to raise doubt with respect to a single precaution on the totality of the
evidence. The standard set by the Court of Appeal leaves room for substantial
uncertainty. Galligan J.A. nevertheless considers the burden to be a practical
one in cases where the “probable” result is conviction if the accused fails to put
forward any evidence of due diligence.45 In the context of important regulatory
statutes such as the O.H.S.A. or the Ontario Environmental Protection Act,” the
uncertainty of this standard may be a haunting spectre making successful pros-
ecutions increasingly difficult.
421bid. at 201.
41[1980] 2 S.C.R. 120, [1980] 4 W.W.R. 387 [hereinafter Pappajohn cited to S.C.R.].
441bid. at 128.
45Supra, note I at 200.
46R.S.O. 1980, c. 141.
1991]
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1099
The Court in Ellis Don was asked whether s. 37(2) of the O.H.S.A. could
be justified under s. 1 of the Charter. All three justices addressed the issue in
separate reasons. Galligan and Houlden JJ.A. decided that the legislation could
not be justified under s. 1; Carthy J.A. held that it could.
If the Court considered a full review of Sault Ste. Marie to be unsuitable
in its discussion of the scope of the right in s. 11(d) in Ellis Don, it should have
been an essential part of their s. 1 analysis. A complete reconsideration was par-
ticularly important given the fact that the Court found the strict liability standard
approved in Sault Ste. Marie to be not only a violation of the presumption of
innocence under s. 11(d), but also not to be justifiable in a free and democratic
society. The Supreme Court in Sault Ste. Marie had pointed to a necessary bal-
ance between the interests of society in regulating dangerous activities, and the
rights of the accused facing prosecution, which should condition the operation
of the presumption of innocence in the regulatory context.
Carthy J.A. in Ellis Don found the reasoning of Dickson J., as he then was,
in the Sault Ste. Marie decision to be “as sensible today as when it was writ-
ten.”47 Galligan and Houlden JJ.A for the majority did not confront the reason-
ing in Sault Ste. Marie squarely, and thus offered no clue as to why the princi-
ples raised in that case were no longer considered persuasive in 1991. The
majority should have explained clearly how and why Canadian values have
changed so substantially since the Sault Ste. Marie decision so as to warrant
such a radical change in the law.
1.
The Rational Connection Test
In applying the Oakes test, all three judges agreed that the legislative
objective of the O.H.S.A. was sufficiently important to warrant overriding a
Charter right. Galligan and Carthy JJ.A. agreed that the strict liability standard
in the O.H.S.A. had a rational connection to the objective of safety in the work-
place. In contrast, Houlden J.A. found no rational connection between strict lia-
bility, which places a persuasive burden on the accused, and the objective of
safety in the workplace. Specifically, he found no connection between the
“proved fact” (breach of the statute) and “the presumed fact” (negligence of the
accused).4″
If Houlden J.A.’s analysis is correct, all regulatory offences would fail the
test of s. 1: negligence is always imported into the offence once the Crown
proves a breach of a regulatory provision. It is suggested that Houlden J.A. mis-
47Supra, note 1 at 218.
48Ibid. at 211.
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applied the rational connection test, confusing the need for a “rational connec-
tion” with an “inexorable” connection. Both the “proved fact” and the “pre-
sumed fact” are integral, rationally connected parts of the measures adopted by
the legislature, which chose to use a strict liability standard to address this par-
ticular problem. Houlden J.A. does not discuss whether the measures adopted
are arbitrary in relation to the stated or apparent legislative objectives. This mis-
application of the rational connection test is further exacerbated by his complete
disregard for the due diligence defence, which is also an essential part of the
measures adopted. His analysis leaves the legislature with little flexibility for
the creation of effective regulatory schemes.
The better approach to the rational connection test is to be found in the
judgments of Galligan and Carthy JJ.A. Galligan J.A. found that reversing the
burden of proof facilitates the conviction of the guilty, which will make employ-
ers more safety conscious, and result in a reduction of dangers to workers in the
workplace.49 Carthy J.A. similarly found that a due diligence standard fosters
care and attention on the part of employers, and “a balance is thereby created
between the interests of society in regulating industrial safety and the accused
in facing prosecution.”5 In terms of the burden imposed on the accused, Carthy
J.A. also found a “rational sense and purpose in having a different onus apply
to the defence than that which applies to the prosecution in proving the actus
reus.” 51
2.
The Minimal Impairment Test
Both Galligan and Houlden JJ.A. found that s. 37(2) of the O.H.S.A.
impaired the Charter rights of the accused more than was necessary to achieve
the legislative objective. In reaching this conclusion Galligan J.A. stated:
I am seriously troubled about how it could be said that the objective of this Act
is so pressingly important that a risk should be taken of convicting someone who
might be innocent. Important as the protection of workers’ health and safety in the
workplace may be I am unable to say that it is more important than protecting
innocent citizens from homicide. Yet the law does not permit the conviction of a
person charged with murder if the court has a doubt about his guilt.52
In this passage, Galligan J.A. is expressly applying criminal law principles to a
regulatory context.53 He finds no distinction between a corporation being pros-
491bid. at 202.
50Ibid. at 220-21.
51Ibid. at 221.
521bid. at 202.
53lndeed, the case upon which Galligan J.A. bases his conclusions with respect to minimal
impairment is an inappropriate analogy to the situation of Ellis Don. In R. v. Ireco Canada H Inc.
(1988), 43 C.C.C. (3d) 482, 65 C.R. (3d) 160 [hereinafter Ireco], the Ontario Court of Appeal
struck down a reverse onus provision under the Customs Act, R.S.C. 1970, c. C-40, s. 205. The
1991] CHRONIQUE DE JURISPRUDENCE ET DE LEGISLATION
1101
ecuted for causing or permitting an occupational accident or environmental
spill, and an individual being tried for homicide. 4 This effectively results in the
application of a uniform standard of the presumption of innocence to both true
crimes and regulatory offences.
In a review which could apply equally to the reasoning of the Court of
Appeal in Ellis Don, Kent Roach criticizes the Liability Report for failing to
consider the contextual data that might influence legislators to make exceptions
from general principles, in order to deter and successfully prosecute social and
corporate misconduct.” The Commission used ss 7 and 11(d) to reinforce
abstract criminal law principles, but “did not attempt to break down the wide
array of regulatory offences into functional categories.”56 Roach thus finds the
Liability Report to be “symptomatic of the distorting influence Charter abstrac-
tions can have on tangible policy issues.”’57
Roach correctly points out that the Commission did not attempt to deter-
mine whether the strict liability standard can survive Charter scrutiny. The
objective of this standard58 in the context of environmental protection legisla-
tion, for example, is to balance the society’s need for protection from hazardous
pollution and the right of the accused corporation to exculpate itself by showing
that it acted reasonably in the circumstances. As expressed by the Supreme
Court in Sault Ste. Marie, the reasonable doubt standard is simply not appropri-
ate in the context of regulatory offences, because it does not provide sufficient
protection for society from the potentially harmful consequences of hazardous
Court stated clearly that while s. 205 did contain some of the features of a strict liability offence,
it was not truly regulatory in nature, as it was an indictable offence punishable by imprisonment.
In addition, the Court in Ireco based its reasoning exclusively on criminal cases, and adopted the
strict criminal law standard (see Woolmington, supra, note 29, and R. v. Holmes, [1988] 1 S.C.R.
914, 41 C.C.C. (3d) 497) to find the provision to be unjustifiable under s. 1 of the Charter. The
case is thus clearly distinguishable from Ellis Don, which involved a true regulatory offence.
Interestingly, the Court in Ireco distinguished Whyte, supra, note 35, a criminal case which had
upheld an impaired driving provision under s. 1. The Court said that the unique facts in that case,
because the provision dealt with a pressing social problem, justified saving it under s. 1. It could
just as easily be argued that the protection of the environment, for instance, is a pressing social
problem.
5Supra, note I at 202.
55Supra, note 20 at 805, n. 17.
561bid. at 805.
571bid. at 801.
58See R. v. Cotton Felts Ltd. (1982), 2 C.C.C. (3d) 287 at 294 (Ont. C.A), where Blair J.A. stated
for the court:
The Occupational Health and Safety Act is part of a large family of statutes creating
what are known as public welfare offences … Examples of this type of statute are legion
and cover all facets of life ranging from safety … to ecological conservation. In our
complex interdependent society such regulatory statutes are accepted as essential in the
public interest. They ensure standards of conduct, performance and reliability by var-
ious economic groups and make life tolerable for all.
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activities, and because of the tremendous difficulties encountered by the Crown
in proving mens rea in the prosecution of many regulatory offences. s9
The reasonable doubt standard was designed to offer the greatest protection
to the accused in the criminal context, because of the severity of the potential
penalties and the often permanent stigma faced by an individual upon convic-
tion. In contrast, the potential stigma flowing from conviction for a regulatory
offence is different in kind and in degree from that associated with criminal
activity. In addition, while severe penalties such as imprisonment are occasion-
ally available under regulatory offence legislation, such penalties are almost
never imposed in practice.6”
As Carthy J.A. points out in Ellis Don, “regulatory statutes perform very
different functions in society than purely penal ones and the balancing of rights
and protection under section 1 of the Charter must reflect that distinction.”‘”
Despite these clear distinctions, the Court of Appeal based its finding with
respect to the presumption of innocence in the regulatory context on criminal
law principles,62 as did the Ontario Law Reform Commission in the Liability
Report. That report recommended that the general reverse onus provision in s.
48(3) of the Provincial Offences Act63 be repealed as a violation of s. 1 l(d).’
This section is the primary basis for the reversal of the burden of proof in the
prosecution of many provincial offences. If the Legislature were to adopt the
recommendation of the Commission, the repercussions upon a large number of
regulatory offences would be substantial, and perhaps final.
3.
Minimal Impairment and Reasonable Alternatives
Galligan J.A. found that the strict liability standard in s. 37(2) of the
O.H.S.A. could not pass the minimal impairment branch of the Oakes test,
because the legislature could have imposed upon the accused the lesser burden
of raising a reasonable doubt, rather than requiring proof of due diligence on a
balance of probabilities.’
59Sault Ste. Marie, supra, note 2 at 1325, Dickson J.:
The correct approach, in my opinion, is to relieve the Crown of the burden of proving
mens rea, … [having regard] to the virtual impossibility in most regulatory cases of
proving wrongful intention. In a normal case, the accused alone will have knowledge
of what he has done to avoid the breach and it is not improper to expect him to come
forward with the evidence of due diligence. This is particularly so when it is alleged,
for example, that pollution was caused by the activities of a large and complex
corporation.
6See infra, note 72 and accompanying text.
61Supra, note I at 218.
62The Court drew these principles from Whyte, supra, note 35 and Schwartz, supra, note 37.
63R.S.O. 1980, c. 400.
64Supra, note 5 at 54, recommendation 4(b).
65Supra, note 1 at 202-03. This statement is drawn from Ireco, supra, note 53 at 501.
1991]
COMMENTS
1103
The Court in Ellis Don did not inquire into the impact which the adoption
of a reasonable doubt standard might have on other Charter fights of the
accused. The differences between regulatory and criminal prosecutions are cru-
cial in this area, and should have been taken into account by the Court in deter-
mining the scope of the presumption of innocence in the context of regulatory
offences. In almost any regulatory prosecution, the preliminary investigation
necessary to prepare the Crown’s case to meet the additional burden of a rea-
sonable doubt standard would almost certainly intrude to some extent upon
other interests and fights of the accused. Particularly complex investigations
such as environmental spills, for example, may force the Crown to trample on
privacy interests, and may require an accused to release potentially self-
incriminating evidence to allow the Crown to properly prepare its case. The
Court of Appeal in Ellis Don thus did not weigh all relevant factors when it con-
cluded, in a regulatory context, that the reasonable doubt standard constituted
the minimal impairment of the rights of the accused. Another point to be taken
into account in ensuring minimal impairment of the rights of the accused, is
whether a less intrusive method could achieve substantially the same objective.
According to the Court in Ellis Don, an important aspect of the due diligence
defence was that it forced corporations and individuals to maintain thorough
records and reporting procedures.66 Requiring the accused to prove due dili-
gence on a balance of probabilities helps maintain persistence or vigilance in
workplace safety measures to prevent accidents.67 One study of the issue con-
cluded that the reintroduction of a mens rea proof requirement would not result
in any greater fairness to the accused.6 s
If all that a corporation or employer were required to do in order to show
its innocence was to raise a reasonable doubt by poking holes in the case pre-
sented by the Crown, it might be inclined to save expense and time by simply
relying upon an “inspector’s natural inclination to defend his or her conduct in
66See M. Smith & A. Pearson, “The Value of Strict Liability” (1969) Crim. L. Rev. I at 17. The
Law Reform Commission of England, Codification of the Criminal Law (Working Paper No. 17)
(London: The Commission, 1969) concluded that there would be a real difficulty in disproving an
argument by a corporation that reasonable care had been taken.
67See, supra, note 1 at 221-22, Carthy J.A. On the question of the importance of records, he
wrote:
Vigilance, expense, effort, attention and record keeping are an absolute mandate to
keep such incidents to a minimum … Life in the workplace is planned and the Act,
including the balance of probabilities test in s. 37(2), directs itself to assurance that the
planning will include all reasonable steps for avoiding accidents and, where the inev-
itable occurs, it permits the employer to satisfy a court that those steps were taken. The
health and safety of a large portion of the populace depends upon the efficacy of the
Act and that purpose is served when those responsible ensure in advance that they can
answer for their conduct.
681. Paulus, “Strict Liability: Its Place in Public Welfare” (1977-78) 20 Crim. L.Q. 445 at 460.
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the court to raise a reasonable doubt.”’69 Mere oral testimony by an inspector
could often be sufficient to raise such a doubt, without the accused having to lift
a finger. By removing the persuasive burden on the accused to show due dili-
gence on a balance of probabilities, the Court in Ellis Don has neutralized the
incentive to establish, maintain and monitor systems that would prove to a court
that the corporation had complied with the required regulatory standards.”
4.
Imprisonment
The issue of possible penalties flowing from conviction7 remains a partic-
ularly thorny one for the courts, causing a reluctance to draw broad distinctions
between regulatory and criminal offences with respect to standards of proof and
the presumption of innocence.” Although the possibility of imprisonment in a
regulatory context presents a problem, the Court in Ellis Don appears to have
placed a disproportionate emphasis upon it. Only in one case has anyone ever
been imprisoned under the O.H.S.A., and that only occurred as a result of
extreme belligerence on the part of the accused.73 The actual frequency of resort
to imprisonment is relevant to the balancing of rights and values. The question
of imprisonment involves a balancing of the right of the accused to a fair trial
against the interest of society as a whole in the regulation of dangerous activ-
ities. If the possibility of imprisonment is truly the decisive factor in finding a
violation of the presumption of innocence, Charter remedies should permit the
severing of penalty provisions calling for imprisonment so that other portions
of the offence may be upheld. This would represent a fair balancing of individ-
ual and community values. The Liability Report suggested that whenever there
is a potential for imprisonment, the courts should require proof by the prosecu-
tion of either an aware state of mind or a marked and substantial departure from
the conduct of a reasonable person in similar circumstances.74 The rarity of
imprisonment in the actual sentencing of provincial regulatory offences must be
kept in mind. The Commission’s recommendation should therefore not be
accepted, as it would alter the burden on the accused even in cases where there
is no real chance of imprisonment.
69Supra, note 1 at 222, Carthy J.A.
70 bid.
71As Carthy J.A. points out, ibid. at 200, the possibility of imprisonment under a regulatory pro-
vision is most appropriately dealt with under s. 1 of the Charter, and should not be a consideration
in determining the scope of the right to be presumed innocent in s. 11(d).
721bid. at 223. During oral argument in the appeal of Wholesale Travel at the Supreme Court on
February 18, 1991, the Court appeared to be particularly concerned with the issue of whether
imprisonment was even remotely possible if a reasonable doubt existed as to the guilt of the
accused.
73Ellis Don, ibid.
74Supra, note 5 at 53-54.
1991] CHRONIQUE DE JURISPRUDENCE ET DE LtGISLATION
1105
5.
A New Standard under the Minimal Impairment Test?
Future challenges to regulatory offences may receive different treatment
under the minimal impairment branch of the Oakes test following two recent
Supreme Court decisions upholding reverse onus provisions. With its decisions
in Chaulk and Morrissette v. R.75 and R. v. Keegstra,76 the Court has made it
easier for governments to justify legislation under the minimal impairment por-
tion of the s. 1 test. In the past, the government was required to show that the
statutory provision at issue impaired an individual’s Charter right as little as
possible. In Chaulk, however, Chief Justice Lamer stated that
Parliament is not required to search out and adopt the absolutely least intrusive
means of attaining its objective … [W]hen assessing the alternative means that
were available to Parliament, it is important to consider whether a less intrusive
means would achieve the “same” objective or would achieve the objective as
77
effectively.
In Keegstra, Chief Justice Dickson, as he then was, recognized the delicate
balance achieved by reverse onus provisions between the right of society to reg-
ulate and successfully prosecute dangerous activities, and the right of an
accused to fair treatment. Dickson C.J. found that the imposition of a reverse
onus upon an accused could be justified under the minimal impairment portion
of the s. 1 test in Oakes:
Parliament has used the reverse onus provision to strike a balance between two
legitimate concerns. Requiring the accused to prove on the civil standard that his
or her statements are true is an integral part of this balance, and any less onerous
burden would severely skew the equilibrium. 78
In setting out the standard to be met under the minimal impairment branch of
the test, Dickson C.J. wrote:
[S]ection 1 should not operate in every instance so as to force the government to
rely upon only the mode of intervention least intrusive of a Charter right or free-
dom. It may be that a number of courses of action are available in the furtherance
of a pressing and substantial objective, each imposing a varying degree of restric-
tion upon a right or freedom. In the circumstances, the government may legiti-
mately employ a more restrictive measure, either alone or as part of a larger pro-
gramme of action, if that measure is not redundant, furthering the objective in
71(1991), 62 C.C.C. (3d) 193, 119 N.R. 161 (S.C.C.) [hereinafter Chaulk]. This case considered
the validity of the reverse onus aspect of the defence of insanity in s. 16(4) of the Criminal Code,
R.S.C. 1985, c. C-46 [hereinafter Criminal Code].
76[1991] 2 W.W.R. 1, 61 C.C.C. (3d) I (S.C.C.) [hereinafter Keegstra]. The case concerned a
challenge to s. 319(3)(a) of the Criminal Code, R.S.C. 1985, c. C-46 under s. 11(d) of the Charter.
The section requires that the defence of truth with respect to the charge of wilful promotion of
hatred against identifiable groups (s. 319(2)) be established by the accused on a balance of
probabilities.
77Supra, note 75 at 36.
78Sitpra, note 76 at 101.
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McGILL LAW JOURNAL
[Vol. 36
ways that alternative responses could not, and is in all other respects proportionate
to a valid section 1 claim.79
Thus, the government may employ more restrictive measures than the
absolute minimal impairment of Charter rights would require, as long as the
measures are not redundant and otherwise fulfil the requirements of the Oakes
test. The new standard enunciated in Keegstra and Chaulk implicitly recognizes
that legislatures require greater flexibility to effectively regulate the wide array
of subject matters for which they are responsible. A reverse onus in the provin-
cial regulatory context might thus be found to fulfil the minimal impairment
requirement under the modified s. 1 test in Chaulk and Keegstra. If the courts
neverthless find that reverse onus provisions in regulatory offences cannot be
justified even under the modified test, the provinces should brace themselves for
wholesale carnage to be visited upon their regulatory schemes by the courts.
II. Environmental Legislation
A. Strict Liability and Provincial Environmental Offences
Despite the fact that the environment has attracted increasing public atten-
tion in recent years, and has been declared a matter of great public concern by
the Supreme Court of Canada, 0 environmental legislation will certainly not
escape the chopping block if strict liability and reverse onus provisions fall
under s. 11(d). There is nothing in Ellis Don, nor in the Ontario Law Reform
Commission report, to indicate that different legislative contexts will receive
different treatment. Galligan J.A. stated in Ellis Don that the protection of
worker safety does not differ in any significant respect from the prevention of
homicide.8 He thus explicitly refused to draw a distinction between the princi-
ples to be applied in the regulatory context and those which are appropriate in
the case of true crimes. A substantial amount of environmental legislation 2 risks
being subjected to the same kind of mechanical scrutiny received by the
O.H.S.A. provisions in Ellis Don. 3 Like the O.H.S.A., environmental legislation
is heavily dependent upon the strict liability standard and often rests the persua-
sive burden on the accused. 4 This makes it particularly vulnerable to attack.
791bid. at 91.
80Sault Ste. Marie, supra, note 2 at 1327; see also R. v. Crown Zellerbach, [1988] 1 S.C.R. 401,
49 D.L.R. (4th) 161.
81Supra, note 1 at 202.
82E.g., Ontario Water Resources Act, R.S.O. 1980, c. 361; Environmental Protection Act, supra,
note 46; Health Protection and Promotion Act, S.O. 1983, c. 10; Lakes and Rivers Improvement
Act, R.S.O. 1980, c. 227; Mining Act, R.S.O. 1980, c. 268; Conservation Authorities Act, R.S.O.
1980, c. 85; Pesticides Act, R.S.O. 1980, c. 376; Environmental Assessment Act, R.S.O. 1980, c.
268; Dangerous Goods Transportation Act, S.O. 1981, c. 69.
83Supra, note 1 at 202, Galligan J.A.
84See generally, D. Estrin, Environmental Law (Toronto: Carswell, 1984).
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Some hope remains. Environmental legislation may be distinguished from
occupational health and safety legislation in at least one important respect.
Worker safety legislation is designed to regulate industrial activities, which are
viewed as normal or ordinary activities in the community. The risk of danger is
generally confined to those within a particular workplace. Environmental legis-
lation, in contrast, is designed with environmental accidents in mind, which
have the potential to affect vast numbers of people in society as a whole. As
Linden has pointed out in the context of tort law:
[Anyone] who in any community pursues his own advantage by activities which
are “extraordinary” in that community, is liable for damage caused to the interest
of others who are held to consent only to normal risks. W
Thus if the conduct, although not wrongful in a criminal sense, is “so fraught
with danger” or so “unusual in a given community,” it may be justifiable to shift
the risk of loss and the burden of proof from the person injured to the person
who created the risk.86 The courts may be willing to recognize the need for
added protection for the public from environmental disasters. The “extraordi-
nary” nature of the danger to the community created by environmental accidents
may allow a reverse onus provision to satisfy the minimal impairment test under
s. 1 of the Charter.
The Supreme Court itself recognized in Sault Ste. Marie the difficulties
encountered in carrying out successful prosecutions in the environmental con-
text if the Crown is required to prove negligence beyond a reasonable doubt.8 7
Other jurisdictions have also experienced difficulty in obtaining convictions
under a civil standard of proof where the plaintiff must prove actual harm.”8 If
the reasoning in Ellis Don is accepted, and defendant corporations are no longer
to be required to prove due diligence on a balance of probabilities, it does not
seem likely that their reports with respect to their environmental procedures will
be maintained with the same vigour as before. A corporation would have noth-
ing to gain by maintaining detailed records, particularly when these same rec-
ords could potentially be used against them. There is a good chance that they
can avoid conviction without them because they will no longer be required to
show due diligence. Crown access to even those limited records could be
severely restricted by claims of privilege and non-disclosure based on the pos-
sibility of self-incrimination. These factors combined would make complex
investigations of environmental violations even more difficult for provincial
investigators than they already are. Despite the fact that prosecutorial difficulty
was accepted as a valid reason for shifting the onus to the accused in Sault Ste.
85A.M. Linden, Canadian Tort Law, 4th ed. (Toronto: Butterworths, 1988) at 481.
6Ibid. at 480.
87Saut Ste. Marie, supra, note 2 at 1325, Dickson J.
88See R.A. Milne, “The Mens Rea Requirements of the Federal Environmental Statutes: Strict
Criminal Liability in Substance But Not in Form” (1988-1989) 37 Buffalo L. Rev. 297 at 308.
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Marie, Mr Justice Galligan rejected this argument in Ellis Don. He found that
courts have always been able to distinguish “spurious defences from legitimate
ones … to separate the wheat from the chaff.” 9
Corporate compliance with environmental standards is thus determined on
a cost-benefit basis.’ The vigilance with which corporations will ensure their
own compliance with environmental regulations will decrease if they see that
there is less benefit to be gained from the maintenance of detailed records. A
shift to a less stringent burden of proof could clearly be a significant factor pre-
cipitating such a change, and might encourage potential law breakers to turn a
blind eye to environmental standards.
B. Weil’s Food9 and the Future of Environmental Legislation – Conclu-
ding Remarks
One example of what may lie ahead for environmental legislation in this
country if Ellis Don is followed is currently working its way through the courts
of Ontario. Weil’s Food92 involves two charges relating to the discharge of con-
taminants and the failure to give notice under s. 16(2) of the Ontario Water
Resources Act 93 and s. 14(1) of the Environmental Protection Act,94 respectively.
Each of the sections contains a strict liability standard with a reverse onus pro-
89Snpra, note 1 at 203.
90A 1988 report by the Department of Justice found that corporate heads and middle managers
of large multi-national corporations will ignore environmental regulations to meet production tar-
gets. Canada, Department of Justice, From Sawdust to Toxic Blobs – A Consideration of Sanc-
tioning Strategies to Combat Pollution in Canada (Studies in Compliance and Regulation) by Dr.
D. Chappell (Ottawa: Supply & Services, 1988) at 26.
91Weil’s Food Processing Ltd. v. Weil (4 December 1990) (Ont. C.J., Gen. Div.), Browne J. [unre-
ported] [hereinafter Weil’s Food].
92The section 11 (d) issue in Weil’s Food was decided prior to the Ontario Court of Appeal deci-
sion in Ellis Don. Browne J. of the Ontario Court of Justice (General Division) based his decision
on the reasoning in Wholesale Travel. Undoubtedly, when the s. 1 argument is put before the Court
at the appeal level, the Ellis Don reasoning will figure prominently.
93Supra, note 82.
94Supra, note 46. S. 16(2) of the Water Resources Act and s. 14(1) of the Environmental Pro-
tection Act operate as strict liability offences by virtue of the Sault Ste. Marie decision and s. 48(3)
of the Provincial Offences Act, supra, note 63. Dickson J. held in Sault Ste. Marie, supra, note 2
at 1326 that “[p]ublic welfare offences would, prima facie, be in the second category [i.e. strict
liability offences]. They are not subject to the presumption of full mens rea.” S. 48(3) reads as
follows:
The burden of proving that an authorization, exception, exemption or qualification pre-
scribed by law operates in favour of the defendant is on the defendant, and the pros-
ecutor is not required, except by way of rebuttal, to prove that the authorization, excep-
tion, exemption or qualification does not operate in favour of the defendant, whether
or not it is set out in the information.
This provision transforms the two sections at issue in Weil’s Food into strict liability offences, with
the persuasive burden resting on the accused.
1991] CHRONIQUE DE JURISPRUDENCE ET DE LEGISLATION
1109
vision. Weil’s Food challenged the statutory provisions under s. 11(d) of the
Charter. No s. 1 argument was brought at first instance, although the Crown
requested permission to bring forward such evidence if the Court found that the
provisions in question violated s. 11(d).
Browne J. contemplated distinguishing the legislative provisions at issue in
Wholesale Travel from those in Weil’s Food on the basis of their similarity to
true crimes, but in the end decided they were regulatory in nature.” He therefore
found that he was bound by the majority reasoning in that case, and held that
the two provisions under which Well’s Food had been charged constituted vio-
lations of s. 11(d) of the Charter.96 The Court reserved final judgment on the
constitutionality of the two sections pending s. 1 argument by the Crown.97
If the courts continue to refuse to undertake a substantive review of com-
munity notions of the presumption of innocence in the provincial regulatory
context, Weil’s Food represents the rather bleak future of significant pieces of
environmental legislation in Ontario, and perhaps the rest of Canada. The lower.
courts, although reluctantly, are finding themselves bound by the mechanical
approach taken to strict liability offences by the Ontario Court of Appeal. The
Court has thus brought about a fundamental change in the law, without provid-
ing any articulation of a better alternative. The change could result in tremen-
dous chaos at the lower court level as courts find themselves forced to strike
down regulatory offences merely because they contain reverse onus clauses.
The strict liability standard with a persuasive burden on the accused is part of
the fabric of our legal system. It has worked well in the past, and if it is going
to be altered, we must demand from our courts compelling reasons as to why
the principles enunciated in Sault Ste. Marie are no longer appropriate in the
provincial regulatory context.
95Supra, note 91 at 7.
9 6Ibid. at 8-9.
97The s. I argument by the Crown in Weil’s Food is scheduled to be made before Browne J. on
June 24, 1991.
