SUPREME COURT OF CANADA
Between:
City of Lévis
Appellant
and
Louis Tétreault
Respondent
and
Attorney General of Canada
Intervener
and between:
City of Lévis
Appellant
and
2629-4470 Québec Inc.
Respondent
and
Attorney General of Canada
Intervener
Official English Translation
Coram: McLachlin C.J. and Bastarache, Binnie, LeBel, Fish, Abella and Charron JJ.
Reasons for Judgment: (paras. 1 to 35) |
LeBel J. (McLachlin C.J. and Bastarache, Binnie, Fish, Abella and Charron JJ. concurring) |
______________________________
Lévis (City) v. Tétreault; Lévis (City) v. 2629‑4470 Québec inc., [2006] 1 S.C.R. 420, 2006 SCC 12
City of Lévis Appellant
v.
Louis Tétreault Respondent
and
Attorney General of Canada Intervener
- and -
City of Lévis Appellant
v.
2629‑4470 Québec inc. Respondent
and
Attorney General of Canada Intervener
Indexed as: Lévis (City) v. Tétreault; Lévis (City) v. 2629‑4470 Québec inc.
Neutral citation: 2006 SCC 12.
File Nos.: 30380, 30381.
2005: October 21; 2006: April 13.
Present: McLachlin C.J. and Bastarache, Binnie, LeBel, Fish, Abella and Charron JJ.
on appeal from the court of appeal for quebec
Provincial offences — Highway safety — Nature of offences — Strict or absolute liability — Putting motor vehicle back into operation without having paid required registration fees — Operating motor vehicle without having paid fees to renew driver’s licence — Whether ss. 31.1 and 93.1 of Highway Safety Code create strict liability offences — If so, whether defence of due diligence made out — Highway Safety Code, R.S.Q., c. C‑24.2, ss. 31.1, 93.1.
Provincial offences — Defences — Officially induced error — Putting motor vehicle back into operation without having paid required registration fees — Accused claiming to have been misled by erroneous information obtained from official regarding procedure for paying fees relating to registration — Whether defence of officially induced error available in Canadian criminal law — If so, whether accused establishing that conditions under which this defence available have been met.
Criminal law — Defences — Officially induced error — Constituent elements of defence and conditions under which it available.
The respondent company, which is charged with operating a motor vehicle for which the fees relating to its registration had not been paid, raised the defences of due diligence and officially induced error, alleging that a representative of the Société de l’assurance automobile du Québec (“SAAQ”) had had it pay registration fees corresponding to a 15‑month period and had told it that a renewal notice would be sent to it before the period expired. Because of an error, the SAAQ sent the notice to the company with an incomplete address and the postal service returned it to the sender. As for the respondent T, who is charged with driving a motor vehicle without a valid driver’s licence, he raised the defence of due diligence, stating that he was unaware that the date appearing on his licence was the date the licence expired rather than a payment due date. The Municipal Court of the city of Lévis found that ss. 31.1 (registration) and 93.1 (driver’s licence) of the Highway Safety Code create strict liability offences and, accepting their due diligence defence, acquitted the company and T. The Superior Court upheld the acquittals, and the Court of Appeal dismissed the city’s applications for leave to appeal.
Held: The appeals should be allowed.
The alleged offences belong to the category of strict liability offences. Section 93.1 does not place the burden of proving mens rea on the prosecution and includes no expression of the legislature’s intent to create an absolute liability offence. Nor can such an intent be inferred from the scheme of this provision, which seeks to ensure that the requirements of the regulation of highway safety are met by monitoring drivers’ licences without it being necessary to deprive an accused of a due diligence defence. A strict liability scheme responds adequately to the concern to ensure that vehicle operators are aware of their legal obligations and, in particular, of their duty to do what is necessary to ensure that their licences remain valid and to drive only while they are valid. Nor does s. 31.1, as it is worded, create an absolute liability offence. Absent a clear indication of the legislature’s intent, the offence must be categorized as one of strict liability. The same factors apply as in the case of the obligation to have a valid driver’s licence when operating a motor vehicle, and they justify the availability of a due diligence defence. [7] [29] [31]
The due diligence defence raised by the company and by T has not been made out. The concept of diligence is based on the acceptance of a citizen’s civic duty to take action to find out what his or her obligations are. Passive ignorance is not a valid defence in criminal law. In his case, T did no more than state that he expected to receive a renewal notice for his licence and that he had confused the licence expiry date with the due date for paying the fees required to keep the licence valid. He proved no action or attempt to obtain information. The same is true of the company, which did nothing even though it was aware of the date when the fees relating to the registration of its vehicle would be due. As for the defence of officially induced error, although it is available in Canadian criminal law, the company has not established that the conditions under which it is available have been met. The issues the company raised with the SAAQ’s representative related at most to administrative practices, not to the legal obligation to pay the fees by the prescribed date. Two fundamental conditions that must be met for this defence to be available were therefore missing: the company could not have considered the legal consequences of its conduct on the basis of advice from the official in question, nor could it have acted in reliance on that opinion, since no information regarding the nature and effects of the relevant legal obligations had been requested or obtained. [2] [30] [32‑34]
Cases Cited
Applied: R. v. City of Sault Ste. Marie, [1978] 2 S.C.R. 1299; considered: R. v. Jorgensen, [1995] 4 S.C.R. 55; referred to: Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486; R. v. Vaillancourt, [1987] 2 S.C.R. 636; R. v. Pontes, [1995] 3 S.C.R. 44; Molis v. The Queen, [1980] 2 S.C.R. 356; R. v. MacDougall, [1982] 2 S.C.R. 605; R. v. Larivière (2000), 38 C.R. (5th) 130; Maitland Valley Conservation Authority v. Cranbrook Swine Inc. (2003), 64 O.R. (3d) 417; R. v. Cancoil Thermal Corp. (1986), 27 C.C.C. (3d) 295.
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms .
Code of Penal Procedure, R.S.Q., c. C‑25.1, arts. 60, 231, 366.
Criminal Code , R.S.C. 1985, c. C‑46 , s. 19 .
Highway Safety Code, R.S.Q., c. C‑24.2, ss. 31.1, 59, 93.1, 141.
Authors Cited
Létourneau, Gilles, et Pierre Robert. Code de procédure pénale du Québec annoté, 6e éd. Montréal: Wilson & Lafleur, 2004.
Stuart, Don. Canadian Criminal Law: A Treatise, 4th ed. Scarborough, Ont.: Carswell, 2001.
APPEALS from the refusal of the Quebec Court of Appeal (Dussault J.A.), [2004] Q.J. No. 4541 (QL), [2004] Q.J. No. 4540 (QL), to grant leave to appeal from judgments of Desjardins J., SOQUIJ AZ‑50226154, [2004] Q.J. No. 2571 (QL), affirming the acquittals of the respondents. Appeals allowed.
Martin Bouffard, for the appellant.
No one appeared for the respondent Louis Tétreault.
Christian Desrosiers and Hélène Maillette, for the respondent 2629‑4470 Québec inc.
Michel F. Denis and Bernard Mandeville, for the intervener.
English version of the judgment of the Court delivered by
LeBel J. —
I. Introduction
1 In these two cases, the city of Lévis (“city”) is appealing acquittals entered by the Municipal Court of Lévis on charges brought against the respondents under the Highway Safety Code, R.S.Q., c. C‑24.2 (“Safety Code”), in accordance with the Code of Penal Procedure, R.S.Q., c. C‑25.1 (“C.P.P.”). The city submits that the relevant provisions of the Safety Code create absolute liability offences. In the alternative, it submits that even if these offences can be considered strict liability offences, the respondents have failed to demonstrate that they exercised due diligence. Consequently, this Court should allow the appeals and enter convictions.
2 For the reasons that follow, I consider the appeals to be well founded. The offences in question must be considered strict liability offences, but the respondents have not shown that they exercised due diligence. Moreover, in my view, although the defence of officially induced error is available in criminal law, the respondent did not make it out in the matter of City of Lévis v. 2629‑4470 Québec inc.
II. Origin of the Cases
3 On April 25, 2002, a statement of offence was issued to 2629‑4470 Québec inc. (the “company”) for putting a motor vehicle back into operation without having paid the Société de l’assurance automobile du Québec (“SAAQ”) the registration fees required to retain the right to drive it, contrary to s. 31.1 of the Safety Code. At trial, the respondent explained that it had purchased the vehicle on January 17, 2001. The former owner had paid the registration fees up to March 31, 2001. After the company purchased the vehicle, its representative registered the vehicle at an SAAQ office. The SAAQ reimbursed the former owner for the registration fees relating to the period from January 17 to March 31, 2001, and transferred these remaining fees for the year in progress to the company’s account. The company then paid the remaining fees and, as recommended by an SAAQ employee, also paid the registration fees for the following year, that is, for a total of approximately 15 months up to March 31, 2002. The company’s representative testified that the SAAQ employee had told him he would receive a renewal notice approximately 60 days before the expiry date, March 31, 2002. The registration certificate issued to the respondent indicated an expiry date of March 31, 2002. On or about January 18, 2002, the SAAQ sent a renewal notice to the company’s civic address, but it did not indicate the apartment number even though it had this information on file. As a result, the postal service did not deliver the notice, which it returned to the SAAQ on February 14, 2002. In April 2002, the police stopped the vehicle and observed that its registration had expired due to a failure to pay the fees for the year in progress and had not been renewed. A complaint was then brought against the company, and it is in issue here.
4 The case of City of Lévis v. Tétreault began with a complaint of driving a vehicle without a valid driver’s licence, contrary to s. 93.1 of the Safety Code. A police officer pulled Mr. Tétreault over and noted that his driver’s licence had expired. At his trial, the respondent stated that, given his age, he had been driving for only a few years. For this reason, he was unaware that the date appearing on his licence was the date the licence expired rather than a payment due date. He pointed out that new licences issued by the SAAQ now distinguish between the two dates.
III. Judicial History
5 The Municipal Court of the city of Lévis heard both complaints. The respondents argued that the relevant provisions of the Safety Code create a strict liability offence and that they had exercised due diligence. The court accepted this defence and acquitted both respondents. On March 8, 2004, the Superior Court dismissed the prosecution’s appeals pursuant to the C.P.P. ([2004] Q.J. No. 2571 (QL)). In its view, the Safety Code created strict liability offences. In Mr. Tétreault’s case, the Superior Court accepted the respondent’s defence of due diligence. In the company’s case, it found that the company had made out the defences of due diligence and officially induced error. The city then tried to appeal to the Quebec Court of Appeal. On April 14, 2004, a judge of the Quebec Court of Appeal, relying on that court’s case law, dismissed the city’s applications for leave to appeal in these two cases ([2004] Q.J. No. 4541 (QL), [2004] Q.J. No. 4540 (QL)). The cases are now before this Court.
IV. Analysis
A. The Issues
6 In these two appeals, the Court is asked to consider the nature of the offences with which the accused are charged and of the defences available to them. Despite certain submissions made by the company, these cases do not call into question the division of criminal offences into the three categories of mens rea offences, strict liability offences and absolute liability offences established in Sault Ste. Marie in 1978 (R. v. City of Sault Ste. Marie, [1978] 2 S.C.R. 1299). Rather, what is in issue is how to characterize the offences in accordance with those categories, bearing in mind the impact this will have on the burdens of proof of the prosecution and of the accused and on the availability of the defences of due diligence and officially induced error.
7 The appellant contends that the alleged offences belong to the category of absolute liability offences, which would preclude the due diligence defence. In the alternative, the city adds that, even if this Court were to determine the offences to be strict liability offences, the respondents have not made out the elements of a due diligence defence. In the case of the company, the appellant also submits that this respondent has not made out the elements of its defence of officially induced error. The respondent company replies that the offence with which it is charged, namely putting an unregistered vehicle back into operation, is a strict liability offence and that it has made out its defences of due diligence and officially induced error. Mr. Tétreault did not take part in the proceedings before this Court and did not file a factum or present oral arguments. However, the factums and arguments of the parties represented in this Court provided an adequate basis for considering the issues raised by the two appeals.
8 I will begin by considering the two offences and the procedure for prosecuting them under Quebec penal law. Next, I will discuss the approach to classifying these offences and how they should be characterized in light of the general principles governing criminal liability, as well as the problem of the defence of officially induced error. Based on this analysis, I will then determine whether the available defences, if any, have been made out.
B. The Alleged Offences and the Procedure for Prosecuting Them
9 To fully understand the legal framework governing these appeals, we must first review the description of the offences with which the respondents are charged. Once this has been done, we can then turn to categorizing the offences.
10 As I mentioned above, the company, the owner of a motor vehicle, is charged with putting the vehicle back into operation without having paid the SAAQ the prescribed fees relating to its registration, contrary to s. 31.1 of the Safety Code. Under that provision, he was required to register the vehicle by paying a variety of fees. The following is the version of the provision that was in force at the relevant time:
31.1. To retain the right to drive a registered road vehicle, the owner thereof must, unless exempted by regulation, pay to the Société, at the intervals and over the periods determined by regulation, the fees fixed by regulation, the duties fixed by regulation and revalorized, where applicable, in accordance with section 151.4 of the Automobile Insurance Act (chapter A‑25), the insurance contribution fixed pursuant to section 151.1 of that Act and revalorized, where applicable, in accordance with section 151.4 of that Act and, where applicable, the contribution of motorists to public transit fixed pursuant to section 88.3 of the Transport Act (chapter T‑12) and, in respect of a road vehicle belonging to a class determined by regulation which is seven years old or less and whose value exceeds $40,000, an additional duty which, computed on an annual basis, is equal to 1 % of the value of the vehicle in excess of $40,000.
An owner who elects not to drive the vehicle for all or part of the period corresponding to the payment of the amounts referred to in the first paragraph must notify the Société thereof before the date on which payment of such amounts becomes due or any later date determined by regulation. In this case, he will not be bound to pay the duties, additional duty, fees or insurance contribution prescribed for the period during which such election has effect.
Where the owner has not paid the amounts referred to in the first paragraph when they become due or where he has notified the Société of his election not to drive the vehicle in accordance with the second paragraph, no person may, from, as the case may be, the date on which the sums become due or the date of receipt by the Société of the notice of election not to drive, and without further notice, put the road vehicle back into operation.
The owner may, during the period corresponding to the payment of the amounts referred to in the first paragraph, apply to the Société to obtain the authorization to put the road vehicle back into operation. He must, in that case, pay the duties, additional duty and fees, the insurance contribution and the additional fee prescribed by regulation, in accordance with the terms and conditions prescribed by regulation.
11 The charge against Mr. Tétreault is that he operated an automobile without a valid driver’s licence, since he had failed to pay the licence renewal fees by the prescribed date, contrary to s. 93.1 of the Safety Code. That provision imposes the payment of prescribed fees on set dates as a condition for maintaining a valid driver’s licence. At the time of the statement of offence, the provision read as follows:
93.1. The holder of a driver’s licence must, at the intervals prescribed by regulation, pay the Société the fees fixed by regulation, the duties fixed by regulation and revalorized, where applicable, in accordance with section 151.4 of the Automobile Insurance Act (chapter A‑25) and the insurance contribution fixed pursuant to section 151 of that Act and revalorized, where applicable, in accordance with section 151.4 of that Act within the period determined by regulation. If the holder fails to make the required payments within that period, he may not, from the first day following the day on which that period expires and without further notice from the Société, drive any road vehicle.
The holder of a probationary licence must, before his licence expires, pay the sums referred to in section 69 to obtain his first driver’s licence or advise the Société that he does not intend to apply for a driver’s licence.
The holder of a driver’s licence who, within the period determined by regulation, requests that his licence be cancelled or advises the Société that he does not intend to apply for its renewal is not required to pay the sums referred to in the first paragraph.
A person who has failed to comply with the first or second paragraph and applies to the Société, during the period corresponding to the payment of the sums referred to in the first or second paragraph, for the issue of his first driver’s licence, the renewal of his driver’s licence or authorization to resume driving road vehicles, must pay those sums and the additional fees prescribed by regulation, in accordance with the terms and conditions prescribed by regulation.
12 Violations of ss. 31.1 and 93.1 are punishable by fines of at least $300 and no more than $600 under ss. 59 and 141 of the Safety Code. The fines are imposed under the C.P.P. Article 231 C.P.P. prohibits, in the absence of a provision to the contrary, recourse to imprisonment as a means to collect fines. However, art. 366 C.P.P. creates an offence of deliberately failing to pay a fine, and one of the possible sanctions for committing it is imprisonment.
C. Categories of Criminal Offences and Approach to Classification
13 The offences with which the respondents are charged belong to a vast category of offences known as regulatory offences. Legislatures enact such offences as incidental sanctions whose purpose is to enforce the performance of various duties, thereby safeguarding the general welfare of society (Sault Ste. Marie, at p. 1310, per Dickson J.). Establishing their legal framework gave rise to uncertainty because they are not always perfectly compatible with the fundamental principles of criminal law and because of the difficulty in defining the defences available to the accused. It was these problems that were addressed in Sault Ste. Marie.
14 The system of criminal liability in Canadian criminal law is essentially founded on the recognition and application of the concept of fault. Fault usually consists in the deliberate intention to commit a given act or in serious forms of negligence or carelessness. The prosecution must prove the actus reus and the mens rea (Sault Ste. Marie, at pp. 1309‑10). On the other hand, before Sault Ste. Marie, a system of objective and absolute liability generally applied to regulatory offences. Guilt was essentially inferred from proof of nothing more than the commission of the prohibited act, the actus reus. The accused was not even allowed to argue that he or she was entirely without fault (Sault Ste. Marie, at p. 1310).
15 Faced with the difficulties and injustices caused by this dichotomy between mens rea offences and absolute liability offences, this Court in Sault Ste. Marie recognized the need for and existence of an intermediate category of strict liability offences. Some commentators at that time suggested that such offences be identified with negligence offences. Accused persons would be allowed to exculpate themselves by proving affirmatively that they were not negligent, although the prosecution would be under no obligation to prove mens rea or a lack of due diligence (Sault Ste. Marie, at pp. 1313 and 1325). Under the approach adopted by the Court, 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. Dickson J. described strict liability offences as follows:
2. Offences in which there is no necessity for the prosecution to prove the existence of 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. This involves consideration of what a reasonable man would have done in the circumstances. 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. These offences may properly be called offences of strict liability. Mr. Justice Estey so referred to them in Hickey’s case.
(Sault Ste. Marie, at p. 1326)
16 Classifying the offence in one of the three categories now recognized in the case law thus becomes a question of statutory interpretation. Dickson J. noted that regulatory or public welfare offences usually fall into the category of strict liability offences rather than that of mens rea offences. As a general rule, in accordance with the common law rule that criminal liability ordinarily presupposes the existence of fault, they are presumed to belong to the intermediate category:
Public welfare offences would prima facie be in the second category. They are not subject to the presumption of full mens rea. An offence of this type would fall in the first category only if such words as “wilfully,” “with intent,” “knowingly,” or “intentionally” are contained in the statutory provision creating the offence.
(Sault Ste. Marie, at p. 1326)
17 Absolute liability offences still exist, but they have become an exception requiring clear proof of legislative intent. This intent can be deduced from various factors, the most important of which would appear to be the wording of the statute itself:
On the other hand, the principle that punishment should in general not be inflicted on those without fault applies. Offences of absolute liability would be those in respect of which the Legislature had made it clear that guilt would follow proof merely of the proscribed act. The overall regulatory pattern adopted by the Legislature, the subject matter of the legislation, the importance of the penalty, and the precision of the language used will be primary considerations . . . .
(Sault Ste. Marie, at p. 1326)
18 The categories established by this Court were thus based on a presumption of statutory interpretation. Developments in constitutional law since the Canadian Charter of Rights and Freedoms came into force have reinforced their legal foundations. Without abolishing the category of absolute liability offences, the Court decided that imposing penal liability of this nature would violate the principles of fundamental justice protected by the Charter where a conviction would expose the accused to imprisonment (Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486, at pp. 515-16; R. v. Vaillancourt, [1987] 2 S.C.R. 636, at p. 652, per Lamer J.).
19 This Court reconsidered the approach to classifying regulatory offences in R. v. Pontes, [1995] 3 S.C.R. 44. In that case, in which the Court had to decide whether a traffic offence was one of absolute liability, Cory J., writing for the majority, appeared to propose a two‑stage test for determining whether an offence is an absolute liability offence. First, the analytical approach and presumptions of interpretation proposed by Dickson J. in Sault Ste. Marie would have to be considered (para. 27). However, it might also be determined whether the legislature intended to make a due diligence defence available (para. 28). This added refinement to the classification approach established in Sault Ste. Marie does not make it easier to apply. The objective of the interpretive approach adopted in Sault Ste. Marie is in fact to determine the nature of the defences available to the accused. To say that it is necessary to determine whether the accused can plead due diligence amounts simply to restating the very purpose of this juridical exercise. It would therefore be better to return to the clear analytical framework and classification approach adopted in Sault Ste. Marie. This is what I propose to do in the cases at bar. I will nevertheless first consider the nature and availability of the defence of officially induced error, as well as its relationship with the due diligence defence.
D. Defence of Officially Induced Error
20 Because the respondent company argues that it was misled by erroneous information obtained from an SAAQ official regarding the procedure for paying the fees relating to the registration of its vehicle, we must now consider the nature and availability of the defence of officially induced error. This Court has never clearly accepted this defence, although several decisions by Canadian courts have recognized it to be relevant and legitimate.
21 First of all, to place the nature and limits of this defence in the proper perspective, it should be noted that ignorance of the law is not accepted in Canadian criminal law as a means to erase or mitigate criminal liability, despite occasional criticism of the inflexibility of this rule (D. Stuart, Canadian Criminal Law: A Treatise (4th ed. 2001), at pp. 323‑31). Section 19 of the Criminal Code , R.S.C. 1985, c. C-46 , states that ignorance of the law is not an excuse for committing an offence. Pursuant to art. 60 C.P.P., this principle applies to regulatory offences created by Quebec legislation. As a result of art. 60, the rules and principles of Canadian criminal law relating to the definition and conduct of available defences against criminal charges apply in Quebec penal law (G. Létourneau and P. Robert, Code de procédure pénale du Québec annoté (6th ed. 2004), at pp. 8‑9 and 88).
22 This Court has firmly and consistently applied the principle that ignorance of the law is no defence. It has given effect to this principle not only in the context of the criminal law itself, but also in cases involving regulatory offences (Molis v. The Queen, [1980] 2 S.C.R. 356; Pontes). However, the inflexibility of this rule is cause for concern where the error in law of the accused arises out of an error of an authorized representative of the state and the state then demands, through other officials, that the criminal law be applied strictly to punish the conduct of the accused. In such a case, regardless of whether it involves strict liability or absolute liability offences, the fundamental fairness of the criminal process would appear to be compromised. Although the Court has not ruled on this point, Lamer C.J. responded to these concerns, in concurring reasons in R. v. Jorgensen, [1995] 4 S.C.R. 55, by proposing to recognize the defence of officially induced error and attempting to define the conditions under which the defence would be allowed.
23 In that case, which involved a charge of selling obscene material, Lamer C.J. carefully reviewed the development of this defence by the courts. He pointed out that the defence had surfaced gradually in criminal law and had been applied by trial and appeal courts to both crimes and regulatory offences (Jorgensen, at paras. 12‑24). He noted that the judges of this Court, including Ritchie J. in R. v. MacDougall, [1982] 2 S.C.R. 605, at p. 613, had at times appeared to acknowledge the appropriateness of such a defence (Jorgensen, at para. 17). Later, Gonthier J., too, discussed the framework and nature of the defence of officially induced error in his dissenting reasons in Pontes, at p. 88 (Jorgensen, at para. 23).
24 In Lamer C.J.’s view, this defence constituted a limited but necessary exception to the rule that ignorance of the law cannot excuse the commission of a criminal offence:
Officially induced error of law exists as an exception to the rule that ignorance of the law does not excuse. As several of the cases where this rule has been discussed note, the complexity of contemporary regulation makes the assumption that a responsible citizen will have a comprehensive knowledge of the law unreasonable. This complexity, however, does not justify rejecting a rule which encourages a responsible citizenry, encourages government to publicize enactments, and is an essential foundation to the rule of law. Rather, extensive regulation is one motive for creating a limited exception to the rule that ignorantia juris neminem excusat.
(Jorgensen, at para. 25)
25 Lamer C.J. equated this defence with an excuse that has an effect similar to entrapment. The wrongfulness of the act is established. However, because of the circumstances leading up to the act, the person who committed it is not held liable for the act in criminal law. The accused is thus entitled to a stay of proceedings rather than an acquittal (Jorgensen, at para. 37).
26 After his analysis of the case law, Lamer C.J. defined the constituent elements of the defence and the conditions under which it will be available. In his view, the accused must prove six elements:
(1) that an error of law or of mixed law and fact was made;
(2) that the person who committed the act considered the legal consequences of his or her actions;
(3) that the advice obtained came from an appropriate official;
(4) that the advice was reasonable;
(5) that the advice was erroneous; and
(6) that the person relied on the advice in committing the act.
(Jorgensen, at paras. 28‑35)
27 Although the Court did not rule on this issue in Jorgensen, I believe that this analytical framework has become established. Provincial appellate courts have followed this approach to consider and apply the defence of officially induced error (R. v. Larivière (2000), 38 C.R. (5th) 130 (Que. C.A.); Maitland Valley Conservation Authority v. Cranbrook Swine Inc. (2003), 64 O.R. (3d) 417 (C.A.)). I would also note that, in this appeal, neither the prosecution nor the intervener, the Attorney General of Canada, has questioned the existence of this defence in Canadian criminal law as it presently stands. At most, the Attorney General of Canada has suggested another condition in addition to those enumerated by Lamer C.J., namely that the act was committed contemporaneously with the reception of the information. I do not think this addition is necessary. The Attorney General of Canada’s concerns relate more to the need to demonstrate that the advice was reasonable and that the accused relied on it. It should be noted, as the Ontario Court of Appeal has done, that it is necessary to establish the objective reasonableness not only of the advice, but also of the reliance on the advice (R. v. Cancoil Thermal Corp. (1986), 27 C.C.C. (3d) 295; Cranbrook Swine). Various factors will be taken into consideration in the course of this assessment, including the efforts made by the accused to obtain information, the clarity or obscurity of the law, the position and role of the official who gave the information or opinion, and the clarity, definitiveness and reasonableness of the information or opinion (Cancoil Thermal, at p. 303). It is not sufficient in such cases to conduct a purely subjective analysis of the reasonableness of the information. This aspect of the question must be considered from the perspective of a reasonable person in a situation similar to that of the accused.
28 On the basis of the above principles, I will now consider whether the acquittals entered by the Municipal Court of Lévis and upheld by the Quebec Superior Court were justified. I will first discuss the case of the respondent Tétreault, after which I will consider the case of the company.
E. Validity of the Acquittals
1. Case of the Respondent Tétreault
29 In this case, as I explained above, the charge brought by the city of Lévis was one of operating a motor vehicle without a valid driver’s licence, contrary to s. 93.1 of the Safety Code. Nothing in the words of this provision indicates an intention to create a mens rea offence or, conversely, to impose absolute liability so as to exclude a due diligence defence. The provision in no way places the burden of proving mens rea on the prosecution. Nor does it include any expression of the legislature’s intent to create an absolute liability offence. Furthermore, such an intent cannot be inferred from the scheme of this provision, which seeks to ensure that the requirements of the regulation of highway safety are met by monitoring drivers’ licences without it being necessary to deprive an accused of a due diligence defence. A strict liability scheme responds adequately to the concern to ensure that vehicle operators are aware of their legal obligations and, in particular, of their duty to do what is necessary to ensure that their licences remain valid and to drive only while they are valid. The only issue in dispute thus consists in determining whether the defence of the accused is consistent with the concept of due diligence.
30 In Mr. Tétreault’s case, the judgments of the courts below confused passivity with diligence. The accused did no more than state that he expected to receive a renewal notice for his licence and that he had confused the licence expiry date with the due date for paying the fees required to keep the licence valid. He proved no action or attempt to obtain information. The concept of diligence is based on the acceptance of a citizen’s civic duty to take action to find out what his or her obligations are. Passive ignorance is not a valid defence in criminal law. Consequently, the acquittals are unfounded in this case. The Municipal Court should have found the respondent guilty as charged and imposed the fine prescribed by law.
2. Case of the Respondent 2629‑4470 Québec inc.
31 In this case, the respondent raised the defences of due diligence and officially induced error in order to avoid conviction on a charge of operating a motor vehicle for which the fees relating to its registration had not been paid, contrary to s. 31.1 of the Safety Code. I note that, as it is worded, this provision does not create an absolute liability offence. Absent a clear indication of the legislature’s intent, the offence must be categorized as one of strict liability. The same factors apply as in the case of the obligation to have a valid driver’s licence when operating a motor vehicle, and they justify the availability of a due diligence defence. In this case, however, a due diligence defence has not been made out, and it has not been demonstrated that all the conditions under which the defence of officially induced error is available have been met.
32 The two defences are based on the same allegations of fact. Essentially, the respondent argues that it was misled. An SAAQ representative had the respondent pay registration fees corresponding to a 15‑month period and told it that a renewal notice would be sent to it before the period expired. Because of an error in the SAAQ’s record keeping, the notice was sent to the respondent with an incomplete address and the postal service returned it to the sender. The respondent believed the registration was still valid at the time the police stopped the car.
33 In my view, the respondent’s allegations of fact do not show conduct that meets the standard of due diligence. The respondent was aware of the date when the fees relating to the registration of its vehicle would be due and, accordingly, the date when the registration would cease to be valid. It could and should have been concerned when it failed to receive a notice. Instead, it did nothing. It had a duty to do more. The acquittal was therefore unjustified.
34 Nor has the respondent established that the conditions under which the defence or excuse of officially induced error is available have been met in this case and justified a stay of proceedings. The issues raised related at most to administrative practices, not to the legal obligation to pay the fees by the prescribed date. Two fundamental conditions that must be met for this defence to be available were therefore missing. In the circumstances, the respondent could not have considered the legal consequences of its conduct on the basis of advice from the official in question, nor could it have acted in reliance on that opinion, since no information regarding the nature and effects of the relevant legal obligations had been requested or obtained.
V. Conclusion
35 For these reasons, I would allow the appeals in both cases. I would set aside the respondents’ acquittals. I would enter convictions on the charges and would sentence each of the respondents to pay the minimum fine of $300 prescribed by law.
Appeals allowed.
Solicitors for the appellant: Pothier Delisle, Saint‑Romuald, Quebec.
Solicitors for the respondent 2629‑4470 Québec inc.: St‑Pierre, Maillette, Chambly, Quebec.
Solicitor for the intervener: Attorney General of Canada, Montréal.
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