You might think all traffic tickets are the same – but the type of offence you’re charged with in Ontario (strict liability vs. absolute liability) can completely change your defence options. One allows room for explanation. The other, virtually none. Knowing the difference is key to protecting your record and avoiding unnecessary convictions.
Quick Takeaways:
- Strict liability allows a defence: You can avoid conviction by proving you took “due diligence” steps to prevent the offence – like driving carefully in a snowstorm or maintaining your vehicle properly.
- Absolute liability means no excuses: Once the act is proven – like speeding or not stopping at a stop sign – -you’re guilty, even if it was an honest mistake or emergency.
- Examples of strict liability: Careless driving, stunt driving, and failing to remain at an accident scene. These carry serious penalties but allow room for defence.
- Examples of absolute liability: Speeding, expired plates, or not stopping fully at a stop sign. Good intentions or faulty equipment won’t help you.
- No jail time for absolute liability: Canadian law prohibits imprisonment for offences where no defence is allowed.
- Evidence matters in strict liability cases: Dashcam footage, maintenance logs, or witness statements can help prove your due diligence.
Legal strategy is critical: Even with limited defences, legal professionals can challenge how the offence was measured, issued, or processed.
Why This Matters: Misunderstanding what type of traffic offence you’re facing can cost you your licence, your clean record, and thousands in insurance premiums. With strict liability, you may have a real shot at dismissal – but only if you act fast and build a strong case. With absolute liability, your best bet might be challenging how the ticket was issued or negotiating the penalty.
Read on to learn how strict and absolute liability charges differ – and how the right legal defence can make all the difference in court.
Understanding the difference between strict liability and absolute liability is crucial when facing a traffic ticket in Ontario. These legal concepts determine what defences are available to you and significantly impact your chances of successfully fighting a charge. At OTD Legal, we regularly help clients navigate these complex legal distinctions to achieve the best possible outcomes for their cases.
What is Strict Liability?
Strict liability occupies the middle ground in Canadian law between traditional criminal offences (which require both a guilty act and a guilty mind) and absolute liability offences (which allow virtually no defences). This category was established by the Supreme Court of Canada in the landmark 1978 case of R. v. Sault Ste. Marie, creating a balanced approach to regulatory offences that protects public welfare while still allowing defendants to demonstrate their innocence.
Strict Liability Offences
In Ontario traffic law, strict liability offences are those where the prosecution only needs to prove that you committed the prohibited act. They do not need to prove that you intended to break the law or were being reckless. However – and this is the crucial distinction – you still have the opportunity to defend yourself by showing that you exercised “due diligence” or reasonable care to avoid committing the offence.
Common examples of strict liability offences under the Highway Traffic Act include:
Careless driving is perhaps the most well-known strict liability offence. If you’re charged with careless driving, the prosecution must prove that you drove “without due care and attention or without reasonable consideration for other persons using the highway.” While this charge carries serious penalties, including potential jail time in extreme cases, you can defend yourself by demonstrating that you were driving with appropriate care given the circumstances.
Stunt driving, which includes excessive speeding (50 km/h or more over the limit), is another strict liability offence. While the consequences are severe, including immediate licence suspension and vehicle impoundment, you can potentially mount a due diligence defence by showing you took all reasonable precautions while driving.
Failing to remain at the scene of an accident also falls under strict liability. The prosecution must prove you were involved in an accident and failed to remain, but you may be able to defend yourself by showing you had a reasonable excuse for leaving or were unaware that an accident had occurred.
These offences are often complex and nuanced, requiring careful analysis of the specific circumstances and evidence. The courts recognize that accidents can happen despite reasonable precautions, which is why the due diligence defence exists for these cases.
Defence to Strict Liability Offences
The primary defence available for strict liability offences is the “due diligence” defence. This powerful legal tool allows you to avoid conviction by proving, on a balance of probabilities (more likely than not), that you took all reasonable steps to prevent the offence from occurring.
To successfully use the due diligence defence, you must demonstrate that:
You took substantial, proactive measures to prevent the offence. This isn’t about having good intentions – it’s about concrete actions you took that a reasonable person would consider adequate to prevent the violation. For example, in a careless driving case, you might show that you were driving at an appropriate speed for the conditions, maintaining proper distance from other vehicles, and remaining attentive to the road.
You had reasonable systems in place to prevent the violation. This could include regular vehicle maintenance to ensure your car was in safe operating condition, familiarity with the route you were driving, or other preventative measures appropriate to the situation.
You responded appropriately to unexpected circumstances. If something unexpected occurred, you should be prepared to explain how your response was reasonable and prudent given the sudden nature of the event.
A related defence is the “mistake of fact” defence, where you can argue that you reasonably believed in a mistaken set of facts which, if true, would have made your actions innocent. This is not about misunderstanding the law (which is not a valid defence) but about having incorrect information about the factual situation.
When preparing for an early resolution meeting or trial, understanding the nuances of these defences is critical. The burden of proof shifts to you as the defendant, requiring you to provide evidence supporting your claim of due diligence. This might include maintenance records, witness statements, dashcam footage, or other documentation that substantiates your claim of reasonable care.
What is Absolute Liability?
Absolute liability represents the strictest category of offences in Canadian law. These charges offer virtually no defences once the prohibited act is proven, regardless of your intentions, precautions, or mistaken beliefs. This category exists primarily for regulatory offences where the law aims to ensure strict compliance to protect public safety.
Absolute Liability Offences
For absolute liability offences, the prosecution only needs to prove that you committed the prohibited act. Your mental state, intentions, or the precautions you took are irrelevant to determining guilt. Once the act is proven beyond a reasonable doubt, conviction follows almost automatically.
Common examples of absolute liability offences under Ontario’s Highway Traffic Act include:
Speeding is the quintessential absolute liability offence. If you’re clocked driving above the posted speed limit, you’re guilty of the offence regardless of whether you knew you were speeding, had a faulty speedometer, or were rushing to an emergency. The law focuses strictly on the objective fact of your speed.
Failing to stop at a stop sign is another absolute liability offence. If the prosecution can prove you didn’t come to a complete stop, you’re guilty regardless of whether visibility was poor, you were distracted, or you believed it was safe to proceed without stopping completely.
Driving without a valid licence or with expired licence plate stickers are also absolute liability offences. The simple fact of driving without proper documentation constitutes the offence, regardless of whether you forgot your wallet or genuinely believed your documentation was valid.
These offences are designed to be straightforward and leave little room for interpretation. The rationale is that these rules are so fundamental to road safety that strict compliance is necessary, and allowing various defences would undermine their effectiveness in protecting the public.
Defence to Absolute Liability Offences
The defining characteristic of absolute liability offences is the lack of available defences. Once the prosecution proves beyond a reasonable doubt that you committed the act, your options are extremely limited. The due diligence defence is not available, nor can you argue that you made a reasonable mistake of fact or had good intentions.
However, this doesn’t mean you have no options when facing an absolute liability charge. While you can’t defend against the charge based on your care or intentions, you can still:
- Challenge whether the act actually occurred. For example, in a speeding case, you might argue that the speed measurement device was not properly calibrated or operated correctly, creating reasonable doubt about your actual speed.
- Question whether proper procedures were followed. If the officer didn’t follow proper procedures in administering the test or issuing the ticket, this might provide grounds for dismissal.
- Argue identity issues if there’s genuine confusion about who was actually driving the vehicle.
In very rare and extreme circumstances, the defence of necessity or duress might be considered if you were forced to commit the offence to prevent greater harm (such as driving over the speed limit to rush someone to the hospital in a life-threatening emergency). However, courts are extremely reluctant to accept such defences for absolute liability offences.
One important constitutional limitation on absolute liability offences is that they generally cannot include imprisonment as a potential penalty. The Supreme Court of Canada has ruled that imposing imprisonment for an offence that allows no defence would violate Section 7 of the Canadian Charter of Rights and Freedoms, which protects life, liberty, and security of the person.
Why having great legal representation matters
The distinction between strict and absolute liability has profound implications for your defence strategy, which is why having knowledgeable legal representation is crucial when facing traffic charges in Ontario.
Professional representation is particularly valuable for strict liability offences, where the due diligence defence requires careful preparation and presentation. A legal professional can help you:
Identify whether your offence falls under strict or absolute liability, determining which defence strategies are available to you. This critical distinction isn’t always obvious from the ticket itself but requires knowledge of legal precedents and specific provisions of the Highway Traffic Act.
Gather and organize evidence to support a due diligence defence for strict liability offences. This might include collecting witness statements, securing dashcam footage, obtaining vehicle maintenance records, or documenting road conditions at the time of the alleged offence.
Prepare you for what to expect in court, including how to present your evidence effectively and respond to questions from the prosecutor or judge. Courtroom procedures can be intimidating for those without experience, and having guidance through this process is invaluable.
Negotiate with prosecutors during early resolution meetings, potentially securing reduced charges or penalties. In some cases, a strict liability offence might be reduced to a less serious charge with fewer consequences for your driving record and insurance rates.
Challenge the evidence against you, regardless of whether you’re facing a strict or absolute liability offence. This might involve questioning the reliability of speed detection equipment, the visibility of signage, or the officer’s observations and procedures.
Even for absolute liability offences, where defences are limited, professional representation can make a significant difference. Your representative can identify procedural errors, challenge the evidence that the act occurred, or negotiate for reduced penalties even if a conviction is likely.
At OTD Legal, we understand the nuances of traffic law in Ontario and how to navigate the complex distinction between strict and absolute liability. Our experienced team has successfully defended countless clients against both types of offences, achieving favorable outcomes even in challenging cases.
Consider the case of a client charged with careless driving after a minor collision during a snowstorm. By presenting evidence of the client’s reasonable driving behaviour given the weather conditions, including reduced speed and increased following distance, we were able to demonstrate due diligence and secure a dismissal of the charges. This protected the client from severe penalties and prevented insurance rate increases that would have cost thousands of dollars over time.
In another case involving an absolute liability speeding charge, while we couldn’t argue due diligence, we identified issues with the calibration records for the radar device used to measure the client’s speed. This created reasonable doubt about whether the offence had actually occurred, resulting in dismissal of the charges.
Our approach involves a thorough review of your specific situation, the evidence against you, and all potential defence strategies. We then develop a customized plan to achieve the best possible outcome, whether that involves presenting a due diligence defence for strict liability offences or challenging the evidence for absolute liability charges.
Frequently Asked Questions
How can I tell if I’m charged with a strict or absolute liability offence?
The ticket itself won’t specify whether you’re facing a strict or absolute liability offence. This classification is based on legal precedents and interpretations of the Highway Traffic Act. Generally, more serious offences like careless driving and stunt driving are strict liability offences, while more straightforward violations like speeding and failing to stop at a stop sign are absolute liability offences. Consulting with a legal professional is the best way to determine the classification of your specific charge and understand what defences are available to you.
Can I use the due diligence defence for a speeding ticket?
No, speeding is classified as an absolute liability offence in Ontario, which means the due diligence defence is not available. Even if you can prove you took all reasonable care (such as relying on your car’s speedometer or cruise control), this will not provide a defence to the charge if the prosecution can prove you were exceeding the speed limit. Your defence options for speeding tickets are generally limited to challenging whether you were actually speeding or whether proper procedures were followed in measuring your speed and issuing the ticket.
What evidence do I need to support a due diligence defence?
For a due diligence defence to succeed, you need evidence demonstrating that you took all reasonable steps to prevent the offence from occurring. This might include maintenance records showing your vehicle was in good working condition, witness statements supporting your version of events, dashcam footage documenting the incident, photographs of road conditions or signage, and your own testimony about the precautions you took. The specific evidence required depends on the nature of the charge and the circumstances of your case. A legal professional can help you identify and prepare the most compelling evidence for your specific situation.
Can I go to jail for an absolute liability offence?
Generally, no. The Supreme Court of Canada has ruled that absolute liability offences cannot include imprisonment as a potential penalty, as this would violate Section 7 of the Canadian Charter of Rights and Freedoms. Since absolute liability offences don’t allow for a due diligence defence, imposing jail time would be constitutionally problematic. However, absolute liability offences can still result in significant fines, demerit points, and licence suspensions, which can have serious financial and practical consequences. Strict liability offences, on the other hand, can potentially include jail time as a penalty because they do allow for the due diligence defence.
Is it worth fighting an absolute liability offence if I can’t use the due diligence defence?
Yes, it can still be worth fighting an absolute liability offence even though your defence options are more limited. You can challenge whether the offence actually occurred by questioning the evidence against you, such as the accuracy of speed detection equipment or the officer’s observations. You can also identify procedural errors in how the ticket was issued or the evidence was collected. Additionally, even if conviction is likely, legal representation can often negotiate reduced penalties or alternative resolutions that minimize the impact on your driving record and insurance rates. Each case is unique, and a consultation with a legal professional can help you understand your specific options and the potential benefits of contesting the charge.
Understanding the distinction between strict and absolute liability is essential for developing an effective defence strategy for traffic tickets in Ontario. While absolute liability offences allow few defences once the act is proven, strict liability offences provide the opportunity to demonstrate due diligence and potentially avoid conviction entirely. Either way, professional legal representation can make a significant difference in the outcome of your case.
Contact OTD Legal for a free consultation to discuss your traffic ticket and understand your defence options. Our experienced team serves clients throughout Ontario, providing knowledgeable representation tailored to your specific situation. We’ll help you navigate the complexities of traffic law, build the strongest possible defence, and work toward the best possible outcome for your case.
Don’t face traffic charges alone—reach out today to protect your driving record, your insurance rates, and your future on the road.
