Every type of charge or violation falls into 1 of 3 Categories. From these 3 categories there are specific defenses that the court will hear. 

We have specifically listed what your defense can be and how you may defend yourself in court. Generally, this information is located in case law or judge made law. Identifying the category that your case falls into will help you understand what type of defense you will have. The importance of this step should not be ignored, it is critical in your decision making process. The courts use the precise wording of the legislation to determine what type of offense they are dealing with. All offenses fall within 1 of 3 categories and defendants can avail or use certain defenses within these categories. As quoted from case law: R. v. Young, 2013 CanLII 27260 (NL PC)  

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THE NATURE OF THE OFFENCE

[9]     In R. v. Sault Ste. Marie (1978), 40 C.C.C. (2d) 353 (S.C.C.), the Court considered the nature of offences and recognized three "categories of offences" (at pages 373 to 374):

    

1.  Offences in which mens rea, consisting of some positive state of mind such as intent, knowledge, or recklessness, must be proved by the prosecution either as an inference from the nature of the act committed, or by additional evidence.

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.

    Offences of absolute liability where it is not open to the accused to exculpate himself by showing that he was free of fault."

 

 

Category 1:

Absolute liability

 

This type of offense is normally reserved for all regulatory offenses such as parking tickets or basic speeding offenses. The defendant cannot say to the court that it was not their fault that it happened or anything that can be considered an excuse. In the example of a parking offense, the defendant cannot say that they parked in a handicap zone but it was only for a minute while they got out of their car to go to the bank machine. The element of guilty knowledge or negligence is not accepted by the court as a defense. For example, in speeding offenses the defendant cannot say that they were speeding but the speedometer didn't work. Both of these examples are excuses and they do not constitute or make a defense to the charge. So, even though you may not have intended to commit the offense you are still guilty. It is enough that the act happened and that you were identified as doing it. It is enough that the act happened and that you were identified as doing it 

 

Types of Defences for an absolute liability offence:

1. Involuntariness Defense

 

The illegal action that you are accused of must have been voluntary and within your control.In other words, if someone took control over the car by let's say pushing on the accelerator while you were driving, or if you had been drugged by someone and unable to be in control of your actions. Within a boundary or reason, these are your defenses. In the case of receiving a parking ticket you may have been forced by an aggressor to park in the handicap zone and unable to move the car. Remember, the court must find the reason credible. 

2. Necessity Defence [All 4 of these must be present]

 

1. An immediate risk must be present in that the defendant must avoid imminent danger.

2. No other options may be available, that are legal and reasonable, that the defendant can make.

3. The harm caused by the defendants action is less than the harm avoided.
4. The defendant could not foresee that the emergency was going to happen.

The onus is always on the defense to prove that an emergency existed and the prosecutor's role is to prove that this defense does not apply. An example may be that you avoided a collision by changing lanes fast and then caused another accident of less harm. Hopefully, you did not hit anyone but a police officer may have charged you with the offense of improper lane change. The defendant in this case is able to use the defense of necessity. The court will take into consideration the entire situation in determining the guilt or the innocence of the defendant. The court will examine the issue of no reasonable alternative, evaluating it from an objective standard such as a community standard.

3. Causation defence

 

This defense is available to the defendant if the prosecutor fails to prove any element of its case. For example if the police office gets on the stand, as the prosecutors case goes first, and they are not sure 100 percent that it was the defendant that committed the offense. Then in this case the defense does not have to put on a case but tell the court that the prosecutor has failed to prove all of the elements of its case, namely identifying you.

The prosecutor must prove beyond a reasonable doubt that you the defendant caused the illegal act. This proof is what is called actus reus. Causation is the force that binds the defendant and the illegal act or acts that resulted.It is enough that the defendant just contributed to the act happening from outside the diminimus range. The term diminimus means that the defendant's contribution was not so small that the court should not concern itself with the defendant.

Most of the time in traffic tickets and small offenses, the police officer has to see you do the action or another witness, before you will be charged at all. 

 

Category 2:

Strict liability offenses

 

The defendant has an opportunity to tell their side of the story and give a reason for what happened. In other words, the defendant can use an excuse.

For example, if a person was speeding 20 km over the speed limit the defendant cannot win by giving the court a reason why they were speeding. The court will say hold it, this is an excuse and unless it was an emergency is not a defense to this case. But, if the person was speeding 51 km over the speed limit, and charged with stunt driving then the person or defendant can say to the court that they were speeding because.....  It all depends on the type of charge.

These excuses must be reasonable. The courts will determine if the reason that you are giving them is what a normal person would have done given the same circumstances.

Under these offences once the prosecutor has proven its case then the court looks at the defendant as if they are guilty already. It is up to the defendant to prove that there action was a mistake of fact (they didn't know what they were doing was wrong). And that the defendant took all reasonable care to ensure that the illegal act would not occur. This is what is normally called due diligence. The defendant did all that they could do but..... So, you may think of it as that given the circumstance, what you actually did was the right thing given hindsight. If the defendant honestly believed that certain facts were true and that there was good reason to believe so, then this is a mistake of fact.

A defendant can then say to the court that they were aware of the risk and took all reasonable care. This is the case for certain careless driving offenses or failing to ensure that a child was not wearing a seat-belt. 

Category 3:

Means Rea offense

 

This is generally held for more serious offenses such as drunk driving or murder. The prosecutor must prove beyond a reasonable doubt that the person committed the offense and had the particular state of mind.  The defendant can then argue that they did not have the appropriate mental element. Or in offenses such as failing to stop for police or avoiding police, a defendant can say that they did not intend to do such an act (guilty mind). The issue is raised of what at the time was the defendant's state of mind; was the defendant reckless and intend for the illegal act to occur is the question.

Type of offense notice you may have.

 

Part 1 general tickets such as speeding where you have to file a trial date

Part 2 these are all parking tickets

Part 3 these are tickets that have automatic court date on notice for when you are to appear in court and carry a more severe penalty.

See Provincial offenses Act section 21 

www.e-laws.gov.on.ca/html/statutes/english/elaws_statutes_90p33_e.htm#BK37

This information is good to know if you are appealing the charge. If you walk into a court house and appeal the charge then they will ask what type of ticket did you get and then you will be able to tell them it was one of the three types. In order to help you discover which type of ticket that you may have it will be noted in the body of the ticket that you have received what type of ticket. (NOTE: that parking tickets issued from the municipality all of these are called bylaw offenses. We have separated them in a separate category).  There is a tremendous amount of different bylaw infractions and for the purpose of making this site easy to use, we have separated them. ALSO NOTE: Some traffic tickets are bylaw infraction so it is always important to review the offense notice or the ticket that you have received and locate the type of law or regulation that you have alleged to have breached or broken to research the relevant case law and the provision under a certain Act of Legislation.  This is located on the ticket itself. A defendant will see for speeding and then underneath the charge it will say HTA. This means Highway Traffic Act.

 

Review:

 

You have a certain type of offense that corresponds to a specific law, showing penalties and fines

 

Then the offence will either be an absolute liability, strict liability or means rea. By identifying the type of offence that you are dealing with this will show you how to argue and what you can argue.

 

Then you will find out how to argue your case and what type of defense category you have available to you.

 

From here it will be important to review relevant case law for further insight (go to links page and try Can-lii.Just type in the description of the type of offense you have.

 

Or use our service and type in the offence you have under case check and all of the work is done for you.