An Overview of Common Defences
Common Defences for Absolute Liability Offences vs. Strict Liability Offences
Strict liability offences are offences where the burden is on the defendant to prove that he/she took all reasonable steps to prevent the offence from occurring. For strict liability offences, the defendant can use the defence of 'due diligence' in order to fight the conviction. Due diligence means that the defendant used reasonable effort to prevent the offence from happening.
Examples of traffic offences that are categorized as strict liability offences include driving while suspended, failure to remain, driving without insurance, careless driving, and failure to wear a seatbelt.
For absolute liability offences, the mental state of the defendant is deemed irrelevant. The Crown only has to prove that the act was committed in order for the Court to register a conviction. So, any defence regarding the mental aspect of the defendant does not normally apply for these types of offences (except for the defence of necessity). Instead, defences aimed at questioning the act itself - for example, raising reasonable doubt as to whether the act occurred at all - is used.
Examples of traffic offences that are categorized as absolute liability offences include failure to stop at a red light and speeding.
Technical Errors on the Offence Notice
The defendant can object to a defect found on the Offence Notice during trial. It is important to note, however, that the Justice of the Peace may amend the document to correct the defects on the Offence Notice (POA, 34), as long as correcting the error does not deprive the defendant of his or her right to defend him or her self (POA, 34(4)(c)(d)).
Technical errors which have resulted in the dropping of charges include an incorrect or missing date of the offence, missing defendant name, missing charging officer name, missing location of offence, missing description of the offence or offence indicated is unknown to law, and Offence Notice was not given to the defendant within 30 days of the offence date (POA, 3(3))
The Defence of Necessity
To use the defence of necessity, the defendant must satisfy all of the requirements, as described in Perka v. R. (1984), 404-405. The defendant must prove that 1) He or she needed to commit the act to avoid immediate peril 2) No other reasonable alternative existed 3) The harm caused by the defendant was less than the harm avoided and 4) He or she could not have foreseen the emergency.