Canada
In Canada, absolute liability is one of three types of criminal or regulatory offences. In R. v. City of Sault Ste-Marie, the Supreme Court of Canada defined an absolute liability offence as an offence "where it is not open to the accused to exculpate himself by showing that he was free of fault." This can be compared to a strict liability offence (where an accused can raise the defence of due diligence) and mens rea offences (where the prosecutor has to prove that the accused had some positive state of mind).
Generally, criminal offences are presumed to be mens rea offences, and regulatory offences are presumed to be strict liability offences. Therefore, most offences are not absolute liability offences, and usually will require an explicit statement in the statute. To determine if an offence is an absolute liability offence, the courts must look at:
- The overall regulatory pattern;
- The subject matter of the legislation;
- The importance of the penalty; and
- The precision of the language used in the statute.
The combination of an absolute liability offence and the possible sentence of jail violates section 7 of the Canadian Charter of Rights and Freedoms and is unconstitutional. Specifically, jail violates a person's liberty and an absolute liability offence is not in accordance with the principles of fundamental justice. (See Re B.C. Motor Vehicle Act.)
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—Henry David Thoreau (1817–1862)