Facts[]
Wholesale Travel was charged with false advertising under s.36(1) (now s.60)(2)) of the Competition Act. They stated that they were offering vacation packages "at wholesale prices" when in fact they were charging more to customers than they had to pay for the vacations. The statutory punishments for the offence were a fine of up to $25,000 and five years in prison. There were also lengthy statutory defences defined, which included exculpating oneself by showing that they acted reasonably in the circumstances. Wholesale Travel appeals on an order for trial from the Court of Appeal.
Issue[]
- Do regulatory schemes which impose strict liability breach ss.7 and 11(d) of the Charter?
Decision[]
Appeal Dismissed.
Reasons[]
Cory J reaffirms the decision of R v Sault Ste. Marie. This is obviously a strict liability offence for all of the reasons set out in the previous case. Therefore, the Crown does not need to prove mens rea in order to get a conviction; however, the defendant can be acquitted if they can show that they acted reasonably in the circumstances (among the other things required for the statutory defence).
The Court unanimously held that that the "timely retraction" provisions of s. 37.3(2)(c) and (d) of the Act did infringe s.7 and could not be saved under s.1.
The Court however was divided on whether a reversal of onus onto the accused in s. 37.3(2) was constitutional. The majority (Lamer with LaForest, Sopinka, Gonthier, McLachlin, Stevenson, and Iacobucci) held that the reverse onus infringed s. 11(d) of the Charter. However, only four of the seven held that it could not be saved under s.1. Since the remaining two judges (L'Heureux-Dube and Cory) found the reversal of onus did not violate s.11(d), a majority was had by those that argued a reversal of onus was constitutionally justifiable by a 5 to 4 margin.
Ratio[]
- Public welfare offences are generally strict liability offences, meaning that the Crown does not need to prove mens rea, but the defendant can be acquitted if they prove that they acted reasonably in the circumstances.
- If the offence has a statutory defence that is similar to this requirement then it falls under the heading of strict liability offences, and the Crown does not need to prove mens rea for a conviction.
- Corporations can challenge the constitutional validity of sections of the Code or other statutes even if the sections that are infringed deal with the rights of individuals.
- Laws that are found to be unconstitutional do not apply to anyone – including corporations.