Absolute liability
Encyclopedia
Absolute liability is a standard of legal liability
found in tort
and criminal law
of various legal jurisdictions.
To be convicted of an ordinary crime, in certain jurisdictions, a person must not only have committed a criminal action, but also have had a deliberate intention or guilty mind (mens reus). In a crime of strict liability (criminal)
or absolute liability, a person could be guilty even if there was no intention to commit a crime. The difference between strict and absolute liability is whether the defence of a mistake of fact is available: in a crime of absolute liability, a mistake of fact is not a defence.
, 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 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
.)
In other words absolute liability is strict liability without any exception. This liability standard has been laid down by the Indian Supreme Court in M.C. Mehta v. Union of India (Oleum Gas Leak Case)
. These exceptions include:-
• Plaintiff’s own mistake
• Plaintiff’s consent
• Natural disasters
• Third Party’s mistake
• Part of a statutory duty
The Indian Judiciary tried to make a strong effort following the Bhopal Gas Tragedy, December, 1984 (Union Carbide Company vs. Union of India) to enforce greater amount of protection to the Public. The Doctrine of Absolute Liability can be said to be a strong legal tool against rogue corporations that were negligent towards health risks for the public. This legal doctrine was much more powerful than the legal Doctrine of Strict Liability developed in the UK case Ryland’s Vs. Fletcher. This meant that the defaulter could be held liable for even third party errors when the public was at a realistic risk. This could ensure stricter compliance to standards that were meant to safeguard the public.
Regulatory bodies tend to favour the approach of declaring offences to be strict or absolute liability, because it makes it easier to prosecute people: there is no longer a requirement to demonstrate that the defendant was deliberately intending to commit an offence. Jurists consider such a mechanism to be a blunt instrument, and recommend its use only in limited circumstances.
Legal liability
Legal liability is the legal bound obligation to pay debts.* In law a person is said to be legally liable when they are financially and legally responsible for something. Legal liability concerns both civil law and criminal law. See Strict liability. Under English law, with the passing of the Theft...
found in tort
Tort
A tort, in common law jurisdictions, is a wrong that involves a breach of a civil duty owed to someone else. It is differentiated from a crime, which involves a breach of a duty owed to society in general...
and criminal law
Criminal law
Criminal law, is the body of law that relates to crime. It might be defined as the body of rules that defines conduct that is not allowed because it is held to threaten, harm or endanger the safety and welfare of people, and that sets out the punishment to be imposed on people who do not obey...
of various legal jurisdictions.
To be convicted of an ordinary crime, in certain jurisdictions, a person must not only have committed a criminal action, but also have had a deliberate intention or guilty mind (mens reus). In a crime of strict liability (criminal)
Strict liability (criminal)
In criminal law, strict liability is liability for which mens rea does not have to be proven in relation to one or more elements comprising the actus reus although intention, recklessness or knowledge may be required in relation to other elements of the offence...
or absolute liability, a person could be guilty even if there was no intention to commit a crime. The difference between strict and absolute liability is whether the defence of a mistake of fact is available: in a crime of absolute liability, a mistake of fact is not a defence.
Canada
In CanadaCanada
Canada is a North American country consisting of ten provinces and three territories. Located in the northern part of the continent, it extends from the Atlantic Ocean in the east to the Pacific Ocean in the west, and northward into the Arctic Ocean...
, absolute liability is one of three types of criminal or regulatory offences
Regulatory offences
A regulatory offence or quasi-criminal offence is a class of crime in which the standard for proving culpability has been lowered so a mens rea element is not required...
. In R. v. City of Sault Ste-Marie
R. v. City of Sault Ste-Marie
R. v. City of Sault Ste-Marie [1978] 2 S.C.R. 1299 is a Supreme Court of Canada case where the Court defines the three types of offences that exist in Canadian criminal law and further defines the justification for "public welfare" offences.- Background :...
, the Supreme Court of Canada
Supreme Court of Canada
The Supreme Court of Canada is the highest court of Canada and is the final court of appeals in the Canadian justice system. The court grants permission to between 40 and 75 litigants each year to appeal decisions rendered by provincial, territorial and federal appellate courts, and its decisions...
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
Strict liability (criminal)
In criminal law, strict liability is liability for which mens rea does not have to be proven in relation to one or more elements comprising the actus reus although intention, recklessness or knowledge may be required in relation to other elements of the offence...
offence (where an accused can raise the defence of due diligence
Due diligence
"Due diligence" is a term used for a number of concepts involving either an investigation of a business or person prior to signing a contract, or an act with a certain standard of care. It can be a legal obligation, but the term will more commonly apply to voluntary investigations...
) and mens rea
Mens rea
Mens rea is Latin for "guilty mind". In criminal law, it is viewed as one of the necessary elements of a crime. The standard common law test of criminal liability is usually expressed in the Latin phrase, actus non facit reum nisi mens sit rea, which means "the act does not make a person guilty...
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
Statute
A statute is a formal written enactment of a legislative authority that governs a state, city, or county. Typically, statutes command or prohibit something, or declare policy. The word is often used to distinguish law made by legislative bodies from case law, decided by courts, and regulations...
. 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
Jail
A jail is a short-term detention facility in the United States and Canada.Jail may also refer to:In entertainment:*Jail , a 1966 Malayalam movie*Jail , a 2009 Bollywood movie...
violates section 7 of the Canadian Charter of Rights and Freedoms
Section Seven of the Canadian Charter of Rights and Freedoms
Section Seven of the Canadian Charter of Rights and Freedoms is a constitutional provision that protects an individual's autonomy and personal legal rights from actions of the government in Canada. There are three types of protection within the section, namely the right to life, liberty, and...
and is unconstitutional. Specifically, jail violates a person's liberty
Liberty
Liberty is a moral and political principle, or Right, that identifies the condition in which human beings are able to govern themselves, to behave according to their own free will, and take responsibility for their actions...
and an absolute liability offence is not in accordance with the principles of fundamental justice. (See Re B.C. Motor Vehicle Act
Re B.C. Motor Vehicle Act
Reference re Section 94 of the Motor Vehicle Act, [1985] 2 S.C.R. 486 was a landmark reference submitted to the Supreme Court of Canada regarding the constitutionality of the British Columbia Motor Vehicle Act...
.)
India
In India, absolute liability is a standard of tort liability which stipulates thatIn other words absolute liability is strict liability without any exception. This liability standard has been laid down by the Indian Supreme Court in M.C. Mehta v. Union of India (Oleum Gas Leak Case)
M.C. Mehta v. Union of India (Oleum Gas Leak Case)
The case of M.C. Mehta v. Union of India originated in the aftermath of oleum gas leak from Shriram Food and Fertilisers Ltd. complex at Delhi. This gas leak occurred soon after the infamous Bhopal gas leak and created a lot of panic in Delhi. One person died in the incident and few were hospitalized...
. These exceptions include:-
• Plaintiff’s own mistake
• Plaintiff’s consent
• Natural disasters
• Third Party’s mistake
• Part of a statutory duty
The Indian Judiciary tried to make a strong effort following the Bhopal Gas Tragedy, December, 1984 (Union Carbide Company vs. Union of India) to enforce greater amount of protection to the Public. The Doctrine of Absolute Liability can be said to be a strong legal tool against rogue corporations that were negligent towards health risks for the public. This legal doctrine was much more powerful than the legal Doctrine of Strict Liability developed in the UK case Ryland’s Vs. Fletcher. This meant that the defaulter could be held liable for even third party errors when the public was at a realistic risk. This could ensure stricter compliance to standards that were meant to safeguard the public.
Australia
The Australian Criminal Code Act 1995 defines absolute liability in Division 6, subsection 2:Regulatory bodies tend to favour the approach of declaring offences to be strict or absolute liability, because it makes it easier to prosecute people: there is no longer a requirement to demonstrate that the defendant was deliberately intending to commit an offence. Jurists consider such a mechanism to be a blunt instrument, and recommend its use only in limited circumstances.