Reasonable Care: Legally, due diligence mandates that an accused person take every reasonable step and exercise all reasonable care to prevent harm. It can be argued a person acted innocently if they had an honest belief, even if mistaken, in the facts that would render their actions innocent. However, it is not expected of the accused to take every possible step or put themselves in unreasonable danger. The due diligence standard is evaluated based on what a reasonable person would have done in similar circumstances.
Criminal offences in Canada require the government prosecutor to prove beyond a reasonable doubt that you are guilty and intended to commit the crime you’re accused of. This criminal intent is called mens rea (Latin for “guilty mind”) or a criminal mind. However, most prosecutions in Ontario are not criminal and do not require mens rea. Rather, they are administrative state bureaucracy charges such as Provincial offences (POA), bylaws, highway traffic offences, or parking tickets. Non-criminal matters on their face may seem minor – but not always. Many offences have the potential for exorbitant fines and even jail terms.
When certain words, such as knowingly, wilfully, with intent, or intentionally, are used in statutes, it indicates that the government must prove the accused mental state of mind. On the other hand, words like ‘causing’ suggest a non-criminal or regulatory offence, which can be either strict liability or absolute liability. The government only needs to show actus reus (Latin for “guilty act”) or that the offence happened. The onus then shifts to the defendant (offender).
Strict Liability vs Absolute Liability Offences
Once established, absolute liability offences, such as speeding or driving without a license, have no defence. Arguing that you weren’t going as fast as the other car is not a winning strategy. However, you may be successful if you can show the ticket is fatally flawed. Pleading hard times or spinning a good yarn may get the ticket reduced, either monetarily or as a reduced offence. Dragging the process out could provide just enough time for demerit points from a prior offence to disappear. Demerit points impact your insurance premiums and enough can result in a licence suspension.
Ultimately, mitigating the damage is often the only option as absolute liability tickets have no defence.
In the past, all offences were either criminal or absolute liability offences. However, the Supreme Court of Canada in 1978 in R. v. City of Sault Ste-Marie created a two-tiered system of liability for regulatory offences. The Crown still didn’t have to prove the mens rea of the offence. However, offences of strict liability would grant the accused defences. Often the statute provides clues, such as a defence of due diligence, the accused must be acquitted if he can show he was not negligent. The ‘third party’ defence, whereby the accused attempts to show that the prohibited conduct or result was due to the act or default of a third party.
Additionally, in the absence of a clear legislative intent to the contrary, the Court held that all regulatory offences would now be presumed to be strict liability.
Strict Liability Offences
Depending on the type of offence, the Crown must always prove the elements of the regulatory or provincial offence, or establish a duty or obligation the accused never fulfilled. The onus then switches to the accused to establish on the balance of probabilities that due diligence or that all reasonable care to avoid harm was taken. The conduct of the accused is measured against that of “a reasonable person in similar circumstances.”
What is reasonable due diligence in one context may or may not be reasonable in another. There is no one-size-fits-all checklist of appropriate processes or practices to be followed in every context.
Applied to occupational health and safety, due diligence means that employers shall take all reasonable precautions, under particular circumstances, to prevent injuries or incidents in the workplace. Reasonable precautions are also referred to as reasonable care. Another term used is employers must do what is “reasonably practicable”. Reasonably practicable has been described as taking precautions that are not only possible, but that are also suitable or rational, given a particular situation.
Environmental offences would necessitate a company or individual showing they established a proper system of checks and balances to prevent environmental harm, and that they took reasonable steps to ensure the prevention system would work. Acting reasonably in the abstract or general sense is not enough. The defence must relate to the commission of the prohibited act. The onus is on the defendant to prove that it was more likely than not that they did everything reasonable to prevent the environmental damage.
Seeking Due Diligence Guidance
Canada’s Anti-Spam Legislation (CASL) is a good example. A person cannot be found liable for a violation of the Act if they establish that they exercised due diligence in their anti-spam practices, yet the Act is silent on what exactly must be undertaken to rely on this defence. The Canadian Radio-television and Telecommunications Commission (CRTC) is tasked with ensuring compliance with the Unsolicited Telecommunications Rules (UTR), Canada’s Anti-spam Legislation (CASL), and the Voter Contact Registry (VCR).
Sometimes looking at related statutes can provide insight or guidance into what constitutes a due diligence defence. Alternatively, we can look at past hearings or tribunals to understand acceptable steps. In the context of the National Do Not Call List which is under the UTR, the rules establish due diligence when the telecommunication resulted from an error and the organization’s routine business practices include:
- adequate written policies and procedures;
- monitoring and enforcement of the Rules and its policies and procedures;
- on-going employee training;
- the maintaining of records; and
- a requirement that third-party service providers agree to comply with the Rules.
But it is also established that due diligence defences require evidence that the party took all reasonable steps to comply with the Rules. In one Telecom Decision, the CRTC found, on a balance of probabilities, that a company’s ongoing employee training did not satisfy that part of the criteria because evidence of the training’s contents was not provided. In another decision, the CRTC noted that a company had instituted sound policies and procedures, but denied its due diligence claim because it had subsequently failed to follow them.
Due diligence is demonstrated by your actions before, not after
The appropriate degree of care depends on many factors but adjudicators can consider the likelihood and gravity of potential harm; alternatives available to the accused; and the degree of knowledge or skill expected of the accused. the extent to which underlying causes of the offence are beyond the accused’s control.; can a reasonable person predict or foresee something going wrong; who is responsible for preventing the incident and/or was there an opportunity to prevent the incident?
The conditions for establishing due diligence may be industry-specific but they do include common criteria: Employers must:
- Have in place written policies, practices, and procedures
- Adhere to all applicable labour and human rights laws
- Provide the appropriate training and education to the employees so that they understand and carry out their work according to the established policies, practices, and procedures.
- Educate and train the supervisors to ensure they are competent and also ensure managers/supervisors – Talk to new employees about safety during orientation training; Meet regularly with staff to discuss health and safety matters; Inspect areas of the workplace under their responsibility, and respond promptly to unsafe conditions and activities.
- Monitor the workplace and ensure that employees are following the policies, practices and procedures. Written documentation of progressive disciplining for breaches of safety rules is considered due diligence.
What documentation is needed to show due diligence?
Written documentation is essential. Records, reports, and documentation for activities can include:
- Worker orientation, education, and training.
- Workplace inspections, including corrective actions taken.
- Incident reports, including corrective actions taken.
- Supervisor or manager notes (e.g., supervisor inspections, meetings with workers or contractors regarding safety, etc.).
- Health and safety committee meeting minutes.
- Equipment log books and maintenance records.
- Emergency response drills and exercises.
- Instructions or safe work procedures, including any changes.
- Forms and checklists used when following safe work procedures
- Statistics about the frequency and severity of injuries, complaints, etc.
- Enforcement of health, safety, or harassment rules and procedures.
You won’t prove due diligence if you…
Proving due diligence requires taking concrete steps and actions on an ongoing basis to ensure compliance if required. Ensuring due diligence isn’t available as an option for your defence is also easily accomplished – Just leave the record-keeping for tomorrow. Know about a hazard but do nothing to correct it or deny that a hazard even exists. Ignore those rules that were in place. Don’t provide or enforce the use of protective personal equipment (PPE). Don’t create safe or harassment-free workspaces. Don’t cooperate with others in the workplace to make a safe work environment. All the sure ways to leave you defenceless!
Still confused or unsure if you can represent yourself at a hearing? Need a second or a legal opinion? Use the contact page or give me a call at 519-721-1392.