STEP 1. Go to the charging legislation. Read the section that creates the offence. Does the section contain language of mens rea (intention)? Look for the following words and phrases: knowingly, intentionally, willfully, with intent. If this language is present, then it is a mens rea offence. This means that the prosecutor must prove intent and that a sentence of incarceration (jail) is possible upon conviction. The prosecutor must also prove the identity of the offender and the other elements of the offence.
If there is no language of intention, go to:
STEP 2. Referring again to the charging legislation, ask the following:
- Does the penalty for the offence include the possibility of incarceration upon conviction?
- Are any statutory defences of due diligence expressly provided for?
- Is there any language of negligence or carelessness?
- Is there any other language raising defences of due diligence/reasonable steps?
- Does the charging provision create an offence of failing to meet a standard or duty of care?
If the answer to any of these questions is yes, then it is a strict liability offence. If the defendant can show that they acted reasonably in the situation, this will negate the offence.
If there is no language of negligence, then it is an absolute liability offence. That the defendant was not careless does not matter. The prosecutor must prove only the identity of the offender and elements of the offence.
Note that common law defences are available for all three types of offence. These will be discussed in future articles.