The Quebec Court of Appeal clarifies the interpretation of provincial penal offences: a renewed or reaffirmed interpretation?

A five-judge panel of the Quebec Court of Appeal recently allowed the appeal of the Director of Criminal and Penal Prosecutions against a Superior Court judgment ordering a new trial for the defendant Adrian Dafinei, accused of having committed a provincial penal offence (the Accused). 

The Court of Appeal’s decision in Directeur des poursuites criminelles et pénales v. Dafinei¹ is relevant, as the court states at the outset that it sat as a panel of five judges "to clarify the law in Quebec concerning the interpretation of provincial penal offences,"² particularly with regard to the classification of provincial penal offences. This classification is of interest since, depending on the case, different defenses may be open to an accused entity or person. For example, an offence of strict liability offers the accused entity or person the possibility of raising a defence of due diligence or reasonable mistake of fact, which the offence of absolute liability does not.

Factual background

At first instance, the trial judge found that the offence allegedly committed by the Accused fell within the category of absolute liability offences and found the Accused guilty.³ On appeal, the Superior Court found that the offence fell within the category of strict liability offences and ordered a new trial.⁴ The Court of Appeal concluded that the offence was one of strict liability, but allowed the appeal for other reasons.

A presumption that  provincial penal offences are of strict liability 

At the outset, the Court of Appeal pointed out that, in Quebec, there is a presumption stemming from the Supreme Court of Canada’s decision in Sault Ste-Marie⁵ that all penal offences under provincial jurisdiction are strict liability offences. According to the Court of Appeal, there are two exceptions to this presumption: (1) an offence that requires proof of fault (i.e. a mens rea offence) and (2) an offence of absolute liability. These exceptions can only apply if compelled by (a) express statutory language, or (b) by necessary implication in the legislative context.⁶ The Court of Appeal also held that this is a general principle, and "[a]ny previous jurisprudence on the classification of provincial penal offences that is inconsistent with it must be considered overruled."⁷

In the Court of Appeal’s opinion, this general principle eliminates "ambiguity in the characterisation of provincial penal offences in Quebec." Thus, any penal offence in Quebec is a strict liability offence, unless it can, by virtue of a "clear indication of the legislature’s intent" (by express statutory language or because of the legislative context), qualify as a mens rea offence or an offence of absolute liability.⁸ 

Reaffirmation of the principles of Sault Ste-Marie and implications for other matters of provincial penal law

This recent Court of Appeal decision can be seen as a reaffirmation of the principles of Sault Ste-Marie in Quebec penal law.

In the coming months and years, it will be interesting to see the impact of this ruling on proceedings brought by various provincial regulatory bodies, for example in the area of securities and environmental protection.

For example, in 2018, in Autorité des marchés financiers c. Forget,⁹ the Court of Appeal had confirmed that the offence of market manipulation provided for in section 195.2 of the Securities Act¹⁰ was an offence requiring proof of intent because of the object of the legislation, the specific wording of the provision and the severity of the penalty associated with the offence.¹¹ In our view, this classification is consistent with the clarifications made by the Court of Appeal in Dafinei, since the wording of the offence of market manipulation and its legislative context demonstrate a clear legislative intent to make it an offence of mens rea. However, it is too early to predict what impact Dafinei will have on these other matters.

More developments to come as courts apply these clarifications.