R v Kanda

R. v. Kanda

2008 ONCA 22
Court of Appeal for Ontario — Rosenberg, MacPherson and Simmons JJ.A. | January 15, 2008

Background

On April 8, 2004, Ashwani Kanda was driving his two sons, aged 12 and 8, to school in Brampton when Constable David Isaacs spotted something troubling at a four-way stop. The officer observed the younger boy in the back seat sitting forward, leaning against the driver's seat — clearly not wearing his seatbelt. Isaacs followed the vehicle for half a block, pulled Kanda over, and charged him under section 106(6) of the Highway Traffic Act for driving with an unbuckled child passenger under 16.

But here's where it gets interesting: Kanda testified that he had carefully ensured both boys were properly buckled when they left home. He had no idea his younger son had unfastened his seatbelt during the drive. The question became whether this was an absolute liability offence (meaning Kanda would be guilty regardless of his diligence) or a strict liability offence (meaning he could defend himself by proving he took reasonable care).

Issues

1. Whether section 106(6) of the Highway Traffic Act creates a strict liability or absolute liability offence
2. Whether a driver can raise a defence of due diligence when caught with an unbuckled child passenger

The Liability Classification Analysis

The Court of Appeal applied the famous R. v. Sault Ste. Marie framework, which sorts regulatory offences into three categories: mens rea (requiring intent), strict liability (allowing due diligence defence), and absolute liability (no defence possible). The court examined four key factors to determine which category section 106(6) falls into.

Regulatory Pattern: The Highway Traffic Act contains examples of all three types of offences. Some explicitly require knowledge ("knowingly permit"), others explicitly exclude defences ("It is not a defence that the person exercised due diligence"), and many fall somewhere in between. This factor was neutral.

Subject Matter: While child safety is critically important, the court noted that absolute liability doesn't actually improve compliance — if someone is already taking reasonable precautions, the threat of automatic conviction won't make them take additional measures. The court found this factor supported strict liability, striking a balance between encouraging vigilance and not punishing those who exercise due care.

Penalty: Violations carry only a modest fine ($60-$500) plus two demerit points, with no possibility of imprisonment and minimal social stigma. This factor supported absolute liability.

Language Precision: The phrase "No person shall" doesn't automatically signal absolute liability — other cases have interpreted identical language as creating strict liability offences. Crucially, the legislature knows how to create absolute liability when it wants to (as it did elsewhere in the HTA) but chose not to use that explicit language here.

Key Takeaway

Section 106(6) of the Highway Traffic Act is a strict liability offence, meaning drivers can defend seatbelt charges by proving they exercised due diligence.

If you're charged under section 106(6), you can argue that you took all reasonable care to ensure child passengers were properly buckled — but establishing this defence won't be easy, and the burden is on you to prove it.