R v Pontes

R. v. Pontes

[1995] 3 S.C.R. 44
Supreme Court of Canada — Lamer C.J., La Forest, L'Heureux-Dubé, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major JJ. | September 21, 1995

Background

Patrick Pontes was charged with driving while prohibited under section 94(1) of the British Columbia Motor Vehicle Act. The twist? His driving prohibition came into effect "automatically and without notice" under section 92 after he was convicted of an underlying motor vehicle offence. Section 92 imposed a 12-month driving ban that kicked in immediately upon conviction — no warning, no notification required.

Pontes was acquitted at trial when the judge ruled that sections 92 and 94(1) together created an absolute liability offence that violated section 7 of the Charter because it could result in imprisonment. The Crown appealed all the way to the Supreme Court, arguing the offence was strict liability (allowing a due diligence defence) rather than absolute liability.

Issues

1. Do sections 92 and 94(1) of the BC Motor Vehicle Act create an absolute liability or strict liability offence?
2. If it's absolute liability with imprisonment as a penalty, does it violate section 7 of the Charter?

The Absolute vs. Strict Liability Battle

The majority (5 judges) found this was an absolute liability offence. Justice Cory explained that the phrase "automatically and without notice" in section 92 was the key — it effectively eliminated any meaningful defence of due diligence. Since the only defence an accused person could raise was "I didn't know I was prohibited," and since ignorance of the law is no excuse, the accused was left with no real defence at all.

The minority (4 judges) disagreed, arguing this was strict liability because defendants could still claim due diligence regarding the factual elements — like whether they were actually convicted of the underlying offence. Justice Gonthier wrote that "automatically and without notice" just meant the prohibition took effect by operation of law, not that it eliminated all defences.

The Constitutional Workaround

Here's where it gets interesting: even though the majority found it was absolute liability, they ruled it didn't violate the Charter. Why? Because sections 4.1 and 72(1) of the BC Offence Act prevented anyone from actually going to jail for an absolute liability offence. Since there was no real risk of imprisonment, section 7 of the Charter wasn't engaged.

Key Takeaway

Automatic penalties that give you no notice and no meaningful defence can still be constitutional if they don't actually put you in jail.

This case shows how legislatures can create tough regulatory schemes while avoiding Charter challenges — just make sure the penalties stop short of imprisonment for absolute liability offences. For defendants, it's a reminder that "I didn't know" isn't a defence when the law operates automatically.