Her Majesty The Queen on the information of Mark Caswell, Appellant and The Corporation of The City of Sault Ste. Marie, Respondent Country/Territory Canada Type of court National - higher court Date May 1, 1978 Source UNEP, InforMEA Court name Supreme Court of Canada Judge LaskinMartlandRitchieSpencePigeonDicksonBeetzEsteyPratte Reference number [1978] 2 S.C.R. 12 Language English Subject Water Keyword Liability/compensation Freshwater quality/freshwater pollution Abstract The respondent City entered into an agreement with a company for the disposal of all refuse originating in the City. The company was to furnish a site and adequate labor, material and equipment. The site selected bordered Cannon Creek which runs into Root River. The site had previously been covered with a number of fresh water springs that flowed into the creek. Material was dumped to submerge these springs and the garbage and wastes dumped over this material, ultimately to within twenty feet of the creek. Pollution resulted and the company was con¬victed of a breach of s. 32(1) of The Ontario Water Resources Commission Act. The City was also charged under that section, which provides that every municipality that discharges, or deposits, or causes, or permits the discharge of any material into any water course, is guilty of an offence. In dismissing the charge against the City the trial judge found that the City had nothing to do with the actual operations, that the com¬pany was an independent contractor and that its employees were not employees of the City. On appeal by trial de novo the judge found that the offence was one of strict liability and he convicted. The Divisional Court set aside the charge as duplicitous and also held that it required mens rea with respect to causing or permitting the discharge. The Court of Appeal, while rejecting the ground of duplicity as a basis to quash, agreed that mens rea was required and ordered a new trial. The Supreme Court held that the appeal and cross-appeal should be dismissed. It was of the view that the primary test for duplicity should be based the requirement that the accused know the case he has to meet and be not prejudiced in the preparation of his defense by ambiguity in the charge. In this case there was nothing ambiguous or uncertain in the charge. Section 32(1) was concerned with only one matter, pollution, and only one generic offence was charged, the essence of which was "polluting". Regarding mens rea the distinction between the true criminal offence and the public welfare offence was of prime importance. Where the offence was criminal, mens rea had to be established and mere negligence was excluded from the concept of the mental element required for conviction. In sharp contrast "absolute liability" entailed conviction on mere proof of the prohibited act without any relevant mental element. The correct approach in public welfare offences was to relieve the Crown of the burden of proving mens réa, having regard to the virtual impossibility in most regulatory cases of proving wrongful intention. Section 32(1) being a provincial enactment did not create an offence which was criminal in the true sense; and further the words "cause" and "permit" which were frequently found in public welfare statutes did not denote clearly either full mens rea or absolute liability and therefore fitted much better into an offence of the strict liability class. As the City did not lead evidence directed to a defense of due diligence and the trial judge did not address himself to the availability of such a defense there should be a new trial to determine whether the City was without fault. Full text 1978scc10010.html