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Comment by cperciva | Hacker News Reader

Articles like this make me very glad the the Supreme Court of Canada ruled in 1985 that it is unconstitutional to imprison someone for an "absolute liability" offense. Put another way, while someone can be thrown in jail over a mistake if they were reckless, there must be a "due diligence" defense available.

Absent extreme circumstances, it would be very hard for a case like this to come to trial in Canada.

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Not sure what you are referring to, but leaving unattended children in cars is quite strictly illegal in Canada.

Is it illegal to accidentally leave an unattended child in a car? The entire point of the article is accidental, not intentional, incidents.

And we can tell the difference how?

mens rea vs actus reus

Which means sometimes a prosecution is required.

It means it was once required.

Yes. The relevant charge would be child abandonment, criminal negligence, or failing to provide necessaries of life.

child abandonment

Section 218 of the Criminal Code requires intent to abandon the child. (And also reasonable foreseeability that danger would result.)

criminal negligence

Section 219 requires wanton or reckless disregard for the lives or safety of other persons.

failing to provide necessaries of life

Section 215 requires a marked departure from the conduct of a reasonably prudent person in similar circumstances.

Yes, it's illegal -- if there is intent or recklessness.

You say it's not possible to imprison someone for an absolute liability offence. You also say it would be hard for a case like this to come to trial. Surely it would still come to trial but the punishment would be something other than prison?

No. An absolute liability offense is unconstitutional if the maximum penalty is incarceration; this can't be dodged by simply not asking for that penalty to be applied.

Can you elaborate on what a due diligence defense would be in this case?

I'm not a lawyer, but I'd suspect that showing that the defendant normally took appropriate care and that it was only an unexpected event which provoked the mistake would be sufficient. My understanding is that due diligence only has to be prices on balance of probabilities.

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