Robert J. Frater

The corporate accused challenged misleading advertising provisions under the Competition Act on the basis that the strict liability structure, modified due diligence defence, and reverse onus infringed Charter ss. 7 and 11(d).

The Court held that a corporation charged with an offence could raise the constitutional challenge and benefit from a finding of invalidity.

A unanimous Court held that the timely retraction requirements in the statutory defence infringed s. 7 because they could permit conviction without fault and were not justified under s. 1.

A majority held that the reverse onus requiring the accused to establish due diligence on a balance of probabilities infringed s. 11(d), but a different majority held that infringement justified under s. 1 in the regulatory context.

The accused's appeal was dismissed, the Crown's appeal was allowed, and the matter was remitted to trial on the basis that the timely retraction provisions were unconstitutional but the reverse onus remained operative.