Regulatory Offences

From Criminal Law Notebook
This page was last substantively updated or reviewed January 2018. (Rev. # 95708)

General Principles

Regulatory offences (or "public welfare" offences) are a type of offences separate from criminal law. The main distinguishing feature is the reduced role that mens rea plays compared with true criminal law and greater reliance on negligence-based liability.

The offences are ones that carry little-to-no "stigma."[1]

The offences come in three categories:[2]

  1. mens rea offences: offences that require "some positive state of mind such as intent, knowledge, or recklessness, must be proved by the prosecution either as an inference from the nature of the act committed, or by additional evidence".
  2. "strict liability" offences: offence with no mens rea where the act creates a prima facie case that requires the accused to show "all reasonable care".
  3. "absolute liability" offences: offences where it is "not open to the accused to exculpate himself by showing that he was free of fault."

Generally, "true criminal" or "true crime" matters are considered "mens rea offences."[3]

The elements of provincial or regulatory offences, defences and all evidential standards must be proven on a balance of probabilities [4]

In strict liability offences the Crown does not need to prove intent. The defences of due diligence and mistake of fact are valid defences.[5]

In absolute liability offences the Crown does not need to prove intent.The defence of due diligence is not available.[6]

All offences outside of the Criminal Code that are not defined as indictable are deemed to be summary offences.[7]

Similarly, the provisions within the Code that concern indictable offences will relate to indictable offences found in other Acts and provisions in the Code concerning summary offences will apply to summary offences in other Acts unless otherwise stated.[8]

Purpose

The purpose of regulatory offences is to "protect the public or a broad segment of the public...from the potentially adverse effects of otherwsie unlawful activity."[9]

Applicability of the Criminal Code

All federal summary and indictable offences are subject to the procedures of the Criminal Code except where otherwise provided. As stated in s. 34(2) of the Interpretation Act:

34
[omitted (1)]

Criminal Code to apply

(2) All the provisions of the Criminal Code relating to indictable offences apply to indictable offences created by an enactment, and all the provisions of that Code relating to summary conviction offences apply to all other offences created by an enactment, except to the extent that the enactment otherwise provides.
[omitted (3)]
R.S., c. I-23, s. 27.

– IA

Note up: 34(2)

The general approach is that unless the Act creating the offence explicitly excludes the application of the Criminal Code, then it will have application.[10]

Division of Powers

Only the federal government can legislate "true criminal law offences" under s. 91(27) of the Constitution Act, 1867.

  1. ↑ e.g. see R v Pierce Fisheries Ltd, 1970 CanLII 178 (SCC), [1971] SCR 5 at 17 (SCR)
  2. ↑ R v Kanda, 2008 ONCA 22 (CanLII), 227 CCC (3d) 417, per MacPherson JA, at para 17 citing R v Sault Ste. Marie, 1978 CanLII 11 (SCC), [1978] 2 SCR 1299, per Dickson J
  3. ↑ R v Sault Ste. Marie (City), 1978 CanLII 11 (SCC), [1978] 2 S.C.R. 1299, per Dickson J at p. 374 (CCC)
    Kanda, ibid., at para 18
    R v Valde, gwn75, 2016 ONCJ 747 (CanLII), per O'Donnell J}, at para 8
    see also R v George, 2017 SCC 38 (CanLII), [2017] 1 SCR 1021, per Gascone J, at para 8
  4. ↑ Bryant, Lederman, Fuerst "The Law of Evidence in Canada" (Third Edition, LexisNexis Canada Inc 2009) p. 221, para 5.85
  5. ↑ R v Sault Ste. Marie, 1978 CanLII 11 (SCC), [1978] 2 SCR 1299, per Dickson J
    R v Chapin, 1979 CanLII 33 (SCC), [1979] 2 SCR 121, per Dickson J
  6. ↑ Sault Ste. Marie, supra
  7. ↑ see s. 34(1)(b) of the Interpretation Act ("Where an enactment creates an offence, ...the offence is deemed to be one for which the offender is punishable on summary conviction if there is nothing in the context to indicate that the offence is an indictable offence;")
  8. ↑ see s. 34(2) of the Interpretation Act ("All the provisions of the Criminal Code relating to indictable offences apply to indictable offences created by an enactment, and all the provisions of that Code relating to summary conviction offences apply to all other offences created by an enactment, except to the extent that the enactment otherwise provides.")
    see also provincial summary proceedings acts:
    Summary Proceedings Act, RSNS 1989, c 450, s. 7
  9. ↑ R v Wholesale Travel Group, 1991 CanLII 39 (SCC), [1991] 3 SCR 154, per Cory J at pp. 234 to 238
  10. ↑ R v Del Mastro, 2016 ONSC 2071 (CanLII), OJ No 1731, per Shaughnessy J, at paras 148 and 149 (“law is well settled that, ...the provisions of the Criminal Code will apply to offences created under another Act of Parliament, unless Parliament has clearly expressed an intention to the contrary…The general rule is that the Criminal Code is only ousted, if the statute in issue contains a ‘complete code.’ However, the fact that a statute may be silent, or that the statute has some provision touching upon the same subject matter as a provision in the Criminal Code, is not sufficient to manifest an intention on the part of Parliament to exclude the Criminal Code”)
    R v Dalum, 2012 BCSC 210 (CanLII), per Russell J

Inspections and Investigations

An inspection is the same as a search within the meaning of s. 8 of the Charter, however, given that it is non-criminal, no warrant is needed so long as it is authorized by a statute.[1]

An inspection will turn into a full investigation once "the predominant purpose" of an officer's inquiry "is the determination of penal liability."[2] It is this moment where the "adversarial relationship crystallizes."[3] Once an investigation has begun, the inspecting agent must then comply with all procedural requirements for search and seizure.[4]

  1. ↑ Comité paritaire de l'industrie de la chemise v Potash; Comité paritaire de l'industrie de la chemise v Sélection Milton, 1994 CanLII 92 (SCC), [1994] 2 SCR 406, per La Forest J
  2. ↑ R v Jarvis, 2002 SCC 73 (CanLII), [2002] 3 SCR 757, per Iacobucci and Major JJ
    R v Ling, 2002 SCC 74 (CanLII), [2002] 3 SCR 814, per Iacobucci and Major JJ
  3. ↑ R v Lempen, 2008 NBCA 86 (CanLII), 81 WCB (2d) 379, per Bell JA
  4. ↑ R v Canada Brick Ltd., 2005 CanLII 24925 (ONSC), [2005] OTC 611, per Hill J, at para 11
    R v D'Amour, 2002 CanLII 45015 (ON CA), 166 CCC (3d) 477}, per Doherty JA

Determining Category of Offence

There is a "strong presumption" that regulatory offences are "strict liability."[1]

The judge should consider factors to determine the type of offence:[2]

  1. overall regulatory pattern and context of the section,
  2. the subject matter or type of conduct regulated;
  3. the purpose of the act;
  4. the community interest in its regulation
  5. the nature of the penalty; and
  6. the precision of the language used

Offences that use language suggestive of a mens rea, such as “wilfully”, “with intent”, “knowingly”, or “intentionally”, will likely be "mens rea offences."[3] However, wording such as "cause" or "permit" will more typically be used in strict liability offences.[4]

The greater the penalty to more likely it will be a "mens rea offence."[5]


Even where the penalty is "severe", the offence may still be strict liability where the public safety is not compromised by the conduct and the wording of the offence does not indicate guilt as require proof.[6]

  1. ↑ R v Kanda, 2008 ONCA 22 (CanLII), at para 43 R v Kanda, 2008 ONCA 22 (CanLII), 227 CCC (3d) 417, per MacPherson JA, at para 19
  2. ↑ Kanda, ibid., at para 19
    see also R v Hickey, 1976 CanLII 663 (ONSC), 29 CCC (2d) 23 (Ont. Div. C.T.), per Galligan J rev'd 30 CCC (2d) 416, 70 DLR (3d) 689, 1976 CanLII 653 (ON CA), per Jessup JA
    R v Cooke, 2001 CanLII 17868 (MB PC), 6 WWR 742, per Joyal J citing Hickey, supra
  3. ↑ R v Sault Ste. Marie, 1978 CanLII 11 (SCC), [1978] 2 SCR 1299, per Dickson J, at p. 374
    R v Gopher, 2017 SKQB 50 (CanLII), per RS Smith J, at para 31
  4. ↑ Sault Ste Marie, supra, at p. 1328
    Gopher, supra, at para 32
  5. ↑ Sault Ste. Marie, supra, at p. 374
  6. ↑ R v Blackburn, 1980 CanLII 455 (BC CA), 57 CCC (2d) 7, per McFarlane JA

Strict Liability Offences

Offences of "public welfare" are prima facie presumed to be strict liability offences.[1] This includes offences contained in regulatory statutes and are prima facie strict liability offences.[2]

An Ontario seatbelt law under provincial road Act was not found to be strict liability.[3]

  1. ↑ Lévis (City) v Tétreault; Lévis (City) v 2629-4470 Québec inc, 2006 SCC 12 (CanLII), [2006] 1 SCR 420, per LeBel J, at para 16
  2. ↑ Cook v Saskatchewan (Attorney General), 1983 CanLII 2012 (SKQB), 23 Sask R 236 (QB), per Halvorson J
  3. ↑ e.g. R v Kanda, 2008 ONCA 22 (CanLII), 227 CCC (3d) 417, per MacPherson JA

Absolute Liability Offences

Absolute liability offences are somewhat rare and exceptional.[1] There must be "clear proof of legislative intent" before an offence will be considered one of absolute liability.[2]

The classification of the offence as absolute liability will depend on the statutory language including:[3]

  • the regulatory pattern adopted by the Legislature,
  • the subject matter of the legislation,
  • the importance of the penalty, and
  • the precision of the language used will be primary considerations.
Constitutionality

Absolute liability Offences that are punishable by a period of imprisonment violate s. 7 of the Charter and are not permissible.[4] Such offences with penal consequences should be treated as strict liability in order to comply with the Charter.[5]

  1. ↑ Lévis (City) v Tétreault; Lévis (City) v 2629-4470 Québec inc, 2006 SCC 12 (CanLII), [2006] 1 SCR 420, per LeBel J, at para 17
  2. ↑ Levis, ibid., at para 17
  3. ↑ Levis, ibid., at para 17
  4. ↑ R v Cancoil Thermal Corp. and Parkinson, 1986 CanLII 154 (ON CA), 27 CCC (3d) 295, per Lacourciere JA
  5. ↑ Canoil, ibid.

Search and Seizure

A regulatory body is often given powers to compel records and access evidence without a judicial authorization through its enabling legislation. However, this exception to the normal requirements of s. 8 of the Charter ends where the intrusion is for investigative purposes.

Where a compliance "audit" or "inspection" ends and a search begins is determined by an assessment of its "predominant purpose."[1]

  1. ↑ R v Jarvis, 2002 SCC 73 (CanLII), [2002] 3 SCR 757, per Iacobucci and Major JJ

Sentencing

In a sentencing hearing, the prosecution must prove aggravating factors beyond a reasonable doubt.[1]

  1. ↑ see applicable summary proceedings legislation.
    NS: Summary Proceedings Act, S.N.S. 1989, c. 450

See Also

Administrative Tribunals
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