Regulatory and Provincial Offences

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General Principles

Regulatory offences (or "public welfare" offences) come in three categories:[1]

  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."

Only true criminal matters can be "mens rea offences".[2]

The elements of provincial or regulatory offences, defences and all evidential standards must be proven on a balance of probabilities [3]

In strict liability offences the Crown does not need to prove intent. The defences of due diligence and mistake of fact are valid defences.[4]

In absolute liability offences the Crown does not need to prove intent.The defence of due diligence is not available.[5]

All offences outside of the Criminal Code that are not defined as indictable are deemed to be summary offences.[6]

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.[7]

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
...
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.
...
R.S., c. I-23, s. 27.


The general approach is that unless the Act creating the offence explicitly excludes the application of the Criminal Code, then it will have application.[8] s

  1. R v Kanda, 2008 ONCA 22 (CanLII) at para 17 citing R v Sault Ste. Marie, 1978 CanLII 11 (SCC), [1978] 2 SCR 1299
  2. Kanda at para 18
  3. Bryant, Lederman, Fuerst "The Law of Evidence in Canada" (Third Edition, LexisNexis Canada Inc. 2009) p. 221, para 5.85
  4. Sault Ste. Marie, supra
    Chapin, supra
  5. Sault Ste. Marie
  6. 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;")
  7. 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
  8. R. v. Del Mastro, 2016 ONSC 2071 (CanLII) 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)

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] 2 SCR 406, 1994 CanLII 92 (SCC) per La Forest J
  2. R v Jarvis, 2002 SCC 73 (CanLII), (2002), 219 D.L.R. (4th) 233 (S.C.C.) per Iacobucci and Major JJ
    R v Ling, 2002 SCC 74 (CanLII), (2002), 169 CCC (3d) 46 (S.C.C.) per Iacobucci and Major JJ
  3. R v Lempen, 2008 NBCA 86 (CanLII) per Bell JA
  4. R v Canada Brick Ltd., 2005 CanLII 24925 (ON SC), at para 11 per Hill J
    R v D'Amour, 2002 CanLII 45015 (ON CA) per Doherty JA

Determining Category of Offence

There is a 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]

The greater the penalty to more likely it will be a "mens rea offence".[4]

Offences that contain the words "permit" or "cause" are typically ones of strict liability.[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 19 per MacPherson JA
  2. Kanda, ibid. at para 19
    see also R v Hickey (1976), 1976 CanLII 663 (ON SC), 29 CCC (2d) 23 (Ont. Div. C.T.) rev'd 30 CCC (2d) 416, 70 D.L.R. (3d) 689, 1976 CanLII 653 (ON CA)
    R v Cooke, 2001 CanLII 17868 (MB PC) citing Hickey
  3. R v Sault Ste. Marie, 1978 CanLII 11 (SCC), [1978] 2 SCR 1299 at p. 374 per Dickson J
  4. Sault Ste. Marie, ibid. at p. 374
  5. Sault Ste. Marie, ibid.
  6. R v Blackburn, 1980 CanLII 455 (BC CA) per McFarlane JA

Strict Liability Offences

An Ontario seatbelt law under provincial road Act was not found to be strict liability.[1]

  1. e.g. R v Kanda, 2008 ONCA 22 (CanLII)

Absolute Liability Offences

Absolute liability Offences that are punishable by a period of imprisonment violate s. 7 of the Charter and are not permissible.[1]

  1. R v Cancoil Thermal Corp. and Parkinson, 1986 CanLII 154 (ONCA)

See Also