Regulatory Offences - a.k.a. - Public Welfare Offences
Do current regulatory trends indicate a continued shift towards
governmental involvement in everyday society and governments unrelenting
desire to control our lives through regulation and political correctness? Or is it
just another means of taxing the industrial and commercial segments of society
for the indiscretions of a few who no longer are willing to subscribe to selfregulation?
WHATEVER?
I concede that my learned friend has more than adequately summarized
the law applicable to public welfare offences.
So then, what brings us here? Probably one of the most discussed and
misquoted cases of the last quarter century. There are some that would say as a
result of the advent of the Charter that absolute liability offences no longer
exists and similarly so called reverse onus clauses in regulatory offences are
unconstitutional, yet I dare say they both are alive and well and will survive
Y2K.
R. v. Sault Ste. Marie (City) [1978] 2 S.C.R. 1299
Mr. Justice Dickson as he then was started off the decision with the
following:
"In the present appeal the Court is concerned with offences variously referred to
as "statutory, " "public welfare, " "regulatory, " "absolute liability, "or "strict responsibility, "
which are not criminal in any real sense, but are prohibited in the public interest. (Sherras
v. De Rutzen [[1805J 1 Q.B. 9I8.J) Although enforced as penal laws through the utilization
of the machinery of the criminal law, the offences are in substance of a civil nature and
might well be regarded as a branch of administrative law to which traditional principles
ofcriminal law have but limited application. They relate to such everyday matters as traffic
infractions, sales of impure food, violations of liquor laws, and the like".
Mr. Justice Dickson went on to define these categories of offences:
"1 conclude, for the reasons which I have sought to express, that there are compelling
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grounds for recognition of three categories of offences rather than the traditional two:
1. Offences in which mens rea, consisting of some positive state of mind
such as intent, knowledge, or recklessness, must be proved by the
prosecution either as an inference from the nature ofthe act committed, or
by additional evidence.
2. Offences in which there is no necessity for the offence, leaving it open
to the accused to avoid liability by proving that he took all reasonable
care. This involves consideration of what a reasonable man would have
done in the circumstances. The defence will be available if the accused
reasonably believed in a mistaken set offacts which, iftrue, would render
the act or omission innocent, or ifhe took all reasonable steps to avoid the
particular event. These offences may properly be called offences of strict
liability. Mr. Justice Estey so referred to them in Hickey's case.
3. Offences of absolute liability where it is not open to the accused to
exculpate himself by showing that he was free offault.
Offences which are criminal in the true sense fall in the presumption offull mens
rea. An offence of this type wouldfall in the first category only ifsuch words as "wilfully, "
"with intent," "knowingly," or "intentionally" are contained in the statutory provision
creating the offence. On the other hand, the principle that punishment should in general not
be inflicted on those without fault applies. Offences ofabsolute liability would be those in
respect of which the Legislature had made it clear that guilt wouldfollow proof merely of
the proscribed act. The overall 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 in determining whether the offence falls into the third
category.
Sault Ste. Marie was revisited several years later after the initial impact
of the Charter had taken its toll on various aspects of the criminal law. In R.
v. Wholesale Travel Group Inc. [1991] 3 S.C.R. 154, Cory J. states:
It is now clear that the Charter is to be interpreted in light of the context in which
the claim arises. Context is relevant both with respect to the delineation ofthe meaning and
scope of Charter rights, as well as to the determination ofthe balance to be struck between
individual rights and the interests of society. A contextual approach is particularly
appropriate in the present case to take account ofthe regulatory nature ofthe offence and
its place within a larger scheme ofpublic welfare legislation. This approach requires that
the rights asserted by the appellant be considered in light ofthe regulatory context in which
the claim is situated, acknowledging that a Charter right may have different scope and
implications in a regulatory context than in a truly criminal one.
Under the contextual approach, constitutional standards developed in the
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criminal context cannot be applied automatically to regulatory offences. Rather, the
content of the Charter right must be determined only after an examination of all relevant
factors and in light of the essential differences between the two classes of prohibited
activity. This was the approach taken in Thomson Newspapers Ltd., supra, where La Forest
J. stressed the importance of the regulatory nature ofthe statute in determining the scope
ofs. 8 of the Charter as applied to the Combines Investigation Act, RS.C. 1970, c. C-23.
The contextual approach further requires that the appellant's claim be considered
and weighed in light ofthe realities ofa modern industrial society, where the regulation of
innumerable activities is essential for the benefit of all. It is vital that the fundamentally
important role of regulatory legislation in the protection of individuals and groups in
Canadian society today be recognized and accepted. Canadians rely on and expect their
governments to regulate and control activities which may be dangerous to others. In
McKinney v. University of Guelph, [1990] 3 S. C.R 229, Wilson J. noted the special role
of the state in life in Canada. At page 356 of her reasons she wrote:
Canadians recognize that government has traditionally had and continues
to have an important role to play in the creation andpreservation ofajust
Canadian society.... It is, in my view, untenable to suggest that freedom is
co-extensive with the absence of government. Experience shows the
contrary, that freedom has often required the intervention and protection
ofgovernment against private action.
The scale and importance ofpublic welfare legislation in Canada is such that a
contextual approach must be taken to the issues raised in this appeaL
Wholesale Travel Group Inc also considered the ramifications of s. 7 and
11 (d) on strict liability offences.
Cory J. summarized the arguments as follows:
First, it is said that, at least where imprisonment is available as a sanction, s. 7 of
the Charter requires a minimum fault element of guilty intent or wilful blindness to be
proven; it is argued that, under s. 7, negligence is an insufficient degree offault to justify
a conviction. Second, the appellant alleges that the traditional requirement in strict liability
offences that the defendant establish due diligence on a balance ofprobabilities violates the
presumption of innocence guaranteed bys. ll(d) of the Charter.
When considering s. 7, Cory J. stated:
., The question which must now be determined is as follows: in situations where
imprisonment is available as a penalty, does s. 7 require proofofa degree offault greater
than negligence? That is to say, must a positive mental state be established in order to
justify a conviction?" He continues;
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"Does section 7 require in all cases that the Crown prove mens rea as an essential
element ofthe offence? The resolution ofthis question requires that a contextual approach
be taken to the meaning and scope ofthe s. 7 right. Certainly, there can be no doubt that
s. 7 requires proof of some degree offault. That fault may be demonstrated by proof of
intent, whether subjective or objective, or by proofofnegligent conduct, depending on the
nature of the offence. While it is not necessary in this case to determine the requisite
degree offault necessary to prove the commission ofparticular crimes, I am ofthe view that
with respect to regulatory offences, proof of negligence satisfies the requirement offault
demanded by s. 7. Although the element of fault may not be removed completely, the
demands ofs. 7 will be met in the regulatory context where liability is imposedfor conduct
which breaches the standard ofreasonable care required ofthose operating in the regulated
field.
It should not be forgotten that mens rea and negligence are both fault elements
which provide a basis for the imposition of liability. Mens reafocuses on the mental state
ofthe accused and requires proofofa positive state ofmind such as intent, recklessness or
wilful blindness. Negligence, on the other hand, measures the conduct ofthe accused on
the basis of an objective standard, irrespective of the accused's subjective mental state.
Where negligence is the basis of liability, the question is not what the accused intended
but rather whether the accused exercised reasonable care. The application of the
contextual approach suggests that negligence is an acceptable basis of liability in the
regulatory context which fully meets the fault requirement in s. 7 of the Charter.
It is argued, however, that to place regulatory offences in a separate categoryfrom
criminal offences, with a lower fault standard, puts the accused charged with the breach
of a regulatory provision in a fundamentally unfair position. It is a violation of the
principles offundamental justice under s. 7, it is said, to allow the defendant to go to jail
without having had the protection available in criminal prosecutions - that is, proof of
mens rea by the Crown.
I cannot accept this contention. Regulatory offences provide for the protection of
the public. The societal interests which they safeguard are offundamental importance. It
is absolutely essential that governments have the ability to enforce a standard ofreasonable
care in activities affecting public welfare. The laudable objectives served by regulatory
legislation should not be thwarted by the application ofprinciples developed in another
context.
It must be remembered that regulatory offences were historically developed and
recognized as a distinct category precisely for the purpose of relieving the Crown of the
burden of proving mens rea. This is their hallmark. The tremendous importance of
regulatory legislation in modern Canadian industrial society requires that courts be wary
of interfering unduly with the regulatory role ofgovernment through the application of
inflexible standards. Under the contextual approach, negligence is properly acceptable as
the minimum fault standard required of regulatory legislation by s. 7".
Cory J. concludes:
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"The requirement of s. 7 are met in the regulatory context by the imposition of
liability based on a negligence standard. Therefore, no violation of s. 7 results from the
imposition of strict liability. "
Mr. Justice Cory went on to consider the second aspect of the Charter
challenge to public welfare offences a s. 11 (b) violation:
"Much of what has been said in regard to the validity of strict liability under s. 7
of the Charter is applicable as well to the s. 11(d) question of onus. The importance of
regulatory legislation and its enforcement strongly support the use ofa contextual approach
in the interpretation of the s. 11 (d) right as applied to regulatory offences.
At the outset, it is enlightening to return to the relatively recent decision of this
Court in Sault Ste. Marie. In his reasons, Dickson J. made explicit reference to the
presumption of innocence, holding (at p. 1316) that requiring an accused to establish due
diligence on a balance ofprobabilities does not offend the basic presumption of innocence
as articulated in Woolmington v. Director ofPublic Prosecutions,[1935J A. C. 462:
In Sault Ste. Marie, DicksonJ. carefully considered the basic principles ofcriminal
liability, including the presumption of innocence, and balanced them against the public
goals sought to be achieved through regulatory measures. He determined that strict
liability represented an appropriate compromise between the competing interests involved.
This conclusion is no less valid today. The Charter was not enacted in a vacuum. The
presumption of innocence which it guarantees had long been established and was well
recognized at common law. The due diligence defence recognized in Sault Ste. Marie which
is the target of the present challenge was itselfafunction of the presumption of innocence.
The reasonsfor ascribing a different content to the presumption of innocence in
the regulatory context are persuasive and compelling. As with the mens rea issue, If
regulatory mechanisms are to operate effectively, the Crown cannot be required to
disprove due diligence beyond a reasonable doubt. Such a requirement would make it
virtually impossible for the Crown to prove regulatory offences and would effectively
prevent governmentsfrom seeking to implement public policy through regulatory means.
It has been suggested that requiring the Crown to prove negligence beyond a reasonable
doubt, either as part of its case or after the accused adduces some evidence raising a
reasonable doubt as to due diligence, would represent an acceptable compromise: it would,
it is said lessen the burden on the accused while still allowingfor the effective pursuit ofthe
regulatory objective. I cannot accept this contention. While such an approach would
undoubtedly be benefiCial to the accused, it would effectively eviscerate the regulatory
power of government by rendering the enforcement of regulatory offences impossible in
practical terms. Under this approach, the Crown would be forced to prove lack of
reasonable care where the accused raises a reasonable doubt as to the possibility of due
diligence.
It is difficult to conceive ofa situation in which a regulated accused would not be
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able to adduce some evidence giving rise to the possibility that due diligence was
exercised. For instance, an environmental polluter would often be able to point to some
measures it had adopted in order to prevent the type ofharm which ultimately resulted. This
might raise a reasonable doubt that it had acted with due diligence no matter how
inadequate those measures werefor the control ofa dangerous situation. Similarly, a wholly
inadequate effort to ensure that an advertisement was true might nevertheless succeed in
raising a reasonable doubt as to due diligence.
To impose such a limited onus is inappropriate and insufficient in the regulatory
context. Criminal offences have always required proofofguilt beyond a reasonable doubt;
the accused cannot, therefore, be convicted where there is a reasonable doubt as to guilt.
This is not so with regulatory offences, where a conviction will lie if the accused has failed
to meet the standard of care required. Thus, the question is not whether the accused has
exercised some care, but whether the degree of care exercised was sufficient to meet the
standard imposed. If the false advertiser, the corporate polluter and the manufacturer of
noxious goods are to be effectively controlled, it is necessary to require them to show on a
balance of probabilities that they took reasonable precautions to avoid the harm which
actually resulted. In the regulatory context, there is nothing unfair about imposing that
onus; indeed, it is essential for the protection of our vulnerable society. "
Cory J. concluded:
"As with the s. 7 challenge, licensing considerations support the conclusion that
strict liability does not violate s. 11 (d) ofthe Charter. The licensing argument attributes
to the regulated actor knowledge and acceptance, not only of the standard of reasonable
care itself, but also of the responsibility to establish on a balance of probabilities the
exercise of reasonable care. Acceptance of this burden is an implied term and a
pre-condition of being allowed to engage in activity falling within the regulated sphere.
Regulated actors are taken to understand that, should they be unable to discharge this
burden, an inference ofnegligence will be drawn from the fact that the proscribed result has
occurred. "
"J wish to emphasize, however, that the difference in the scope and meaning ofs.
11 (d) in the regulatory context does not imply that the presumption of innocence is
meaningless for a regulated accused. The Crown must still prove the actus reus of
regulatory offences beyond a reasonable doubt. Thus, the Crown must prove that the
accused polluted the river, sold adulterated food, or published a false advertisement.
However, once having established this beyond a reasonable doubt, the Crown is
presumptively relieved of having to prove anything further. Fault is presumed from the
bringing about of the proscribed result, and the onus shifts to the defendant to establish
reasonable care on a balance ofprobabilities.
For these reasons, I conclude that the presumption of innocence as guaranteed
in s. 11 (d) ofthe Charter is not violated by strict liability offences as defined in Sault Ste.
Marie. The imposition of a reverse persuasive onus on the accused to establish due
diligence on a balance of probabilities does not run counter to the presumption of
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innocence, notwithstanding the fact that the same reversal ofonus would violate s. 11 (d)
in the criminal context. "
What effect, if any, do these two decisions have on the conduct of a
prosecution for a regulatory or public welfare offence.
The simple answer would be none, yet in more and more cases, regulatory
offences are developing into long term projects involving extensive research and
the intervention of experts coupled with lengthy constitutional and Charter
challenges. The advent of regulatory agencies employing compliance officers,
auditors and inspectors with powers of peace officers, has increased the
frequency of public welfare offences appearing on the dockets in the province's
courts.
Since a number of regulatory offences impose statutory minimum fines
of$l 0,000 or more, the fines in and ofthemselves have motivated those alleged
to have committed the offences to vigorously defend their innocence. In addition
to the court process, the individual charged may be facing additional "penalties"
which could have a serious effect on them personally and obviously their
livelihoods; such as licence suspensions, work stoppages and job site closures.
The initial process may seem to be relatively insignificant, such as a
charge under the Liquor Control Act, Tobacco Access Act or 'Revenue Act.
These charges can lead to additional investigations involving Customs and
Excise, Revenue Canada, Commercial Crime and lor Proceeds of Crime, and
Immigration to name a few, creating additional legal problems for an individual
who may have simply breached a regulatory scheme that prohibits the sale of a
product to minors.
As we have witnessed, a recent Supreme Court of Canada decision that
involves a regulatory offence has the potential of affecting the lives of each and
every individual within the province it originated from and depending on how
you interpret the decision, it may even transcend international boundaries.
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REVIEWING THE INITIAL DISCLOSURE PACKAGE:
The first thing I have become accustomed to doing when reviewing a file
involving a regulatory offence is check on the limitation period. Some
provincial statutes are subject to a six month limitation whereas others allow up
to six years (Revenue Act) before charges must be laid. This will obviously
affect some of the decisions a Crown can make in relation to the information or
summary offence ticket that is currently before the court, especially, if it
involves amendments to the charges themselves or the identity of the alleged
offender.
Some legislation specifically holds directors and executives of
corporations liable for actions or omissions of the company and or its'
employees and subject to prosecution for those actions or omissions. The
question that arises from the legislative assignment of responsibility is, "is the
right individual charged or company/corporation charged.?" This may provide
the Crown with a number of options in how it proceeds;
a.
b.
c.
against an individual, who mayor may not have
committed the alleged infraction;
against a corporate identity; or
against both the individual and the corporate identity.
In assessing a disclosure package that has been provided by the
investigative authority, counsel should not only consider whether or not there
is a reasonable likelihood of conviction, but also should review the legislation,
to see if any Charter defences can be raised in relation to 'reverse onus
clauses' , as well as the normal search and seizure and right to counsel breaches.
A number of Acts have sections which compel individuals to disclose
information and or assist in an inquiry which may lead to them being charged
with an offence under the Act (Revenue Act). These sections will normally
provide fruit for defence counsel to attack the case against their clients. A
majority of the Acts will also contain sections that reduce the burden on the
Crown by assisting in the proof of a prima facie case. If it looks like a duck,
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walks like a duck, it's a duck or sections that provide that a certificate is prima
facie proof of it's contents etc.
Unless one is dealing with the Motor Vehicle Act or the Liquor Control
Act, it has been my experience that initial disclosure is just the beginning of the
process. In all other cases follow up expert opinion reports or additional
investigation of the primary complaint has been required.
Another area that raises problems for the Crown in a number of the
regulatory cases is reliability of the witnesses, in particular, when charges are
laid against a company and your complainant is an employee of the offender. If
this individual is facing dismissal etc. by his or her employer they may be less
than cooperative at the time of trial. Expert witnesses can also be problematic
especially in cases involving the Occupational Health and Safety Act. In a
number of cases the investigative authority's expert is none other than the
offenders competitor and thus their evidence may lack the weight and impact it
was intended to have.
The AG's directive on disclosure by the Crown applies to regulatory
offences;
"There is a duty on the Crown to make full and timely disclosure to the defence of all
relevant information known to the investigator and the Crown Attorney in Criminal Code
prosecutions conducted by agents ofthe Attorney General. This obligation app(ies to both
inculpatory and exculpatory informatiOn. In discharging this disclosure obligation, the
Crown must respect the rules ofprivilege ".
What Must he Disclosed
As soon as practicable upon request, the Crown Attorney will make available to the defence
the following material:
(a)
a copy of, or an opportunity to copy, the information or indictment;
(b)
a copy of, or an opportunity to copy, a summary of the case,
detailing the circumstances of the offence ,prepared by the
investigating agency;
(c)
a copy of, or an opportunity to copy, all written statements in the
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possession of the Crown made by the accused/defendant and in the
case of verbal statements, a verbatim account of the statement or
copies of notes or an audio or video recording of the statement
whether favourable to the accused/defendant or not;
(d)
a copy of, or an opportunity to copy, the criminal record of the
accused/defendant and the particulars (offence, date and disposition)
of any other criminal record relied on by the Crown;
(e)
copies of, or an opportunity to copy, all written statements made by
persons who have provided relevant information to the investigator
(where individuals have provided more than one statement a copy,
or an opportunity to copy, all statements will be provided). In the
case ofverbal statements, the investigators 'notes or, where there are
no notes, a summary prepared by the investigating agency of the
relevant information and the name, address and occupation of the
person;
(f)
an opportunity to view in private any audio or video recording of a
witness'statement, or a copy thereof subject to an undertaking by
counsel for the defence that:
(i)
no person other than an expert retained by the defence
will be given possession of the recording;
(ii)
no further copy of the recording will be made; and
(iii)
the recording will be returned to the Crown at the
conclusion of the proceedings;
(g)
subject to the provisions of the Young Offenders Act, particulars
(offence, date and disposition) of the criminal record of an
accomplice or an alleged accomplice, whether that person has been
charged or not;
(h)
subject to the provisions ofthe Young Offenders Act, particulars of
any information known to the Crown which the defence may legally
use to impeach the credibility of a Crown witness, including the
criminal record of a Crown witness where the defence requests this
information and the record is relevant to an issue in the case or has
probative value with respect to the credibility of the witness;
(i)
subject to the provisions of the Young Offenders Act, the criminal
record ofa potential defence witness where the defence requests this
information;
OJ
copies of, or an opportunity to copy, all medical, laboratory and
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other expert reports in the possession of the Crown which relate to
the offence, except to the extent they may contain privileged
information;
(Ie)
access to any potential exhibits or other physical evidence in the
possession of the Crown for the purpose of inspection, and, where
applicable, copies ofsuch exhibits;
(I)
a copy, or an opportunity to copy, of any search warrant and
information to obtain relied on by the Crown;
(m)
if interceptedprivate communications will be tendered, a copy ofthe
judicial authorization under which the private communications were
intercepted; access to the log book of interceptions; access to audio
recordings made pursuant to the authorization; and a copy of the
transcript of the interceptions made pursuant to the authorization
when it is available;
(n)
a copy of, or an opportunity to copy, any other document, or portion
ofa document contained in the investigationfile and any notes ofthe
investigator which contain the factual observations of investigators
pertaining to the investigation of the alleged offence; and
(0)
notice of any evidence which hos become lost or destroyed and a
summary ofthe circumstances surrounding such loss or destruction
prepared by the investigating agency.
The real problem in a regulatory offence is not whether or not you have
disclosed everything, it is what you have not disclosed, because the investigative
authority, in their infinite wisdom either decided not to inform the Crown or
took it upon themselves to decide the relevance of a particular bit of evidence
that mayor may not be important to the case.
.
Another problem that seems to reoccur in prosecuting regulatory offences
is confirming that the appropriate witnesses have been subpoenaed. Unless the
Crown has dealt with the particular agency in the past, it would be wise for one
to double check on the witness list well in advance of the trial. Some of the
newer investigative agencies do not believe it is their responsibility to subpoena
the witnesses. Especially if fees are involved and they have to use an external
agency to serve the subpoenas.
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SOME CASES OF INTEREST:
Motion to Quash:
R. v. Municipal Ready Mix Ltd. [1999] N.S.J. No. 281 (N.S.P.e.)
- Williston J., August 19,1999
Discusses the law with regards to the power of the court to quash an
information or indictment or amend the document.
Rights to Counsel:
R. v. Lenihan (1997) 115 C.C.C. (3d) 246 (N.S.C.A.)
- Hallett J.A., on behalf of the Court, February 25, 1997
Appellant argued that "conscripted evidence" obtained as a result of the
accused being denied his Charter rights to counsel should be excluded.
Court of Appeal upheld it's admission citing a number ofs. 10(b) cases and
in particular R. v. Fitzpatrick;
"The principle against self-incrimination was never intended to assist individuals in
committing regulatory offences, and should not be extended to protect the appellant from
prosecution in the present case. "
Necessity:
R. v. Perka [1984] 2 S.e.R. 232
- Dickson J., on behalf of the Court, October 11, 1984
The Court went into an extensive discussion of the history of the
defence of necessity and concluded that in terms of its nature, basis and
limitations;
" (1)
the defence of necessity could be conceptualized as either ajustification or an
excuse;
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(2)
it should be recogonized in Canada as an excuse, operating by virtue of s. 7(3)
of the Criminal Code;
(3)
necessity as an excuse implies no vindication of the deeds of the actor;
(4)
the criterion is the moral involuntariness of the wrongful action;
(5)
this involuntariness is measured on society's expectation of appropriate and
normal resistance to pressure;
(6)
negligence or involvement in criminal or immoral activity does not disentitle
the actor to the excuse of necessity;
(7)
actions or circumstances which indicate that the wrongful deed was not truly
involuntary do disentitle;
(8)
the existence of a reasonable legal alternative similarly disentitles; to be
involuntary the act must be inevitable, unavoidable and afford no reasonable
opportunity for an alternative course of action that does not involve a breach
of the law;
(9)
the defence only applies in circumstances of imminent risk where the action
was taken to avoid direct and immediate peril;
(10)
where the accused places before the court suffiCient evidence to raise the
issue, the onus is on the Crown to meet it beyond a reasonable doubt.
Constitutional Challenges:
R. v. Sobey's Inc. [1998] N.S.J. No. 467 (N.S.c.A.)
- Cromwell J., on behalf of the Court, December 2, 1998
The Court does a brief analysis of the three step method ofdetermining
whether or not legislation is 'ultra vires' provincial jurisdiction. It also
addresses the issue of whether or not an employer must show that itsemployee
was 'duly diligent' or that it was 'duly diligent' and thus not liable
for the employees actions.
RE Information Retailers Association of Metropolitan Toronto
(1985) 52 O.R. (2d) 449 (O.C.A.)
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- Robins J., on behalf of the Court, October 17, 1985
The Court takes a lengthy route through the issues of legislative
authority, paramountcy etc. and makes a rather interesting observation;
"Morality is not an independent constitutional value and maybe regulated either by
Parliament or the Legislature depending on the characterization of the legislation as a
whole. A by-law aimed at regulating a trade or business in order to protect children has,
in my view, as its "true object, purpose, nature and character" matters within provincial
legislative authority and is not to be declared invalid simply because its purpose may extend
to moral considerations. "
R. v. Samaha [1998] N.S.J. No. 358 (N.S.P.C.)
- Gibson J., September 15, 1998
Gibson J. found that sections 89 and 91 of the Revenue Act when read
together violated s. 12 of the Charter and also found that statutory minimum
fines are within the prerogative of the legislature.
Due Diligence:
R. v. Pontes (1995) 100 C.C.C. (3d) 353 (S.C.C.)
- Cory J., on behalf of the majority, September 21, 1995
The Court reviewed the issue of absolute and strict liability offences
stating:
" There are, I believe, two methods of determining whether an offence is one of absolute
liability. First, as suggested in Sault Ste. Marie, supra, regard may be had to the overall
regulatory pattern adopted by the legislature, the subject matter of the legislation, the
importance of the penalty and the precision ofthe language used. Second, the availability
of a due diligence defence must be considered. An absolute liability offence denies an
accused the opportunity to put forward a defence ofdue diligence. Conversely, in order for
an offence to be one of strict liability, the defence of due diligence must be available. "
The Court as well confirmed that for an accused to,
"avoid conviction for a strict liability offence they had to prove on a balance of
15
probabilities, either that they had an honest but mistaken beliefinfacts which, iftrue, would
render the act innocent, or that they exercised all reasonable care to avoid committing the
offence. ....... In determining whether eitherfacet ofthe defence ofdue diligence is available
.. , it is important to remember the well-established principle, incorporated in s. 19 of the
Criminal Code, that a mistake oflaw, is no excuse. In other words, a mistake as to what the
law is does not operate as a defence. "
R. v. Sauluier [1989] N.S.J. No. 131 (N.S.Co.Ct.)
- Freeman J., February 17, 1989
The Court consider the defence of due diligence along with language
rights under the Charter.
"It is immaterial that the appellant understands English or that his trial was conducted in
English. His first language, the language of his choice, the language in which he
communicates with other fisherman, is the French language. It is his mother tongue as
defined in the Official Languages Act. His right to use that language is guaranteed under
the Charter. "
Minimum Standards:
R. v. Nova Scotia Power Inc. [1999] N.S.J. No.26 (N.S.S.C.)
- Scanlon J., January 26, 1999
The Court accepted the Appellant's argument that the legislation and the
applicable regulations did not set an enforceable standard, that all the wording
amounted to was,
'recommendations only and they did not set firm standards which formed the basis of an
offence for which the Appellant could be convicted. '
Official Induced Error:
R. v. MacDougall (1982) 1 C.C.c. (3d) 65 (S.C.c.)
-Ritchie J., on behalf of the Court, November 23, 1982
The defence of official induced error is supported by the following
comments of Ritchie J.:
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"His Honour Judge Sullivan and the majority ofthe Court of Appeal affirmed these findings
and held that they disclosed a defence to the charge here laid on the ground that they
disclosed a mistake offact on the part of the accused within the meaning ofR. v. Sault Ste.
Marie, supra, whereas I am unable to treat the [page71] respondent's mistake otherwise than
as a mistake oflaw in relation to his right, because ofs. 250(3), to drive after his appeal had
been dismissed. This was a mistake of law which does not afford the respondent a defence
having regard to s. 19 of the Criminal Code which provides that:
19. Ignorance of the law by a person who commits an offence is not an excuse for
committing that offence.
This is no more than a codification of the common law rule and undoubtedly applies in the
present case.
In this regard Macdonald J.A., speaking on behalf of the Court of Appeal, introduced a new
concept in the law of mistake, swing [60 C.C.C. (2d) 137 at p. 158, 46 N.S.R. (2d) 47, 10
M.V.R. 236]:
On the particular facts of this case and in light of what I have just said
I am not convinced that the mistake of the respondent as to the
effective date or time of revocation of his licence was purely one of
law. It was a reasonable mistake based on certain acts of the Registrar
and may be but an error of fact or a mix of both fact and law.
Assuming however that the error of the respondent as to revocation
was one of law I am prepared to say that the facts as found by the trial
Judge give rise to a defence ofjustification based upon reliance by the
respondent on a previous course of conduct on the part ofthe Registrar:
This defence might be classified as officially induced error or perhaps
as a form of colour of right.
It is not difficult to envisage a situation -- which an offence could be committed under
mistake oflaw arising because of, and therefore induced hy, "officially induced error"
and if there was evidence in the present case to support such a situation existing it
might well be an appropriate vehicle for applying the reasoning adopted by Mr. Justice
Macdonald. In the present case, however, there is no evidence that the accused was
misled by an error on the part of the registrar."
R. v. Flemming (1980) 43 N.S.R. (2d) 249 (N.S.Co.Ct.)
- O'Hearn J.
A lengthy discussion of the defence of "official induced error" and the
issue of reasonable care on the part of the individual claiming the defence.
17
R. v. Newell [1993] N.S.J. No. 270 (N.S.C.A.)
- Hallett J., on behalf of the Court, July 15, 1993
The Court of Appeal upheld the lower Courts decisions that the evidence
did not support the Appellant's defence of official induced error.
Jorgensen and 913719 Ontario Limited v. The Queen
(1995) 102 C.C.C. (3d) 97 (S.C.C.)
- Lamar C.J.C., states;
"Most recently, the existence of an officially induced error defence was recognized in
obiter dictum by GonthierJ. in his dissenting reasons in R. v. Pontes (1995), 100 C.C.C.
(3d) 353, [1995] 3 S.C.R. 44, 41 c.R. (4th) 95. While 1 disagreed with Gonthier J. on the
principal issue in that case, I agree with his characterization of this defence (para. 88, at
p.384):
.
Assuming without deciding that such a defence would be available if an accused were
misled by the Superintendent ofMotor Vehicles or by some other official responsible for the
administration ofthe Motor Vehicle Act, such a defence would not demonstrate absence of
negligence in relation to the actus reus ofdriving while under a statutory prohibition, but
rather would be an additional defence thereto, operating as an exception to the rule that
ignorance of the law does not excuse.
Here again, the contrast between officially induced error of law and the defence of due
diligence is clearly outlined
Several themes run through the Canadian jurisprudence to date on this defence and raise
issues which must be determined to outline the scope of the defence. Most of the cases to
date have dealt with regulatory offences only, raising the question of when this defence is
applicable. A second group of questions revolves around who is an official and what
constitutes "official advice". Finally, officially induced error has sometimesfunctioned as
a full defence, a development which should be discouraged I turn next to these issues.
C. Officially induced error of law
Officially induced error oflaw exists as an exception to the rule that ignorance ofthe law
does not excuse. As several of the cases where this rule has been discussed note, the
complexity ofcontemporary regulation makes the assumption that a responsible citizen will
have a comprehensive knowledge of the law unreasonable. This complexity, however, does
not justify rejecting a rule which encourages a responsible citizenry, encourages
government to publicize enactments, and is an essential foundation to the rule of law.
Rather, extensive regulation is one motivefor creating a limited exception to the rule that
ignorantia juris neminem excusat.
18
As complexity ofregulation is linked to the justificationfor this excuse, it is predictable that
it will arise most often in the realm of regulatory offences. None the less, this excuse is
equally valid for "true crimes" with a full mens rea component. As the [page 112J
involvement ofthe state in our day- to-day lives expands, and the number of officials from
whom advice can potentially be sought increases, the chance that an official may give
advice about an enactment which would not be classified as "regulatory" multiplies.
Officially induced error is distinctfrom a defence ofdue diligence, and there is no reason
to confine it to the regulatory offence context, though it is obvious thatfor certain crimes,
such as those involving moral turpitude, the chances ofsuccess ofsuch an excuse will
be nearly niL
The question that arises in today's context is 'what if any effect does the access
to the "information highway" have on the defence of "official induced error"?