Law #2: Criminal Law Foundations, Regulatory Frameworks, and Administrative Law Concepts
Actus Reus and Mens Rea
Actus reus = the physical act or conduct that constitutes a crime; mens rea = the mental state or intent to commit a wrong.
In the transcript, murder vs manslaughter is used to illustrate intentional action with or without premeditation:
Murder involves intent; manslaughter involves death caused by reckless or unintentional actions.
These two elements together typically define true criminal offenses; regulatory or quasi-criminal regimes may not require the same mental state (see quasi-criminal below).
Spelling note from the lecture: A c t u s space r e u s; emphasis on actus reus as the physical wrongdoing.
Summary Offenses
Definition: summary offenses are less serious criminal offenses in Canadian law, often outside or within the criminal code, intended to be resolved more quickly due to public costs of prosecution.
Rationale: the legal system is costly (lots of parties, lawyers, time, resources). Modern tools (Zoom) can streamline processes, reducing need for in-person appearances.
Typical examples: minor theft, trespass, disturbing the peace.
Penalties (typical): maximum jail up to
6 ext{ months} and/or
\$5{,}000 fine (amounts vary by jurisdiction).
Jury trials: summary offenses do not involve jury trials.
Resolution timeline: shorter limitation period for laying charges (often around 1 year).
Practical notes from anecdote:
Jury duty is expensive; it competes for public resources.
Various real-world experiences with jury selection and delays.
Administrative flow: faster resolution aims to minimize courtroom cost and time.
Criminal Law vs Regulatory/Quasi-Criminal Law
Public law vs regulatory/administrative framework:
Quasi-criminal offences are regulatory in nature; not all require mens rea.
The Crown prosecutes quasi-criminal offenses; imprisonment is a possible penalty, but a convicted person may not receive a criminal record.
The key difference: mens rea is not required; the focus is on whether the prohibited act occurred rather than the mental state.
Deterrence as primary goal in regulatory/quasi-criminal contexts (not punishment-focused like traditional criminal law).
Examples mentioned: HPPA (Health Protection and Promotion Act), OSA (Occupational Safety Act), environmental statutes (EPA references) as regulatory regimes.
Public welfare offenses: interpreted more liberally in favor of societal protection rather than individual guilt; the focus is on achieving public health/safety goals.
Criminal negligence examples (contrast with public health/regulatory):
Knowingly having sex with someone while STI-infected and not disclosing;
Intentionally dumping cyanide into a water supply;
Tampering with food products in a store.
Important concept: quasi-criminal regimes lack the full mens rea requirement but still carry penalties intended to deter risk to workers and the public.
Deterrence and the Stepwise Approach
Deterrence purpose: motivate individuals to refrain from prohibited behavior.
Two forms:
Specific deterrence: targets the individual who committed the offense (e.g., a fine or ticket that the offender would want to avoid paying).
General deterrence: signals to others that similar behavior will be penalized; broad societal impact.
Stair-step model for regulatory enforcement:
Start with education and warnings when addressing new or changing legislation.
Issue an order or directive if non-compliance continues after initial education.
Escalate to formal enforcement (e.g., penalties) if non-compliance persists.
In occupational health and safety (OHS) contexts, penalties (and directives) act as deterrence rather than punishment.
The aim is to prevent recurrence and uplift overall compliance through graduated responses.
Command and Control vs Enabling; Procedural vs Performance
Two broad enforcement approaches:
Command and control (prohibitory): specify what not to do and require compliance with prescribed rules.
Enabling: create frameworks, rights, and responsibilities to improve compliance (e.g., establishing committees or procedures).
Examples: Joint Health and Safety Committee (JHSC) as enabling; its members can stop work if unsafe.
Procedural vs Performance:
Procedural rules: specify exact steps or items (e.g., first aid kit contents, display posters, specific labeling for dangerous goods).
Performance-based rules: use a general standard like a performance threshold or outcome to be achieved, rather than prescribing each step.
In acts vs regulations: acts are often more general; regulations are more detailed and descriptive.
Practical example: naloxone kits in workplaces; first aid kit contents; poster requirements; jurisdictional specifics may vary across provinces.
Takeaway: procedural rules are easier to enforce; performance rules offer flexibility but require justification to show the standard was met.
Jurisdiction and Categories of Law
Jurisdiction defines the geographic or subject-matter authority of an entity or court.
Geographic jurisdiction examples:
Federal vs provincial boundaries; railways commonly regulated federally; municipal bylaws generally provincial matters.
Public health inspections may be limited to a specific public health unit.
Subject matter jurisdiction: authority over particular topics regardless of geography; e.g., building vs fire codes.
Division of powers: some matters cross borders (interprovincial) and thus fall under federal jurisdiction; others are provincial.
Practical takeaway: jurisdiction matters for who applies, enforces, and adjudicates a dispute or conduct.
Additional notes: jurisdiction can be for convenience and is context-dependent.
Statutory Law: Acts, Regulations, Guidelines
Statutory law includes Acts (federal/provincial) and Regulations; guidelines are interpretive tools adopted by ministries.
Acts:
General in nature; passed by the legislature and can repeal or amend existing acts; can create new areas of regulatory law; codify common law.
Changes to Acts are slow and typically require another act to amend or repeal.
Regulations:
More detailed, technical, and specific than Acts; must be authorized by an act; cannot exceed the authority granted by the act.
Filed with the registrar and numbered in order; published in gazettes (Ontario Gazette weekly; Canada Gazette federally).
Examples: needle safety, confined spaces, farming operations, noise, naloxone kits, etc.
Cabinet role: regulations are often created or amended by cabinet action.
Guidelines:
Among the most specific authorities; help interpret or disambiguate legislation; not law on their own but can be adopted by reference into an act or regulation.
Helpful in determining terms like "reasonable" in due diligence and other standards.
Flow and structure:
Acts are general; regulations are more descriptive; guidelines help interpret both.
Interplay:
A regulation cannot have more authority than the act that gives it authority.
If there is a conflict, the act takes priority over the regulation.
Practical examples: various Ontario regulations (e.g., food premises, industrial establishments) and cabinet-authenticated rules; the formatting can become complex with amendments and schedules.
Why updates matter: regulations can be updated quickly to respond to new hazards (e.g., virulent diseases, COVID-related powers).
How Guidelines and Definitions Help Interpret Legislation
Preamble, definitions, purpose clauses: part of guideline-like structuring in guidelines and some acts.
Parts of a section in an act: sections, subsections, clauses, subclauses; paragraphs may be referenced (e.g., subsection 56(1)(d))
Reading difficulty: amendments may create cross-references like 7.6(1)(a) or 7.6(1)(b) within existing sections; referencing can be complex.
Statutory interpretation basics:
Primary rule: interpret according to the legislature’s intent/purpose.
Ordinary meanings are used unless a term is specifically defined.
Definitions in the statute may deviate from everyday use (e.g., persons may include corporations).
Criminal statutes are presumed to be construed in the defendant’s favor; public welfare statutes are construed liberally in favor of the act’s purpose.
Statutes do not alter common law unless explicitly stated; retroactivity is generally disfavored unless express.
Common law may be preserved unless a statute expressly changes it.
If two acts conflict and neither explicitly states priority, the more recent or more specific provision prevails (lex specialis or newer law).
De minimis non curat lex: the law does not concern itself with trifles; courts dismiss minor matters.
Bills, Enactment, and Commencement
Process outline:
Problem identification and scope: lawmakers explore seriousness and scope; sometimes a royal commission or study informs reform.
Bill drafting by civil service under ministerial direction;
Three readings in the legislature with possible committee hearings; public input and lobbying may occur; amendments possible before passage.
Royal assent: after passage, the bill receives royal assent (ceremonial seal) and becomes an act; the statute may be published in the appropriate gazette.
Commencement/Effective date:
Acts become law (enactment) but may come into force later (commencement) via a proclamation or specific date.
Examples show dates like royal assent in 2015 with commencement set to a later date (e.g., January 2016) or a date to be proclaimed.
Practical note: a statute can be enacted but not in force immediately to allow organizations to adjust procedures and compliance timelines.
Courts and Tribunals; Levels of Courts and Judicial Review
Distinction:
Courts have inherent jurisdiction from the constitution and common law.
Tribunals/boards are created by statute and operate with powers granted by that statute; they can be specialized (e.g., workers’ compensation boards).
Adversarial vs inquisitorial:
Traditional court systems are largely adversarial (parties present their case); some tribunals operate in an inquisitorial style (the authority questions and investigates).
Judicial review:
Courts may review quasi-judicial tribunal decisions; some tribunals include primitive (cannot be appealed) clauses restricting review.
Levels of courts (overview):
Supreme Court of Canada (federal top court).
Federal level: federal appellate courts and federal trial court; tribunals fall under specialized jurisdictions.
Provincial level: superior trial courts, provincial courts, and provincial/territorial courts of appeal.
Small claims courts (lower-cost, quicker resolutions for smaller amounts).
Practical note: top-down decisions in the Supreme Court influence lower courts; decisions can flow downward to guide interpretation.
Environmental Health Law, Public Health, and OHS Contexts
Environmental health law is presented as a convenient category that overlaps with public health and occupational safety and health (OHS) law:
Topics include epidemics, quarantine, food and water safety, sewage treatment, public nuisances, pollution, endangered species, and habitat conservation.
Public health law (PHI focus):
Health professions, hospitals, pharmaceuticals, vaccination and consent, and related public health interventions.
Occupational health and safety (OHS) law:
Focus on worker safety, regulatory compliance, compensation, and prevention measures (e.g., industrial hygiene, ergonomics, nuclear safety).
Intersections: health and safety responsibilities span environmental health, public health, and occupational health; cross-disciplinary collaboration is common.
Key Takeaways and Study Focus
Core ideas to internalize:
Distinguish among Acts, Regulations, and Guidelines; know their relative specificity and flexibilities.
Understand the difference between criminal law and regulatory/quasi-criminal regimes, including mens rea requirements and deterrence goals.
Grasp the concepts of deterrence (specific vs general) and the stair-step enforcement model.
Know procedural vs performance-based rules, and the pros/cons of each approach.
Be able to explain jurisdiction (geographic and subject matter) and how it shapes enforcement and adjudication.
Recognize how bills become acts, and the difference between enactment and commencement of laws.
Understand statutory interpretation rules (intention, ordinary meaning, definitions, presumptions, retroactivity, primacy of acts vs regulations).
Distinguish courts from tribunals and understand their roles, review processes, and levels.
Appreciate how environmental health, public health, and OHS topics interrelate in practice.
Two key takeaways from the course:
Know the players, processes, institutions, and the categories of laws; recognize how they connect and influence each other.
Understand the relationships between statutory law and common law, and how to analyze priorities and specificity when conflicts arise.
Practical Examples and Anecdotes Mentioned
Cyanide in a water supply as an example of criminal negligence.
Spitting into products in a supermarket as a hypothetical harmful action.
Naloxone kits as a modern safety provision; naloxone is a nasal spray used to treat opioid overdoses in emergency settings.
Joint Health and Safety Committee (JHSC) as an enabling body that can stop work when necessary; training and certification timelines discussed (three-year renewal cycle).
Real-world jury duty anecdotes illustrating resource considerations and scheduling challenges.
Notation and Structures for Quick Reference
Key phrases to remember:
A c t u s r e u s = physical act of wrongdoing; m e n s r e a = mental state to do wrongs.
"Take every precaution reasonable in the circumstances for the protection of a worker" as an example of a general duty clause in performance-based regulation.
Public welfare offenses interpreted liberally to protect societal interests; criminal offenses interpreted in favor of the accused due to higher burden of proof.
De minimis non curat lex = the law does not concern itself with trifles.
Primitive clause = a provision indicating decisions by a board/tribunal cannot be appealed to courts.
Enactment vs commencement: enactment = royal assent; commencement = when the act comes into force.
Quick Reference: Terminology Roles
Act: general, foundational legal authority; creates powers and often sets broad rules.
Regulation: detailed rules under an act; cannot exceed the act’s authority; updated via cabinet action; gazette publication.
Guideline: interpretive aid; not binding law on its own but can be adopted by reference to give guidance and interpretation.
Bill: draft version of a potential act undergoing legislative debate and amendment.
Schedule: part of an act that may repeal or alter other provisions; used to organize amendments.
Jurisdiction: where and by whom a law or rule applies; includes geographic (federal vs provincial) and subject-matter distinctions.
Tribunal/Board: specialized decision-makers created by statute; may limit judicial review under primitive clauses.
Court: central adjudicatory body with inherent jurisdiction; higher degrees of review include appeals and Supreme Court decisions.