ZI

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.