Criminal Law (LAWS 2302 A) - Criminal vs. Regulatory Law, Strict & Absolute Liability, Due Diligence

LAWS 2302 A - Criminal Law

Today's Focus

This session of Criminal Law ($2302$ A), taught by Dr. Rebecca Jaremko Bromwich, focuses on distinguishing between criminal law and regulatory law, with a particular emphasis on strict and absolute liability offenses and the concept of due diligence as a defence.

In the News: Regulatory Case Example

The session begins by referencing a regulatory case example from Canadian news involving Canada geese, illustrating how compliance-focused law operates in practice.

Recap: Mens Rea

• Definition: Mens rea is a Latin term meaning "guilty mind." It is a fundamental component of "true" criminal offences in Canada.
• Requirement: For a person to be found guilty of a true criminal offence, they must be proven to have possessed the necessary "state of mind" or mens rea at the time of the offence.
• States of Mind: While mens rea often refers to intending to commit the act, it can also encompass different states of mind such as:
  • Intending to cause death.
  • Knowledge of likely consequences.
  • Wilful blindness.
  • Negligence.
  • Recklessness.
• Ignorance of the Law: Crucially, whether the person knew the act was illegal is irrelevant. Ignorance of the law is not a valid excuse.

Roadmap: Regulatory Offences vs. Criminal Offences in Canada

The session outlines a clear roadmap to explore the key distinctions between regulatory and criminal offences, covering:

• Differences in their fundamental nature.
• Varying fault requirements and available defences.
• Constraints imposed by the Charter of Rights and Freedoms.
• Differences between administrative and penal processes.
• Relevant caselaw examples.

Two Systems, Two Purposes

Canadian law operates with two distinct systems, each serving a different purpose:

• Criminal Law: Primarily concerned with attributing blameworthy conduct, imposing punishment, and applying social stigma to offenders.
• Regulatory Law: Focused on ensuring compliance with rules and regulations to achieve risk reduction and public safety, rather than moral blame.
• Foundational Case: The landmark case R. v. Sault Ste. Marie ($1978$) is central to understanding these distinctions.

Constitutional Frame: Charter Section $11$ Protections

• Application: Protections under Charter Section $11$ (legal rights) apply exclusively when an individual is "charged with an offence."
• Test: The Supreme Court of Canada established a test in R. v. Wigglesworth ($1987$) to determine when an individual is considered "charged with an offence" for the purposes of Charter Section $11$ protection.

The Sault Ste. Marie Categories

The case of R. v. Sault Ste. Marie ($1978$) established three categories of offences in Canadian law:

1. True Crimes (Mens Rea): These offences require the Crown to prove a guilty mind (mens rea) beyond a reasonable doubt.
2. Strict Liability: For these offences, the Crown does not need to prove mens rea. However, the accused can raise a due diligence defence.
3. Absolute Liability: These offenses require no mens rea and offer no defence whatsoever. Conviction follows merely from proof of the prohibited act (actus reus).

Due Diligence Defence

• Standard of Proof: The accused must prove due diligence on a balance of probabilities.
• Nature of Defence: This defence involves demonstrating either:
  • A reasonable belief in a mistaken set of facts (i.e., the accused believed they were acting lawfully due to a mistake of fact).
  • That all reasonable steps were taken to avoid the prohibited act or its consequences.
• Origin: This defence was famously established in R. v. Sault Ste. Marie.

Absolute Liability + Jail = Unconstitutional

• Charter Violation: Absolute liability offences that carry the possibility of imprisonment as a penalty violate Section $7$ of the Charter (right to life, liberty, and security of the person).
• Key Cases:
  • Reference re B.C. Motor Vehicle Act ($1985$)
  • R. v. Pontes ($1995$)
    Both cases affirmed that absolute liability combined with the potential for jail time is unconstitutional.

Wholesale Travel: Strict Liability with Due Diligence is Constitutional

• Case: R. v. Wholesale Travel Group Inc. ($1991$)
• Principle: The Supreme Court confirmed that strict liability offences, which allow for a due diligence defence, are constitutional and do not violate Charter rights, even when carrying penal consequences.

Wigglesworth & True Penal Consequences

• Case: R. v. Wigglesworth ($1987$)
• Definition: "True penal consequences" are typically defined as penalties that include jail time or heavy penal fines. The presence of true penal consequences triggers Charter Section $11$ protections.

Guindon v. Canada: AMPS Under Income Tax Act Not Criminal

• Case: Guindon v. Canada ($2015$)
• Ruling: The Court determined that Administrative Monetary Penalties (AMPS) imposed under the Income Tax Act are not considered criminal offences. Therefore, Charter Section $11$ protections, typically associated with true crimes, do not apply to them.

Goodwin v. BC: Administrative Impaired Driving Prohibitions Valid

• Case: Goodwin v. BC ($2015$)
• Ruling: The Court upheld the validity of immediate administrative impaired driving prohibitions, confirming that they are regulatory measures and do not trigger criminal law protections given their administrative nature.

Fitzpatrick: Regulatory Logs Used in Prosecution Allowed

• Case: R. v. Fitzpatrick ($1995$)
• Ruling: This case established that evidence obtained through regulatory compliance (e.g., fishing logs) can be used in subsequent criminal prosecutions without violating the Charter, as long as the information was not initially compelled for a criminal investigatory purpose.

Indicators: Criminal vs. Administrative

Distinguishing between systems can be done by looking for specific cues:

• Criminal Cues: Presence of formal charges, potential for a criminal record, and the application of Charter Section $11$ protections.
• Administrative Cues: Issuance of notices, Administrative Monetary Penalties (AMPS), and licence suspensions.

Corporate/Organizational Exposure

• Compliance Systems: Strict liability offences significantly encourage corporations and organizations to implement robust compliance systems internally.
• Key Defence: Due diligence stands as a crucial defence for organizations facing charges under strict liability regimes, proving that reasonable steps were taken to prevent the offence.

Pulling It Together (Summary)

• Criminal Law: Characterized by stigma, requires a high standard of proof (beyond a reasonable doubt), and triggers Charter Section $11$ protections.
• Regulatory Law: Often involves strict liability, where a due diligence defence is available.
• Civil/Administrative Penalties: Include Administrative Monetary Penalties (AMPS) and licence suspensions, typically do not result in a criminal record, and generally do not trigger criminal Charter protections.
• Key Cases: Essential cases for understanding these concepts include Sault Ste. Marie, Wigglesworth, Reference re B.C. Motor Vehicle Act, Pontes, Wholesale Travel, Guindon, Goodwin, and Fitzpatrick.

Strict and Absolute Liability Revisited

• No Mens Rea Often Required: Some offences, particularly in the regulatory context, do not require proof of mens rea.
• Strict Liability: A type of offence where the Crown does not need to prove mens rea, but the accused can still rely on a due diligence defence (R. v. Sault Ste. Marie).
• Absolute Liability: A rare and often controversial type of offence for which no defence is available once the prohibited act is proven. Due to its severity, absolute liability linked with potential jail time is unconstitutional.

Contact Information

For further questions, Dr. Rebecca Jaremko Bromwich can be reached at rebecca.bromwich@carleton.ca.