CRIMINAL LAW: REGULATORY OFFENCES SEPTEMBER 30, 2013

1. CRIMINAL LAW: REGULATORY OFFENCES SEPTEMBER 30, 2013

2. Overview • Public welfare/regulatory offences • Strict and absolute liability offences • Reasonable Care Defences • Defences (Actuusreus) • Private Prosecutions • Penalties and Sentencing issues • Charter

3. Regulatory Offences • Why “regulatory”/“public welfare offences?” What are they? • Public welfare offences involve a shift of emphasis from the protection of individual interests to the protection of public and social interests…” R. v. Sault Ste. Marie • Types of offences • Depositing, releasing toxic substances, pollutants • Breach of regulatory requirements • Failure to obtain licences or comply with terms and conditions of licences • Failure to provide information

4. Mens Rea Offences • Categories of regulatory offences established in Sault Ste. Marie • Mensrea • Strict liability • Absolute liability

5. Mens Rea Offences • Offences in which mensrea, 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 of the act committed, or by additional evidence. • Criminal Codes. 180 “criminally negligent . . . who, in doing anything or in omitting to do anything that it is his or her duty to do, shows wanton or reckless disregard for the lives or safety of other persons”

6. Mens Rea Offences • CEPA 1999 S. 274.(1) Every person is guilty of an offence . . . who in committing an offence (a) intentionally or recklessly causes a disaster that results in a loss of the use of the environment, or (b) shows wanton or reckless disregard for the lives or safety of others person and thereby causes a risk of death or harm to another person”

7. Strict Liability Offences "If on a prosecution for the offences created by the Act, the Crown had to prove the evil intent of the accused, or if the accused could escape by denying such evil intent, the statute, by which it was obviously intended that there should be complete control without the possibility of any leaks, would have so many holes in it that in truth it would be nothing more than a legislative sieve.” The Queen v. Pierce Fisheries Ltd.

8. Strict Liability Offences • Offences in which there is no necessity for the prosecution to prove the existence of mensrea; the doing of the prohibited act prima facie imports the offence, leaving it open to the accused to avoid liability by proving that he took all reasonable care • Due diligence - involves consideration of what a reasonable man would have done in the circumstances. Defence available if the accused reasonably believed in a mistaken set of facts  which, if true, would render the act or omission innocent, or if he took all reasonable steps to avoid the particular event.

9. Strict Liability Offences “It is fundamentally unsound to convict a defendant for a crime involving a substantial term of imprisonment without giving him the opportunity to prove that his action was due to an honest and reasonable mistake of fact or that he acted without guilty intent. If the public danger is widespread and serious, the practical situation can be met by shifting to the shoulders of the defendant the burden of proving a lack of guilty intent.” Sault Ste. Marie • Presumption of strict liability unless express statutory language

10. Absolute Liability Offences • Require proof of actuusreus • Not then “open to the accused to exculpate himself by showing that he was free of fault” • Determining whether an offence is a strict liability or absolute liability offence? • Absolute liability offences with possibility of imprisonment contrary to Charter?

11. Defences – Reasonable Care • Mistake of fact • “my speedometer is not working properly” Hickey • “I didn’t know this area was baited” R. v. Chapin • Due diligence • “I took all reasonable measures to prevent the offence from occurring” • R. v. Sault Ste. Marie • R. v. Syncrude (considerably expanded in modern form)

12. Defences – Actus Reus • Act of God • Necessity • Impossibility • Latent defect • Acts of strangers

13. Act of God Defence • Natural event that is uncontrollable or unavoidable, causes harm completely independently of human conduct • Negates both negligence and causation, both because it is unforeseeable and because there is no human contribution • Foreseeability • Every precaution undertaken • Forces of nature act without human contribution Syncrude

14. Necessity Defence • Requirement of imminent peril or danger • No reasonable legal alternative to course of action • Proportionality between harm inflicted and harm avoided Perta, Latimer

15. Impossibility Defence • Inability to comply with the law • No reasonable legal alternative to course of action • Latimer, Syncrude

16. Interpreting Env. Offences • General prohibition against discharge of a contaminant doesn’t apply in case of contaminant governed by regulation Alex Couture • Nature of substance deleterious to fish or condition of water deleterious to fish after introduction of substance? MacMillan Bloedel, Kingston • “May impair” Quantity or concentration of material or the nature of material itself? Crown must prove “discharge of the material may impair the quality of the water, based upon not only the nature of the material, but also the nature and circumstances of the discharge . . . including its quality and concentration as well as the time frame . . .” Toronto Electric Commissioners

17. Private Prosecutions • Citizens authorized under Criminal Code to lay information for environmental offences (Fisheries Act has been most popular) • Usually prudent to request Attorney General to bring charges first • Fraught with difficulties (financial, gathering evidence) but occasionally succeeds (Kingston) • Private prosecutors can share in proceeds from fines under some laws • Benefits of private prosecutions as deterrent likely significant

18. Private Prosecutions • Attorney General retains authority under Criminal Code to stay proceedings at any time prior to judgment • AG’s authority to enter stay is unreviewable absent flagrant impropriety Kostuch • AG also has authority to take over a private prosecution ) Syncrude • Martha Kostuch – Canada’s private prosecution queen

19. Other Mandated Citizen Initiatives • CEPA 1999: Citizen request for investigation into offence under Act • Failure to investigate and report can lead to citizen entitlement to launch environmental protection action • Ontario EBR: Citizen application for investigation of alleged contravention of Ontario environmental law (Environmental Commissioner of Ontario) • North American Agreement on Environmental Cooperation: submission to Commission for Environmental Cooperation that a party is not enforcing its environmental laws

20. Penalties, Remedial Orders and Sentencing • Deterrence, punishment, environmental protection • Penalties include fines, possibility of imprisonment (often to a maximum of six months), profit stripping of corporations, personal exposure to liability of officers and directors • Environmental Enforcement Act standardized range of enforcement and penalty provisions for 9 federal statutes, including CEPA, Canada National Parks Act, Migratory Birds Convention Act • EEA structure for fine related to seriousness of offence, whether proceeding by way of summary conviction offence or indictment, individual or corporate offender

21. Imprisonment • Use of imprisonment rare, often for contempt of court • One-year imprisonment plus further time up to 15 months for delay in undertaking remedial work order by court Jetco 1987 • Overturned on appeal on grounds that evidence that defendant had notice of the order was not sufficiently established • Blackbird 1990, Cardinal 2010 prison sentence imposed for environmental offences

22. Remedial Orders CEPA 1999 • Prohibit continuing the offence • Direct offender to remedy or avoid harm caused by acts that led to conviction • Prepare and implement a pollution prevention plan • Carry out environmental effects monitoring • Implement an environmental management system, carry out environmental audit • Compensate Minister for cost of remedial or preventative action • Perform community service • Make payments to environmental groups, education institutions

23. Sentencing • R. v. United Keno Hill Mines: Pollution is a crime • Sentencing Principles • Nature of the environment affected • Extent of the damage affected • Deliberateness of the offence • Attitude of the offender, indications of remorse • Evidence of attempts to comply • Criminal record • Evidence of character • Sentencing Principles for Corporations • Size, wealth, nature of operations and power of corporation • Profits realized by the offence • Applied in R. v. Dawson City – Should municipalities be treated differently?

24. Deterrence as Primary Goal of Sentencing? • Two elements of general deterrence: • achieve compliance by threat of punishment • expression of community disapproval as an educative effect that affects attitude of public Cotton Felts • In our complex interdependent modern society…regulatory statutes are accepted as essential in the public interest… To a very large extent the enforcement of such statutes is achieved by fines imposed on offending corporations. The amount of the fine will be determined by a complex set of considerations... Above all, the amount of the fine will be determined by the need to enforce regulatory standards by deterrence”

25. Deterrence as Primary Goal of Sentencing? • Two elements of general deterrence: • achieve compliance by threat of punishment • expression of community disapproval as an educative effect that affects attitude of public Cotton Felts • In our complex interdependent modern society…regulatory statutes are accepted as essential in the public interest… To a very large extent the enforcement of such statutes is achieved by fines imposed on offending corporations. The amount of the fine will be determined by a complex set of considerations... Above all, the amount of the fine will be determined by the need to enforce regulatory standards by deterrence”

26. Statutory Sentencing Principles • Canada Shipping Act Pollution offences: • Harm or risk of harm caused by the offence • Costs of clean-up, harm caused, and of mitigation • Remedial action taken • Reporting of discharge • Economic benefits to offender • History of non-compliance • CEPA 1999 Aggravating factors • Damage to the environment • Damage to unique, rare, vulnerable components of environment • Harm to human health • Damage is extensive, pervasive, irreparable • Offence committed recklessly

27. Enforcement of Environmental Laws • Conciliation vs. enforcement-based • “Implementation gap”: inconsistent and inadequate enforcement in practice • Bureaucratic barriers to enforcement • Lack of stand-alone regulatory agencies • Enforcement of CEPA 1999 in 2010-11 • 606 written warnings • Three written directives • Two prosecutions • 42 environmental compliance orders • Zero convictions • Inspections vs. Investigations

28. Summary Questions