[1] Chief Justice Brian W. Lennox of the Ontario Court of Justice in his speech at the Opening of the Courts, on 10 January 2007, noted that in 2006 there were 600,000 criminal charges brought in the Ontario Court of Justice, of which 87% were dealt with by guilty plea or withdrawal. The trial rate was 5-8%.

[2] R.. v. R.R., 2008 ONCA 497, 90 O.R. (3d) 641, 238 O.A.C. 242, [2008] O.J. No. 2468 at para. 16 (QL) [R.R.].

[3] Provincial Offences Act, R.S.O. 1990, c.P.33 [Provincial Offences Act].

[4] Opening of the Courts, 10 January 2007, note 1.There were over 1,700,000 charges under the Provincial Offence Act bought before the court in 2006, plus 11,000 appeals, according to Chief Justice Lennox. That is, there were almost three times as many provincial offences or regulatory offences, than criminal offences, before the courts. The latest statistics which are available indicate that for 2009, there were 2,159, 186 charges received by the Ontario Court of Justice for charges under the Provincial Offences Act. Of these the trial rate was 2.5%.

[5] Provincial Offences Act, note 3, s.1(1) definition of “offence”. The terms “provincial offences”, “regulatory offences” and “public welfare offences” are used inter-changeably throughout this research paper.  

[6] Contraventions Act, S.C. 1992, c.47, s.2 definition of “contravention”. [Contraventions Act]

[7] T.L. Archibald, K.E. Jull, and K.W. Roach, Regulatory and Corporate Liability: From Due Diligence to Risk Management (Aurora: Canada Law Book Inc., 2005) at 12-9-12-10.

[8] Ontario Law Commission, The Modernization of the Provincial Offences Act. (Consultation Paper, November 2009) (Toronto: Law Commission of Ontario, 2009) at 17-18.

[9]  Criminal Code, R.S.C. 1985, c.C-46 [Criminal Code].

[10] Criminal Code, note 9, s.718.

[11] R. v. Wholesale Travel Group Inc.,[1991] 3 S.C.R. 154, [1991] S.C.J. No. 79 (QL) [Wholesale Travel Group Inc.].

[12] Wholesale Travel Group Inc., note 11 at [QL] paras. 136-137.

[13] F.B. Sayre, “Public Welfare Offences” (1933), 33 Colum. L. Rev. 55 at 73.

[14] Liora Salter, Methods of Regulation (Vancouver: Simon Fraser University Department of Communication, 1986).

[15] Ian Ayres and John Braithwaite, Responsive Regulation. Transcending the Deregulation Debate (New York: Oxford University Press, 1992) at 35. In Canada “a great deal of the power” of regulatory agencies is dependent upon persuasion: Liora Salter and Debra Slaco, Public Inquiries in Canada (Ottawa: Government of Canada, 1981) at 210.

[16] Ayres, note 15 at 40, describes this strategy as “regulation by raised eyebrows” or “regulation by vice-regal suasion”, noting in their study of approximately 100 Australian regulatory agencies that while enormous powers were given to these regulators, it was hardly necessary to use them in order to secure compliance.

[17] Wholesale Travel Group Inc., note 11 at [QL] para. 219.

[18] R. v. Hydro-Quebec, [1997] 3 S.C.R. 213, [1997] S.C.J. No. 76 at para. 46 (QL) [Hydro-Quebec].

[19] Jeremy Rowan-Robinson, Paul Q. Watchman, and C.R. Barker, “Crime and Regulation”, [1988] Crim. L.R. 211.

[20] Rowan-Robinson, note 19. See further Keith Hawkins, “Bargain and Bluff. Compliance Strategy and Deterrence in the Enforcement of Regulation” (1983), 5 Law & Policy Quarterly 35 at 48.

[21] Archibald, note 7 at 12-1.

[22] Archibald, note 7 at 1-16.3.

[23] Archibald, note 7 at 1-16.3. See further Salter, note 14 at 151 where risk assessment is described as a “problem-oriented concept” whose use is said to imply that “developments should be allowed to proceed, and products used, unless serious problems have been identified.” 

[24] Archibald, note 7 at 12-1.

[25] R. v. Cotton Felts Ltd. (1982), 2 C.C.C. (3d) 287, [1982] O.J. No. 178 at para. 19 (QL) (C.A.) [Cotton Felts Ltd.].

[26] Archibald, note 7 at 12-1.

[27] L.H..Leigh, “The Criminal Liability of Corporations and Other Groups” (1977), 9 Ottawa L. Rev. 247.

[28] Law Reform Commission of Canada, Studies in Strict Liability (Ottawa: Government of Canada, 1974) at 2.

[29] The first Criminal Code of Canada, which was enacted in 1892, contained 983 sections: see D.H. Brown, The Genesis of the Canadian Criminal Code of 1892 (Toronto: Osgoode Society, 1989) at 126. The current Criminal Code contains fewer section numbers due to the numbering method which is employed,, but there are considerably more provisions in total; it is approximately 1600 pages in length.

[30] Law Reform Commission of Canada, Policy Implementation, Compliance and Administrative Law (Working Paper 51) (Ottawa: Government of Canada, 1986) at 38.

[31] Wholesale Travel Group Inc., note 11 at [QL] para. 134.

[32] Law Reform Commission of Canada, Our Criminal Law (Ottawa: Government of Canada, 1976) at 11.

[33] R. v. Sault Ste. Marie (City), [1978] 2 S.C.R. 1299, [1978] S.C.J. No. 59 (QL), 40 C.C.C. (2d) 353 at 364 [Sault Ste. Marie].

[34] Sault Ste. Marie, note 33 at [C.C.C.] 362-363.

[35] Sault Ste. Marie, note 33 at [C.C.C.] 373-374.

[36] Sault Ste. Marie, note 33 at [C.C.C.] 374.

[37] J. Swaigen, Regulatory Offences in Canada. Liability & Defences (Toronto: Carswell Thompson Professional Publishing, 1992) at 219.

[38] Glanville Williams, Criminal Law. The General Part (2nd ed.) (London: Stevens & Sons Limited, 1961) at 235.

[39] R. Libman, Libman on Regulatory Offences in Canada (Salt Spring Island: Earlscourt Legal Press Inc., 2002) at 1-3.

[40] Sault Ste. Marie, note 33 at [C.C.C.] 357.

[41] Sault Ste. Marie, note 33. See further Colin Howard, Strict Responsibility (London: Sweet & Maxwell, 1963) at 1, stating that regulatory offences are often part of a legislative scheme “for the administrative regulation of society.”

[42] John C. Coffee Jr., “Does ‘Unlawful’ Mean ‘Criminal’?: Reflections on the Disappearing Tort/Crime Distinction in American Law” (1991), 71 Bost. U.L.R. 194.

[43] Coffee, note 42. Although it might be said that since penalties create financial incentives to dissuade a person or corporation from engaging in conduct which is unlawful, a penalty is the “price” of violating the law: see Karen Yeung, “Quantifying Regulatory Penalties: Australian Competition Law Penalties in Perspective” (1999), 23 Melb. U. L. Rev. 440 at 446.

[44] Sault Ste. Marie, note 33 [C.C.C.] at 357.

[45] Clayton C. Ruby and K.E. Jull, “The Charter and Regulatory Offences: A Wholesale Revision” (1992), 14 C.R. (4th) 226 at 228.

[46] Swaigen, note 37 at 4.

[47] Sayre, note 13 at 56.

[48] Law Reform Commission of Canada, Sentencing in environmental cases (Ottawa: Law Reform Commission of Canada, 1985) at 4. The authors of this Study Paper are John Swaigen and Gail Bunt.

[49] S.P.Green. “Why It’s a Crime to Tear the Tag Off a Mattress: Overcriminalization and the Moral Context of Regulatory Offences” (1997), 46 Emory L.J. 1533 at 1544.

[50] Competition Act, R.S.C. 1985, c.C-34 [Competition Act].

[51] Combines Investigation Act, R.S.C. 1985, c.C-23 [Combines Investigation Act].

[52] See Competition Bureau, Information Bureau, 22 September 1999, “Misleading Representations and Deceptive Marketing Practices: Choice of Criminal or Civil Track under the Competition Act.”

[53] Competition Bureau, “Conformity Continuum Information Bulletin” (23 December 2003).

[54] Bill C-45, An Act to Amend the Criminal Code (Criminal Liability of Organizations), S.C. 2003, c.21 [Bill C-45]. The legislation came into force on 31 March 2004.

[55] In the first prosecution under these new Criminal Code amendments, a contractor was directing construction work outside a house, but then left the scene to get materials for the job, when the trench collapsed killing a worker. The Criminal Code charges were subsequently withdrawn, and the defendant was permitted to plead guilty for a $50,000 fine under the Ontario Occupational Health and Safety Act, R.S.O. 1990, c.O.1 [Occupational Health and Safety Act (Ont.)]: see R. v. Fantini, [2005] O.J. No. 2361 (QL) (C.J.) [Fantini]. To date there has been one further prosecution under the legislation, a case where an employee was crushed to death by a concrete press: R. v. Transpavé Inc., 2008 QCCQ 1598, [2008] Q.J. No. 1857 (QL) [Transpavé Inc.]. The company pleaded guilty to a count of criminal negligence causing death, arising from this workplace accident, and was fined $100,000.

[56] Securities Act, R.S.O. 1990, c.S.5 [Securities Act (Ont.)].

[57] Wilder v. Ontario Securities Commission (2001), 53 O.R. (3d) 519, 142 O.A.C. 300, [2001] O.J. No. 1017 at para. 23 (QL) [Wilder]. In this case the Court rejected a challenge to the Security Commission’s jurisdiction to reprimand a lawyer.

[58] Environmental Enforcement Statute Law Amendment Act, 2005, S.O. 2005, c.12.[Environmental Enforcement Act (Ont.)]

[59] J. Gobert, “Corporate Criminality: New Crimes for the Times”, [1994] Crim. L.R. 722.

[60] Gobert, note 59 at 725. See also Law Reform Commission of Canada, Sentencing in environmental cases, note 47 at 15 where it is noted that some regulators may even feel that where abatement has been achieved due to a prosecution, a fine may be “irrelevant” and “counter-productive” due to straining relations between enforcement officials, or reducing resources available to the offender for improvement of the environment.

[61] H.J. Glasbeek, “Commercial Morality Through Capitalist Law: Limited Possibilities” (1993), 27 R.J.T. 263 at 301.

[62] S.G. Breyer, Breaking the Vicious Circle: Toward Effective Risk Regulation (Cambridge: Harvard University Press, 1993) at 57-58.

[63] Lévis (City) v. Tétreault, 2006 SCC 12, [2006] 1 S.C.R. 420, [2006] S.C.J. No. 12 (QL) [Lévis].

[64] R. v. Kanda, 2008 ONCA 22, 88 O.R. (3d) 732, 233 O.A.C. 118, [2008] O.J. No. 80 at para. 43 (QL) [Kanda]; R. v. Raham, 2010 ONCA 206, [2010] O.J. No. 1091 at para 37 (QL) [Raham].

[65] Highway Traffic Act, R.S.O. 1990, c.H.8 [Highway Traffic Act (Ont.)].

[66] Kanda, note 64 at [QL] para. 43.

[67] Kanda, note 64 at [QL] para. 21.

[68] Highway Traffic Act (Ont.), note 65, s.104(2.2).

[69] Highway Traffic Act (Ont.), note 65, s.75(4).

[70] Highway Traffic Act (Ont.), note 65, s.84.1.

[71] Kanda, note 64 at [QL] para. 44.

[72] Swaigen, note 37 at 52.

[73] Raham, note 64.

[74] R. v. Hickey (1976), 13 O.R. (2d) 228 (C.A.) [Hickey]; R. v. Polewsky (2005), 202 C.C.C. (3d) 257, [2005] O.J. No. 4500 (QL) (C.A.), leave to appeal to S.C.C. refused, [2006] 1 S.C.R. xiii. [Polewsky]

[75] R. v. Harper (1986), 53 C.R. (3d) 185, [1986] B.C.J. No. 706 (QL) (C.A.) [Harper]; R. v.