A. Regulatory Offences and Sentencing Provisions

 

1. Introduction

 

Regulatory offences correspond to an incredibly diverse and complex series of activities. Indeed, one of the challenges that emerges for courts when imposing a penalty for the commission of a regulatory offence, is the breadth of the type of activity and conduct that may comprise the infraction. Whereas the Criminal Code of Canada includes a statement of sentencing purposes and principles to guide courts in determining punishment, there is no such guidance provided to courts sentencing those who commit regulatory offences. The consequences of the lack of statutory guidance are illustrated, in summary form, in this Part, by a matrix of regulatory offences in the area of workplace safety, consumer protection and environmental protection: regulatory agency sentencing patterns are of relevance in gauging the need for consistency and uniformity in the area of sentencing for regulatory offences generally.

 

It has been left to the courts to fill in the gaps, with respect to the purposes and principles of sentencing for regulatory offences, when faced with this bewildering array of regulatory offences, enforcement mechanisms and penalty provisions. What is lacking, however, is a consistent and rational approach. This requires, in turn, the identification and organization of sentencing purposes and principles for regulatory offences. Consideration must first be given to the nature of regulatory offences themselves, and how they not only differ, conceptually, from criminal offences, but also from each other.

 

2. Overview of Regulatory Offences, Enforcement Mechanisms and Penalty Provisions

 

The words of Justice Cory in R. v. Wholesale Travel Group Inc.[11] describing the pervasive nature of regulatory offences in our society are well known. He stated that it would be difficult to think of an aspect of our lives that is not regulated for our benefit and for the protection of society as a whole. To this he added:

 

From cradle to grave, we are protected by regulations; they apply to the doctors attending our entry into this world and to the morticians present at our departure. Every day, from waking to sleeping, we profit from regulatory measures which we often take for granted. On rising, we use various forms of energy whose safe distribution and use are governed by regulation. The trains, buses and other vehicles that get us to work are regulated for our safety. The food we eat and the beverages we drink are subject to regulation for the protection of our health.

 

In short, regulation is absolutely essential for our protection and well being as individuals, and for the effective functioning of society. It is properly present throughout our lives. The more complex the activity, the greater the need for and the greater our reliance upon regulation and its enforcement. For example, most people would have no idea what regulations are required for air transport or how they should be enforced. Of necessity, society relies on government regulation for its safety.[12] 

 

Regulatory offences thus correspond to an incredibly diverse and complex series of activities. Sayre, in 1933, classified regulatory offences into these eight categories: (1) illegal sales of intoxicating liquor (2) sales of impure or adulterated food or drugs (3) sales of misbranded articles (4) violations of anti-narcotic acts (5) criminal nuisances (consisting of annoyances or injuries to public health, safety, repose or comfort; obstructions of highways) (6) violations of traffic regulations (7) violations of motor vehicle laws (8) violations of general police regulations, passed for the safety, health, or well-being of the community.[13]

 

The methods of regulation are themselves varied, and often do not necessitate the involvement of the criminal or quasi-criminal law. [14] Indeed, the majority of “regulatory action” may involve attempts to secure compliance through persuasive efforts.[15] Regulation by prosecution if necessary, but not necessarily prosecution, it might be said.[16]

 

However, regulatory schemes can be effective, ultimately, only where they provide for “significant penalties in the event of their breach” and “strong sanctions”, to return to the words of Cory J. in the Wholesale Travel Group Inc. case.[17] In a subsequent Supreme Court of Canada decision, it was observed that any regulatory statute which lacked prohibitions and penalties would be “meaningless.”[18] After all, what would be the point in having “sophisticated codes of regulation” in the absence of provision being made for their enforcement?[19] In response to this question, it has been stated:

 

Enforcement mechanisms exist as an aid to securing the policy objectives which underlie codes of regulation and the mechanism which is common to the vast majority of codes, although it may not be the only mechanism for which provision is made, is the criminal law.[20]

 

Sentencing for the commission of a regulatory offence has been described as “risk management on its head”, that is, it represents a response to the failure of preventing a violation of a regulatory standard that embodies risk assessment.[21] Risk assessment is a “scientific assessment of the true risk” whereas risk management “incorporates non-scientific factors to reach a policy decision.”[22] The scientific assessment of risk may be converted into laws or regulations; the extent of legal enforcement and allocation of resources for enforcement involves risk management.[23] However, it is at the sentencing stage that courts have the opportunity of addressing the regulatory standards which have been set by the legislature.

 

But there is also the potential for either undermining or over-enforcing these regulatory standards: if a penalty that is imposed is overly lenient, such as a nominal fine, this may have the effect of “under-cutting” the legislature’s risk assessment which led to the creation of the violation in the first place; for some it may represent a “license” fee that it is viewed as merely the cost of doing business or engaging in the regulated activity. On the other hand, if the penalty is “too high”, such as a crushing fine, it may not only inhibit business efficiency but also discourage other law-abiding persons from engaging in the activity or remaining active in the field.[24] The example of imposing a fine at either end of these extremes is apt, given that the enforcement of regulatory statutes is achieved by financial penalties to “a very large extent.”[25] A fine is the “primary mechanism” for regulatory and corporate punishment;[26] it is the penalty that is “most commonly invoked.”[27]

 

One of the challenges facing those considering the imposition of a penalty for the commission of a regulatory offence is the breadth of the type of activity and conduct that may comprise the infraction. In a study on strict liability conducted for the Law Reform Commission of Canada in 1974, it was estimated that there were approximately 20,000 regulatory offences in each province plus an additional 20,000 federal offences.[28]  This did not take into account municipal infractions, such as by-law offences. At the same time, there were 700 Criminal Code sections.[29] By 1983, the Department of Justice estimated that there were 97,000 federal regulatory offences.[30] Given these figures, there is no reason to believe that the number of regulatory offences at all levels of government has not continued to increase.[31] It is thus hard to take issue with the Law Reform Commission of Canada’s prediction more than thirty years ago that “the regulatory offence … is here to stay.”[32] 

 

3. The Nature of Regulatory Offences

 

Unlike Criminal Code offences or “true crimes”, which have a fault or moral blameworthiness element, regulatory or public welfare offences do not always involve fault. Negligence may suffice. Sometimes there will be a fault element; other times an absence of fault or absolute liability. In its seminal judgment in which the “half-way” house of strict liability was formally introduced into Canadian jurisprudence for regulatory offences, as a middle ground between fault (mens rea) and absence of fault (absolute liability), the Supreme Court of Canada observed in R. v. Sault Ste. Marie (City)[33] that public welfare offences involve a “shift of emphasis”, from protecting individual interests to protecting social and public interests.

 

Dickson J., rendering the unanimous judgment of the Court in the Sault Ste. Marie case, stated that public welfare offences lie in a field of “conflicting values”: on one hand it is essential for society to maintain through “effective enforcement” high standards of safety and public health so that the potential victims of those who “carry on latently pernicious activities have a strong claim to consideration”; on the other hand, there is a “generally held revulsion against punishment of the morally innocent.” [34]

 

There are three categories of regulatory offences, flowing from the Sault Ste. Marie decision, each of which is distinct in nature. They were enumerated by Justice Dickson as follows: (1) mens rea offences – these offences consist of “some positive state of mind”, such as intent, knowledge or recklessness, and must be proven by the prosecution either as an inference from the nature of the act committed, or by additional evidence; (2) strict liability offences – for these offences the prosecution is not required to prove mens rea, as the doing of the prohibited act prima facie imports the offence, leaving it open to the defendant to prove, on a balance of probabilities, that he/she took “all reasonable care”; this defence will be available where the accused person reasonably believed in a mistaken set of facts which, if true, would render the act or omission innocent, or if he/she took “all reasonable steps to avoid the particular event”; (3) absolute liability offences – for these offences, it is not open to the defendant to exculpate himself/herself by showing that he/she was “free of fault”.[35]

 

As can be seen, regulatory or public welfare offences are not only different from criminal offences, they differ conceptually from each other. For some there may be a fault element (mens rea offences); for others fault is not required (absolute liability offences). There is a presumption that public welfare offences fall into the strict liability category: whereas they are not subject to “full means rea”, the principle that punishment generally should not be “inflicted on those without fault” applies. [36]

 

However, while the purpose of penalizing a public welfare or regulatory offence may be different from the purpose of penalizing a crime, “the means, a penalty, and the effect, punishment, remain the same.”[37] Indeed, Glanville Williams has made the observation that “all crimes are, in a sense, public welfare offences,”[38] all of which result from regulation: whether one describes these crimes as regulatory offences, public welfare offences or quasi-criminal offences, they have in common the same procedure for prosecution and kind of punishment as other offences.[39]

 

In the Sault Ste. Marie decision, Dickson J. explained that public welfare offences are not “criminal in any real sense”, but are prohibited in the public interest.[40] While enforced as penal laws through the use of “the machinery of the criminal law”, such offences are “in substance of a civil nature”, and might be regarded as a “branch of administrative law.”[41] However, the fundamental difference between