Regulatory offences and corporate crime

AuthorKent Roach
ProfessionFaculty of Law and Centre of Criminology. University of Toronto
Pages213-215

Page 213

Regulatory offences are enacted by the federal, provincial, and municipal governments and they far outnumber offences under the Criminal Code. Regulatory or public welfare offences emphasize the protection of the public from the risk of harm and the regulatory interests of the modern state, as opposed to the punishment of inherently wrongful and harmful conduct. A person or a corporation is convicted for performing a regulated activity without a licence or for failing to take specified safety prosecutions not because such non-compliance must be denounced and punished, but because it frustrates the regulatory ambitions of the modern state and creates a danger of harm. Courts have fashioned distinct rules to make it easier for the state to investigate and prosecute regulatory offences.

Traditionally, Canadian courts were faced with the stark choice of interpreting a regulatory offence to require either absolute liability, in which a conviction followed from the commission of the prohibited act, or proof beyond a reasonable doubt of a subjective fault element. The former standard could impose liability without fault, while the latter might frustrate the objectives of the regulatory scheme by requiring the Crown to prove that someone in a large organization had guilty knowledge. A third option, strict liability, has now emerged to dominate the field. Absolute liability offences are now vulnerable under section 7 of the Charter, at least when they deprive individuals of life, liberty, or security of the person by imposing terms of imprisonment.

Page 214

Strict liability offences require fault based on negligence, and for this reason they satisfy the requirement under section 7 of the Charter that the morally innocent who act without fault not be punished. They do, however, violate the presumption of innocence under section 11(d) of the Charter. After the Crown proves the prohibited act of a strict liability offence beyond a reasonable doubt, negligence is presumed, and the accused must establish that it was not negligent. The accused makes its case by establishing on a balance of probabilities a defence of due diligence or reasonable mistake of fact. This approach violates the presumption of innocence by allowing a conviction even if there is a reasonable doubt about whether the accused was negligent. Nevertheless, it has been held to be justified because of the danger of acquitting an accused who has entered a regulated field and...

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