REGULATORY OFFENCE LITIGATION
If your company, or you personally, have been charged with a regulatory or provincial offence it is important to contact an experienced lawyer to assist you immediately. These charges may appear to be easy to defend but they can carry extremely high fines and could expose companies and individuals to unseen liabilities and consequences in the future.
PROVINCIAL OFFENCES & REGULATORY OFFENCES
Provincial Offences are ‘Regulatory Offences’ that are intended to manage conduct in areas of safety, health or the general public interest. Regulatory Offences are created in Federal, Provincial and Municipal legislation.
The Provincial Offences Act (POA) applies to all offences under any provincial and municipal legislation, including such areas as licensing regulation, planning and building codes, health care, public safety and securities law. Also, pursuant to the federal Contraventions Act certain federal legislations are prosecuted under the POA. For example, the Tobacco Act, Non-Smokers Health Act and Canadian Environmental Protection Act are covered by the procedures established in the POA in Ontario.
The following provincial Acts are prosecuted under the Provincial Offences Act:
- EOntario Securities Act
- ELiquor License Act
- ELiquor License Control Act
- EHighway Traffic Act
- EOccupational Health and Safety Act
- EPolice Services Act
- EToronto Municipal Code
DEFENCES FOR REGULATORY RELATED OFFENCES
Every offence, from municipal code infractions to federal laws, has very specific elements that must be proven by the Prosecution to secure convictions. In addition, both the Prosecution and the Law Enforcement Officer must follow specific procedures when laying and prosecuting regulatory offences. Then, depending on the type of offences, the Prosecution must prove the case to a specific standard to secure convictions. These strict requirements on the Prosecution affords a number of possible defences that an experienced lawyer will be able to identify and incorporate into your defence strategy.
JURISDICTIONAL OR PROCEDURAL DEFENCES
Abuse of Process – The Courts may stay proceedings when there has been abuse by the Prosecution or other governmental agents.
Officially Induced Error – When an offence was committed after relying on the advice of an appropriate official.
Inadequate Disclosure – The Prosecution must provide disclosure in a timely matter. If the failure to provide disclosure has caused prejudice that cannot be remedied, the Court may stay the proceedings.
De Minimus – Rarely argued in court, however, Courts are allowed to dismiss charges when it considers the allegations are trivial and of very slight concern to the public interest.
Unreasonable Delay – a person or business charged with a regulatory offence is constitutionally entitled to have a trial within a reasonable time.
DEFENCES FOR MENS REA OFFENCES
For Mens Rea Offences the Prosecution must prove beyond a reasonable doubt the defendant committed the offence and had the requisite intention to commit the offence.
State of Mind – That there was no intention to commit the offence.
Mistake of Fact – The Court believes there was an honest mistake of fact.
Due Diligence – There was an honest mistake of fact and defendant made reasonable efforts to avoid committing the offence.
Intoxication – Did not have the state of mind to intentionally commit offence.
DEFENCES FOR ABSOLUTE AND STRICT LIABILITY OFFENCES
When Prosecuting Strict Liability Offences the Prosecution must only prove beyond a reasonable doubt that the defendant committed the infraction, and not that the defendant had the intention to commit the offence.
Mistake of Fact – The Court believed there was an honest mistake of fact and that there were efforts made to determine facts prior to the offences occurring and there is a reasonable excuse why the offence took place.
No Alternative – Defendant must prove there was no reasonable alternative to committing the offence.
Involuntariness – The Court must be convinced that the offence must have been committed involuntarily and outside the scope of control of the defendant.
Necessity – The defendant had no choice but to commit the offence, there was no lawful alternative and there was an imminent risk or harm. Usually only applies in unforeseen emergency circumstances.