Volume 1. Chapter 1 Introduction. Chapter 2 Overview of the Regulatory Offence in Canada 2.1 Public Welfare Offences

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1 Table of Contents Volume 1 Title Page (Volume 1)... i Foreword... v Acknowledgments... vii Table of Cases... TC-1 Chapter 1 Introduction Chapter 2 Overview of the Regulatory Offence in Canada 2.1 Public Welfare Offences (a) Generally (b) Presumption of Strict Liability over Absolute Liability (c) But Regulatory Offences May Have a Mens Rea Component The Pervasive Nature of Regulatory Offences Distinguishing Regulatory Offences from Criminal Offences Application to Administrative Penalties Conflict Between Federal and Provincial Legislation (a) Generally (b) Environmental Protection Legislation (c) Occupational Health and Safety Legislation (d) Trespass to Property (e) Driving Offences and Regulation of Traffic (f) Firearms Legislation (g) Gaming and Betting (h) Obscenity (i) Tobacco (j) Navigation and Shipping (k) Taxation Conflict Between Provincial Legislation Chapter 3 Legislative Procedural Regimes 3.1 Introduction Federal Regulatory Offences: The Contraventions Act Provincial Offences Legislation (a) Ontario (b) Nova Scotia (c) New Brunswick (d) Manitoba (e) Prince Edward Island ix - (Update 22 September 2012)

2 LIBMAN ON REGULATORY OFFENCES IN CANADA (f) Newfoundland and Labrador (g) Quebec (h) Alberta (i) Saskatchewan (j) British Columbia (k) Northwest Territories (l) Yukon (m) Nunavut Procedural Issues (a) Blending the Burden of Proof (b) Joint Trials (c) Included Offences Chapter 4 Public Welfare Offences Involving Mens Rea 4.1 Introduction Characterizing an Offence as a Mens Rea Offence Examples of Mens Rea Offences (a) Aircraft (b) Bankruptcy (c) Citizenship (d) Communications (e) Consumer Protection (f) Copyright (g) Customs and Excise (h) Environment (i) Fisheries (j) Highway Traffic (k) Home Buyers Grants (l) Hunting (m) Immigration (n) Income Tax (o) Pensions (p) Residential Tenancy (q) Unemployment Insurance (r) Voting (s) Wildlife (t) Animals (u) Child and Family Services (v) Securities (w) Occupational Health and Safety (x) Professions (y) Municipal By-Laws Proof of Mens Rea Defences (a) Generally (b) Mistake of Fact (c) Mistake of Law Corporations Parties x -

3 TABLE OF CONTENTS Chapter 5 Absolute Liability Offences 5.1 Introduction Absolute Liability or Strict Liability Vicarious Liability as a Form of Absolute Liability Criminal Code Offences and Absolute Liability Charter of Rights and Freedoms Examples of Absolute Liability Offences (a) Aircraft (b) Education (c) Environment (d) Fire Equipment (e) Food and Drugs (f) Gasoline and Oil (g) Highway Traffic (h) Hunting (i) Immigration (j) Lands and Forests (k) Liquor (l) Occupational Safety (m) Parking (n) Professions (o) Securities (p) Tobacco (q) Zoning (r) Animals (s) Elections (t) Conflict of Interest Proof of Offence Defences (a) Generally (b) Lack of Actus Reus (c) Impossibility (d) Necessity (e) Officially Induced Error (f) De Minimis Corporations Chapter 6 Strict Liability Offences 6.1 Introduction Strict Liability or Absolute Liability Strict Liability and Mens Rea Offences Charter of Rights and Freedoms Examples of Strict Liability Offences (a) Animals (b) Child and Family Services (c) Consumer Protection (d) Customs and Excise (e) Education (f) Elections (g) Environment xi - (Update 22 September 2012)

4 LIBMAN ON REGULATORY OFFENCES IN CANADA (h) Fisheries (i) Food and Drugs (j) Gaming (k) Highway Traffic (l) Hunting (m) Immigration (n) Income Tax (o) Labour Relations (p) Lands and Forests (q) Liquor (r) Municipal By-Laws (s) Occupational Health and Safety (t) Pensions (u) Professions (v) Public Health (w) Residential Tenancy (x) Retail Sales Tax (y) Securities (z) Shipping (aa) Statistics (bb) Tobacco (cc) Trespass (dd) Weights and Measures (ee) Wildlife (ff) Railway (gg) Home Warranties Burden of Proof Employers Employees Corporations Parties Chapter 7 The Defence of Due Diligence 7.1 Introduction (a) Operation of Defence (b) Evidentiary Threshold Statutory Defence of Due Diligence Factors for Consideration in Due Diligence Defence (a) Overview (b) Knowledge of Problems (c) Reasonable Care Does Not Mean Superhuman Efforts (d) Practices of the Particular Industry (e) Experience of the Accused (f) The Complexities Involved (g) Gravity of the Potential Harm (h) Previous Incidents (i) Foreseeability (j) Degree of Skill (k) Subsequent Actions (l) Compliance or Safety Programmes (m) Verbal Communications Are Required xii -

5 TABLE OF CONTENTS (n) Alternatives Available to the Accused (o) Matters Beyond the Control of the Accused (p) Actions of Government and Government Officials (q) Economic Considerations Mistake of Law and Due Diligence Mistake of Fact and Due Diligence Relationship with Defence of Officially Induced Error Relationship with Defence of Necessity Impossibility and Due Diligence Due Diligence and Collateral Attacks on Administrative Orders Spot Checks Volume 2 Chapter 8 Other Defences 8.1 Introduction Necessity (a) Generally (b) Necessity and Public Welfare Offences (c) Motor Vehicle Cases Involving Necessity (d) Hunting and Fishing Cases Involving Necessity (e) Other Cases Self-Defence Duress Impossibility Mistake of Law (a) Generally (b) Provincial Offences Mistake Cases (c) By-Law Mistake Cases (d) Motor Vehicle Mistake Cases (e) Hunting and Fishing Mistake Cases (f) Occupational Health and Safety Mistake Cases (g) Environmental Protection Mistake Cases (h) Customs and Immigration Mistake Cases (i) Income Tax Mistake Cases (j) Mistake Due to Reliance on Erroneous Legal Advice or Belief (k) Mistake Due to Non-Publication of Law (l) Relationship with Defence of Officially Induced Error Mistake of Fact (a) Generally (b) Mistake of Fact in Strict Liability Cases (c) Wilful Blindness Negates Mistaken Belief Defence (d) Recklessness Lack of Mens Rea Lack of Actus Reus Res Judicata (a) Generally (b) Charter of Rights Protection Against Double Jeopardy (c) Administrative and Civil Penalties (d) Prosecution for Multiple Counts Under One Statute xiii - (Update 22 September 2012)

6 LIBMAN ON REGULATORY OFFENCES IN CANADA (e) Prosecution Under Multiple Statutes (f) Issue Estoppel Officially Induced Error (a) Generally (b) Relationship with Due Diligence Defence (c) Salutary Effect of Officially Induced Error Defence (d) Application to By-Law Prosecutions (e) Requirement That Defendant Act on Error or Inducement (f) Evidence of Prior Reliance or Actions (g) Reliance upon Erroneous Legal Advice or Belief Abuse of Process (a) Generally (b) Applicability to Regulatory Prosecutions (c) Relationship with Charter of Rights Principles of Fundamental Justice (d) Relationship with Defence of Officially Induced Error (e) Abuse of Process and Multiple Prosecutions Entrapment De Minimis (a) Generally (b) Application to Regulatory Offences (c) The Absurdity Principle of Statutory Interpretation Act of God Inconsistent Verdicts Chapter 9 Criminal Code Licensing and Regulatory Regimes 9.1 Introduction Driving Offences Firearms Regulation Gaming and Betting Proceeds of Crime Chapter 10 Charter of Rights Implications 10.1 Introduction: The Charter and Regulatory Offences Freedom of Religion Freedom of Expression and Freedom of Association (a) Freedom of Expression (b) Freedom of Association Mobility Rights Fundamental Justice (a) Generally (b) Disclosure (c) Abuse of Process (d) Driving Offences (e) Income Tax Act (f) Corporations Search and Seizure (a) Generally (b) Seizing Evidence of Due Diligence (c) Subpoena of Corporate Documents (d) Income Tax Act Searches xiv -

7 TABLE OF CONTENTS (e) Inspections (f) Spot Checks (g) Securities Act Investigations (h) Competition Act (i) Motor Vehicles (j) Environmental Protection (k) Forfeiture (l) Professional Bodies (m) Liquor Control (n) Wildlife (o) Animals (p) Customs and Excise (q) Immigration (r) Child and Family Services (s) Statistics Arbitrary Detention Arrest and Detention (a) Delay in Informing of Charge (b) Right to Retain and Instruct Counsel Being Informed of the Specific Offence Unreasonable Delay (a) Generally (b) Regulatory Offences (c) Corporations Self-Incrimination (a) Compellability in the Regulatory Context (b) Corporations (c) Statutory Compulsion Presumption of Innocence Existence of Offences Double Jeopardy Other Penalty Considerations (a) Benefit of Lesser Punishment (b) Cruel and Unusual Punishment Equality Rights Remedies (a) Generally (b) Regulatory Offences Examples (c) Corporations (d) Exclusion of Evidence Chapter 11 Sentencing Issues and Remedial Measures 11.1 Introduction Sentencing Principles for Regulatory Offences (a) Generally (b) The Principle of Proportionality (c) Summary of Sentencing Principles Approach (d) Due Diligence (e) Economic Considerations (f) Ignorance of the Law (g) Mistaken Belief of Fact xv - (Update 22 September 2012)

8 LIBMAN ON REGULATORY OFFENCES IN CANADA (h) Officially Induced Error of Law (i) Necessity (j) De Minimis (k) Corporations (l) Absence of Illegal Corporate Policy (m) Previous Convictions (n) Previous Incidents (o) Contemptuous Conduct (p) Subsequent Actions (q) Actions of Government or Government Officials (r) Multiple Convictions (s) Probation (t) Availability of Conditional Sentences (u) Rehabilitation and Remedial Orders (v) Repairs (w) Forfeiture (x) Creative Sentencing Orders (y) Alternative Measures Voluntary Incentives (a) The International Organization for Standardization (ISO) (b) Court Ordered ISO Programs (c) Legislative Initiatives Use of Civil Litigation Administrative Penalties Bibliography... BIB-1 Index... INDEX-1 - xvi -

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