Elements of Criminal or Regulatory Offence

7/28/2019 Elements of Criminal or Regulatory Offence

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Elements of Criminal or

Regulatory Offence

Objective mens rea and true crimes;

regulatory offences



Objective Mens Rea and True

Crimes• Negligence is judged objectively – what reasonable person would

know or understand, how reasonable person would act

• Criminal law uncomfortable with objective fault, criminal law

responds to “evil mind”, careless people may be dangerous, but notevil

• Criminal law has come to accept objective fault, but not for crime of

murder, which is most serious offence with most serious penalty – as

constitutional matter (Charter of Rights), conviction for murder

requires subjective mens rea in form of full scale intention• For crimes using objective fault as mens rea, “penal negligence” which

is more restricted form of negligence generally required




Crimes• Exceptions where “penal negligence” not sufficient – “predicate

offences” which are aggravated forms of offence that apply when

serious consequences result, and that include within their elements

another complete but lesser offence, a “predicate offence” • For predicate offences, consequences need not be brought about by

penal negligence – it is enough if accused commits underlying or

predicate offence, and that aggravated consequence that has been

thereby caused was objectively foreseeable




Crimes• R. v. Martineau, S.C.C. (1990) – accused and other set out armed,

knowing they would commit crime, accused thinks it would only be

break-in; accomplice shot and killed victims after robbing them in their

house as they saw their faces, accused had mask on• Principles of fundamental justice under Charter s.7 require conviction

for murder to be based on proof beyond reasonable doubt of subjective

foresight of death; special mental element for death necessary before

culpable homicide can be treated as murder, give rise to moral

blameworthiness justifying stigma and punishment for murder – phrase“ought to know is likely to cause death” in Code s.229(c) likely

violates ss.7, 11(d) Charter and not saved by s.1, since subjective

foresight of death required




Crimes• R. v. Creighton, S.C.C. (1993) – accused injects cocaine into deceased who dies as result, injection

constitutes trafficking under Narcotic Control Act – common law definition of unlawful actmanslaughter requires foreseeability of bodily injury, issue is whether accused properly convicted of manslaughter

• Test for mens rea of unlawful act manslaughter is objective foreseeability of risk of bodily harm

which is neither trivial, transitory in context of dangerous act – foreseeability of risk of death notrequired, this test does not violate principles of fundamental justice under s.7 Charter

• Mens rea requirement of foreseeability of harm entirely appropriate to stigma associated withmanslaughter offence – by very act of calling killing manslaughter, law indicates that killing less blameworthy than murder; sentence attached to manslaughter does not require elevation of degree of mens rea for offence

• Standard of mens rea required for manslaughter appropriately tailored to seriousness of offence,accused properly convicted of manslaughter

• R. v. DeSousa, S.C.C. (1992) – charge of unlawfully causing bodily harm under Code s.269 where bystander injured by piece of broken glass thrown by accused involved in fight – term unlawfully ins.269 requires underlying unlawful act, criminal or non-criminal, be at least objectively dangerous inthat reasonable person would inevitably realize underlying lawful act would subject another to risk of bodily harm; this insures all prosecutions under s.269 contain at least fault requirement based onobjective standard – no constitutional requirement that intention, either objectively or subjectively,extend to consequences of unlawful acts in general; must be fault element for a culpable aspect of actus reus, but not each and every one of its elements




Crimes• R. v. Beatty, S.C.C. (2008) – accused charged with dangerous driving causing

death, truck suddenly crosses centre line into path of oncoming car, killingoccupants; vehicle driven properly before accident

• Acquittals upheld on appeal – important distinction between civil negligence

and penal negligence; act of negligent driving does not necessarily constitutedangerous driving – requisite mens rea could only be found when there wasmarked departure from standard of care expected of reasonable person incircumstances of accused; momentary act of negligence insufficient to supportfinding of marked departure from standard of care of reasonably prudent driver [summary of actus reus, mens rea elements para 43]

• Note: Roy, 2012 SCC 26 – mere departure from standard of care justifiesfinding of civil liability, only marked departure justifies fault requirement for dangerous driving causing death

• Roach pp193-202 – who is reasonable person: not to be invested with personalcharacteristics of accused unless characteristics so extreme that createincapacity to appreciate prohibited risk or quality of prohibited conduct



Regulatory Offences

• Regulatory offences can be created by any level of government –

“provincial offences” under Ontario‟s Provincial Offences Act ,

“contraventions” under federal Contraventions Act

• Regulatory offences fall into three categories: (1) mens rea offences -fault element like criminal offences; (2) strict liability offences –

defence of reasonable care/due diligence available, burden of proof on

accused on balance of probabilities once prohibited act/actus reus

established by crown; (3) absolute liability offences – no fault element

required, just proof of prohibited act required• Regulatory offences can be full mens rea offences but clear indication

that mens rea required before regulatory offences will be interpreted as

having mens rea elements



Regulatory Offences

• Regulatory offences presumed to be “strict liability” offences –

offences that can be committed by simple, non-penal negligence;

accused bears burden of proving absence of negligence to avoid

conviction – reversal of burden of proof justified by difficulties of proving negligence by crown, accused knows reasons for his/her

conduct [ R. v. Wholesale Travel Group Inc., S.C.C. (1991)]

• Some regulatory offences operate as absolute liability offences that

will be committed whenever relevant actus reus is proved, provided

this is clearly what legislators intended when establishing offence

• Given different modes of interpretation used, very important to be able

to distinguish true crimes from regulatory offences



Regulatory Offences

• R. v. Sault Ste. Marie, S.C.C. (1978) – regarding mens rea, distinction betweentrue crimes and public welfare offences of prime importance

• “strict liability” halfway house between mens rea (fault) and absolute liability(absence of fault) for regulatory offences – not criminal offences

• Correct approach is to relieve Crown of burden of proving mens rea, givenvirtual impossibility in most regulatory cases of proving wrongful intention – in normal case accused alone has knowledge of what he/she did to avoid breach, not improper to expect accused to come forward with evidence of duediligence or reasonable care

• In strict liability doctrine, not up to prosecution to prove negligence; instead

open to defendant prove all due care has been taken, burden on defendant ashe/she is only one who generally has means of proof – not unfair givenalternative is absolute liability

• Prosecution must prove beyond reasonable doubt that defendant committed prohibited act (actus reus), defendant must establish on balance of probabilities that he/she has defence of reasonable care or due diligence



Regulatory Offences

• R. v. Sault Ste Marie p.17 – three categories of regulatory offences recognized

• 1. Mens rea offences – consist of some positive state of mind such as intent,knowledge or recklessness, must be proved by prosecution either as inferenceform nature of act committed or by additional evidence, eg., Ontario Business

Practices Act offence of knowingly engaging in unfair business practice• 2. Strict liability offences – no necessity for prosecution to prove existence of

mens rea; doing of prohibited act prima facie imports offence, leaving it opento defendant to avoid liability by proving on balance of probability he/she took reasonable care or exercised due diligence. This involves considering whatreasonable person would have done in the circumstances. Defence available if

accused reasonably believed in mistaken set of facts which, if true, wouldrender act or omission innocent, or if accused took all reasonable steps toavoid particular event, eg., Highway Traffic Offence (Ont.) of careless driving

• 3. Absolute liability offences – not open to defendant to exculpate self byshowing he/she free of fault, eg., Highway Traffic Act (Ont.) offence of speeding – mistaken belief that not speeding no defence, but accused canchallenge proof of actus reus, - radar not working properly, wrong car



Regulatory Offences

• R. v. Chapin, S.C.C. (1979) – charge of hunting migratory birds in baited area,accused believed, on reasonable grounds, in state of facts (no bait present)which if true made her act (hunting) innocent; justice of peace dismissedcharge holding it is strict liability offence; county court (now superior court)

allows appeal on basis that offence one of absolute liability; Court of Appealdisagrees, holding it is mens rea offence

• Supreme Court holds offence is public welfare offence, not subject to presumption of full mens rea; offence prima facie one of strict liability – accused may absolve self on proof he/she took all care that reasonable personmight have been expected to take in all the circumstances, that he/she was inno way negligent

• Reference re S.94(2) B.C. Motor Vehicle Act, S.C.C. (1985) – absolute liabilitydoes not violate principles of fundamental justice under s,7 of Charter;however absolute liability offence combined with imprisonment does violates.7, irrespective of nature of offence; provision in Act for driving motor vehicle while prohibited with mandatory 7 days minimum sentenceunconstitutional (paras 72-75, presumption against absolute liability)



Regulatory Offences

• R. v. Cancoil Thermal , Ont.C.A. (1986) – accused charged with offence under Occupational Health and Safety Act , held to be strict liability offence

• Two months before accident, inspector finds machine in question safe – accused wishes to raise defence of “officially induced error of law”, exception

to rule that ignorance/mistake of law no excuse (Code s.19, Provincial Offences Act , s.81); defence exists where accused, having adverted to possibility of illegality, led to believe by erroneous advice of official he/shenot acting illegally – issue left for new trial to decide

• Lévis v. Tétreault, S.C.C. (2006) – defence of officially induced error of lawrecognized by Supreme Court for strict liability offences under Quebec

Highway Safety Code, although not made out successfully• Concept of diligence based on acceptance of citizen‟s civic duty to take action

to find out what his/her obligations are – passive ignorance not valid defence

• Company failed to establish conditions for officially induced error of lawdefence: (1) error of law/mixed law made; (2) person who committed actconsidered legal consequences of his/her actions; (3) advice obtained camefrom appropriate official; (4) advice reasonable; (5) advice erroneous; and (6) person relied on advice in committing act (para. 26)



Regulatory Offences

• R. v. Raham, 2010 ONCA 206• New Highway Traffic Act s.172 offence of stunt driving – includes speeding 50 kph

over speed limit; speeding is absolute liability offence, Court of Appeal holds stuntdriving by speeding is strict liability offence – would violate s.7 Charter if absoluteliability as jail mandatory

• Issue of statutory interpretation first considered by Court, reference made to frenchversion (para. 24); three ways in which offence may be committed, one of which is stuntdriving: driving in race or contest, driving while performing stunt, driving on bet or wager

• Constitutionality of s.172 – nothing inherent in act of speeding that dictates all speed based offences must be characterized as absolute liability offences, para. 31; proper

characterization of speed based offences as absolute, strict or full mens rea offencesdepends on Sault Ste. Marie analysis – availability of jail suggests strict liability

• Due diligence defence to strict liability charge amounts to claim defendant took allreasonable care to avoid committing offence with which charged; where accusedcontends he/she operated under reasonable misapprehension of relevant facts, duediligence takes form of reasonable mistake of fact claim

• Stunt driving offence by speeding is strict liability – while prohibited conduct same as

conduct prohibited by speeding under s.128 of Highway Traffic Act, nothing illogical intreating stunt driving as strict liability, speeding as absolute liability, para. 51



Regulatory Offences

• Roach pp213-229 – regulatory or public welfare offences emphasize

protection of public from risk of harm and regulatory interests of

modern state, as opposed to punishing blameworthy conduct as in

criminal offences• Strict liability dominates regulatory offences – fault based on

negligence, satisfies s.7 Charter; presumption of strict liability, and

presumption against absolute liability

• Courts look to range of factors in determining whether accused has

established due diligence to regulatory offence, eg., likelihood andgravity of risk, foreseeability, industry standards

• Regulatory offences frequently apply to corporations

• 2004 Code amendments to Code seek to broaden liability of

organizations, new statutory concept of corporate „senior officer”

Documents

Elements of Criminal or Regulatory Offence