Photo of Mohamed AmeryBy Mohamed AmerySeptember 19 2019
Litigation

A Primer on Regulatory Offences

Criminal law is premised on the notion that “an act does not make a person guilty unless the mind is also guilty”. The two components that make up a true Criminal Code offence, therefore, are the actus reus (the guilty act) and the mens rea (the guilty mind). However, a “regulatory offence” is quasi-criminal in nature. Many provincial statutes contain regulatory offences, of which there are two types: absolute liability offences and strict liability offences. The standard for proving culpability of an accused person is lowered through the partial or total removal of the mens rea requirement.

To be found guilty of an absolute liability offence, a person must have committed only the actus reus of the crime. In such offences, a person’s mens rea is not relevant. For example, if one is caught operating a vehicle travelling in excess of the speed limit, it does not matter if he or she was aware of the speed limit; a ticket will be issued.

The second category of regulatory offences, strict liability offences, includes offences in which the actus reus imports liability of an accused person. Offences that are created with the intent of enforcing or enhancing public welfare, including many environmental offences, are generally categorized as strict liability offences. In such offences, if a person can prove, on a balance of probabilities, that he or she took all reasonable care in circumstances of committing the actus reus, they will not be found guilty. This defence is referred to as the defence of “due diligence”.

In assessing whether or not someone took all reasonable care, the court must consider what a reasonable person would have done in the same circumstances. The defence of due diligence is available to an accused if he or she believed in a mistaken set of facts which, if true, would render the act innocent, or if he or she took all reasonable steps to avoid committing the offence. What is considered reasonable in assessing the defence of due diligence depends on the facts of the specific circumstances.

For example, in R v Shell Canada, the accused was charged with three counts of violating the Environmental Protection and Enhancement Act (the “EPEA”). One count accused Shell of violating s. 99(1) and s. 99(2) of the Act (as it then was), which stated:

  • s. 99(1) A person, other than the person having control of the substance, who releases or causes or permits the release of a substance into the environment that has caused, is causing or may cause an adverse effect shall, as soon as that person knows or ought to know of the release, report it to
    • (a) the Director,
    • (b) the owner of the substance, where the person reporting knows or is readily able to ascertain the identity of the owner,
    • [...]
    • (d) any other person who the person reporting knows or ought to know may be directly affected by the release.
  • (2) The person having control of a substance that is released into the environment that has caused, is causing or may cause an adverse effect shall immediately on becoming aware of the release, report it to the persons referred to in (1)(a), (b) and (d) unless the person having control has reasonable grounds to believe that those persons already know of the release.

In the facts of the case, Shell operated a sour gas plant. Water was ultimately released from a cooling tower to a pond system located on Shell’s property. Pesticide polluted water was released into a nearby creek. The release in question occurred on August 9, 1995. A bioassay test to determine the toxicity of the discharge was mailed to Shell on August 24th, but was not reviewed by Shell employees until September 6th, at which time Shell reported the results to Alberta Environment.

Affirming the decision of the trial judge, the Court held at para 35 that: “the act in these circumstances is the failure to report. The requirement under s. 99(2) is to report immediately upon becoming aware.” The Court held that Shell conducted itself in a reasonable fashion in reporting the incident upon first reading the test results.

Invitation for Discussion:

If you would like to discuss this article in greater detail, or any other business law matter, please do not hesitate to Mohamed Amery in the litigation group at Nerland Lindsey LLP.

Disclaimer:

Note that the foregoing is for general discussion purposes only and should not be construed as legal advice to any one person or company. If the issues discussed herein affect you or your company, you are encouraged to seek proper legal advice.

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