Toronto REGULATORY Lawyer
The field of criminal law is not simply restricted to the offences outlined in the Criminal Code. Provincial and Federal legislation, as well as municipal By-Laws, also outline prohibited conduct for individuals and businesses, and prescribe penalties. These laws that fall outside of the Criminal Code and the traditional scope of “true criminal law” are called “regulatory laws,” “public welfare laws,” or “quasi-criminal laws.” The total number of regulatory laws across the country significantly outnumbers the “true criminal offences” contained in the Criminal Code. The contravention of these regulatory laws, however, might result in sanctions such as fines, probation, and imprisonment.
Brian Weingarten is a Toronto lawyer who will provide a skillful defence to Provincial Offences Act charges, Provincial and Federal regulatory offences, and Municipal By-Law infractions. Brian also has particular expertise in white-collar crime matters and will provide representation to capital market participants facing discipline before the Ontario Securities Commission, Investment Industry Regulatory Organization of Canada (IIROC), and the Mutual Fund Dealers Association of Canada (MFDA).
Which Laws Contain Regulatory Offences?
Regulatory offences are contained in a wide array of Federal, Provincial, and Municipal legislation. Some of the common Acts that create regulatory offences are:
- Ontario Securities Act
- Competition Act
- Income Tax Act
- Highway Traffic Act
- Smoke Free Ontario Act
- Liquor License Act
- Occupational Health and Safety Act
- Toronto Municipal Code
- Canada Shipping Act
- Environmental Protection Act
- Ontario Drug Benefit Act
If I am Found Guilty of a Regulatory Offence Will I Have a Criminal Record?
It is important to distinguish between a criminal conviction and a criminal record. Findings of guilt for Federal, Provincial and Municipal regulatory offences are not recorded in the Federal RCMP’s CPIC database. These findings of guilt are not considered to be criminal “convictions” for employment purposes.
However, local police and various government agencies may keep records of these findings of guilt. For example, the Ontario Ministry of Transportation will keep records of various convictions and the demerit points associated with various offences. These “records” may have employment consequences if one is required to drive for a particular job.
At the municipal level, demerit points may be accumulated for various by-law infractions. In Toronto, the city keeps track of demerit points and may deny license renewals upon reaching a certain number of points.
Should I Hire a Lawyer to Defend My Regulatory Charge?
If one is charged with a minor regulatory offence or the contravention of a minor municipal by-law, you may be able to defend the charge yourself. However, in some circumstances a very minor charge may have a significant impact. The accumulation of demerit points under the Highway Traffic Act, for example, may result in a license suspension or significant insurance premium increases.
Brian Weingarten is a Toronto criminal lawyer who will be able to provide an honest opinion as to whether or not it is in your best interest or financially worthwhile to retain counsel to defend against a regulatory charge.
What are Possible Defences to Regulatory Charges?
Each regulatory offence will have specific elements that the Crown or Provincial Prosecutor must prove in order to secure a conviction. Negating any of the elements of the offence will afford a complete defence to the charge. Regulatory offences may also have a range of “fault” or mental elements that must also be proven.
In more severe regulatory offences, the Acts in question may prescribe a particular level of fault, such as recklessness or negligence. In other cases, merely committing the act in question may be enough to ground a conviction. These are known as absolute liability offences. In between these two extremes are strict liability offences. With strict liability offences, the accused is afforded the opportunity to demonstrate “due diligence.” This means that they took all reasonable steps in the circumstances to avoid the prohibited conduct or result. If a due diligence defence is accepted, the accused will be entitled to an acquittal. A further defence might involve an alleged officially induced error.
What is Due Diligence?
It has been established that there are two alternative prongs to a due diligence defence. An accused may establish either:
a) they believed in a mistaken set of facts which, if true, would render the act or omission innocent, or
b) they took all reasonable steps to avoid the particular event.
The first prong is known as the “mistake of fact” defence, while the second is known as the “reasonable diligence” defence. In order to determine whether an accused took all reasonable steps to avoid the prohibited event, courts will look at factors such as:
- the preventative system in place;
- the efforts made to address a known problem;
- the promptness of the response to the problem;
- industry standards;
- whether the matters were beyond the control of the accused;
- the foreseeability of the incident.
Importantly, due diligence only requires that an accused have exercised reasonable care. It is not necessary for the accused to have expended extraordinary or “superhuman” effort.
What is an Officially Induced Error?
Officially induced error is another possible defence to a regulatory offence charge. Generally, everyone is presumed to know that law, and as such, ignorance of the law is not an excuse. However, if an accused is able to establish the elements of the “officially induced error’ defence, the contravention of the law may be excused.
There are five elements that must be proven to take advantage of an officially induced error:
- the accused must have considered the legal consequences of his/her actions and sought legal advice;
- the legal advice obtained must have been given by an appropriate official;
- the legal advice was erroneous;
- the persons receiving the advice relied on it; and
- the reliance was reasonable.
In practice, it is very difficult to establish the elements of an “officially induced error.” An appropriate official must have some degree of control over the decision making process or have some level of administrative authority relevant to the matter. Often these officials will not provide an opinion as to the propriety of the proposed actions or conduct.
What if I Was Told That My Actions Would be Legal?
In some circumstances an accused will undertake a particular course of action on the advice or opinion of a lawyer. If this advice turns out to be flawed, courts have held the error is really a mistake of law, rather than a mistake of fact. Recall, that mistakes of fact may be argued in due diligence to a regulatory charge. Because ignorance of the law is not an excuse, it is not possible to argue due diligence on the basis of erroneous legal advice.
In the 2009 case of R. v. Stucky, the Ontario Court of Appeal explained that reliance on erroneous legal advice is a mistake of law, rather than a mistake of fact, and does not afford a defence. The error in these cases is not a mistake with regard to particular factual circumstances in existence, but rather an error as to the application of the law to the conduct in question.