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REGULATORY & QUASI-CRIMINAL OFFENCE LAWYERS

What are Regulatory Offences?

Federal, provincial and municipal agencies investigate and enforce the rules and regulations of each regulated industry. Regulatory agencies attempt to identify and correct incidents of non-compliance with those rules. The rules and regulations of each industry are meant to protect society from harm. Unlike criminal offences, where morally blameworthy conduct is outlawed, regulatory offences deal with instances where there has been a failure to meet the standards or breach of the rules of a lawful activity, product or service. Regulatory offences are often referred to as public welfare offences, as they seek to protect the public from lawful, regulated activities.

There is a significant range of regulatory offences with respect to each regulated industry and the blameworthiness of the individual or organization charged. For the vast majority of regulatory offences, the prosecution need only prove that the prohibited act or omission happened, not that it was done intentionally or for some specific purpose. The onus then shifts to the individual or organization to prove it exercised due diligence.

In other cases, regulatory offences resemble criminal offences because they require the prosecution to prove both the unlawful act or omission and a specific degree of intent for that act to occur. For these quasi-criminal offences, the unlawful act is more akin to criminal conduct than a mere breach of a rule or regulation.

Regulatory and Quasi-Criminal Offences Lawyers for Ontario

Regulatory offences and quasi-criminal offences must be taken seriously. Being investigated by a regulatory agency can ruin a company’s reputation and business. Regulatory agencies have nearly all the tools and techniques available to them as police officers. Investigators can execute search warrants at your business, obtain banking and other records via production orders, interview witnesses and obtain statements, all of which could be admissible against you at a trial. A conviction for a regulatory offence is meant to carry a lower stigma than a conviction for a real crime. In reality, convictions for regulatory offences are often viewed as criminal or quasi-criminal acts. Regulatory trials can be just as lengthy and complex. There is often additional publication and public disclosure of regulatory offences by the investigating agency and the industry in which the company operates. More importantly, the procedures and penalties available for regulatory offences are often the same as criminal acts.  

What are Some Examples of Regulatory Offences

There is a significant range of regulatory offences, depending on the nature of the regulated industry and the blameworthiness of the defendant. In general, there are three categories of regulatory offences: absolute liability offences; strict liability offences, and full mens rea offences.

Absolute Liability Offences Lawyers

Absolute liability offences are the least serious of the three categories. It requires that the prosecution prove only that the unlawful act or omission occurred. There is no opportunity for the defendant to prove that he or she exercised due diligence or that some mistake occurred which lead to the offence. Likewise, there is no requirement to prove that the defendant meant for the act or omission to occur. For example, flying truck wheel provisions under the Highway Traffic Act and the failure to have an insurance card for a vehicle under the Compulsory Automobile Insurance Act are absolute liability offences. Other examples of absolute liability offences are dumping industrial waste under the Ontario Environmental Protection Act, selling a drug or medication prior to its receiving approval under the Food and Drugs Act, and failing to ensure that equipment and protective devices are provided by an employer under the Occupational Health and Safety Act. Absolute liability offences can carry significant financial penalties, but periods of imprisonment are not available.

Strict Liability Offences Lawyers

Similar to absolute liability offences, strict liability offences require the prosecution prove only that the unlawful act or omission occurred. There is no requirement that the prosecution prove there was an intention to commit the unlawful act. Upon proof of the act or omission, the burden shifts to the defendant to prove due diligence to avoid a conviction for the offence. Some examples of strict liability offences are false or misleading advertising under the Consumer Protection Act, causing the emission of a contaminant under the Ontario Environmental Protection Act, selling food in a deceptive manner under the Food and Drugs Act, and failing to ensure safe working conditions under the Occupational Health and Safety Act. Strict liability offences can carry significant financial penalties and the possibility of jail.

Full Mens Rea Offences Lawyers

Full mens rea offences most closely resemble quasi-criminal and criminal offences. The prosecution is required to prove both the unlawful act and the requisite level of intent to commit the act. Some examples are making a false statement in an income tax return under the Income Tax Act and knowingly giving false information to an officer under the Ontario Environmental Protection Act.

Defence Lawyers for Regulatory and Quasi-Criminal Offences

Because so many regulatory offences are prosecuted in the same way as criminal offences, it is crucial for individuals and corporations to understand that they can face the same penalties. For the vast majority of regulatory offences, the penalties on conviction can include a fine, a period of imprisonment, and/or probation. The fact that significant fines and periods of imprisonment are available for strict liability and quasi-criminal offences shows how seriously Parliament views regulatory offences and, in turn, how much is at stake for an individual or organization charged with one.

Penalties for regulatory offences can include minimum or maximum fines. Some provisions allow for the fines to increase for subsequent breaches or for offenders who have previous convictions. Some regulatory offences provide for different ranges of financial penalties depending on the size of the organization or whether an individual has been convicted.  Some other regulatory acts, such as the Ontario Environmental Protection Act allow a court on sentencing to increase a fine imposed by an amount equal to the monetary benefit acquired as a result of the offence.  

Some regulatory offences also provide for periods of imprisonment. It is no longer the case that jail sentences are reserved for true crimes and the worst offenders. Because of the devastation that can result from regulatory non-compliance, periods of imprisonment have been imposed for regulatory offenders. Sentencing courts have warned individuals and corporations that fines cannot be used as a mere licence fee for non-compliance, and that jail sentences may be imposed for serious regulatory offences or repeat offenders.  

In addition to fines and period of imprisonment, individuals and organizations can also be put on probation. A probation order can be used to change the corporate culture of an organization or to ensure ongoing compliance by regular monitoring and reporting conditions for a period of up to three years. Probation Orders for organizations have been used to require businesses to develop standard operating procedures and protocols to ensure compliance with specific regulations. Probation Orders also allow for more scrutiny and audits by the investigating agency, to ensure that the unlawful behavior is not repeated.

Schedule a Consultation with a Regulatory and Quasi-Criminal Defence Lawyer Today

If you or your company is being investigated or charged with a regulatory offence, you should seek the immediate assistance of a lawyer. Our firm has significant experience dealing with regulatory agencies and regulatory offences, and we can help guide you through the investigation and court process. Because the process of a regulatory prosecution is often the same as a criminal proceeding, you should seek the advice of an experienced lawyer. You or your company may be required to attend court, review the evidence obtained by investigators, and navigate the pre-trial, preliminary inquiry, and trial process if necessary. Our lawyers are experienced litigators who understand how to defend regulatory offences and protect your business and reputation throughout the court proceedings.

The line between a simple regulatory inspection and a quasi-criminal investigation is not always clear. The lawyers at Damien Frost & Associates LLP can help protect your company’s interests and legal rights. You should not wait for an inspector doing a routine audit to start investigating regulatory or quasi-criminal offences. You can trust our lawyers to assist you and your company. We can provide strategic advice and help respond to investigations, inspections, and audits so that your legal and business interests are protected.

If you believe that you or your company is under investigation or being inspected by a regulatory agency, or to ensure that you are compliant and not at risk of being prosecuted, contact us today to set up a free consultation.

Members of The Criminal Lawyers Association, Toronto Lawyers Association, Ontario Bar Association 
and Advocates' Society.

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