Regulatory offences: Some offences utilize the machinery of criminal law, but are not truly considered to be criminal offences. These offences deal with everyday civil matters such as traffic infractions, pollution, hunting regulations, and so forth. Besides the supremely important fault requirement (discussed below), there are a number of ways to identify a “regulatory offence” from a “true crime”:
1. true crimes are usually more socially and morally condemned than regulatory offences.
2. regulatory offences are usually aimed at deterring harm to the public, rather than the individual.
3. regulatory offences are often part of a complex regulatory framework.
4. regulatory offences are not in the Criminal Code (R. v Wholesale Travel, 1993).
In the Canadian context, the most important distinction between regulatory offences and true crimes is the standard of fault (mens rea). For many reasons, including the lesser stigma, the lesser penalties, and the need for administrative efficiency, the courts may allow a lower threshold for regulatory offences than the usual subjective mens rea requirement needed for “true crimes”. In the past, many regulatory offences were “absolute liability” offences, meaning the Crown needed only to prove the actus reus, leaving the accused with no defence available. In the important case of R. v City of Sault Ste Marie, a third “compromise” position between absolute liability and full mens rea was invented: “strict liability”. In strict liability offences, there is prima facie liability assumed, however the accused then has the opportunity to show that he took all reasonable care, in which case the offence is innocent.
The current Canadian position vis-a-vis regulatory offences can be summarized as follows:
1. Strict liability is the default fault standard for regulatory offences.
2. Absolute liability only applies to regulatory offences where statute has made in explicitly clear that an absolute liability doctrine will prevail.
3. An offence that carries the possibility of imprisonment CAN NEVER be an absolute liability offence (see RE MVA Act BC, 1985).