Overview of Provincial Offences
Provincial Offences are also known as Regulatory Offences or Quasi-Criminal offences. In general, provincial violations are considered Strict Liability offences. Strict liability offences are ones where the prosecutor need not establish mens-rea (intention or knowledge of wrongdoing); the defence of reasonable belief in a mistaken set of facts or the defence of reasonable care is available to the defendant.
The Supreme Court of Canada created the category of Strict Liability offences in 1978 in its R. v. Sault Ste. Marie decision. The Provincial Offences Act was enacted in 1979 to govern provincial offences.
Numerous provincial statutes regulate the conduct of individuals and industries. Where breaches of those regulations occur, the governing statute typically creates a corresponding offence to promote compliance with the regulatory standard.
Categories of Provincial Offences
DPS can provide advocacy for the following categories of regulatory Provincial offences:
Occupational Health and Safety Offences
The Occupational Health and Safety Act (OHSA) imposes duties on both workers and employers with respect to equipment, material and protective devices to ensure that our places of work are safe. The duties imposed by the OHSA on workers include wearing the clothing and equipment specified by their employers and reporting any defects with such clothing or equipment. Workers are also required to report any contraventions of the OHSA of which they are aware of to their employer.
Employers' duties include developing and implementing a health and safety program and formulating a policy regarding workplace violence and harassment.
The OHSA creates offences for a failure to comply with provisions in the Act punishable with maximum penalties of $25,000- or 12-months imprisonment for persons, and a $500,000 maximum fine for corporations.
Some charges can be significant. For example, numerous charges have been laid against an employer who is alleged to have failed to provide proper training and equipment to migrant workers who were killed while performing balcony repairs to a building in Toronto in December of 2009. The 61 charges are reported to carry up to $17 million in fines in total.
Environmental Protection Offences
A particularly current and important area of provincial regulation is environmental protection. The Environmental Protection Act (EPA), Clean Water Act, 2006 (“CWA”), and Pesticides Act (PA) are just some examples of provincial legislation that create obligations to protect the environment with offences established for breaches of those statutes.
The EPA regulates persons' actions in charge of pollutants, creating offences in areas such as spillage. A person in charge of a pollutant must develop a plan to reduce the risk of spillage and to respond to its occurrence. The EPA also prohibits littering and imposes a fine. The fine can be up to $1,000 on a first-time offence and up to $2,000 on a second-time offence.
The CWA establishes several obligations, such as a requirement that a person with authority under the CWA who becomes aware of a water drinking hazard provides notice to the Ministry of the Environment. Under the CWA, it is an offence to continue engaging in an activity that endangers a water supply.
The PA imposes obligations on individuals who release pesticides into the environment, which may cause injury to the environment, animals or persons.
Controlled Substances Offences
Provincial legislation also regulates the use of controlled substances, such as liquor and tobacco. The Liquor Licence Act (LLA) and the Smoke-Free Ontario Act (SFOA) are two examples that affect numerous individuals and businesses in Ontario. They create offences for breaches of their provisions.
The LLA makes it a regulatory offence to be intoxicated in a public place or to carry an opened container of alcohol in a motor vehicle. Individuals must be licensed to sell alcohol. Persons convicted of a regulatory offence under the LLA can be subject to a maximum fine of $100,000, imprisonment for a year, or both. Corporations convicted under the LLA can be subject to a maximum fine of $250,000.
The SFOA makes it a regulatory offence to sell tobacco to persons under the age of 19 or display tobacco products in a place where such products are sold. Corporations engaged in the manufacture, sale or distribution of tobacco products can be charged a maximum of $100,000 for contravening provisions under the statute.
General Public Order and Safety Offences
Numerous statutes regulate matters of public order and safety. The Trespass to Property Act creates an offence where a person enters premises to which the Act prohibits entry. The Family Law Act permits a court to make a restraining order against a person’s former spouse, where that person has reason to fear for his or her safety.
Part VII of the Fire Protection and Prevention Act, 1997 creates several offences, such as violating a fire code provision. The Food Safety and Quality Act, 2001 regulates, among other things, the production, processing and manufacturing of food for consumption, and it establishes offences for contraventions of the Act. Under this statute, orders can be made to prevent or eliminate any food safety risk.
Christopher’s Law (Sex Offender Registry), 2000 imposes specific reporting requirements on a person convicted of a “sex offence” and where a person fails to comply with the Act, he or she is guilty of an offence punishable by a fine or imprisonment. The Safe Streets Act, 1999 creates offences for soliciting in specific public locations and disposing of dangerous things in an outdoor public place. Under this statute, a provision makes it an offence to solicit a person in a vehicle on a roadway.
Consumer Protection Offences
The Consumer Protection Act, 2002 (CPA), applies to consumer transactions in Ontario. The CPA prohibits representations to consumers that are false or misleading. It lists a number of prohibited representations, such as specifying that a certain repair is necessary when it is not or that a price advantage exists when it does not. The CPA also governs consumer transactions that take place over the internet. It imposes an obligation on suppliers to provide consumers with a written copy of any agreement they have entered into. The CPA also enables consumers to cancel an agreement made over the internet under prescribed circumstances.
The Consumer Reporting Act, 1990, regulates the gathering of information about a company’s consumer base. It requires a consumer agency to correct information where a consumer has reported to the agency that there is an error in the information kept in his or her file. A director or an officer of a corporation who is convicted of an offence under this statute may be liable to a maximum fine of $35,000, one year of imprisonment, or both. The maximum penalty that can be imposed on a corporation is of $100,000.
The preceding snapshot of regulatory offences provides a glimpse of the range of offences that could be brought under the POA’s procedure. They differ dramatically not only in subject matter but also in gravity and the potential penalties upon conviction. A provincial offences officer may choose to use the Part III process, which would allow for more severe punishment as authorized under the offence-creating statute.
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