Regulatory offences: The quest for a non-criminal approach to penal liability.

Abstract

The thesis of this paper is that there has developed a distinctive, fair and appropriate approach to imposing penal liability in regulatory contexts, and that this approach does not involve proof of the subjective intent of the accused. Described here as the strict liability offence, with due diligence defence established on a balance of probabilities; this non-intentional approach to penal liability should not be viewed as simply an offshoot of the criminal offence, since its historical origins, evolution, function, justifications and implications are unique to regulatory contexts. Its widespread use in regulatory legislation of many common law countries is testament to its practicality and fairness, while its comparative scarcity in the United States is perhaps partial explanation for the chaotic and unsatisfactory nature of regulatory penal law in that jurisdiction. To explore the veracity of these claims, the paper adopts a varied approach. First, in Part One, historical analysis of the origins and early forms of regulatory offences is undertaken. This historical analysis reveals the ancient lineage of the modern regulatory offence, with use of non-intentional, objective negligence as the basis for penal liability extending back to pre-Biblical societies. A distinctive stream of nonintentional "petty offences" for commercial misconduct is identified as emerging in medieval England. The industrial Revolution, and the associated harms appropriateness of the intent requirement when addressing commercial misconduct. This is followed in Part Two by an examination of the conception and development of the strict liability offence in the modern era in Canada, with comparisons to the use of regulatory offences in Australia, New Zealand, the United Kingdom, United States, Netherlands and Germany. The recognition of the strict liability offence by the Supreme Court of Canada has put the Canadian judiciary in the vanguard in terms of developing an approach to penal liability which is particularly suited to the exigencies of modern regulatory activity, and so it is a focus of attention. Of particular interest is the fact that the strict liability offence was recognized by the Supreme Court prior to the introduction of the Canadian Charter of Rights and Freedoms, with its explicit protections of the rights of accused persons, and yet the offence has since survived Charter challenges. Examination of judicial and legislative recognition and usage of non-intentional regulatory offences in the United States, the United Kingdom, Australia, New Zealand, Germany, and the Netherlands reveals universal recognition of the need to use some form of non-intentional offence to address regulatory misconduct, but wide variations in terms of what is considered acceptable. The similarities and divergences are discussed in attempt to find common elements. In Part Three, a jurisprudential perspective to use of regulatory offences is provided, focussing on the underlying legal principles at play. A focus of analysis is the possible justifications for the strict liability offence as a choice-based system of penal liability which maximizes individual liberty. Comparisons are made with both the "true crimes" model and the absolute liability offence type. Part Three also includes an examination of the possible catalyst effect of the strict liability offence with reasonable care defence as a motivator for industrial sectors to develop preventative "self-regulatory" systems to ensure due diligence. Finally, overall conclusions to the thesis are provided.