LAW 534 Lecture Notes - Lecture 3: Actus Reus, Conservation Halton, Selective Enforcement
22 May 2018
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Department
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Lecture 3: Chapter 3
Introduction
• Scandals involving regulatory failure (example: Enron) led to debate
• How to best regulate: using specific or general codes?
• Recall: strict liability has two components
o Actus reus – commission of the prohibited act (must be proved by Crown beyond
a reasonable doubt)
o Due Diligence – taking all reasonable precaution to avoid the harm (or mistake of
fact to be discussed later)
• Important to understand next two chapters are therefore related to strict liability
offences
o Chapter 3 – Actus Reus
o Chapter 4 – Due Diligence
• Breakdown of this chapter generally:
o Categories of offence by looking at specificity of actus reus
o Prosecutorial discretion
o Subsequent remedial measures
o Subsequent civil proceedings
o Intersection of Criminal Code and Regulatory Law jurisprudence
• Some terms worth noting:
o Limitation Period:
▪ If someone breaches a contract with you today, can you sue that person
for breach of contract three years from now?
o Res Judicata
▪ What happens if you sue someone for breach of contract and lose? Can
you start the same lawsuit again tomorrow and hope the judge rules in
your favour this time?
• Note the general theoretical approach by the authors
o Actus reus → risk assessment principles
o Due Diligence → risk management principles
Types of Ex Post Regulation
• Note four categories to be discussed: precise codified standards etc. as listed in text
book
• Precise Codified Standards
o Highly specific – perhaps even has empirical standards to be met
o Advantage: very clear, less risk of ambiguity
o Disadvantage:
▪ changes in technology may not be covered by specific provisions
(examples?)
▪ May not contemplate changed circumstances in the future
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• Problem: What is a loophole? What do people mean by this? How does it relate to
precise specific codes:
• Ontario (Ministry of Labour) v. Hamilton
o Facts of case
o arro readig of statute is proleati
o Broad remedial interpretation of public welfare statutes is adopted
• Textbook then goes through several cases which illustrate application of a broad,
remedial approach to interpreting the actus reus
• Ontario (Ministry of Labour) v. Pioneer Construction
• Court recognizes business reality of needing safety for everyone on work site
• R. v. Chrima Iron Works Ltd. – yes fell o eployee ut it as’t eig trasported
• R. v. Greenough – there was some substance that leaked from their factory and you
aot deposit it. They argue they did’t atually deposit it, it just leaked. They tried to
define deposit. But court says, its not if you did it or not but it actually happened
• R. v. Newfoundland Recyling
• Halton Region Conservation Authority v. Symphony Golf Inc.
• Hanna v. Conservation Halton
• Ontario Khalsa Darbar Inc. v. Toronto and Region Conservation Authority, Mining and
Lands Comissioner
• Ontario (Ministry of Labour) v. Dofasco – you were supposed to have a push bar to
prevent harm. Instead they put an alternative and warned the employees so that is not
eough. Eployer argued that the eployee igored the istrutio ad that’s hy
they got hurt so employer argue that they opposed employee conduct but the employer
themselves ignored the precise. The court said that the law says that the employer was
supposed to follow the actus reas. The whole point of the fence was to exercise
judgement and prevent peoples poor judgement from hurting them
• Enbridge Gas Distribution Inc. v. Ontario (Ministry of Labour)
• R. v. Furtado
• Closing note: hard to show due diligence when one fails to follow a specific, precise
code
• Specific Prescription with limited site specific assessment
o Specific provisions are stated but there is some flexibility
o R. v. Timminico
▪ “ee 1851 ad ote the part that says uless…
▪ Does the phrase ay edager ea the Cro ust proed
defendant knew it was dangerous?
▪ Result?
o Worker negligence
▪ Key: often the statutes discussed were designed to protect against
worker negligence
▪ R. v. Hershey Canada; refer back to Dofasco case as well
• General Prohibitions with site specific balancing
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