Court Information

Court File No.: Halton-Burlington information nos. 1260-999-13-7246; 1260-999-13-7247; 1260-999-14-7592

Date: 2016-05-09

Ontario Court of Justice – Provincial Offences Court Burlington, Ontario

Parties

Between:

Halton Region Conservation Authority

— AND —

Houshyar Ahmad, Lavinder Aulakh, Benji Transport Inc., Brock Aggregates Inc., Lewis Burchell, Dancar Haulage Corporation, Dilligaf Logistics Ltd., EarthCo Soil Mixtures Inc., G & L Group Ltd., Nana Gambrah, Gambrah Trucking Co., Courtney Gayle, Heavy Weight Trucking Inc., Hours Trucking Company, Zakir Housein, Coleen Ann Hunter, Jas Deol Trucking Inc., Jeorge Campoverde Haulage Ltd., Pasquale Lamanna, Carol McLean, Anthony Mensa, Earl Patrick, Nickolai Romantchenko, Noel Roper, Jaspal Singh, Tylors Trucking Services Inc., Surjit Uppal, Carlo Waite, O'Niel Young, Erica Young, 1167877 Ontario Inc., 1191669 Ontario Inc., 1688543 Ontario Inc., 1770195 Ontario Inc., 2163832 Ontario Inc. and 6282121 Canada Inc. under information number 1260-999-13-7247; Darren Bagg and Salman Cevlik under information number 1260-999-13-7246; EarthCo Soil Mixtures Inc. under information number 1260-999-14-7592.

Ruling on Preliminary Motion

Before: Justice of the Peace Kenneth W. Dechert

Heard on: January 26, 2016

Reasons for Judgment released on: May 9, 2016

Counsel:

• K. Jull, counsel for the prosecution
• M. Klaiman, counsel for the defendants

Statutes, Regulations and Rules Cited

• Act respecting the distribution of financial products and services, R.S.Q., c. D-9.2, section 482
• Combines Investigation Act, R.S.C. 1952, c. 314, as amended, subsection 33C(1)
• Combines Investigation Act, R.S.C. 1970, c. C-23, as amended, paragraph 36(1)(a)
• Conservation Authorities Act, R.S.O. 1990, c. C.27, as amended, subsection 28(16)
• Criminal Code of Canada, R.S.C. 1985, c. C-46, as amended, paragraphs 21(1)(a), 21(1)(b) and 21(1)(c)
• Crown Forest Sustainability Act, S.O. 1994, paragraph 64(1)(a)
• Ontario Regulation 162/06, made pursuant to the Conservation Authorities Act, clauses 2(1)(b), 2(1)(d) and 2(1)(e) and section 5
• Provincial Offences Act, R.S.O. 1990, c. P.33, as amended, paragraphs 77(1)(a), 77(1)(b) and 77(1)(c)

Cases Cited

• La Souveraine, Compagnie d'assurance générale v. Autorité des marchés financiers, 2013 SCC 63
• Lévis (City) v. Tétreault, 2006 SCC 12
• Marston v. Autorité des marchés financiers, 2009 QCCA 2178
• Quinn v. Leathem, [1901] A.C. 495
• Sellars v. The Queen
• Sweet v. Parsley, [1970] A.C. 132
• Regina v. Briscoe, 2010 SCC 13
• Regina v. Conestoga Rovers and Associates, 2010 CarswellOnt 11097
• Regina v. Curran, [1977] A.J. No. 77; 1977 ALTASCAD 284
• Regina v. F.W. Woolworth Co. Ltd.
• Regina v. Fell (sub. nom. Regina v. Kenitex Canada Ltd.)
• Regina v. Hajivasilis, 2013 ONCA 27
• Regina v. Henry, 2005 SCC 76
• Regina v. Hibbert
• Regina v. Oakes
• Regina v. Sault Ste. Marie (City)
• Regina v. Savage, [2004] O.J. No. 4013

Publications Cited

Manning, Q.C., Morris and Sankoff, Professor Peter, Manning, Mewitt and Sankoff – Criminal Law, Fifth Edition, (LexisNexis Canada Inc., 2015).

K.W. DECHERT, J.P. (orally):

INTRODUCTION

1The trial of the subject consolidated proceedings began before me on the 1st day of September, 2015. It continued on September 4th, 2015, December 7th, 2015, January 4th, 2016, January 25th, 2016 and on January 26th, 2016, when the parties jointly sought a preliminary ruling as to the appropriate categorization of the party liability offences against the defendants named in informations nos. 1260-999-13-7246 and 1260-999-13-7247. The trial was then adjourned to May 9th, 2016, for my decision pertaining to the said motion.

2In these proceedings the prosecution, the Halton Region Conservation Authority, is represented by its counsel Mr. K. Jull. The defendants are represented by their counsel, Mr. M. Klaiman.

THE ISSUES

3In informations nos. 1260-999-13-7246 and 1260-999-13-7247, all of the said defendants except for G & L Group Ltd., are charged with offences contrary to subsection 28(16) of the Conservation Authorities Act, R.S.O. 1990, c. C.27, as amended, relative to allegations that they breached various provisions of Ontario Regulation 162/06 as amended, made pursuant to the Conservation Authorities Act, both as principal offenders and as parties to the offences. G & L Group Ltd. is only charged as a party to the offences.

4The party liability charges allege that the defendants, as parties, committed the offences of: undertaking development within a wetland, without a permit, undertaking development within 0 and 120 metres of a wetland greater than 2 hectares in size, without a permit, undertaking development within a river or stream valley that has a depressional feature associated with a river or stream, without a permit, interfering with a river or stream valley that has a depressional feature associated with a river or stream, without a permit and interfering with a wetland, without a permit, all contrary to section 77 of the Provincial Offences Act, R.S.O. 1990, c. P.33, as amended, hereinafter referred to as "the POA". While these charges fail to state the particular subsection or paragraph of section 77 applicable to each charge, the prosecutor submits that each such charge is based upon the theory that the defendants aided and/or abetted a principal offender or offenders in committing the particular offence.

5During the course of their legal argument in this motion, Mr. Jull and Mr. Klaiman agreed that the public welfare offence created by subsection 28(16) of the Conservation Authorities Act is one of strict liability. Additionally, the said counsel submitted that the issue of the proper categorization of the subject party liability offences was dependent upon my interpretation of the scope of the majority judgment of the Supreme Court of Canada in the case of La Souveraine, Compagnie d'assurance générale v. Autorité des marchés financiers, 2013 SCC 63, hereinafter referred to as "La Souveraine". In this regard both counsel acknowledged that this judgment supports the proposition that offences of secondary penal liability relative to regulatory offences of strict liability could be offences of strict liability or, alternatively, offences requiring proof of mens rea.

6Mr. Jull argued that the majority judgment in La Souveraine bolsters the proposition that a party liability offence based upon an allegation that the accused did or omitted to do something "for the purpose of" aiding a principal offender to commit an offence, in accordance with the provisions of paragraph 21(1)(b) of the Criminal Code of Canada, R.S.C. 1985, c. C-46, as amended, hereinafter referred to as the "Criminal Code", is an offence which requires proof of mens rea. He submitted that in reaching that conclusion, Mr. Justice R. Wagner, on behalf of the majority of the Court, accepted the proposition that the phrase "for the purpose of", contained in paragraph 21(1)(b) of the Criminal Code was synonymous with the notion of intention on the part of the alleged party to the offence.

7On the other hand, Mr. Jull submitted that even though the majority panel in La Souveraine upheld the proposition that party liability; through the doing, or omission, of something for the purpose of aiding a person in committing an offence, constituted a mens rea offence in the criminal context, the panel ultimately concluded that such conduct was indicative of a strict liability offence in the regulatory context. He argued that in reaching this conclusion the panel were of the view that, from a policy perspective, it was appropriate to reduce the burden of proof in respect of party liability offences, by eliminating the requirement that the prosecutor prove that the party acted with mens rea in either aiding or abetting the principal in the commission of a regulatory offence.

8In concluding his submissions in respect of the issue of the interpretation of the majority decision in La Souveraine, Mr. Jull argued that the policy decision classifying party liability offences in the context of regulatory offences as ones of strict liability, should prevail over the strict construction approach whereby paragraph 21(1)(b) of the Criminal Code is interpreted to require proof that the aider to an offence acted with a guilty mind. He maintained that the majority panel determined that the provisions of paragraph 21(1)(b) of the Criminal Code should be so strictly construed in the context of true criminal offences only.

9During the course of his submissions, Mr. Klaiman urged me to conclude that the ratio decidendi of the majority judgment in La Souveraine supports the proposition that when offences of secondary penal liability are based upon the definition of "aiding" an offence as contained in both paragraph 21(1)(b) of the Criminal Code and paragraph 77(1)(b) of the POA, the phrase "for the purpose of" contained in the said paragraphs, should be strictly construed to give effect to the intention of Parliament and the Legislature of the Province of Ontario, respectively, that party liability offences are mens rea regulatory offences. Furthermore, he argued that the opinion of the majority panel that secondary penal liability offences relative to regulatory proceedings are offences of strict liability is, obiter dicta, lacking authoritative, precedential value.

10Finally, Mr. Klaiman submitted that the majority judgment in La Souveraine should be interpreted as upholding the general principle that party liability offences based on an allegation that a party did, or omitted to do, something for the purpose of aiding a principal to commit an offence, are offences requiring proof of mens rea. He maintained that this principle is applicable to both criminal and regulatory offences.

11Mr. Klaiman concluded his submissions by asserting that the subject party-liability offences are regulatory mens rea offences, requiring the prosecution to prove the element of mens rea on the part of the alleged party, beyond a reasonable doubt.

12As stated above, both counsel agree that the regulatory offence created by subsection 28(16) of the Conservation Authorities Act is an offence of strict liability. Mr. Jull states that the subject party liability offences are based upon the theory that the defendants aided or abetted the principal offender or offenders in committing the subject strict liability offences. He argues that these party liability offences are offences of strict liability.

13On the other hand, Mr. Klaiman submits that the said party liability offences constitute mens rea regulatory offences requiring proof of the element of mens rea.

14I will now undertake an analysis of the subject party liability offences in the context of subsection 77(1) of the POA and the relevant jurisprudence, in order to determine their proper classification.

RELEVANT STATUTORY PROVISIONS

15In these proceedings each of the defendants are charged, as parties, with ten offences contrary to subsection 28(16) of the Conservation Authorities Act and section 77 of the POA.

16Subsection 28(16) of the Conservation Authorities Act, which creates a regulatory, strict liability offence, reads as follows:

Every person who contravenes a regulation made under subsection (1) or the terms and conditions of a permission of an authority in a regulation made under clause (1)(b) or (c) is guilty of an offence and on conviction is liable to a fine of not more than $10,000 or to a term of imprisonment of not more than three months.

17Subsection 77(1) of the POA, defines a party to an offence as follows:

Every person is a party to an offence who,

(a) actually commits it;

(b) does or omits to do anything for the purpose of aiding any person to commit it; or

(c) abets any person in committing it.

18It is noted that the text of subsection 77(1) of the POA is identical to that of subsection 21(1) of the Criminal Code.

RELEVANT COMMON LAW

19As stated in subsection 77(1) of the POA, a provincial regulatory offence, such as the offence created by subsection 28(16) of the Conservation Authorities Act, may be committed by the principal offender, or by a party/secondary offender; one who aids or abets the principal in committing the offence.

20The leading cases relative to the issue of the classification of party liability offences where the principal offender is charged with a regulatory, strict liability offence, have been decided based upon the definition of an aider or abettor as codified in subsections 21(1)(b) and 21(1)(c) of the Criminal Code. As stated by Hoffman J.P. in Regina v. Conestoga Rovers and Associates, 2010 CarswellOnt 11097 (Ont. C.J.) at para. 29, it is appropriate to consider the jurisprudence decided under section 21 of the Criminal Code in analyzing party liability offences under the POA, given the "identical wording" of that section and that of section 77 of the POA.

21In his decision in Regina v. F.W. Woolworth Co. Ltd., 3 O.R. (2d) 629 (Ont. C.A.), hereinafter referred to as "Woolworth", Kelly J.A. found that in the context of the federal strict liability offence of making a misleading representation to the public, contrary to subsection 33C(1) of the Combines Investigation Act (now the Competition Act) the prosecution was obliged to prove that the alleged party acted with mens rea in aiding the principal offender in the commission of the offence. In determining that F.W. Woolworth Co. Limited was not a party to the offence under the provisions of paragraph 21(1)(b) of the Criminal Code, Mr. Justice Kelly stated, in part, as follows:

There are two principal reasons for holding that Woolworth was not a party to the offence charged:

1. Even with respect to offences of strict liability the alleged aider must know that he is aiding. Although it is not necessary that it be proven that he know that the conduct he is aiding constitutes an offence it is necessary that the accused be proven at least to have known the circumstances necessary to constitute the offence he is accused of aiding.

2. There is another reason why I am of the opinion that the convictions cannot stand. Section 21 [of the Criminal Code] requires that an alleged party must do or omit to do something for the purpose of aiding the principal to commit the offence. That purpose must be the purpose of the one sought to be made a party to the offence (Sweet v. Parsley, supra) but if what is done incidentally and innocently assists in the commission of an offence that is not enough to involve the alleged party whose purpose was not that of furthering the perpetration of the offence.

If the owner of a car rents or loans it to one he knows contemplates using it for the purpose of committing a robbery, he would render himself liable as a party, or if an owner of a house rents the house knowing it is to be used for recording bets, he similarly would be a party to the offence. But one does not render himself liable by renting or loaning a car for some legitimate business or recreational activity merely because the person to whom it is loaned or rented chooses in the course of his use to transport some stolen goods, or by renting a house for residential purposes to a tenant who surreptitiously uses it to store drugs.

22In his decision in Regina v. Fell (sub. nom. R v. Kenitex Canada Ltd.), [1981] O.J. No. 3176 (Ont. C.A.) hereinafter referred to as "Fell", Martin J.A. considered the proper categorization of party liability offences under paragraphs 21(1)(b) and 21(1)(c) of the Criminal Code in the context of the federal, regulatory offence of making a false or misleading representation to the public, contrary to section 36(1)(a) of the Combines Investigation Act. In finding that liability for the offences as an aider or abettor required the prosecution to establish mens rea, Mr. Justice Martin stated, in part, as follows:

The trial judge correctly held that even where the offence is one of strict liability insofar as the liability of the principal is concerned, the liability of an aider and abettor to be convicted of the offence requires the existence of mens rea on the part of the aider or abettor. Mens rea in this context means knowledge of the circumstances which make up or constitute the offence, that is, in this case, knowledge of the true facts. It was, of course, not necessary for the prosecution to prove that the respondent knew that those circumstances constituted an offence: see R. v. F.W. Woolworth Co. Ltd., 3 O.R. (2d) 629, and particularly at pp.32 and 33-34.

23In my view, the decisions of the Ontario Court of Appeal in both Woolworth and Fell establish the proposition that a party liability offence relative to a regulatory, strict liability offence committed by a principal fall within the category of mens rea regulatory offences. Madam Justice of the Peace Hoffman followed that proposition of law in her decision in Regina v. Conestoga Rovers and Associates, supra. In particular, Her Worship determined that offences of secondary liability through aiding or abetting the commission of a provincial public welfare offence, as defined in paragraphs 77(1)(b) and 77(1)(c) of the POA, constituted offences requiring "the existence of mens rea".

24In her POA appellate-level decision in Regina v. Savage, [2004] O.J. No. 4013 (Ont. C.J.), Duchesneau-McLachlan J. categorized the regulatory offence of harvesting forest resources in a Crown forest, contrary to paragraph 64(1)(a) of the Crown Forest Sustainability Act, as an offence of absolute liability. In that case, Mr. Savage was charged as either an aider or abettor to the principal offender who committed the said absolute liability offence.

25In classifying the party liability offence against the respondent/defendant, Madam Justice Duchesneau-McLachlan made the following comments, in paragraph 9 of her decision:

It would appear that the actual doer of the offence would probably be facing what is called an offence of absolute liability whereas another type of party to an offence would be facing what is called an offence of strict liability.

26While it would appear that Madam Justice Duchesneau-McLachlan failed to follow the reasoning of the Ontario Court of Appeal in categorizing the subject party liability offence as one requiring the existence of mens rea, she applied the reasoning of Dickson J. in Regina v. Sault Ste. Marie (City), 40 C.C.C. (2d) 353 (S.C.C.), to conclude that the offence against the respondent as a party, be categorized as one of strict liability. The prosecutor was, therefore, only required to prove the actus reus of the respondent's alleged participation in the offence as an aider or abettor, to the standard of proof beyond a reasonable doubt.

27In his judgment in La Souveraine, written on behalf of the majority of the Supreme Court of Canada, Wagner J. signalled a radical change in the classification of party liability offences relative to regulatory offences. While the majority of the Court continued to adopt a strict construction approach to the interpretation of the text of paragraph 21(1)(b) of the Criminal Code relative to the concept of aiding a principal offender in the commission of true criminal offences, they moved away from that approach in the context of regulatory, strict liability offences. In doing so in obiter dicta, they concluded that such party liability offences should be categorized as ones of strict liability, in an effort to ensure compliance with regulatory legislation designed for the purpose of protecting the public.

28One of the issues to be decided in La Souveraine was the classification of the offence created by section 482 of the Quebec statute titled: an Act respecting the distribution of financial products and services, R.S.Q. c. D-9.2, (the "ADFPS"). That section, which appears to establish an independent offence of secondary penal liability, reads as follows:

Every insurer that helps or, by encouragement, advice or consent or by an authorization or order, induces a firm or an independent representative or independent partnership through which it offers insurance products or an executive officer, director, partner, employee or representative of such a firm or independent partnership to contravene any provision of this Act or the regulations is guilty of an offence.

29In concluding that the said offence was one of strict liability, Wagner J., applied the presumption established in Regina v. Sault Ste. Marie (City), supra, that "regulatory offences are generally strict liability offences" rather than mens rea offences. In this regard, Mr. Justice Wagner stated as follows:

I note, first, that the offence provided for in s. 482 of the ADFPS is a regulatory offence. Protection of the public is the underlying rationale for such offences, which are enacted as "incidental sanctions whose purpose is to enforce the performance of various duties, thereby safeguarding the general welfare of society" (Lévis (City) v. Tétreault, 2006 SCC 12 at para. 13 per LeBel J.). The objective of the scheme established by the ADFPS, which includes the offence provided for in s. 482, is essentially to regulate the insurance products distribution industry in order to protect the public (Marston v. Autorité des marchés financiers, 2009 QCCA 2178, at para. 46).

Accordingly, in keeping with the presumption of statutory interpretation established in Sault Ste. Marie, and in the absence of specific language indicating a contrary intention on the legislature's part, the regulatory offence provided for in s. 482 of the ADFPS will be presumed to be one of strict liability, hence one that does not require proof of mens rea.

30At that point in his judgment, the said jurist began to analyze the text of section 482 of the ADFPS in the context of the common law interpreting paragraph 21(1)(b) of the Criminal Code relative to the liability of an accused in aiding the commission of a strict liability offence by a principal offender, specifically that in Woolworth. In that regard, he summarized the argument of the appellant, La Souveraine, Compagnie d'assurance générale, as follows:

In the case at bar, the appellant refers to other considerations in support of its argument that the offence provided for in s. 482 of the ADFPS falls into the category of mens rea offences. According to the appellant, in the case of a party liability offence like the one at issue here, the common law continues to require proof of mens rea even where the principal offence is one of strict liability. This is the standard of secondary penal liability, which requires, more specifically, proof of a mens rea of knowledge: the accomplice must have had knowledge of the essential elements of the principal offence and must have acted as he or she did with the specific intent of helping or inducing the principal offender to break the law.

31In support of its position that s. 482 of the ADFPS should be classified as a mens rea regulatory offence, the appellant relied on the judgment of the Ontario Court of Appeal in Woolworth in respect of the nature of the party liability offence of aiding the commission of an offence, in accordance with paragraph 21(1)(b) of the Criminal Code. Mr. Justice Wagner acknowledged that Woolworth established the proposition that such party liability offences, relative to an underlying regulatory offence, constituted offences requiring proof of mens rea. In that regard he stated, in part, as follows:

The Ontario Court of Appeal held that, to be convicted of being a party to an offence under s. 21 of the Criminal Code, a defendant had to have known that the principal offender's acts constituted an offence and to have done something for the purpose of aiding the latter to commit that offence.

32Furthermore, in the course of his analysis, Mr. Justice Wagner took into consideration the following comments of Charron J. in Regina v. Briscoe, 2010 SCC 13, hereinafter referred to as Briscoe:

Of course, doing or omitting to do something that resulted in assisting another in committing a crime is not sufficient to attract criminal liability. … The aider or abettor must also have the requisite mental state or mens rea. Specifically, in the words of s. 21(1)(b), the person must have rendered assistance for the purpose of aiding the principal offender to commit the crime.

The mens rea requirement reflected in the word 'purpose' under s. 21(1)(b) has two components: intent and knowledge. For the intent component, it was settled in R. v. Hibbert, that 'purpose' in s. 21(1)(b) should be understood as essentially synonymous with 'intention'. The Crown must prove that the accused intended to assist the principal in the commission of the offence. …

As for knowledge, in order to have the intention to assist in the commission of an offence, the aider must know that the perpetrator intends to commit the crime, although he or she need not know precisely how it will be committed. That sufficient knowledge is a prerequisite for intention is simply a matter of common sense.

33While Wagner J. accepted the proposition that party liability offences of aiding the commission by a principal offender, of criminal or regulatory offences under paragraph 21(1)(b) of the Criminal Code, constitute offences requiring the proof of mens rea on the part of the aider, he concluded that the offence under section 482 of the ADFPS, was, nevertheless, an offence of strict liability. In doing so, he noted that the reasoning enunciated in both Woolworth and Briscoe did not support the proposition that proof of mens rea was required in every case of secondary penal liability. He did, however, acknowledge that the reasoning set out in those cases did apply "where secondary penal liability provided for in s. 21 of the Criminal Code is at issue".

34In finding that the secondary penal liability offence created by section 482 of the ADFPS was an offence of strict liability, Mr. Justice Wagner engaged in an exercise of statutory interpretation in order to distinguish the reasoning asserted in both Woolworth and Briscoe, from the content and text of the said statutory provision.

35Firstly, he identified the "significant difference between the wording used for the independent offence provided for in s. 482 of the ADFPS and the wording of s. 21(1)(b) of the Criminal Code, which defines the concept of being a 'party to an offence'". In this regard, he noted that while section 482 provides for a scenario whereby a person would incur secondary penal liability by helping or inducing "a firm…to contravene any provision" of the ADFPS, paragraph 21(1)(b) of the Criminal Code defines aiding as a mode of participation, in stating that "every one is a party to an offence who…does or omits to do anything for the purpose of aiding any person to commit it".

36The jurist stated that the difference in the wording of the two statutory provisions was "determinative" because, as stated in Regina v. Hibbert, supra, the expression "for the purpose of" as contained in paragraph 21(1)(b) of the Criminal Code was "synonymous with intention". He concluded, therefore, that a party-liability offence based upon the provisions of paragraph 21(1)(b) of the Criminal Code would mandate the proof of both intention and knowledge on the part of the accomplice in order to support a conviction for that offence.

37Secondly, Mr. Justice Wagner found that the offence created by section 482 of the ADFPS was an independent offence of secondary penal liability, rather than one established through the application of one or more of the modes of participation set out in subsection 21(1) of the Criminal Code. In arriving at this conclusion, he noted that while the text of section 482 of the ADFPS identifies specific conduct supportive of a finding of guilt of the offence as a secondary offender, the provisions of paragraph 21(1)(b) of the Criminal Code set forth a mode of participation defined as doing or omitting to do something for the purpose of aiding the commission of an offence. He acknowledged that this mode of participation necessarily involves proof that the party did or omitted to do something with the specific intention of assisting the principal offender in committing the offence or with the knowledge that the principal offender intended to commit the offence.

38In commenting on these distinguishing textual factors, the said jurist stated as follows:

In my opinion, the Quebec's legislature's choice [to enact s. 482 as an independent offence of secondary penal liability] is not inconsequential. The difference between the wording of s. 21(1)(b) of the Criminal Code and that of s. 482 of the ADFPS leads to different conclusions as regards the characterization of the offences in question. The omission of the words "for the purpose of" from s. 482 of the ADFPS confirms the general rule that, unless otherwise indicated, regulatory offences adopted to protect the public fall into the category of strict liability offences.

In addition to the distinction based on the mens rea requirement that flows from the use of the expression 'for the purpose of' in s. 21(1)(b) of the Criminal Code and the absence of that expression from s. 482 of the ADFPS, another more general distinction persuades me that s. 482 is not subject to the common law rule that proof of mens rea continues to be required for a party liability offence even when the principal offence is one of strict liability. This distinction is based on the difference between a provision that establishes an independent offence and one that establishes a mode of participation in the commission of an offence.

39In summary, Mr. Justice Wagner concluded that the offence of secondary penal liability created by section 482 of the ADFPS was an offence of strict liability, which did not require proof of mens rea. In so categorizing the offence the said jurist found that the ADFPS was a public welfare statute enacted for the purpose of regulating the insurance products distribution industry in the Province of Quebec, in order to protect the public. In applying the offence-classification interpretive approach established by the Supreme Court of Canada in Regina v. Sault Ste. Marie (City), supra, he presumed the subject public welfare offence to be one of strict liability, and in the absence of evidence to rebut the presumption, declared the offence to be one of strict liability.

40Additionally in reaching his decision as to the nature of the subject offence, Mr. Justice Wagner distinguished the offence from those party liability offences established through the application of the mode of participation defined in paragraph 21(1)(b) of the Criminal Code. In doing so he determined that the common law principle established in Woolworth; that party liability offences based upon the concept of aiding a principal in committing a regulatory, strict liability offence were regulatory mens rea offences, did not apply to the discrete offence of secondary penal liability created by section 482 of the ADFPS.

41It is noted, however, that once he finished delivering the ratio decidendi of his judgment pertaining to the issue of the nature of the offence provided for in section 482 of the ADFPS, Mr. Justice Wagner made further comments pertaining to the proper classification of party liability offences relative to regulatory, strict liability offences committed by a principal offender or offenders. It would appear that these comments reflect the opinions of the majority of the Supreme Court panel relative to the appropriate characterization of party liability offences as defined by the provisions of paragraph 21(1)(b) of the Criminal Code, from the perspective of public policy, and therefore fall into the broad category of obiter dicta.

42Mr. Justice Wagner concluded his decision pertaining to the categorization of the offence in section 482 of the ADFPS, by finding that that offence "need not be subject to the common law rule that proof of mens rea continues to be required for party liability offences". He then proffered his opinion relative to the proper classification of party liability offences in the context of regulatory offences, at paras. 48 and 49 of his judgment, as follows:

Before concluding on this issue, I will add a few observations about the comment made by the Ontario Court of Appeal in Woolworth that a person does not incur liability by loaning or renting a car for some legitimate activity merely because the person to whom it is loaned or rented chooses to use it to transport stolen goods, or by renting a house for residential purposes to a tenant who surreptitiously uses it to store drugs.

I agree with that comment in the criminal context and am of the opinion that s. 21(1)(b) of the Criminal Code addresses these concerns by requiring proof of mens rea. However, I consider the situation to be quite different in the context of regulatory offences. Those who engage in regulated activities agree in advance to adhere to strict standards, and they accept that they will be rigorously held to those standards, which are typical of such spheres of activity. It is therefore not surprising in the regulatory context to find strict liability offences that encompass forms of secondary penal liability for the ultimate purpose of vigilantly ensuring compliance with a regulatory framework established to protect the general public.

43He then completed the portion of his judgment pertaining to the issue of the appropriate classification of the offence under section 482 of the ADFPS by stating as follows:

For these reasons, I conclude that the offence provided for in s. 482 of the ADFPS is one of strict liability and that it was not necessary to prove that the appellant knew its broker intended to break the law or that the former had the specific intent of helping or inducing the latter to do so. Proof that the appellant's actions in fact helped or induced its broker to contravene s. 71 of the ADFPS by distributing insurance products without holding the required licences is sufficient to convict the appellant.

ANALYSIS

44In this preliminary motion, I am charged with the responsibility of determining the proper classification of the party liability offences against all of the defendants named in informations nos. 1260-999-13-7246 and 1260-999-13-7247.

45As stated above, the Ontario Court of Appeal decisions in Woolworth and Fell establish the legal proposition that the offences of aiding or abetting a principal offender in committing a regulatory, strict liability offence, contrary to paragraphs 21(1)(b) and 21(1)(c) of the Criminal Code, constitute offences requiring the proof of mens rea on the part of the aider or abettor.

46In its majority judgment in La Souveraine, the Supreme Court of Canada acknowledged that a strict construction of the text of paragraph 21(1)(b) of the Criminal Code supports the proposition that mens rea on the part of the alleged aider is required to sustain a conviction against the aider, even in the context of an underlying regulatory offence of strict liability. On the other hand, in obiter dicta, the majority of the Court opined that party liability offences, in the form of "aiding" the commission of a regulatory offence are offences of strict liability.

47I am of the view that the policy statement made by the majority of the Court is quite powerful and represents a shift in judicial philosophy relative to the standard of proof necessary to prove charges pertaining to violations of public welfare offences, whether or not such charges relate to principal violators or to persons accused of aiding the principal violators.

48The ratio decidendi of the decision of the majority to classify the offence created by section 482 of the ADFPS as one of strict liability, was based upon the presumption as established in Sault Ste. Marie (City), supra, that the offence was one of strict liability, as well as the distinguishing factors pertaining to the text of the relevant statutory provision creating the said offence.

49While the obiter dicta of Wagner J. pertaining to the broad, general issue of the classification of party liability offences under paragraph 21(1)(b) of the Criminal Code in the context of regulatory, strict liability offences does not supplement the ratio decidendi pertaining to the nature of the offence under section 482 of the ADFPS, it explains why such offences should, from a public policy perspective, be classified as strict liability offences not requiring proof of mens rea on the part of the person who is alleged to have aided the principal offender in committing the regulatory offence. Accordingly, the obiter dicta indirectly bolsters the ratio decidendi relative to one of the issues under appeal in La Souveraine; the issue of the characterization of the offence under section 482 of the ADFPS.

50The question which I must now resolve is whether or not the said obiter dicta pertaining to the proposed policy that all party liability offences of aiding the commission of a regulatory, strict liability offence be classified as strict liability offences, may properly be considered to be authoritative, and therefore, binding on me.

51The issue of the binding effect of judicial opinions rendered as obiter dicta, was addressed by Binnie J. in his decision in Regina v. Henry, 2005 SCC 76. In commencing his analysis of this issue in the said decision, the jurist summarized the traditional jurisprudential view as to the meaning of the term "ratio decidendi", as follows:

The traditional view expressed by the Earl of Halsbury L.C. was that 'a case is only an authority for what it actually decides', and that

every judgment must be read as applicable to the particular facts proved, or assumed to be proved since the generality of the expressions which may be found there are not intended to be expositions of the whole law, but governed and qualified by the particular facts of the case in which such expressions are to be found. (Quinn v. Leathem, [1901] A.C. 495, at p. 506)

52In presenting his view as to the significance and precedential value of obiter dicta, Mr. Justice Binnie made the following comments, at para. 57 of his said judgment:

The issue in each case, to return to the Halsbury question, is what did the case decide? Beyond the ratio decidendi which, as the Earl of Halsbury L.C. pointed out, is generally rooted in the facts, the legal point decided by this Court may be as narrow as the jury instruction at issue in Sellars or as broad as the Oakes test. All obiter do not have, and are not intended to have the same weight. The weight increases as one moves from the dispositive ratio decidendi to a wider circle of analysis which is obviously intended for guidance and which should be accepted as authoritative. Beyond that there will be commentary, examples or exposition that are intended to be helpful and may be found to be persuasive, but are certainly not 'binding' in the sense the Sellars principle in its most exaggerated form would have it. The objective of the exercise is to promote certainty in the law, not to stifle its growth and creativity. The notion that each phrase in a judgment of this Court should be treated as if enacted in a statute is not supported by the cases and is inconsistent with the basic fundamental principle that the common law develops by experience.

53In his decision in Regina v. Hajivasilis, 2013 ONCA 27 at para. 20, Doherty J.A. relied on the aforesaid reasoning in making the following comment pertaining to the precedential value of obiter dicta:

R. v. Henry, 2005 SCC 76, [2005] 3 S.C.R. 609, at para. 57, makes the point that lower courts are bound not only by the ratio decidendi of decisions from higher courts, but also by some obiter dicta.

54I am of the view that the opinions expressed by Wagner J. in paras. 48 and 49 of his judgment in La Souveraine, as obiter dicta, were proffered for the purpose of enhancing the ratio decidendi relative to the issue of the categorization of the offence under section 482 of the ADFPS. The obiter dicta, therefore, forms part of a "wider circle of analysis" than the exercise of statutory interpretation which Mr. Justice Wagner undertook in finding that the independent offence created by section 482 was a regulatory offence of strict liability.

55In explaining the rationale for his opinion that offences of secondary penal liability based upon the mode of participation contained in paragraph 21(1)(b) of the Criminal Code (and in paragraph 77(1)(b) of the POA) in the context of regulatory, strict liability offences, should always be classified as strict liability offences, Mr. Justice Wagner asserted that persons "who engage in regulated activities agree in advance to adhere to strict standards, and they accept that they will be rigorously held to those standards, which are typical of such spheres of activity". He went on to suggest that eliminating the requirement to prove the existence of mens rea in respect of party liability offences based upon an allegation of aiding the commission of a regulatory offence, from a perspective of public policy, was acceptable in order to attempt to vigilantly ensure "compliance with a regulatory framework established to protect the general public".

56The opinions rendered by Mr. Justice Wagner, on behalf of the majority of the subject panel of the Supreme Court of Canada, as obiter dicta, are in my respectful view, intended for guidance as to the broader issue of the appropriate classification of the party liability offence of aiding the commission of a regulatory, strict liability offence. In light of the depth of the reasoning stated by Mr. Justice Wagner in delivering his opinion in this regard and the apparent nexus between this reasoning and the ratio decidendi pertaining to the issue of the categorization of the offence of secondary penal liability in section 482 of the ADFPS, I conclude that the subject obiter dicta should be accepted as being authoritative.

57In applying the principles expounded by Binnie J. in para. 57 of Regina v. Henry, supra, I find that the policy approach to the issue of the categorization of party liability offences of aiding the commission of an offence in the context of regulatory offences, as stated by Mr. Justice Wagner in paras. 48 and 49 of La Souveraine through obiter dicta, should be afforded significant weight and assigned substantial precedential value. I consider the opinions proffered in the said obiter dicta to be binding on me in this proceeding(s).

THE DECISION

58As stated above, I have accepted the obiter dicta of the majority of the panel of the Supreme Court of Canada in La Souveraine, that party liability offences of aiding the commission of a regulatory, strict liability offence by a principal offender as defined by paragraph 21(1)(b) of the Criminal Code and paragraph 77(1)(b) of the POA, should be categorized as offences of strict liability, as it is both authoritative and binding.

59In applying the principles expressed in the said obiter dicta to the issues in this motion, I find that the subject party liability offences, related to the strict liability offences created by subsection 28(16) of the Conservation Authorities Act allegedly committed by another person or persons, are properly classified as offences of strict liability. This decision is based on the proviso that the allegation of party liability is based upon an allegation that the purported party to the offence allegedly aided the principal offender in committing the said regulatory offence, in accordance with the provisions of paragraph 77(1)(b) of the POA.

60In reaching this conclusion, I am of the view that the policy approach to the issue of the classification of offences of secondary penal liability in the context of regulatory offences and based upon an allegation of aiding the commission of the regulatory offence, as expressed in obiter dicta in paras. 48 and 49 of La Souveraine; effectively overrules the principle established in the Ontario Court of Appeal decisions in Woolworth and Fell, that such party liability offences under paragraph 21(1)(b) of the Criminal Code are offences requiring proof of mens rea on the part of the aider.

61On the other hand, if any of the party liability offences herein are based upon the theory that the accused abetted the principal offender in committing the subject strict liability offence in accordance with the provisions of paragraph 77(1)(c) of the POA, then I am of the view that those party liability offences would be properly categorized as mens rea regulatory offences, requiring proof of the element of mens rea on the part of the abettor to the offence. This proposition of law, as enunciated by Mr. Justice Martin in his decision in Fell, has not been overruled by the decision of the majority of the Supreme Court of Canada in La Souveraine.

62In considering the issue of the classification of party liability offences of abetting the commission of a regulatory, strict liability offence, contrary to the provisions of either paragraph 21(1)(c) of the Criminal Code or paragraph 77(1)(c) of the POA, I have relied on the opinions expressed by Mr. Morris Manning, Q.C. and Professor Peter Sankoff, at paragraph 6.81 of their textbook titled Manning, Mewett and Sankoff – Criminal Law, Fifth Edition, (LexisNexis Canada Inc., 2015). In the said paragraph, the authors note that the text of paragraph 21(1)(c) does not appear to import a requirement to prove mens rea in connection with the allegation that the accused abetted the commission of the principal offence. The authors state, however, that the common law which has interpreted paragraph 21(1)(c), has imposed a mental element on the act of abetting the commission of an offence by a principal offender.

63In discussing the requirement of proving mens rea on the part of an abettor, contrary to paragraph 21(1)(c) of the Criminal Code, the authors stated, in part, as follows:

…Since abetting amounts to instigating or promoting, the word itself connotes a subjective desire to encompass the commission of the crime and no specific reference to a further purpose is required. In short, while the perpetrator may be aided without the accessory intending to aid him, he cannot be abetted unless the accessory intends to abet him. (Regina v. Curran, [1977] A.J. No. 77; 1977 ALTASCAD 284)

64In conclusion, I make the following findings pertaining to the issues to be determined in this preliminary motion.

65In light of the fact that the principal offence relative to all of the party liability offences in the subject proceeding(s); being an offence contrary to subsection 28(16) of the Conservation Authorities Act, is a regulatory offence of strict liability, I find that any party liability offence in this proceeding(s) based upon an allegation of aiding the commission of the said offence contrary to paragraph 77(1)(b) of the POA, is properly classified as an offence of strict liability, not requiring proof of mens rea on the part of the aider.

66On the other hand, I find that any party liability offence in this proceeding(s) which is based upon an allegation of abetting the commission of the said offence contrary to subsection 28(16) of the Conservation Authorities Act and contrary to paragraph 77(1)(c) of the POA, is properly classified as a regulatory mens rea offence requiring proof of mens rea on the part of the abettor.

Released: May 9, 2016

Signed: "Justice of the Peace Kenneth W. Dechert"

Footnotes

1The principal liability and party liability offences are those being contrary to clause 2(1)(b), clause 2(1)(d), clause 2(1)(e) and section 5 of Ontario Regulation 162/06, made pursuant to the Conservation Authorities Act.

2Combines Investigation Act, R.S.C. 1952, c. 314, as amended, ss. 33C(1).

3Regina v. F.W. Woolworth Co. Ltd., 3 O.R. (2d) 629 (Ont. C.A.), p. 9 of Quicklaw edition.

4Ibid, page 10 of Quicklaw edition.

5Combines Investigation Act, R.S.C. 1970, c. C-23, as amended, para. 36(1)(a).

6Regina v. Fell, [1981] O.J. No. 3176 (Ont. C.A.), at para. 17.

7Regina v. Conestoga Rovers and Associates, 2010 CarswellOnt 11097 (Ont. C.J.), at paras. 12, 13, 14, 28 and 29.

8Crown Forest Sustainability Act, S.O. 1994, para. 64(1)(a).

9La Souveraine, Compagnie d'assurance générale v. Autorité des marchés financiers, 2013 SCC 63, paras. 48 and 49.

10Ibid. para. 31.

11Ibid. paras. 32 and 33.

12Ibid. para. 34.

13Ibid. para. 36.

14Ibid. para. 37.

15Ibid. para. 38.

16Ibid. para. 39.

17Ibid. para. 40.

18Ibid. paras. 34, 41, 42, 43, 45, 46 and 47.

19Ibid. paras. 42 and 43.

20Ibid. para. 33.

21Ibid. para. 47.

22Ibid. para. 50.

23Regina v. Henry, 2005 SCC 76, para. 53.

24La Souveraine, para. 49.

25Manning, Mewitt and Sankoff – Criminal Law, Fifth Edition, (LexisNexis Canada Inc., 2015), page 322.