Criminal Lawyers Help with Regulatory Requirements
Regulatory law aims to reduce risks to the public caused by everyday activities, and a lack of intent is not a defence for regulatory offences. A criminal defence lawyer can offer guidance to businesses dealing with regulatory charges and investigations.
Complex Regulatory Requirements
Every successful Canadian business is aware of the federal, provincial and municipal regulations it must abide by. Whether the business manufactures pharmaceuticals or processes fish, stringent rules govern its operations. When there is a perceived transgression on the company's part, the regulator for that industry may start an investigation and lay charges, which can result in a fine, a suspension of its operations, or even jail time.
Unlike criminal offences governed by the Criminal Code and intended to minimize illegal activity in our society, regulatory law aims to reduce risks to the public caused by the everyday activities of individuals and commercial entities.
While criminal law focuses on those engaged in illegal activity, regulatory offences tend to be directed toward governing legitimate activities. As the Supreme Court of Canada (SCC) noted, regulatory law creates standards that are "absolutely essential for our protection and well-being as individuals, and for the effective functioning of society."
It is much easier to be convicted of a regulatory offence than a criminal charge. That is because a criminal conviction requires the Crown to show the accused had mens rea, or criminal intent. With regulatory offences, intent is not a requirement. The prosecution is only required to prove that an incident occurred, intentional or not. The onus is then on the company or its managers to prove that it exercised due diligence to protect the public.
Many areas of interest overlap between the federal government and provincial legislative powers and fall into both regulatory and criminal law. That is why those charged with regulatory offences should consult a criminal defence lawyer to explore their options before speaking to a regulator.
Once a regulatory offence investigation is launched, you can expect authorities to come to your office with search warrants. They may request to speak to managers or relevant staff members. When responding to their demands, a criminal lawyer can advise you on your rights.
Occupational Health and Safety
Each province and territory has its own occupational health and safety legislation. There is also federal legislation that covers federal government employees, including Crown agencies and corporations across Canada. This legislation outlines the general rights and responsibilities of the employer and defines penalties for violations. If the same company has workplaces in various jurisdictions in Canada, the laws of each jurisdiction must be followed for each location.
While regulatory law governs most violations that occur under this legislation, firms can be found criminally liable in cases of workplace accidents or injuries.
For example, the 1992 Westray mine disaster took the lives of 26 miners. A public inquiry determined that important portions of Nova Scotia's occupational health and safety legislation had been ignored by Westray management, and that contributed significantly to the tragedy. Consequently, the Code was amended to establish new legal duties for workplace health and safety while imposing harsh penalties for violations that result in injuries or death.
In the context of criminal liability for workplace deaths and injuries, several charges can be laid against an organization that is criminally negligent in directing the work of others. These offences include criminal negligence causing death, criminal negligence causing bodily harm, and manslaughter.
Canada's environmental laws and regulations vary from province to province. Federally, the Canadian Environmental Protection Act provides the legislative basis for a range of federal environmental and health protection programs. These include activities related to chemical risks, air and water pollution, ocean disposal and environmental emergencies.
When it comes to the oil and gas industry, the Canadian Energy Regulator is responsible for ensuring that pipelines, power lines and offshore renewable energy projects within the federal government's jurisdiction are constructed, operated and abandoned in a safe manner.
Each province has its regulations. For example, Alberta Environment and Parks set thresholds to minimize the impact of oil and natural gas developments on air, land and water through its policies and environmental frameworks.
All jurisdictions generally take a multi-step approach to enforcement, at the lowest level, that will include voluntary remediation and education. Depending on the seriousness of the issue, there can be significant charges and criminal investigations. A firm's directors and officers may be liable, including being named personally in orders and prosecution.
An example of criminal charges being laid after an environmental incident is the Mount Polley Mine Disaster in British Columbia in 2014. The mine failed to control the runoff of effluents generated in its processing, with millions of cubic metres of this waste material ending up in nearby waterways. Charges were laid under the Fisheries Act and the Canadian Environmental Protection Act against the mine's owners for violating environmental regulations and releasing harmful substances into fish-bearing waters.
The Privacy Act set out how the federal government must deal with the personal information it collects from the general public. It gives people the right to request access to their personal data held by federal government institutions and to ask for corrections.
Video surveillance is increasingly common in public spaces and outside private stores and residences. Since these cameras capture everyone, regardless of whether they have done anything to arouse suspicion, they erode the expectation of privacy Canadians take for granted. This is especially true when police or other law enforcement authorities conduct surveillance.
According to a guideline published by the Office of the Privacy Commissioner of Canada, it is reasonable for a business to install surveillance cameras near banking machines or inside convenience stores in high-crime areas but not in places where people have a much higher expectation of privacy, such as a public washroom or a spa treatment room.
Businesses conducting video surveillance are expected to post a notice about the use of cameras so that people have the option of not entering the premises if they object to the surveillance. The signs should also include a contact in case people have questions or want access to the footage captured.
Businesses must store recorded images in a secure location. They should only provide access to authorized individuals, including those captured in the footage. The guideline adds that efforts must be made to "ensure that identifying information about other individuals on the recording is not revealed. This can be done through technologies that mask identity."
The Personal Information Protection and Electronic Documents Act is a privacy law that applies to all Canadian private-sector organizations. It states that an organization's need to conduct video surveillance must be balanced with an individual's right to privacy. Businesses cannot install surveillance cameras to monitor employees' work.
Businesses considering installing a surveillance system should contact a criminal lawyer to ensure they are not violating laws. Keep in mind that s. 8 of the Canadian Charter of Rights and Freedoms provides for privacy since it "is essential not only to human dignity but also to the functioning of our democratic society."
An example of someone facing criminal charges for violating the privacy of others can be found in a 2019 Nova Scotia case. A high school teacher was charged with voyeurism after secretly filming female students' breasts with a hidden camera. He was found guilty and sentenced to jail time.
A criminal lawyer with expertise in privacy regulations can provide valuable guidance and support to businesses subject to privacy regulations, including advising on how to properly handle and protect personal information and respond to privacy breaches and investigations.
The Canadian Securities Administrators is an umbrella organization of provincial and territorial securities regulators. Canada does not have a national securities regulator. Instead, each province has a securities act that establishes offences for securities-related fraud and an enforcement body (a securities commission) to enforce the legislation.
A criminal lawyer can help advise those under investigation or charged with securities-related offences since s. 380 of the Criminal Code establishes the general offence of fraud. Part X of the Code establishes several other fraud-related offences, including fraudulent manipulation of stock exchange transactions. The maximum prison sentence upon conviction is 14 years.
Other federal statutes that contain offences related to fraud include:
- Competition Act, which focuses on anti-competitive practices in the marketplace;
- Bankruptcy and Insolvency Act, which makes it an offence to fraudulently claim bankruptcy; and
- Income Tax Act, which establishes offences relating to tax fraud and evasion.
The most famous securities scandal in Canada concerned Bre-X Minerals, based in Calgary. In the mid-1990s, Bre-X claimed to have discovered a massive gold deposit in Indonesia. The company's stock price skyrocketed, but it was later revealed that the gold deposit was fraudulent. Top executives in the firm were charged with securities fraud, insider trading and other securities violations.
The Competition Act contains criminal and civil provisions to prevent anti-competitive practices in the marketplace. It is primarily administered and enforced by the Competition Bureau and the Public Prosecutions Service of Canada, with private parties also allowed to initiate some enforcement proceedings. The Act aims to maintain and encourage competition in Canada in three areas: mergers, criminal matters and reviewable practices.
Criminal offences under the Act include conspiracy (i.e., price-fixing, market allocation/division and supply/output restriction agreements between competitors), bid-rigging, criminal misleading advertising, deceptive telemarketing, pyramid selling schemes, wage-fixing and no-poach agreements between competing employers.
An example of where the violation of competition regulations resulted in charges occurred in Ontario in 2010. Several firms were accused of colluding to win contracts for various construction projects in the province and charged with bid-rigging and price-fixing. That resulted in several guilty pleas and significant fines for the companies involved.
Regulatory Offences as Quasi-criminal Offences
Regulatory offences are sometimes referred to as quasi-criminal offences. Many are handled through the regulator, whose goal is to educate, correct problems and prevent a recurrence. Yet many are treated by the courts as criminal offences due to the seriousness of the offence and the likelihood of severe penalties.
There are significant differences which may necessitate advice from a criminal lawyer. For example, the Canadian Environmental Protection Act requires the owner of a business being searched to provide enforcement officers with any information they may reasonably require. Likewise, the Fisheries Act requires people to turn the records over to fisheries authorities upon request.
With any criminal investigation, the accused has constitutional rights against self-incrimination and privacy. As a result, they cannot be compelled to provide pre-trial statements to police that can later be used against them at trial. As well, police generally cannot, without a warrant, invade someone's privacy to search for and seize incriminating evidence. Anyone facing a securities-related investigation or charges should contact a criminal lawyer who offers regulatory compliance counselling. They can provide valuable guidance and support when navigating the legal system.
Disclaimer: The information provided in this blog is for general educational purposes only and is not intended as legal advice. Each case is unique and the laws discussed may not apply to your specific situation. Please consult a qualified lawyer in your area for personalized guidance. The information in this blog is not guaranteed to be accurate or up-to-date and should not be relied upon as a substitute for consultation with a professional.