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Chapter 56

The Federal Prosecution Service DESKBOOK

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Part XII
NEW POLICIES
Chapter 56

56 REGULATORY PROSECUTIONS

56 REGULATORY PROSECUTIONS

56.1 Background

In 1971, the Supreme Court of Canada recognized that there exists in Canadian law “a wide category of offences created by statutes enacted for the regulation of individual conduct in the interests of health, convenience, safety and the general welfare of the public”¹. Such offences are generally referred to as “regulatory” offences, and a study by the Law Reform Commission in 1986 estimated the number of such offences in federal legislation alone to be in excess of 97,000. ²

The creation of regulatory offences is generally considered to be a desirable way of advancing governmental policy objectives. In R. v. Wholesale Travel³, Cory J. stated:

The objective of regulatory legislation is to protect the public or broad segments of the public (such as employees, consumers and motorists, to name but a few) from the potentially adverse effects of otherwise lawful activity. Regulatory legislation involves a shift of emphasis from the protection of individual interests and the deterrence and punishment of acts involving moral fault to the protection of public and societal interests. While criminal offences are usually designed to condemn and punish past, inherently wrongful conduct, regulatory measures are generally directed to the prevention of future harm through the enforcement of minimum standards of conduct and care.

The fact that regulatory offences focus on the prevention of future harms requires that FPS counsel⁴ pay particular attention to the policy objectives being pursued by the investigative agencies⁵. Departmental counsel from Legal Services (“LS counsel”) are particularly sensitive to the nature, philosophy and objectives of the regulatory program, and FPS counsel are expected to work in partnership with them so that all counsel can take full advantage of their respective expertise.

56.2 Purpose

This policy has three main objectives:

To further articulate the considerations relevant to the decision to prosecute in the regulatory offence context;
To promote greater understanding of the respective roles and responsibilities of FPS counsel, LS counsel and investigators in regulatory Departments and agencies;
To address special considerations relevant to sentencing in the regulatory offence context.

56.3 The Process of Risk Assessment

The Decision to Prosecute policy⁶ requires a two part assessment of a case by FPS counsel: first, FPS counsel must consider whether the evidence is sufficient, and second, whether the public interest requires prosecution. That policy further notes that in the regulatory prosecution context, the “public interest” considerations include the regulatory goals of the legislation and stresses that consultation with the regulatory agency is necessary in determining those goals⁷.

It is more common in the regulatory context for FPS counsel to be able to apply the Decision to Prosecute policy before any charges have been laid. Indeed it is desirable because it can permit extensive consultation among FPS counsel, the investigative agency, LS counsel and others as to whether prosecution would in fact be the instrument of choice for dealing with alleged misconduct. Many federal departments have, within their governing legislation, a range of remedial options, from warnings to civil proceedings to administrative measures. It is important to bear in mind the admonition of the Supreme Court⁸ that:

[t]he criminal law is, however, a weapon of last resort intended for use only in cases where the conduct is so inconsistent with the shared morality of society so as to warrant public condemnation and punishment.

The FPS approach is in accordance with these words, as has been noted:

[W]here preventative measures to promote compliance with a regulatory regime or a compliance program have failed, and non-compliance has occurred, referral for prosecution should not be automatic: it should only occur as a last resort. In fact, prosecution should only be considered at the end of the unsuccessful application of an Alternate Dispute Resolution strategy (ADR). And such alternative measures will be considered both before charges are laid and after they are laid.

Before charges are laid, measures such as warning and pre-charge diversion approach must be considered. ... After charges are laid, measures such as post-charge diversion are still available⁹.

This is not to suggest that most or all regulatory offences can be treated by some means other than prosecution¹⁰; in fact, in many circumstances, no effective alternative to prosecution may exist, or the available alternative (e.g. a warning) may be completely unsuitable. On occasion, the investigation will be of such a nature that it will require the early involvement of FPS counsel and require application of the Megacase Management policy¹¹. LS counsel may play an important role in identifying such investigations.

56.4 The Roles and Responsibilities of Counsel

Pursuant to the Department of Justice Act¹², counsel acting on behalf of the Attorney General of Canada have the obligation to “advise the heads of the several departments of the Government on all matters of law connected with such departments” (s.5 (b)), and to “have the regulation and conduct of all litigation for or against the Crown or any department, in respect of any subject within the authority or jurisdiction of Canada” (s.5 (d)). While FPS counsel have responsibility for the eventual conduct of litigation, the advisory function is a shared responsibility among FPS counsel, LS counsel (sometimes more than one legal service) and others, such as counsel in the Human Rights Law Section.

Consultation is thus an essential feature of our approach to regulatory prosecutions. As a former Deputy Attorney General has stated:

In regulatory prosecutions, departments often have strong views about the enforcement of their regulatory schemes. They are entitled to know that we understand the rationale behind the relevant legislation. I would suggest as well that there is absolutely nothing improper or even questionable about the law enforcement arm of other departments wanting to influence the exercise of prosecutorial discretion, as long as no improper considerations of a political or other nature are brought to bear upon prosecutors. I would also argue that there is a lot of room for open communications between prosecutors and regulatory departments and agencies around the public interest in proceeding with particular prosecutions, with the views of the department responsible for the legislation given due weight by the Department of Justice¹³.

It is important to outline in a general way what the respective responsibilities are for counsel with respect to the prosecution function.

56.4.1 FPS Counsel

It is the responsibility of FPS counsel to:

Provide legal advice as requested during the course of an investigation, or about matters of ongoing concern that may affect specific prosecutions, or prosecutions generally. This may commonly arise, for example, where advice is needed on subjects such as search and seizure or disclosure. In so doing, it will be important to consult with the investigator and/or LS counsel to determine whether legal advice on the same subject matter has already been given, and to attempt to ensure that the Department of Justice speaks with one voice on such matters as the legality of particular investigative techniques. Where legal advice is sought on an issue that will have general application to the investigative agency’s enabling legislation, LS counsel must be consulted before the advice is given.
Conduct the prosecution on behalf of the Crown. This includes making the final decision as to what charges will be prosecuted, whether to elect to proceed by indictment, what witnesses will be called, what sentence will be sought if the case results in conviction, and whether an appeal should be launched from acquittal or sentence. In exercising all of these functions FPS counsel are expected to consult in a timely way with the investigative agency, LS counsel and others as the need arises. Consultation is particularly important prior to making a decision not to prosecute a particular case¹⁴. It is good practice to document the reasons why a decision is made not to prosecute and to inform LS counsel and the investigative agency.
Identify possible training needs for the investigative agency, and participate in training when requested. Consultation with LS counsel may help determine whether such training should be local or national. Training is a responsibility of the FPS as a whole, so FPS counsel will be expected to inform their managers and LS counsel as to what training may benefit the investigative agency (e.g., how to prepare a prosecution brief). FPS counsel should be particularly vigilant in identifying areas in which immediate training is desirable to ensure that the effectiveness of prosecutions is not compromised.

56.4.2 Department Legal Services Counsel

It is the responsibility of LS Counsel to:

Assist investigators and agencies in developing alternatives to prosecution consistent with the client department’s compliance and enforcement policies. LS counsel may also work with investigators and/or FPS counsel on such alternatives in specific cases.
Be the primary point of contact for investigative agencies and FPS counsel for the provision of legal advice on matters relating to the agency’s enabling legislation. Where the advice sought concerns general enforcement issues, LS counsel will be expected to exercise judgment as to when legal advice that may have broad implications for prosecutions (e.g. with respect to the legality of an investigative technique) will require consultation with the FPS, other legal services, the Human Rights Law Section or other parts of the Department of Justice before rendering the requested legal advice. Where the advice sought concerns an investigation likely to lead to a prosecution, as stated above, the advice should be obtained from FPS counsel.
Assist investigators with the preparation of a prosecution brief, where appropriate.
Consult with FPS counsel on prosecution issues, and facilitate communications between FPS counsel and the investigative agency. In some circumstances, such as where LS counsel has played a critical advisory role in a lengthy investigation, it may be appropriate for LS counsel to be part of the prosecution team.
In consultation with FPS counsel, identify possible training needs for the investigative agency, and participate in such training when requested. As is true for FPS counsel, it is crucial that LS counsel identify areas in which training is necessary so that prosecutions are not compromised. It may be desirable for LS counsel to assist the investigative agency in the creation of policy or guidelines on enforcement issues.

56.4.3 Legal Agents/Agent Supervisors

FPS Agent Supervisors should ensure that legal agents adhere to their duties of consultation under this policy. In some circumstances, such as where there is a difference of opinion as to what legal advice should be given or where an agent has decided that a matter should not be prosecuted, the Agent Supervisor should be directly involved in dealings with the investigative agency and/or LS counsel.

56.5 Sentencing in Regulatory Prosecutions

Because, as emphasized above, the intrinsic goal of regulatory prosecutions is to procure compliance so as to prevent future harm, it is incumbent on FPS counsel to explore dispositions which may help achieve the regulator’s goal. Fines and/or imprisonment, the usual dispositions in criminal matters, may be only part of a sentence that seeks to deter others, deter the particular offender(s), and to attempt to undo the harm caused. FPS counsel should explore with the investigative agency and/or LS counsel as appropriate a range of possible dispositions that may achieve the agency’s goals of compliance and protection of the public where the statutory regime affords scope for such dispositions.

Fines are widely used in regulatory offences. Before recommending that a fine be imposed, FPS counsel should take every reasonable measure to ensure that the fine is an appropriate disposition, which will necessarily include forming an opinion as to whether an offender is capable of paying the fine¹⁵. Where possible, FPS counsel should, as part of the negotiations for resolving the file by way of a fine, arrange with the defence for the payment of the fine on the day of sentencing. If the money to pay is not immediately available, but will be in the near future, FPS counsel should seek to have the sentencing proceedings take place on that day.

1 R. v. Pierce Fisheries, [1971] S.C.R. 5 at 13

2 Law Reform Commission, Policy Implementation, Compliance and Administrative Law (Working Paper #51), Ottawa: 1986, at 38. It should be emphasized, however that “regulatory” statutes may nevertheless include “criminal” offences: tax evasion under the Income Tax Act is one such example. See, in this regard, the comments of the Supreme Court in R. v. Jarvis, [2002] 3 S.C.R. 757 at para.63.

3 [1991] 3 S.C.R. 154 at 219.

4 In this chapter, the term “FPS Counsel” is used instead of “Crown counsel” to distinguish prosecutors from counsel working with Legal Services.

5 The term “investigative agency” may include “regulatory agencies” in this chapter.

6 Part V, Chapter 15

7 It should be emphasized that in considering the public interest in regulatory matters, the “irrelevant criteria” identified in the Decision to Prosecute policy—e.g. race, political advantage—are equally irrelevant.

8 R. v. Hinchey, [1996] 3 S.C.R. 1128 at para. 35

9 Speech by D.A. Bellemare, Q.C., to the Instrument Choice Symposium, Ottawa, March 26, 2002.

10 The specific context of “R. v. R.” prosecutions is dealt with in Chapter 32.

11 See Chapter 54, “Megacase Management.”

12 R.S.C. 1985, c.J-2.

13 Speech by Morris Rosenberg at the XXth annual FPS Conference, June 29, 2000, Mont Saint-Anne, Quebec.

14 In this regard, see Chapter 15, “The Decision to Prosecute” in which the importance of consultation and communication in these circumstances is stressed.

15 See also Part XII, c.57, “Fine Recovery.”