I think my answer, Mr. Chair, will hopefully allay some of the concerns that committee members may have. I think there has been incomplete information provided to the committee so far on the nature of the legal questions raised by a strict reliability approach to regulatory offences. A lot has been made, and appropriately so, of the Supreme Court's decision in 1991 in Regina v. Wholesale Travel Group, which was the first time the court considered a strict liability offence under the rubric of the charter. It was a close 5 to 4 decision, as has been mentioned before.
I think what's important for the committee to know is that that decision was then affirmed three times subsequently by a unanimous Supreme Court in very cursory fashion. Regina. v. Wholesale Travel Group dealt with an offence of false and misleading advertising under the Competition Act. In three subsequent cases that the Supreme Court dealt with on the basis of Regina v. Wholesale Travel Group in upholding and applying its general reasoning, which is that strict liability offences that involve the imposition of an onus on the accused to prove that he or she acted duly diligent were justifiable under the charter, the court very summarily upheld that result.
One of those decisions dealt with a provision very similar to what was at issue in Wholesale Travel Group, and that was under the Food and Drugs Act in the case of Regina v. Rube in 1992. It dealt with false and misleading sale of food.
The next case they dealt with was Regina v. Ellis-Don Limited and Rocco Morra, which involved charges against both Ellis-Don as a corporation and one of its employees. That was a charge under Ontario's Occupational Health and Safety Act about maintaining an unsafe workplace. It was a very different context; nonetheless, they very summarily applied the conclusion they had reached in Regina v. Wholesale Travel Group, that it was consistent with the charter to impose liability on the basis of a reverse onus due diligence offence, a strict liability offence.
Finally, in Regina v. Martin, they dealt with a charge under the Export and Import Permits Act, and the offence was the export of goods that were contained on the export control list. Again, it was a very different context, but the court very cursorily and summarily said that in light of our reasoning in Regina v. Wholesale Travel Group, taking a strict liability approach to that offence and the enforcement of the Export and Import Permits Act was consistent with section 1 of the charter.
In each of these three subsequent decisions, the only thing the court focused on was the general holding reached in Regina v. Wholesale Travel Group, that the approach of strict liability was constitutional in the context of a regulatory regime, in the context of legislation whose ultimate purpose was the imposition of standards for those subject to its rules to have to meet and the requirement that they be able to show that they have met them in situations in which infractions have occurred, whether it's oil pollution, an injury on a work site, or exporting as a business contrary to the rules that apply to the export of controlled goods, which are goods in which Canada has a security or national security interest. So they focused on the nature of the legislation broadly as being regulatory legislation rather than true crimes, and with a public welfare orientation, and the need to encourage people who participate in that industry to abide by certain legislated norms.
I think it's necessary to appreciate that despite the complex division in Regina v. Wholesale Travel Group in which there was a comprehensive explanation of the principles, in the subsequent decisions the court generally accepted that this is an appropriate approach for legislatures to take in imposing liability for the breach of regulated norms in complicated areas of society and economic life.
Having said that, I'm not sure whether there's more information the committee would like that I should leave for questioning. I will note that these issues were raised in 2005, and in the intervening four years, nothing in terms of the legal landscape has changed to call into question the validity of taking this kind of approach, the imposition of penal liability in a regulatory context.