Statutory Offences
When a person is charged with an offence it is generally a charge under the Criminal Code, the Controlled Drugs and Substances Act or a charge under the Provincial Offences Act.
Charges under the Criminal Code or Controlled Drugs and Substances Act that lead to a conviction result in the person having a criminal record. Criminal Code and Controlled Drugs and Substances Act matters are heard before a Judge. Criminal Code matters are prosecuted by the Crown Attorney and Controlled Drug and Substances Act matters are prosecuted by an appointed Federal Prosecutor. The charge against the person must be provable beyond a reasonable doubt and some positive state of mind such as intent, knowledge or recklessness must be proved by the prosecution by evidence or as an inference from the nature of the act that was committed, failing which, there will be no conviction.
On the contrary, however, under the Provincial Offences Act the majority of offences do not require the County Prosecutor to prove the existence of an intent to commit the act. Merely doing the act is sufficient to prove the offence unless the accused person can avoid liability by proving, on a balance of probabilities, that he or she took all reasonable care and/or was not negligent. These matters are heard before a Justice of the Peace, who can, in addition to imposing penalties such as fines, impose a term of incarceration. To defend such charges, a person may have a defence if he or she reasonably believed in a mistake instead of facts, which if they had been true, would mean that the act committed was innocent of fault. Alternatively, it may be open to the accused to show that he or she took all reasonable steps to avoid the particular occurrence. No criminal record is incurred.
There are also some offences of absolute liability where there is no defence permitted, merely committing the act is sufficient. A familiar example of this is the parking offence.
It is noteworthy that in the case of Criminal Code and Controlled Drug and Substances Act charges, it is up to the Crown to prove both the act committed and the intention to commit the act beyond a reasonable doubt. However, in most Provincial Offence Act matters it is the accused who has the burden of proving reasonable mistake or the exercise of reasonable care on a balance of probabilities.
The shift in responsibility from the prosecutor to the accused under the Provincial Offences Act is indicative of a shift from the protection of the rights of the individual (which is paramount in criminal code cases when an accused is up against the great machinery and resources of the state), to the protection of the best interests of society. Provincial Offences are regulatory offences which do not result in a criminal record. Rules are developed by the legislature to attempt to ensure the smooth running of society where the legislature has decided that generally the interests of the general public outweigh the interests of the individual.
