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Strict Liability Offences
Sep. 6th, 2012 11:22 amWhen I was taking Criminal Law, I was taught that in general criminal offences required some form of guilty mentality (mens rea: actus non facit reum nisi mens sit rea) -- not necessarily intent, as negligence served this purpose in some cases. You can't assault somebody or steal chattels without intent, and you can't commit manslaughter without being negligent (if you kill somebody purely by accident with no negligence on your part, that's "non-culpable homicide").
However, there is, we were told. a subcategory of what were called "strict liability offences" which required no intent whatsoever on the part of the person committing the offence. The classic example was weights and measures legislation: a merchant can be fined for having a scale which weighs inaccurately with neither intent nor negligence. These offences are generally, but not invariably, offences created as a side effect of regulatory schemes which are not criminal in their principal intent -- so called "quasi-criminal law". (This category is important in Canada, by the way, because it allows provinces, which have no jurisdiction to enact criminal statutes, to attach penalties to violations of regulatory schemes.)
Note that the Municipal Conflict of Interest Act in Ontario is a provincial statute. I'm sure you see where I'm going, here...
Quite aside from the general maxim that "ignorance of the law is no excuse" (ignorantia juris non excusat) the Act specifically does not require a fraudulent intent. There's a reason for this: in the execution of public affairs not only is the appearance of probity in public officials important, but one of the very things the law was enacted to deal with was the kind of cozy web of implicit understandings where nobody on the inside thinks that things are really wrong; the same intention lies behind the strict limitations on gifts that public officials can receive from constituents. There are two types of exceptions: some sorts of benefits are not included (e.g. votes on raising the office allowance for councillors give them a pecuiniary interest but would be excluded under s. 4(b); tiny benefits, e.g. participation in a vote that saves you coffee money once a quarter are excluded under s. 4 (k)); and "errors of judgement", which is a much smaller exception than just negligence (s. 10(2)) -- note that this does not mean that the judge will not declare a conflict of interest, but merely that the penalty can be avoided. This is why the defense is playing up Ford's deliberate refusal to pay attention to either his orientation handbook or the Integrity Commissioner or his advisors: it would qualify quite well as wilful negligence, but being Too Stupid To Live can, conceivably, qualify as "an error of judgement" on the defense arguments. (The actual phrasing of the Act is "inadvertence or by reason of an error in judgment").
In the case law on the matter, a typical error of judgement would be to rely on a legal opinion which the court later found to be incorrect. On the other hand, there are cases which state that "the judge could not find inadvertence or bona fide error because, at the very least, in not seeking legal advice, the respondent was deliberately and wilfully blind", which seems to map fairly neatly onto Ford's pattern of behaviour.
I have real difficulty in seeing how any judge can reasonably view the entire pattern of behaviour as an "error in judgment". It might arguably be true of Ford (although the conditions which must apply to his thought processes, if this is true, are such as to make for a strong argument that he should be disqualified from running anything more complex than a hot-dog stand), but it would open up a hole in the statute wide enough to drive a truck through. The statute, especially by pairing it with "inadvertence" would normally be construed as meaning a one-time blip that might happen to a reasonable man, not an ongoing pattern of behaviour; nor can I think that a deliberate refusal to read the guidelines over the course of many years can count as a single "error of judgment". There are cases supporting the view that just not being aware of the rules may mean that removal from office does not occur, but I can't find any cases where this covered a continued and deliberate refusal to acquaint oneself with the rules.
However, there is, we were told. a subcategory of what were called "strict liability offences" which required no intent whatsoever on the part of the person committing the offence. The classic example was weights and measures legislation: a merchant can be fined for having a scale which weighs inaccurately with neither intent nor negligence. These offences are generally, but not invariably, offences created as a side effect of regulatory schemes which are not criminal in their principal intent -- so called "quasi-criminal law". (This category is important in Canada, by the way, because it allows provinces, which have no jurisdiction to enact criminal statutes, to attach penalties to violations of regulatory schemes.)
Note that the Municipal Conflict of Interest Act in Ontario is a provincial statute. I'm sure you see where I'm going, here...
Quite aside from the general maxim that "ignorance of the law is no excuse" (ignorantia juris non excusat) the Act specifically does not require a fraudulent intent. There's a reason for this: in the execution of public affairs not only is the appearance of probity in public officials important, but one of the very things the law was enacted to deal with was the kind of cozy web of implicit understandings where nobody on the inside thinks that things are really wrong; the same intention lies behind the strict limitations on gifts that public officials can receive from constituents. There are two types of exceptions: some sorts of benefits are not included (e.g. votes on raising the office allowance for councillors give them a pecuiniary interest but would be excluded under s. 4(b); tiny benefits, e.g. participation in a vote that saves you coffee money once a quarter are excluded under s. 4 (k)); and "errors of judgement", which is a much smaller exception than just negligence (s. 10(2)) -- note that this does not mean that the judge will not declare a conflict of interest, but merely that the penalty can be avoided. This is why the defense is playing up Ford's deliberate refusal to pay attention to either his orientation handbook or the Integrity Commissioner or his advisors: it would qualify quite well as wilful negligence, but being Too Stupid To Live can, conceivably, qualify as "an error of judgement" on the defense arguments. (The actual phrasing of the Act is "inadvertence or by reason of an error in judgment").
In the case law on the matter, a typical error of judgement would be to rely on a legal opinion which the court later found to be incorrect. On the other hand, there are cases which state that "the judge could not find inadvertence or bona fide error because, at the very least, in not seeking legal advice, the respondent was deliberately and wilfully blind", which seems to map fairly neatly onto Ford's pattern of behaviour.
I have real difficulty in seeing how any judge can reasonably view the entire pattern of behaviour as an "error in judgment". It might arguably be true of Ford (although the conditions which must apply to his thought processes, if this is true, are such as to make for a strong argument that he should be disqualified from running anything more complex than a hot-dog stand), but it would open up a hole in the statute wide enough to drive a truck through. The statute, especially by pairing it with "inadvertence" would normally be construed as meaning a one-time blip that might happen to a reasonable man, not an ongoing pattern of behaviour; nor can I think that a deliberate refusal to read the guidelines over the course of many years can count as a single "error of judgment". There are cases supporting the view that just not being aware of the rules may mean that removal from office does not occur, but I can't find any cases where this covered a continued and deliberate refusal to acquaint oneself with the rules.
