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Souveraine (La), compagnie d'assurances générales c

Souveraine (La), compagnie d'assurances générales c. Autorité des marchés financiers

2009 QCCS 4494

JM0822

 
 SUPERIOR COURT

 

CANADA

PROVINCE OF QUEBEC

DISTRICT OF

MONTREAL

 

No:

500-36-004885-086

 

 

 

DATE:

October 6th, 2009

______________________________________________________________________

 

PRESIDING:

THE HONOURABLE

MR. JUSTICE J. FRASER MARTIN, J.S.C.

______________________________________________________________________

 

 

LA SOUVERAINE, COMPAGNIE D'ASSURANCE GÉNÉRALE

Petitioner

v.

 

AUTORITÉ DES MARCHÉS FINANCIERS

Respondent

 

 

______________________________________________________________________

 

JUDGMENT

______________________________________________________________________

 

[1]    The appellant, La Souveraine, Compagnie d’Assurance Générale appeals from a judgment of the Court of Quebec rendered on November 10th, 2008 by the Hon. Serge Boisvert J.C.Q. finding it guilty on 56 counts of having contravened the provisions of sec. 482 of la Loi sur la distribution de produits et services financiers, (L.R.Q., c.D-9.2).

THE ISSUES RAISED IN THE PRESENT APPEAL

[2]    The grounds of appeal invoked by the appellant are set out in paragraph 3 of the Notice of Appeal.  They read as follows: 

3.  L'Appelante se pourvoit en appel à l'encontre du jugement de culpabilité sur tous les chefs d'accusation pour les motifs suivants:

a)                 Premier grief d'appel

Le jugement de culpabilité relatif au constat (pièce P-49) relatif à Silo Lambert est illégal. En effet, la pièce P-49 montre clairement qu'il y a eu refus de la couverture d'assurance offerte et qu'en conséquence, aucune police n'a été émise d'où absence totale de preuve;

b)                 Second grief d'appel

Le juge de première instance s'est mépris en droit quant à l'application de la loi civile en matière d'assurance. Le juge a omis de faire la distinction entre la police d'assurance (contrat cadre) et l'attestation de telle assurance (certificat). L'eut-il fait, il aurait dû conclure que la loi québécoise ne pouvait s'appliquer à un contrat d'assurance émis et souscrit en Ontario et de ce fait que les 56 constats étaient mal fondés.

c)                 Troisième grief d'appel

Le jugement de culpabilité est mal fondé en droit au motif que la preuve à charge - obtenue en violation du principe de non-incrimination - fut illégalement admise et, ensuite, prise en considération par le juge du procès.

d)                 Quatrième grief d'appel

S'agissant de statuer sur le régime de responsabilité pénale qui encadrait la conduite de l'Appelante, le premier juge a erré en droit en postulant que la norme de la responsabilité stricte applicable au présent dossier excluait l'exigence d'une intention spécifique, voire même celle d'une intention générale. Cette erreur fut aggravée par sa conclusion à l'effet que l'erreur de droit imputée à l'Appelante entraînait sa culpabilité - sans égard au régime de responsabilité pénale applicable.

e)                 Cinquième grief d'appel

Le jugement de culpabilité postule erronément que l'Appelante a commis une erreur de droit. Il est mal fondé, tant au niveau de l'analyse des faits que de l'interprétation du droit.

f)                   Sixième grief d'appel

Le juge a tiré des conclusions déraisonnables au regard de la preuve faite. De façon plus précise, le juge a tiré des conclusions erronées à partir de la preuve testimoniale et documentaire y compris, mais sans limiter, sur la portée des admissions (pièce P-69).

 

THE FACTUAL BACKGROUND OF THIS APPEAL

[3]    Boisvert J.C.Q. commences by summarizing the circumstances out of which these proceedings arose. His summary sets out succinctly the factual framework of this litigation and I can do no better than simply reproduce the relevant paragraphs in their entirety:

[4]                Les circonstances donnant ouverture aux 56 chefs d'accusation peuvent sommairement être décrites de la manière suivante.

[5]                La défenderesse, une société d'assurance dûment inscrite au Québec, a négocié une police d'assurance portant le numéro […] en Ontario par l'intermédiaire du courtier Flanders Insurance Management and Administrative Services Ltd. («Flanders»), avec la société GE Financement Commercial aux Détaillants, Canada («GE»), aux fins d'assurer les inventaires de biens financés par cette dernière, lesquels étaient situés partout au Canada chez différents concessionnaires de produits récréatifs.

[6]                Les 56 individus ou sociétés mentionnés aux chefs d'accusation sont des concessionnaires de produits récréatifs ayant leur place d'affaires au Québec, financés par GE et assurés par la défenderesse.

[7]                En 2004, GE a acquis une société concurrente, soit Corporation de Financement Commercial Transamérica, Canada («TCFCC») et a informé les clients de TCFCC de cette acquisition, lesquels étaient jusqu'alors assurés pour la plupart par le courtier Hayhurst Elias Dudek Inc. («HED»).

[8]                GE informe alors les clients de TCFCC qu'à compter de décembre 2004 le programme d'assurance, jusqu'alors assumé par HED, est remplacé par un nouveau produit offert par Flanders et qu'en conséquence ils doivent, soit opter pour ce produit de Flanders ou se procurer une assurance supplémentaire auprès d'un fournisseur de leur choix.

[9]                Flanders, par son vice-président Gordon Roberts, écrit à chacun des concessionnaires québécois en septembre 2004 pour offrir de maintenir l'assurance sur les stocks détenus par GE.  À sa lettre est joint un projet d'avis au courtier HED pour annuler la police, jusqu'alors en vigueur.  La quasi-totalité des concessionnaires québécois accepte de joindre le programme d'assurance offert par la défenderesse par l'intermédiaire de Flanders.

[10]            La perte de cette importante clientèle n'a pas plu aux dirigeants de HED, lesquels ont déposé des plaintes contre Flanders et son employé Gordon Roberts auprès de diverses autorités réglementaires canadiennes et plus particulièrement au Québec (P-57).  La plainte datée du 1er novembre 2004 allègue, entre autres, que Flanders exerce la fonction de courtier en assurance au Québec sans détenir de permis.

[11]            L'AMF, après analyse sommaire de la plainte, ouvre un dossier d'enquête le 13 janvier 2005 (D-1).

[12]            Par lettre du 28 avril 2005 (P-64), l'AMF requiert de la défenderesse des informations relatives à sa relation d'affaires avec Flanders et GE et, entre autres, concernant l'assurance sur les inventaires financés par GE auprès des concessionnaires de produits récréatifs situés au Québec.

[13]            La défenderesse répond à l'AMF par lettre (P-65) en date du 2 juin 2005 en spécifiant que, comme GE est un client de Flanders ayant son siège social en Ontario, là où le contrat-cadre a été signé, il n'existe aucun problème de licence au Québec où La Souveraine n'assure, en ce qui concerne GE, que les inventaires financés auprès des concessionnaires québécois.

[14]            Vers le 25 août 2005, Flanders offre de renouveler et renouvelle les certificats d'assurance de 55 concessionnaires québécois mentionnés aux chefs d'accusation, lesquels certificats indiquent comme assurés GE et nommément chacun des concessionnaires pour des biens financés situés au Québec.  Un seul concessionnaire québécois refuse l'offre malgré la sollicitation (P-49).

[15]            Le contentieux de l'AMF conclut à l'existence de 56 infractions commises par la défenderesse et décide de déposer la présente dénonciation en janvier 2006.

[16]            Selon le Tribunal, les faits résumés antérieurement sont considérés comme établis, tant par les témoins que par les admissions faites par les parties.

 

[4]    As the first judge noted, the fifty-six counts are identical in substance save obviously for the names of the certificate holders, the place of the delivery of the said certificates and the numbers of the certificates themselves. In paragraph 2 of his decision he reproduces count number 1 for illustrative purposes.  It reads as follows:

1          À Alma et ses environs, dans le district judiciaire d'Alma, le ou vers le 25 août 2005, a consenti et/ou autorisé Flanders Insurance Management and Administrative Services Ltd., un cabinet non inscrit auprès de l'Autorité des marchés financiers, à délivrer à Atelier Fortin Sports Inc. une police d'assurance sur les stocks, numéro […], le tout en contravention à l'article 71 de la Loi sur la distribution de produits et services financiers, L.R.Q., c. D-9.2 (la «Loi»), commettant ainsi l'infraction prévue à l'article 482 de la Loi et se rendant ainsi passible de la peine prévue à l'article 490 de la Loi.

 

[5]    The respondent has chosen in virtually every instance to situate the time of the commission of the offense in the proximity of August the 25th 2005. I will have occasion to return to this point later.

[6]    At paragraph 13 of his decision the first judge also refers to the appellant's letter of June 10, 2005 (exhibit P-65) addressed to Stephane Turgeon, the Directeur-adjoint de l'inspection for the respondent, in reply to the respondent's written request for information dated April 28, 2005 (exhibit P-64).  (The judge's reference to June 2, 2005 is I believe simply a clerical error). While letter of June the 10th 2005 complied with the request for information it also clearly affirms that in the appellant's mind "there is no licensing issue".

[7]    Boisvert J.C.Q. alludes to that part of the reply but he appears to attach no importance to it.  To my mind, and I say this with respect, it is of crucial importance from a number of points of view. It will be helpful to reproduce the letter of June the 10th in its entirety. 

Dear Sir:

I am responding to the letter of May 3rd 2005 from Richard Perron to your attention as requested. The facts regarding Flanders' relationship with GE Commercial Distribution Finance (GE-CDF) are as follows:

1.                  As GE-CDF is Flanders' client, and has its head office in Ontario, there is no licensing issue.

2.                  Flanders' client, GE-CDF, finances the purchase of floor plan goods such as snow machines, A-TVs, recreational vehicles, mobile homes, computers, manufactured homes, consumer electronics and appliances.

3.                  A floor plan insurance policy is issued to GE-CDF and certificates issued for GE and dealer as per the attached certificate page.

4.                  much like other, similar lending institutions, GE-CDF retains title to the goods, and requires that the floor plan goods be insured in order to protect its interests.

5.                  Each GE-CDF dealer has the option to participate in the floor plan insurance program. Alternatively, dealers may supply evidence of insurance otherwise placed, which confirms that GE-CDF's goods are properly insured. A brochure is supplied to the dealers, either by the GE-CDF representative arranging the financing, or by Flanders.

6.                  when, and if, a dealer expresses interest in the insurance policy available, Flanders obtains all required underwriting information from GE-CDF, and from the individual dealer. Rating for the risk is then determined by Flanders, and the monthly cost is confirmed to GE-CDF, and to the dealer.

7.                  Subsequently, the dealer signs a form confirming the rate, and authorized GE-CDF to include the insurance premium on the stop day's monthly billing statement. Flanders then issues a Certificate confirming insurance coverage.

8.                  No commissions or fee payments or made to GE-CDF by Flanders.

9.                  All lost payment cheques are payable to GE-CDF, not the dealer.

Flanders receives 22.5% commission based on the premium billed.

GE-CDF recently (2004) acquired the business of TransAmerica Commercial Finance in respect of these type of dealers and we have attached bordereau for business written from November 2004 to April 2005 as well as copied of the type of certificate issued.

This is the information that you specifically requested in your telephone conversation with Serge Byette of our Montreal office.

Please note that the Floor plan program for GE-CDF (out of Ontario) is all that we currently insure as far as any Quebec locations.

We do not write any property, liability, automobile, key-man life or health and sickness covers for Flanders' in Quebec and in this regard you should address any concerns to Nick Leitch the principle owner of Flanders Insurance at 210-200 Waterfront Drive, Winnipeg, Manitoba R3B 3P1.

We are aware that a previous broker that had the TransAmerica business decided to issue letters of complaint against Flanders to all provincial jurisdictions across the country. We believe that to date most if not all have responded positively to the response given by Flanders' through their lawyer.

We trust that the information provided is to your satisfaction and responds to your needs. Should you have any other questions or require further detail please do not hesitate to contact the writer.

Yours truly,

Robert G. Phillips

 

[8]    The respondent is neither the Attorney General of Quebec nor the Director of criminal and penal prosecutions.  It is the Regulator with all that that implies.  As such it has for its mission the duties and obligations so eloquently alluded to by Me Blais in his factum.

[9]    In my view, it was not entirely without justification that Stephen Soltendieck, the appellant's senior executive officer in Quebec, expressed the view in the course of his testimony, that the respondent had a duty to advise the appellant of its position as Regulator with regard to the proposed  "floor plan" coverage.

[10]            I am conscious that it might be argued that, in the interest of protecting an ongoing investigation, there was some justification for the respondent's silence.  In my respectful view that is not however a very convincing argument at least in the particular circumstances of this case. 

[11]            The Regulator has indeed been given the role of supervising the activities for which it is responsible. It is also responsible for ensuring that the statutes and regulations that it is charged with administering are respected and complied with. Finally it has the duty of investigating complaints and questionable practices that come to light and, in the appropriate cases instituting prosecutions. 

[12]            The respondent in its position as Regulator owes a duty to the public at large on one hand and to those whom it has the power to regulate on the other.  It ought not to be seen to be lurking in wait in the bushes ready to pounce, so to speak, once it is satisfied that offences have been committed.  The Regulator is not, after all, a "rainmaker" for the Ministère des finances.

[13]            The respondent appears to have adopted the view, at least as far as the appellant is concerned, that the infractions in question were only committed on or about August the 25th 2005, the date of the delivery of the certificates of participation.  That at least is what I conclude from the wording of the various counts. In June 2005, when the requested particulars were furnished no offence, if offence there was, had yet been committed.  

[14]             In paragraphs in 64 and 65 of his decision the first judge gives short shrift to Soltendieck's suggestion that the respondent had a duty to advise the appellant of its position on the licensing issue.  The first judge takes the view that when the initial request for information was made to the appellant in April 2005 the issue of the appellant's potential responsibility had not been submitted to the respondent's legal department. 

[15]            At paragraph 23 he states, incorrectly as it turns out, that the inquiry initiated on January the 13th 2005 related solely to the activities of Flanders. He goes on to affirm that it was only in December of 2005 that the respondent's legal department determined that the appellant had participated in the commission of the infractions. 

[16]            The testimony of Turgeon makes it perfectly clear that he was thoroughly aware of the questions at issue throughout the investigation. The complaint by Hayhurst Elias Dudek Inc. could not have been clearer.

[17]            Exhibit D-1 signed by Me Nathalie G. Drouin in her capacity as Directrice générale aux affaires juridiques et secrétaire of the respondent confirms that the appellant was indeed the subject of an investigation commencing on January 13, 2005.  Section 494 of the statute (L.R.Q. c. D-9.2) deems the certificate to constitute conclusive proof of said date in the absence of proof to the contrary.

[18]            Finally, at paragraph 13 of his factum Me Blais concedes that the investigation launched on January 13th, 2005 concerned both Les Assurances Flanders Ltée “et accessoirement sur les activités de la Souveraine, qui avait autorisé et consenti à ce cabinet d’agir en son nom au Québec”.

[19]            The respondent is a corporate entity established by statute. It is simply not susceptible of being compartmentalized when it comes to the consequences of investigations initiated by it and information that comes to hand in the course of such investigations. It cannot take refuge behind what may or may not have been the knowledge of its legal department at any given point in time. With the greatest of respect the date on which the respondent's legal department became involved is of no moment whatsoever.

[20]            If Perron or Turgeon were incapable of appreciating the significance of the issues arising from the letter of June 2nd, 2005 than it was up to them to consult with their "in house" legal advisers in order to be properly informed. Perron was, as I have said, the Directeur-adjoint de l’inspection for the respondent.  Turgeon was an inspector.

[21]            The respondent in its capacity as Regulator is deemed to know the law. Either there was a licensing issue or there was not. The appellant took the position in its letter of June the 10th, 2005 that there was not. That letter case went unacknowledged and unanswered.  Whether there were valid reasons for the failure to reply or not it is disingenuous for the respondent to claim that it only came to the realization in December 2005 that the appellant had committed the infractions for which it was subsequently charged. 

[22]            I hasten to add that I am not for a moment suggesting that the failure of the respondent to appraise the appellant fully and frankly of Flanders' licensing issue and the potential for an infraction under the statute could be invoked by the appellant in support of a claim of “officially induced error” in the technical sense of that term. None of the five criteria set out by the Ontario Court of Appeal in its decision in Maitland Valley Conservation Authority v. Cranbrooke Swine, [2003] 64 O.R. (3d) 417 and necessary to support such a defence are present here.

[23]            The foregoing will serve to set the background against which the various competing arguments of the appellant and the respondent stand to be analyzed.

 

THE FIRST GROUND OF APPEAL - EXHIBIT P-49 - SILO J.M. LAMBERT INC.

 

[24]            The appellant argues that the first judge erred in failing to dismiss Count 49 in that the insurance coverage subject of that count never came into force.  The question involves Silo J.M. Lambert Inc.

[25]            It would appear that the certificate of participation, exhibit P-49, was indeed issued and delivered but that Silo J. M. Lambert Inc. subsequently declined the coverage. An endorsement was eventually issued cancelling the coverage.

[26]            The respondent therefore contends that the infraction was nevertheless committed with the delivery of the certificate of participation notwithstanding that the coverage was subsequently declined. With logic in the finest tradition of Descartes, the respondent argues that a policy subsequently cancelled by endorsement must necessarily have been issued in the first place.

[27]            An examination of exhibit P-49 reveals that the certificate of insurance was indeed delivered to Lambert with a letter dated August the 25th, 2005. Denis Barron the comptroller of Silo J.M. Lambert Inc. forwarded by facsimile to Flanders the request for cancellation on August 31st, the eve of the date of the coming into force of the coverage. The endorsement cancelling the policy was in turn forwarded to Lambert on September 16th, 2005, retroactive to September the first. 

[28]            The appellant therefore adopts the position that since the coverage never came into force in the first place the offence was not committed and that count 49 should simply have been dismissed.

[29]            Three interesting issues arise.  First of all did the Silo Lambert coverage ever come into force? Secondly, in order for the infraction to be complete, must the insurance coverage necessarily have come into force, or will the delivery of the certificate of participation by Flanders suffice? Thirdly may the commission of the infraction be complete some time prior to August the 25th, namely during the course of the solicitations? Furthermore the point in time at which Flanders responsibility, if any, becomes engaged may well be different from that engaging the responsibility of the appellant.

[30]            In view of the conclusion that I have reached with regard to the penal aspect of this case, I will simply invoke Alexander Pope's oft quoted line that "fools rush in where angels fear to tread" and step around the question raised by the appellant in relation to exhibit P-49. 

THE SECOND GROUND OF APPEAL - THE JURISDICTIONAL QUESTION

[31]            The appellant next argues that the trial judge failed to appreciate the distinction between a "certificate of participation" evidencing coverage under the master policy on one hand and a "policy of insurance", namely the master policy itself on the other. It was simply certificates of participation that were issued and delivered by Flanders to each of the 56 participants in Quebec. This distinction comprises the underpinning of the appellant's position that the respondent has no jurisdiction in relation to the insurance coverage in issue here and that the 56 counts should have been dismissed for that reason alone.

[32]            The respondent for its part counters this contention with the argument that group damage insurance is no longer recognized by the law of Quebec and that as a consequence the certificates of participation which were delivered in Quebec must be taken to be individual policies of insurance presumably capable of an independent existence. 

[33]            The underlying purpose behind the respondent's surprising position appears to me to be threefold.

[34]             In the first place it is intended to counter the appellant's argument with regard to lack of jurisdiction. 

[35]            Secondly, this being a penal matter, it may have been intended to cover what appears to me to be a potentially troublesome defect in the wording of the various counts arising out of the distinction between policies of insurance on one hand and certificates of participation on the other. Since neither party specifically raised this issue I will refer to it no further. 

[36]            Thirdly, if group damage insurance is no longer recognized in the law of Quebec, the respondent, I suspect, is attempting to justify the embarrassing fact that it has for years permitted such coverage to continue to be transacted in Quebec by attempting to construct an argument to the effect that the certificates of participation are capable of subsisting by themselves as individual policies of insurance. 

[37]             In my respectful view, the distinction that Me Henry makes between certificates of participation on one hand and the master policy on the other is, standing alone, perfectly valid.

[38]            He proceeds from there to invoke that distinction as a springboard to the next level of his argument to the effect that the respondent has no jurisdiction with regard to the formalities attendant to the issuance and delivery of the master policy. So far so good. The third level, however, involves the proposition that the certificates of participation that were delivered to each of the 56 participants resident of Quebec, and which are accessory to the master policy, also fall outside the jurisdiction of the respondent. It is on this latter point that I am unable to subscribe to his position.

[39]            It is perfectly true that the first judge did not deal with the distinction between the policy of insurance on one hand and the certificates of participation on the other. In my view this in no way affects the conclusion which he reached to the effect that the insurance coverage, as evidenced by the certificates of participation, was contracted within the territorial limits of Quebec and is therefore subject to the law of Quebec.

[40]            Me Henry concedes at paragraph 15 of his factum that the adherents could technically be considered to be policyholders.  He goes on to state that they are nevertheless principally participants in a system of a group insurance under which the principal policyholder is GE, in virtue of a policy issued in Ontario. In support of this position he cites Côté c. Compagnie mutuelle d’assurance vie du Québec et als,  CAM 500-09-001293-884,  rendered on December 13, 1995, Gilbert c. Gilbert et Sun Life du Canada, CQ St. Francois 450-02-000274-939, rendered April 7, 1993 and finally O’Neill c. C.I.P. and Continental Casualty Company, [1973] S.C.R. 802 .

[41]            I agree that the case at bar involves group damage insurance in the traditional sense of that term.  If it "walks like a duck and talks like a duck" then the chances are fairly good that that is precisely what it is. I also agree that these decisions support Me Henry's contention that there is a distinction between certificates of participation on one hand and the master policy on the other.

[42]            With respect, these decisions do not however support the appellant's ultimate position regarding jurisdiction at all. They are simply illustrative of the consequences that may result when “limiting” conditions contained in the master policy are not included or "flagged" in the certificates of participation. These cases have no bearing on the ultimate question of whether or not the coverage issued to the various certificate holders is subject to the law of Quebec. 

[43]            The first judge relied both upon the admissions and upon article 3119 C.C.Q. in coming to his conclusion regarding the question of jurisdiction.  The admissions are set out in the exhibit P-69 while article 3119 CCQ provides as follows:

3119. Malgré toute convention contraire, le contrat d'assurance qui porte sur un bien ou un intérêt situé au Québec ou qui est souscrit au Québec par une personne qui y réside, est régi par la loi du Québec dès lors que le preneur en fait la demande au Québec ou que l'assureur y signe ou y délivre la police.

De même, le contrat d'assurance collective de personnes est régi par la loi du Québec, lorsque l'adhérent a sa résidence au Québec au moment de son adhésion.

Toute somme due en vertu d'un contrat d'assurance régi par la loi du Québec est payable au Québec.

 

[44]            Boisvert J.C.Q. was perfectly well founded in doing so. He took into consideration that while the master policy was issued and delivered outside Quebec the 55 certificate holders are residents of Quebec and that Flanders delivered the certificates of participation in this jurisdiction. 

[45]            I am also of the view that as a consequence of the issuance and delivery in Quebec of the certificates of participation, the master policy becomes subject to the law of Quebec.  By that I mean that its terms and conditions inure to the benefit of the certificate holders in Quebec provided that these terms and conditions do not contravene some local disposition of public order.  The Quebec consumer is also further protected by any relevant Quebec legislation in so far as it may be applicable. 

[46]            The appellant's argument to the effect that the certificates of participation are exempt from the ambit of Quebec law in so far as the rules relating to the negotiating and selling of insurance in Quebec are concerned makes no commercial sense at all.  It would open the door to innumerable abuses.

[47]            The certificates of participation, after all, do not exist in a vacuum.  They operate to extend the coverage contemplated by the master policy to each of the Quebec-based participants for the premium agreed and the agent in turn earns a commission. 

[48]            It is therefore of little consequence where the master policy happened to be issued or delivered, whether in Ontario, Manitoba or Timbuktu. The rules governing its issuance do not come into play here.

[49]            All that is in issue here is whether or not Quebec legislation applies to the solicitation and sale of insurance coverage here in Quebec albeit under the umbrella of the master policy. In an insurance context the issue is no more complicated than that. Any argument aimed at drawing a distinction between the certificates of participation on one hand and the place of the issuance and delivery of the master policy on the other in order to oust the application of Quebec law, at least in the context of the present problem, is pure sophistry. 

THE STATUS OF THE ADMISSIONS

[50]            Finding himself boxed in by certain of the admissions Me Henry attempted to convince me that the trial judge had erred in failing to set aside or disregard a number of them.  These admissions are set out in exhibit P-69.  Since he had made no attempt to retract them at trial Me Henry's position now is that the first judge should have set them aside or disregarded them on his own initiative.  These admissions, I might add, were made in writing, countersigned by both parties and were produced by consent in the court record. 

[51]            While it is true that a trial judge surely has a duty to set aside any admission which misstates the law or which is contrary to public order the admissions made by the parties in the case at bar are either admissions of fact or admissions of mixed fact and law. Furthermore, I agree with Me Blais that none of them are in any way contrary to public order.  

[52]            The purpose of admissions is well known.  The respondent points out that experienced counsel working in concert with a view to expediting the trial process agreed upon these admissions.  The respondent relied upon them in presenting evidence for the prosecution and the judge, in weighing and evaluating the evidence, also relied them upon. 

[53]            As I have said no objection was raised before the first judge.  To permit any of these admissions to be withdrawn at this stage would not only be unfair to the respondent but would risk putting in question the very value of any such agreements.  Admissions between the parties ought not to be lightly set aside. There is no justification whatever for doing so here particularly at this stage.

THE RESPONDENT'S CONTENTION REGARDING THE STATUS OF THE CERTIFICATES OF PARTICIPATION

[54]            The respondent, as I pointed out at paragraph 32 infra, takes the position that the certificates of participation which were delivered to the Quebec participants comprise individual policies of insurance as a result of the fact that the law of Quebec no longer recognizes group damage insurance.

[55]            The respondent sets this position out at paragraph 56 of its factum and invokes article 2399 CCQ in support of that proposition.  Article 2399 CCQ provides as follows:

2399. La police est le document qui constate l'existence du contrat d'assurance.

Elle doit indiquer, outre le nom des parties au contrat et celui des personnes à qui les sommes assurées sont payables ou, si ces personnes sont indéterminées, le moyen de les identifier, l'objet et le montant de l'assurance, la nature des risques, le moment à partir duquel ils sont garantis et la durée de la garantie, ainsi que le montant ou le taux des primes et les dates auxquelles celles-ci viennent à échéance.

 

[56]            With the greatest of respect the respondent's argument to the effect that the certificates of participation comprise individual insurance policies is flawed. In the foregoing paragraphs I have attempted to draw a distinction between the certificates on one hand and the master policy on the other. While I did so within the context of the appellant's jurisdictional argument the observations that I made apply equally to the respondent's arguments equating the certificates of participation to individual policies of insurance.

[57]            As I have been at pains to point out the certificates, and the coverage that they confer, must, as a general rule, be read and interpreted in the light of the terms and conditions of the master policy.  Rules established both by statute and by the case law govern questions of discrepancies that may exist between the certificates on one hand and the master policy on the other. The certificates of participation cannot however be divorced from the master policy. 

[58]            In summary, I therefore fail to see how by some miracle of metamorphosis "certificates of participation" become "policies of insurance". This is so quite irrespective of whether or not group damage insurance as such is currently recognized in the law of Quebec.  This argument on the part of the respondent must fail.

GROUP DAMAGE INSURANCE IN THE LAW OF QUEBEC

[59]            Having come to the conclusion that the "satellites" cannot subsist without the "mother ship" so to speak, it is not necessary to resolve the question of whether group damage insurance still exists in the law of Quebec are not.

[60]            The question however is not without importance in the case at bar, quite independently of the answer which I will again step around.  This is so for the simple reason that it is the respondent Regulator that has chosen to raise the issue.  Some comments are therefore in order. 

[61]            I will reproduce integrally paragraphs 60 to 66 of the respondent's factum which I think sums up the respondent's position rather clearly.  I do not find it necessary to quote in extenso from the longer version of the committee deliberations handed to me by Me Henry in the course of his oral argument.  I do not think that the additional exchanges between the members of the committee and to which Me Henry referred make one whit of difference. 

60.  De fait, le C.c.Q. encadre, en complémentarité avec la Loi sur les assurances, L.r.Q., c. A-32, et la LDPSF, la distribution et l'offre de produits d'assurance au Québec.

61.  En l'espèce, le C.c.Q. ne reconnaît en matière d'assurance collective que celle ayant trait à l'assurance de personnes, conformément à l'article 2392 du C.c.Q. qui édicte que:

"2392.  L'assurance de personnes porte sur la vie, l'intégrité physique ou la santé de l'assuré.

L'assurance de personnes est individuelle ou collective.

L'assurance collective de personnes couvre, en vertu d'un contrat-cadre, les personnes adhérant à un groupe déterminé et, dans certains cas, leur famille ou les personnes à leur charge."

62.  On ne retrouve aucune disposition similaire dans le C.c.Q en matière d'assurance de dommages, tel qu'il appert de l'article 2395 du C.c.Q.:

"2395.  L'assurance de dommages garantit l'assuré contre les conséquences d'un événement pouvant porter atteinte à son patrimoine."

63.  Vu l'absence de disposition législative spécifique, l'assurance de dommages, au Québec, ne peut être qu'individuelle.

64.  Cette interprétation est d'ailleurs conforme aux règles usuelles de rédaction des lois.

"On recommande aux rédacteurs de textes législatifs de respecter, dans leur travail, le principe de l'uniformité d'expression, c'est-à-dire que chaque terme ne devrait avoir qu'un seul et même sens où qu'il apparaisse dans la loi ou le règlement: la même idée doit être exprimée dans les mêmes termes.

À cette règle de rédaction correspond un principe qui veut que l'on doive présumer, dans une loi, que le même terme a partout le même sens …

Comme règle corollaire, on présumera qu'une variation dans l'expression signifie un changement dans les concepts signifiés: termes différents = sens différents."

65.  De plus, cette interprétation est conforme à la volonté du législateur, tel qu'il appert des extraits des débats parlementaires entourant l'adoption des articles 2376 et 2377, les ancêtres des articles 2391 et 2392 du C.c.Q., où le ministre de la Justice souligne qu'il a retiré sciemment la possibilité d'offrir de l'assurance collective de dommages au Québec.

"M. Rémillard:  Oui, M. le Président. Nous avons un amendement. L'article 2376 est modifié par la suppression du deuxième alinéa. Cet amendement vise à retirer du projet l'assurance collective de dommages et à ne prévoir, comme en droit actuel, que l'assurance collective de personnes. Cette modification entraîne un deuxième amendement à l'article 2377, pour permettre expressément et de façon exclusive l'assurance collective de personnes et un troisième amendement, de simple concordance, à l'article 2469. En raison de cet amendement, l'article 2376 se lirait comme suit: "L'assurance terrestre comprend l'assurance de personnes et l'assurance de dommages."

(…)

Le Président (M. Lafrance):  Tout de suite? J'appelle donc l'article 2377.

M. Rémillard:  Oui. L'article 2377 est modifié par l'ajout, à la fin de l'article, des deux alinéas suivants:  "L'assurance de personnes est individuelle ou collective." L'assurance collective de personnes couvre, en vertu d'un contrat-cadre, les personnes adhérant à un groupe déterminé et, dans certains cas, leur famille ou les personnes à leur charge."

Cet amendement, M. le Président, vise à permettre l'assurance collective des personnes et reprend ainsi le droit actuel et la proposition de l'Office de révision du Code civil. Cet amendement fait suite à la modification proposée à l'article précédent visant à retirer du projet l'assurance collective de dommages. En raison de cet amendement, l'article 2377 se lirait comme suit: "L'assurance de personnes porte sur la vie, l'intégrité physique ou la santé de l'assuré." L'assurance de personnes est individuelle ou collective. "L'assurance collective de personnes couvre, en vertu d'un contrat-cadre, les personnes adhérant à un groupe déterminé et, dans certains cas, leur famille ou les personnes à leur charge."

66.  Conformément à cette limitation pour les assureurs et les courtiers exerçant en assurance de dommages au Québec, le législateur en adoptant la LDPSF, la loi qui encadre la distribution de produits d'assurance, limite cette distribution à l'assurance individuelle de dommages."

[62]            The legislative history of a statutory provision, in this instance certain articles of the Civil Code of Quebec, is but one yardstick to be used in the determination of legislative intent. Furthermore it is by no means controlling.  The fact remains, however, that the respondent's position is, I believe, on its face sustainable. There has been a tendency in recent years to attach greater importance to legislative history in determining the meaning of a particular statutory disposition.

[63]            Without in any sense deciding the issue the comments of the Minister of the day the Hon. Gil Rémillard taken together with the wording of articles 2392 and 2395 CCQ as they were eventually adopted, militate in favour the conclusion that the intent of the legislator was indeed to remove damage insurance from the sphere of group insurance and to henceforth limit the application of group insurance to that area labelled "insurance of persons".  The articles, as adopted certainly reflect the minister's comments to the committee.

2392. L'assurance de personnes porte sur la vie, l'intégrité physique ou la santé de l'assuré.

L'assurance de personnes est individuelle ou collective.

L'assurance collective de personnes couvre, en vertu d'un contrat-cadre, les personnes adhérant à un groupe déterminé et, dans certains cas, leur famille ou les personnes à leur charge.

2395. L'assurance de dommages garantit l'assuré contre les conséquences d'un événement pouvant porter atteinte à son patrimoine.

 

[64]            That does not mean however that "group damage insurance" disappeared from the face of the insurance landscape in Quebec with the promulgation of the Civil Code of Quebec. As the present case attests this did not happen.  Furthermore the facts giving rise to this matter occurred some 11 or 12 years after the coming into force of the current code.

[65]            If, as the respondent contends, the Code and related statutes no longer recognize group damage insurance then such insurance has nevertheless apparently been permitted to exist by way of tolerance for years with the implicit benediction of the respondent or its predecessor. 

[66]            That is the only conclusion that I can reach in the circumstances unless, of course, it is the respondent's position that it has come only recently to the realization that group damage insurance is no longer recognized in the law of Quebec.  If that is so it would be embarrassing indeed and I am loath to presume such a position. 

[67]            The respondent, interestingly enough, has not acknowledged any such tolerance. In fairness to Me Blais however the question was not put to him in such limpid terms. Rather Me Blais appears to adopt the straightforward position that group damage insurance is simply no longer envisaged in the Quebec insurance scheme taken in its totality. I have already dealt with his argument with regard to the "magical metamorphosis" of the certificates of participation.

[68]            Unfortunately, I did not put to him the question as to whether it was the respondent's position that the ostensible prohibition against group damage insurance was also a matter of public order. Perhaps I should have.

[69]            If indeed the law of Quebec no longer contemplates group damage insurance and in the hypothesis that over the years the respondent was "asleep at the switch" it cannot credibly claim that it was unaware of the fact that group damage insurance was what was involved in the present case once it became aware of H.E.D.'s complaint. The complaint filed by d'Ascanio on behalf of H.E.D. including the basis for it came to the respondent's attention after all as early as November or December of 2004.

[70]            It seems ironic that the respondent can blithely ignore the fact that the subject matter of the insurance in question in its view contravenes the law but by the same token institute the present proceedings against the appellant with a view to collecting substantial fines, in the present case totalling approximately half a million dollars, as a consequence of an ostensible failure to respect the licensing requirements attendant to the sale of such insurance in Quebec. 

[71]            In a wider sense one may well ask why the respondent has tolerated the continued sale of group damage insurance in Quebec. That is a multifaceted question that goes far beyond the scope of this decision and indeed drifts into areas outside this Court's jurisdiction.

[72]            The legal part of the answer may in part reside in the fact that perhaps the Regulator is wrong and that while not explicitly recognized by the law, group damage insurance is nevertheless not contrary to public order.

[73]            The question also engages issues of politics, of protectionism, of insurance underwriting, and the costs attendant to the carrying on of business generally both with regard to insurance companies and consumers.  In this context it is intriguing to note that out of the 56 cases in issue here only one participant declined the coverage offered.

[74]            As I have said, it is not necessary to resolve the issue in order to decide the outcome of the present appeal. The argument that the respondent has chosen to advance however leaves it in a rather untenable position to say the least. The issue is surely one however that could benefit from clarification on the part of the legislator.

THE THIRD GROUND OF APPEAL - THE ISSUE OF SELF-INCRIMINATION

[75]            I pass now to the appellant's contention that the trial judge failed to exclude certain documentary and oral evidence that engage the principles of self-incrimination.

[76]            The appellant takes the view that the first judge erred in not setting aside the documentary evidence set out in Exhibit P-65 together with portions of the testimony of two of the appellant's officers, Phillips and Soltendieck.  That ground of appeal is set out at paragraph 36 of the appellant's factum.  It was re-formulated by Me Hébert in his plan d’argumentation in the following terms:

"Le jugement de culpabilité est mal fondé en droit au motif suivant: une preuve à charge obtenue en violation de l'équité procédurale [al. 11d) de la Charte Canadienne] fut prise en considération par le juge du procès. "

 

[77]            Reduced to its lowest common denominator, the appellant contends that it was the target of an investigation from January the 13th, 2005 onwards. The predominant purpose of that investigation, at least in the appellant's view, was to assemble evidence to be used in a subsequent prosecution of the appellant. 

[78]            The first contention of the appellant is of course correct.  The second relating to the predominant purpose of the investigation is less than accurate.  It is clear from the evidence that the investigation targeted both the appellant and Flanders.

[79]            Since the respondent failed to advise the appellant that it was a target of the investigation the appellant takes the position that the first judge should have exercised his discretion to exclude P-65 or, as the protector of the equity and fairness of the trial, should at the very least not have taken it into account.  A parallel argument is advanced as far as certain statements made by Roberts and Soltendieck are concerned in that the appellants contend that this is derivative evidence compelled by the content of P-65. 

[80]            On its face, the argument concerning Roberts and Soltendieck and the derivative evidence is fanciful because I have no doubt that the answers upon which the trial judge relied could have been easily drawn out of either of these individuals quite independently of the information contained in P-65.  Both of these witnesses were competent and compellable.

[81]            The appellant is a corporation whose activities are subject to the scrutiny of the respondent Regulator. I cannot see how knowledge or lack of it of an ongoing investigation and its scope and purpose can alter the fact that the appellant is legally obliged to provide the Regulator with documentation and information requested pursuant to a valid statutory or reglementary disposition.  That is the case here.

[82]            At issue is the question of regulatory offences involving a corporation.  If the rule against self-incrimination that counsel seek to invoke on behalf the corporate appellant were to apply in cases such as this it would seriously hamper investigations pursuant to any number of regulatory statutes and regulations.  It would also seriously impede if not emasculate the possibility of successful legal action against corporations subject to such regulation and who have ostensibly broken the rules. 

[83]            Contrary to the contentions of the respondent Me Hébert underlines that the basis for his argument is founded not upon sections 11c and 13 of the Charter but rather upon sections 8 and 11(d) and, of course, upon sec. 24.

[84]            Section 8 of the Charter provides simply that "everyone has the right to be secure against unreasonable search and seizure."  With respect I cannot see how this section can be of any assistance to the appellant.  Furthermore no case law been cited which would support the proposition that there was any violation of sec. 8 in the case at bar. 

[85]            As a matter of fact, there was neither search nor seizure but rather compliance, albeit obligatory with a written request submitted by the Regulator for certain specified information from the business records of the appellant. No visit was made to the appellant's premises by the respondent's inspectors in virtue of any of their statutory powers. No interviews were sought with the appellant's officers or employees nor did any take place. 

[86]            In Schreiber v Canada (Attorney General), [1998] 1 S.C.R. 841 , the issue arose as to whether a letter of request sent by the Government of Canada to Switzerland triggered the operation of section 8 of the Charter even where that letter requested that a search and seizure be conducted. That search and seizure, it should be observed was eventually carried out pursuant to Swiss law.

[87]            It was held by a majority of the court that such a letter in itself does not engage section 8. The majority of the court drew a clear line of demarcation between the request itself on the one hand and the seizure subsequently practiced by Swiss authorities on the other. It was acknowledged that had Canadian authorities carried out the seizure then sec. 8 would have been engaged. 

[88]            Concurring in the result the Chief Justice based his conclusion on the notion of a reasonable expectation of privacy. In his view while the expectation of privacy is subject to charter scrutiny in Canada this was not the case in Switzerland.  As a consequence Schreiber could not expect any greater advantage than the law of Switzerland grants him.

[89]            The notion of a reasonable expectation of privacy is the yardstick by which the rights of the appellant stand to be measured. In Hufsky v R, (1988) 40 C.C.C. (3d) 398, for example, the Supreme Court held that provincial legislation requiring the production for inspection of a driver's license and insurance card does not constitute a search within the meaning of section 8.

[90]            The rationale behind that conclusion in Hufsky was that the request formulated by the police officer did not constitute an intrusion upon a reasonable expectation of privacy. By extension I would hold that documents relating to the business operations of the appellant, operations, which are subject to the control and surveillance of the Regulator, are, in a similar fashion, not subject to any reasonable expectation of privacy.

[91]            I have no difficulty with the principles set out in the case law to which Me Hébert refers.  For example he cites R v White, [1999] 2 SCR 417, as authority for the proposition that a trial judge has the discretionary power to exclude proof obtained pursuant to a provincial statute if the use of that evidence contravenes a charter right. He also cites R v Swietlinski, [1994] 3 RCS 481 , in support of the proposition that the judge has a duty to intervene to ensure the fairness of the trial notwithstanding the failure of the defence to expressly raise the issue.  These general principles require no analysis.

[92]            In a similar fashion, I cannot see how the principles enunciated in British Columbia Securities Commission v Branch, [1995] 2 SCR 3, can have any application in the case at bar.  Branch is concerned with an individual and his relationship with a regulatory branch (no pun intended) of government.  The present matter concerns a corporation.

[93]            The appellant contends that R v Jarvis, [2002] 3 R.C.S. 757 , complements and completes the reasoning of the Supreme Court in Branch. Perhaps so but Jarvis is a complex case that ought not to be taken out of context.

[94]            It is also, at least in my respectful view, of no assistance to the appellant. Jarvis was dealing with individual Charter rights in the light of a tax investigation by government agents.  That investigation had the dual purpose of establishing on the one hand what, if anything, was owed to government and on the other the liability of the taxpayer in virtue of a statutory provision which created an offence which, Jarvis’s counsel contended, was "quintessentially criminal".

[95]            At the risk of being repetitive the case at bar concerns the penal liability of a corporate entity for acts which allegedly violate sec. 482 of L.R.Q., c.D-9.2. No attempt has been made to engage the personal liability of any of the officers of the appellant. It has been consistently held by the Supreme Court that the principles that Me Hébert is attempting to invoke do not apply to corporations. 

[96]            I am in full agreement with the position set out in paragraphs 87 to 89 of the respondent's factum and with the case law that Me Blais cites in support of that position. The principle that is in issue here is the interest in the protection and the security of the public.  That is generally the over-arching component of public welfare or regulatory offences on one hand, which must, in turn, be balanced against the individual's right against self-incrimination on the other. 

[97]            It may be helpful to quote from the head note in Thomson Newspapers Limited v Canada (Director of Investigation and Research, Restrictive Trade Practices Commission), [1990] 1 S.C.R. 425 :

The power conferred by s. 17 of the Act to compel any person to give oral testimony constitutes a deprivation of liberty but such compulsion, in itself, does not violate the principles of fundamental justice.  The right of an accused or a suspect to remain silent, while extending beyond the trial itself, does not extend to those who are ordered to testify in a proceeding such as that provided by s. 17 of the Act.  The power to compel testimony is important to the overall effectiveness of the investigative machinery established by the Act.  An absolute right to refuse to answer questions in a s. 17 inquiry would represent a dangerous and unnecessary imbalance between the rights of the individual and the community's legitimate interest in discovering the truth about the existence of practices against which the Act was designed to protect the public. 

The section 17 inquiries are inquisitorial rather than adversarial in nature.  They are investigations in which no final determination as to criminal liability is reached.  The right to prevent the subsequent use of compelled self-incriminating testimony protects an individual from being "conscripted against himself" without simultaneously denying an investigator's access to relevant information.  It strikes a just and proper balance between the interests of the individual and the state — an important factor that must be taken into account in defining the content of the principles of fundamental justice.  While a corporation cannot avail itself of the protection offered by s. 7 of the Charter, and in respect of the right against compelled self-incrimination, is incapable of being forced to testify against itself, the right against self-incrimination is still available to those who are compelled to give testimony as the representatives of a corporation.  Regardless of whether they give testimony in their representative or personal capacities, those who are compelled to testify under s. 17 are subjected to a direct and real violation of their own liberty.

[98]            As the Supreme Court put it in Branch (supra) at paragraphs 37 to 40:

37               Clearly, the individuals Branch and Levitt are entitled to claim the protection of subsequent derivative use.  This is a protection that is afforded to witnesses notwithstanding that the source of their evidence may derive from corporate activity.  See R. v. Amway Corp., [1989] 1 S.C.R. 21 .  On the other hand, the protection depends on the applicability of s. 7 of the Charter.  This Court has held that s. 7 does not apply to a corporation.  See Thomson Newspapers, supra.  It should be remembered that it will be up to the judge hearing the matter to decide the specific application of subsequent derivative use immunity having regard to all the circumstances.

(b) Documentary Compulsion

38               This Appeal raises the possibility of documentary compulsion, which entails jeopardy in so far as it engages the appellants' liberty interest. Specifically, the likelihood of a self-incriminatory result is what is to be avoided.  There are two main issues:

(i)                  the identity of the person facing the prospect of self-incrimination; and

(ii)                most significantly, the nature of the compulsion, that is, whether the documents contain a compelled answer merely reduced to writing, or exist separately and apart from the compelled person.

(i)                  Identity of the Person Facing the Prospect of Self-Incrimination.

39               The right against self-incrimination is a personal right that serves to protect an individual's liberty interest. Is a corporation or its officer(s) eligible for Charter protection against self-incriminatory effects?  We do not believe that a right against self-incrimination can be applied to artificial entities in any meaningful way.  It is the self-conscriptive effect of compulsion which the Charter guards against.  This is a flesh and bone protection which cannot be easily extended to corporations.  The following passage of Sopinka J. in  Amway, supra, is pertinent (at p. 40):

Applying a purposive interpretation to s. 11(c), I am of the opinion that it was intended to protect the individual against the affront to dignity and privacy inherent in a practice which enables the prosecution to force the person charged to supply the evidence out of his or her own mouth.  Although disagreement exists as to the basis of the principle against self-incrimination, in my view, this factor plays a dominant role.

40               It is now well settled that a corporation cannot avail itself of the protection afforded by s. 7 of the Charter. In Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927 , this Court stated that the word "Everyone" in s. 7 excludes corporations and other artificial entities incapable of enjoying life, liberty or security of person, and includes only human beings. However, as was stated above in our analysis of testimonial compulsion, Branch and Levitt, as representatives of the corporation may receive the benefit of immunity protection in so far as they are personally implicated by their own evidence. Hence, the issue turns to the nature of the compulsion.

 

[99]            That of course is why the arguments advanced by Me Hébert and Me Henry would have been much more powerful had the charges been laid against the individual officers of the appellant who either replied to the request of the Regulator or who testified before the first judge. That however is not the case.

[100]       Any question of the applicability of section 11(d) is academic since Me Hébert has not, as an essential pre-condition, brought himself within the ambit of section 8 of the charter.  The trial judge was therefore perfectly correct in admitting Exhibit P-65 and in considering its contents together with all the other evidence.

 

THE 4th, 5th and 6th GROUNDS OF APPEAL

 

[101]       I pass now to the difficult issues dealt with by the first judge at paragraphs 35 and following of his decision. I will consider them together. It is with regard to these issues that I largely part company with him.

[102]       In paragraphs at 35 to 42 of his decision the first judge takes as his starting point the appellant's contention that no infraction was committed by Flanders.  In rejecting that argument he based himself on a number of the admissions contained in P-69, on section 71 of la Loi sur la distribution de produits et services financiers, and on the fact that Flanders has pleaded guilty to some 210 counts filed against it.

[103]       As far as Flanders plea is concerned I have little to say. Given the number of counts involved the case against Flanders appears to have touched upon more than the issues that concern us here.  If the appellant chose to preface its argument with the contention that Flanders committed no infraction in relation to the 56 counts before the court then that is perfectly comprehensible. 

[104]       Given the wording of the statute the respondent would have to establish conduct on the part of Flanders that contravened the statute.  In view of all the evidence before him the first judge took this precondition to the appellant's liability as having been established. 

[105]       At paragraph 41 of his decision the first judge refers to the testimony of Gordon Roberts.  That paragraph reads as follows:

[41]            Dans son témoignage, Gordon Roberts mentionne que Flanders ne croyait pas devoir être inscrit au Québec pour offrir aux concessionnaires québécois d'assurer l'inventaire financé par GE puisque, même si les biens étaient situés au Québec, leur client principal était GE et non les concessionnaires québécois.

Q         Since you were not registered in Quebec, why did you issue those contracts for the GE dealers in Quebec?

 

A          It was our understanding that with a floor plan type program, that providing the major negotiations for the contract, for the rates, for the insurance coverage were done through the jurisdiction where our primary client was, which was GE in Toronto; that the licensing was not required for the specific individual dealers who participated in the program across the country. […]

[…]

 

Q         Mr Roberts, do I understand from your answers that it was the honest belief of Flanders and you by the same token, back in those years, 2004 and 2005, that Flanders did not have a licensing problem in Quebec?

 

A          That's correct.

 

[106]       It is impossible in my mind to divorce that part of Roberts’ testimony from a similar reply given by Soltendieck and reproduced as part of paragraphs 52 and 53 of the first judge's decision.  It will be helpful to reproduce paragraphs 52 and 53 in their entirety:

[52]            Le témoin Soltendieck ajoute qu'il savait très bien en 2005, que Flanders vendait des plans d'assurance de La Souveraine couvrant l'inventaire financé par GE chez des concessionnaires partout au Canada incluant le Québec.

                         PAR LA COUR

In 2005, were you aware that Flanders was selling floor plan insurance to dealers in Quebec?

A          I was aware in 2005 that Flanders was the insurance broker and that his customer was GE Capital; that Sovereign was the underwriter.

Q          And were you…

A          And that the floor plan covered all dealers across Canada.

PAR LA POURSUITE

Q          Including Quebec.

A          Including Quebec.  But only covered the interest of GE Capital and concessionaire of the dealer.

 […]

Q          Then, what was your understanding of the law in 2005, according to you?

A          Any broker who is not licensed to do business in the province of Quebec, who solicits business directly from a Quebec insured or a Quebec resident, is in violation of the AMF.

Q         Knowing that Flanders was dealing with GE concerning concessionaires situated in Quebec, what did you do to… what was your position or was this business out of your jurisdiction as the representative of Sovereign in Quebec?

A          Well, as far as the floor plan itself is concerned, I was under the impression that this would not be outside of the AMF…

Q          Jurisdiction.

A          …jurisdiction.  Well, I mean, this would fall… how do you say, this would not cause any aggravation to the AMF.  Okay.  And so, it's been customary in our business for many, many years where floor plan coverage is insured to provide coverage not only for the financier but also for the concessionaire.  It's done with automobile dealers, it's done with people who stock inventories of furniture and that sort of thing.

 […]

A          Calgary or whatever.  Yes, it was no concern to me, because to me, a floor plan is something that's customarily done and it's not in violation of any… any legislation.

 […]

Q         As long as the principal client is in the jurisdiction of the broker? That's your understanding?

A          Yes.  Well, in the jurisdiction of the broker who is licensed to do business in that jurisdiction.

[53]            Le témoin ajoute :

A          Hum… and I think that's maybe going too far.  It's from the aspect that the coverage itself lands itself to being acceptable.  The kind of coverage of this.  Because we're insuring principally the interest of GE Capital and the residual value of the loans that they have.  Plus we insure also the concessionaires or the dealers and the reason why we do that, it's to facilitate commerce, otherwise you would have, you know, double insurance and people paying twice the amount of premium that they need to do that, you know.

 […]

Q         So it's customary to insure the principal client, and accessory, the dealers in the province?

 A         Yes.  But it's restricted to the financed objects.

                         PAR LA COUR

             And you knew that these dealers, some of those dealers were situated in Quebec?

A          Of course, yes.

 

[107]       The trial judge concluded from the testimony of both Roberts and Soltendieck that they were generally aware of Quebec licensing requirements insofar as they applied to Flanders.  As a consequence, in his opinion any error on the appellant's part as to whether these rules applied notwithstanding that the master policy had been issued and delivered in Ontario, would necessarily involve a pure question of law. 

[108]       In the trial judge's view it would therefore be no answer for the appellant to invoke any such error or misunderstanding on its part as to the licensing requirements applicable to Flanders in the particular circumstances of this case.  Obviously ignorance of the law is no excuse and will not excuse one's failure to conform to it. 

[109]       If the issue were no more complicated than that then the first judge would, I believe, be correct.  There is however more to it.  If Roberts and Soltendieck were indeed under the impression that the Regulator had acquiesced with regard to licensing requirements in the case of the "floor plan coverage" then that, I believe, is quite another matter. The question would then become one of mixed fact and law with consequences potentially quite different from those taken for granted by the first judge.

[110]       That, in my respectful view, is precisely what the witnesses Soltendieck and Roberts were respectively alluding to in the extracts from their testimony that I reproduced above at paragraphs 105 and 106 (supra) and which were in turn cited by the first judge in his decision. 

[111]       I find comfort on this issue when I consider that such an interpretation is confirmed and corroborated by the content of the letter of June 10, 2005.  It will be recalled that Roberts underlined in that letter that in the view of the appellant there was no licensing issue. That fact can be reconciled perfectly with the testimony that he gave at trial.

[112]       The respondent in its capacity as Regulator chose not to reply to that latter and accordingly did nothing to put in question the appellant's belief that, at least as far as the "floor plan coverage" was concerned, there was indeed no licensing issue.

[113]       It may well be that the appellant's reading of the situation was wrong but it was nevertheless based up on an honest belief held in good faith.  It was after all open to the Regulator to reply to that letter, disagree with the appellant's position and to put its "cards on the table".  It chose not to do so. Perhaps it declined to answer in view of the ongoing investigation.  I do not know.  The appellant is not, however, in my view to be blamed for interpreting that silence, as an indication that it's appreciation of the licensing issue was correct.

[114]       I am acutely aware that it is not for me to substitute my interpretation of the evidence for that of the first judge.  It appears to me however, and I say so with the greatest of respect, that the first judge did not even consider any such interpretation.

[115]       At paragraph 42 of his decision the first judge qualifies the infraction committed by Flanders as being one of strict responsibility. Curiously later at paragraph 61 he concludes however that, in so far as the appellant is concerned, it is not necessary to qualify the infraction as being either one of strict responsibility or a mens rea offense "puisque la preuve révèle l'acquiescement de la défenderesse aux actes posés par Flanders"

[116]       "L'acquiescement" is a rather wide term, of debatable import, and at no place does it appear in the applicable section of the statute (L.R.Q. c. D-9.2 sec.482). With respect to the judge was obliged to consider and weigh the wording of the statute. 

[117]       The first judge points out that the appellant's failure to appreciate that the issuance of the certificates by Flanders was illegal does not constitute a defence in since it is a pure error in law.  He then adds that the error was not, according to the evidence, attributable in any manner to "l’autorité compétente".  Presumably by the use of that term he means the respondent. For the reasons set out in the foregoing paragraphs I am unable to agree with him on either of these issues. 

[118]       The first judge, in my respectful opinion was, as I have said, obliged to consider both the nature and the elements of the offence in the light of the wording of the statute.  In as much as he considered the appellant's error to be a pure question of law he apparently believed that that distinction was immaterial.

[119]       If, as I have suggested, the appellant's mistake constitutes an error of mixed fact and law then different considerations come into play.  That is so quite independently of whether it is a strict liability offence having a dimension of intent or mens rea to it, as Me Hébert contends, or whether it is purely a strict liability offence in the traditional regulatory sense as Me Blais contends. 

[120]       As a Stuart, Delisle and Coughlan point out in Learning Canadian Criminal Law,  Thompson Carswell, Toronto, 10th Edition, 2006  at page 677: 

MISTAKE OF FACT

(a) General Principles

On the issue of whether a mistake of fact is a defence, Pappajohn v R. (see previous chapter) is still the leading decision. Chief Justice Dickson there decided for the majority that a mistake of fact defence constitutes a denial that the Crown has proved the fault element. It follows that, in the absence of statutory wording to the contrary:

1.         Where there is a subjective mens rea requirement the mistake need merely be honestly held with reasonableness only relevant to assessment of credibility;

2.         Where the fault element requires objective negligence, the mistake must be both honest and reasonable;

3.         Where there is a due diligence defence, the mistake must be both honest and reasonable, with an onus of proof on the accused in the case of regulatory offences; and

4.         Where the offence is one of absolute liability, mistake of fact is not a defence.

 

[121]       For the reasons set out previously I would conclude that, given the manner in which events unfolded in the course of 2005, the error attributable to the appellant is at the very least one of mixed fact and law. 

[122]       Furthermore, if I am correct in my conclusion that there is a mens rea dimension to the infraction, an issue which I will discuss later, then I would, for the reasons previously articulated, be inclined to conclude that the mistaken belief on the part of the appellant was honestly held. 

[123]       In paragraph 4 above I reproduced, for illustrative purposes, one of the counts.  For ease of navigation it may be useful to do so again.

1          À Alma et ses environs, dans le district judiciaire d'Alma, le ou vers le 25 août 2005, a consenti et/ou autorisé Flanders Insurance Management and Administrative Services Ltd., un cabinet non inscrit auprès de l'Autorité des marchés financiers, à délivrer à Atelier Fortin Sports Inc. une police d'assurance sur les stocks, numéro […], le tout en contravention à l'article 71 de la Loi sur la distribution de produits et services financiers, L.R.Q., c. D-9.2 (la «Loi»), commettant ainsi l'infraction prévue à l'article 482 de la Loi et se rendant ainsi passible de la peine prévue à l'article 490 de la Loi.

 

[124]       The first judge at paragraph 18 of his decision reproduced the relevant statutory provisions. They provide as follows:

Loi sur la distribution de produits et services financiers. (L.R.Q. c. D-9.2)

71.  Nul ne peut agir comme cabinet, ni se présenter comme tel, à moins d’être inscrit auprès de l'Autorité.

72.  Seule une personne morale qui a un établissement au Québec peut s’inscrire auprès de l'Autorité pour agir comme cabinet.

482.  Un assureur qui aide ou, par un encouragement, un conseil, un consentement, une autorisation ou un ordre, amène un cabinet, ou un représentant autonome ou une société autonome par l’entremise de qui il offre des produits d’assurance, ou un dirigeant, administrateur, associé, employé ou représentant de ce cabinet ou de cette société autonome, à enfreindre une disposition de la présente loi ou de ses règlements commet une infraction.

Il en est de même de tout administrateur, dirigeant, employé ou mandataire d’un assureur.

490.  Un assureur déclaré coupable de l’infraction visée à l’article 480 ou 482 est passible d’une amende d'au moins 10 000 $ et d'au plus 50 000 $ et, en cas de récidive, d'une amende d'au moins 20 000 $ et d'au plus 100 000 $.

494.  Une poursuite pénale pour une infraction visée à l’un des articles 461 à 483 se prescrit par un an à compter de la date de l’ouverture du dossier d’enquête relatif à cette infraction. Toutefois, aucune poursuite ne peut être intentée s’il s’est écoulé plus de cinq ans depuis la date de la perpétration d’une telle infraction.

Le certificat du secrétaire de l'Autorité indiquant la date d’ouverture du dossier d’enquête constitue, en l’absence de toute preuve contraire, une preuve concluante de ce fait.

 

[125]       In the English version of the statute the words “aide” and “amène” are translated by the words "helps" and "induces". "Amener" may have been more accurately translated by the word "incites" but for all practical purposes the words have the same meaning in English as they do in French.  One is neither stronger nor more sinister than the other.

[126]       The wording of the counts, which are substantially identical, is in my respectful view defective. For reasons best known to it the respondent has purposely avoided using the operative words of the statute. I can only suspect that it did so first of all in the hope of avoiding the necessity of proving some active participation on the part of the appellant and secondly in the hope that it would not be obliged to face the mens rea argument.

[127]       It remains however that the offense may be committed in two ways.  It may be committed by "aiding" on the one hand or by "inducing", whether by encouragement advice consent or by an authorization on the other, a firm to commit the offense contemplated in the section.  The gravamen of the offence is "aiding" or "inducing" and the words "encouragement" "advice or consent" or by an "authorization" relate to the second manner of committing the offence not to the first.  To find otherwise would be to ignore the import of the word "ou".

[128]       While the appellant did not formally ask for counts to be particularized Me Hébert did nevertheless raise the issue in the course of a preparatory conference. Me Blais intimated that he proposed to rely on the notion of "aiding".  Me Hébert and Me Henry returned to this issue again in their factum. 

[129]       In the same manner as the appellant had requested that certain of the admissions that it had freely signed be put aside it was now the turn of the respondent to object. Me Blais protested that his words expressed before the coordinating judge were being taken out of context.  The fact remains that when pressed at the pre-trial conference before Corte J.C.Q. he nevertheless declared that the proposed to rely on the notion of "aiding". 

[130]       First of all, while the wording of the counts is, as I have said, defective I am not at all of the opinion that this should result in their dismissal for that reason alone.  The respondent, citing extensively from R. v The City of Sault Ste. Marie, [1978] 2 S.C.R. 1299 , points out that the appellant could have been in no doubt as to the nature of the complaint filed against it. The statute, after all, sets out a number of courses of conduct that would engage liability under section 482.

[131]       I agree that the appellant could have been in no doubt at all as to the nature of the charges. That is one thing. The other however is that the respondent will not be permitted, by selective drafting, to lift from the offence charged the elements of "aiding" and "inducing" which in my view go to the very basis of these offences.

[132]       The statute sets out that these elements may be accomplished in a number of ways. The respondent chose to allege that the appellant had accomplished this by way of "consent" or "authorization". 

[133]       Counsel for the appellant however goes further.  They contend that in announcing before Corte J.C.Q. that he was a relying on the notion of "aiding" Me Blais is obliged to limit his pleadings to that particular route.  Furthermore, so goes the appellant's argument, the trial judge must do the same in so far as his own reasoning is concerned.

[134]        According to the appellant the first judge went beyond that limitation when he based his decision on the notion of "inducement".  It will be helpful to reproduce the operative paragraphs of the first judge's decision in order to avoid the possibility of taking his words out of context:

[57]            La preuve est muette sur les démarches effectuées par la défenderesse pour s'assurer de la légalité des opérations effectuées par Flanders au Québec, mais confirme plutôt que La Souveraine a partagé l'opinion de Flanders à l'effet que les contrats P-1 à P-56 n'étaient pas soumis aux lois du Québec et que Flanders n'avait pas à être licencié au Québec pour offrir aux concessionnaires québécois de GE des plans d'assurance inventaires.

[58]            La preuve révèle que la défenderesse, qui recevait mensuellement une liste des certificats émis par Flanders aux concessionnaires de GE, savait en 2005 qu'elle assurait des biens situés au Québec dans lesquels GE avait un intérêt conjoint avec les concessionnaires québécois.

[59]            La lettre de la défenderesse à l'AMF datée du 10 juin 2005 (P-65) est manifestement une réponse préparée en collaboration avec Flanders, vu la similarité entre les termes de cette lettre et ceux utilisés par les procureurs de Flanders dans des lettres de décembre 2004 et janvier 2005 (P-66) adressées aux autorités réglementaires d'autres provinces, malgré l'affirmation contraire de Robert G. Phillips.  Ces lettres confirment que La Souveraine et Flanders partageaient l'opinion que les contrats couvrant les inventaires n'étaient pas soumis aux lois québécoises, et ce, antérieurement au renouvellement des certificats d'assurance le 25 août 2005.

[60]            La défenderesse a donc autorisé, permis ou consenti à ce que Flanders délivre des polices d'assurance sachant que cette dernière n'avait pas les permis requis.  Cette délivrance ne s'est pas faite à l'insu de la défenderesse.

Son erreur constitue un moyen de défense

[61]            Vu les conclusions du Tribunal, il n'est pas nécessaire de qualifier l'infraction reprochée comme étant de responsabilité stricte ou d'infraction d'intention spécifique puisque la preuve révèle l'acquiescement de la défenderesse aux actes posés par Flanders.  Le fait que la défenderesse ignorait que cette délivrance de police était illégale ne peut constituer une défense puisqu'il s'agit d'une erreur de droit, laquelle n'a pas été selon la preuve, en aucune façon, provoquée par l'autorité compétente.

 

[135]       Basing themselves particularly on paragraph 61 of the judgment counsel for the appellant contend that the first judge adopted the view that the appellant by its conduct "induced" Flanders to act contrary to the terms of Quebec law. Perhaps he did indeed take that position although it is far from clear from a reading of his decision. In any event it matters little. 

[136]       What is important to note however is that the judge used neither "aider" nor "amener" in his judgment. Just as the respondent studiously ignored these words in the drafting of the counts so too did the first judge in the crafting of his decision. 

[137]       Since Thatcher v R., [1987] 1 S.C.R. 652 , the path which the trier of fact may follow in arriving at a conclusion is immaterial provided obviously that the trier of fact remains within the four corners of the statute and is satisfied beyond a reasonable doubt that the essential elements of the infraction have been established.

[138]       Furthermore, the decision of the Saskatchewan Court of Appeal in R v Derksen (1999) 140 C.C.C. (3d) 184 is also of assistance.  While admittedly Derksen was rendered in a particular context it is nevertheless authority for the proposition that the preparatory conference does not bind either party to a particular position save in circumstances where the accused has formally ratified any undertakings made by counsel. 

[139]       The proposition upon which the appellants rely is therefore unfounded. There is no reason to hold Me Blais’ "feet to the fire" for what he said in the course of the preparatory conference before Judge Corte.  Nor is there any least reason to limit the margin of manoeuvre of the first judge.

[140]       The operative words of "aiding" and "inducing" are however of prime importance in the resolution of this matter. The role that they play in relation to the culpability of the appellant is pivotal. In my view, these words indicate the requirement for some sort of voluntary action on the part of the accused as an essential element of the offence and secondly they also invest the offence with a mens rea component.  I will deal with these points one by one. 

[141]       Quite independently of whether or not a regulatory offence has some mens rea component to it the fact remains that proof of each element of the actus reus must always be established beyond a reasonable doubt.  As Mewett and Manning point out in Criminal Law 2nd edition, 1985, Butterworth, Toronto, even offences of strict liability require an actor to do something.  I would add to that that liability would also be engaged if the actor omitted to do something that it has a statutory duty to do. That latter notion, however, does not concern us in the case at bar. 

[142]       The evidence is to the effect that the appellant played a totally passive role throughout the unfolding of the events giving rise to this prosecution.  In the introductory paragraphs of this decision I reproduced the resume of the facts relied upon by the first judge.  I also cited Phillips' letter of June 10th, 2005 to Turgeon setting out in detail the role of the appellant.

[143]       From a review of the evidence and particularly that relied on by the first judge I cannot but conclude that the appellant played no active role with regard either the solicitations made by Flanders to the Quebec participants nor in relation to issuance or the delivery of the certificates of participation. Indeed its role in relation with the Canada wide "floor plan" program including Quebec was merely one, which I would qualify as "ongoing recordkeeping" reflecting information conveyed from time to time by Flanders. 

[144]       The wording of the statute clearly requires evidence of "helping" or "inducing". There is nothing in the evidence to support the conclusion that the appellant did any such thing.  True it did not decline to participate in the program in Quebec. It did not decline to do so because it did not believe that Flanders required to be licensed in Quebec with regard to the "floor plan" coverage.  The fact that the appellant did not refuse to participate is however a long way from engaging the operative words of the statute. On this basis alone an acquittal should have been entered with regard to all of the counts. 

[145]       I pass now to the mens rea issue.  Shortly stated the question is whether or not the statute under examination (L.R.Q. D-9.2 art 482) has a mens rea component to it. In my respectful view it does. 

[146]       As I have said, it is the respondent's position that the infraction for which the appellant stands convicted is a purely regulatory offence.  As such it is subject to the rules of strict liability as defined by the courts over the years, but more particularly by the Supreme Court in the landmark decision of Sault Ste. Marie (supra). 

[147]       The appellant, on the other hand, takes the contrary view insisting that the words of the statute give to the infractions a mens rea component.

[148]       In order to deal adequately with these opposing contentions it will be necessary to briefly reach a little back in time.

[149]       Offences that do not require proof of mens rea in any of its forms for their commission have been with us for a long time. As Mewett and Manning (supra) point out at p.145 such dispositions have existed at least since the time of the English decision of Woodrow, [1846], 15 M. &W. 404. 

[150]       In order to render these offences susceptible of enforcement the legislator frequently found it necessary to remove, or to attempt to remove, the traditional requirement of proving mens rea with regard to at least one element of the actus reus. As society evolved and these non-mens rea offences proliferated they came to be known as regulatory or public welfare offences.

[151]       In some instances these statutory offences were criminal law in the true sense of the word. In most cases however they were not.  As Dickson J. recalled in Sault Ste. Marie (supra) public welfare offences were grounded in the need for expediency.  They evolved in the 19th century as a means of doing away with the requirement of mens rea for what he referred to as "petty police offences".

[152]       In seeking to accomplish this however, the legislator was not always successful. Generally that lack of success was attributable to defective drafting. In addition, since these offences grew out of a criminal law culture and bore a remarkable resemblance to it, the requirement for proof of mens rea as an essential element receded only very slowly.  

[153]       In the domain of regulatory or public welfare offences there soon emerged two extremes; full mens rea offences on one hand and those of absolute liability on the other. In the beginning was no middle ground. The former tended to render regulatory legislation impotent, unworkable, and therefore unenforceable while the latter was unnecessarily harsh. The classic English example of the latter is the 1933 decision in Larsonneur 24 Cr. App. R. 74 (C.C.A.).

[154]       As the years passed regulatory or public welfare offences became more and more prevalent as government sought to regulate and control a myriad of activities particularly in the commercial, financial, public health and environmental sectors. As Dickson J. wrote in Sault Ste. Marie they are now firmly entrenched in our law and their importance has been heightened by the ever-increasing complexities of modern society. 

[155]       A series of principles slowly evolved in England, and by ricochet in Canada, culminating generally in the rule that unless a statutory provision expressly excluded mens rea it remained an essential ingredient of the infraction. This rather shaky and uncertain situation prevailed until the decision of Sault Ste. Marie in 1978. 

[156]       During the latter part of the 20th Century judges and academics sought to create a compromise between full mens rea offences on one hand and absolute liability offences on the other.  Slowly a middle ground began to emerge, notably in Australia. In Sault Ste. Marie Dickson J. sets out the history of these developments and borrows heavily from Australian precedent. 

[157]        It will suffice to say that with Sault Ste. Marie the Supreme Court put into play the ground rules governing the approach which Canadian courts must henceforth adopt toward legislation of a regulatory nature.  It is referred to as a watershed decision. Indeed it is because it draws together the collective thinking on the issue notably from English, Australian, and Canadian sources, both judicial and academic and articulates these views with clarity.

[158]       The basic approach to be adopted under our law has therefore been clear since Sault Ste. Marie. Shortly stated if the subject matter that the statute purports to govern is in pith and substance regulatory rather than criminal in nature then, contrary to the former position, mens rea will not be presumed to be an essential element of the offence in the absence of specific words in the statute to that effect. 

[159]       There is no dispute that the statute (L.R.Q., D-9.2) deals with regulatory matters within the constitutional sphere of authority of the government of Quebec. 

[160]       In Sault Ste. Marie Dickson J. nevertheless clearly recognized the importance of statutory terms or wording that are susceptible of investing the infraction with a mens rea element.  At pages 1327 and 1328 he expressed himself as follows:

The present case concerns the interpretation of two troublesome words frequently found in public welfare statutes: “cause” and “permit.” These two words are troublesome because neither denotes clearly either full mens rea nor absolute liability. It is said that a person could not be said to be permitting something unless he knew what he was permitting. This is an over-simplification. There is authority both ways, indicating that the courts are uneasy with the traditional dichotomy. Some authorities favour the position that “permit”, does not import mens rea: see Millar v. The Queen; R. v. Royal Canadian Legion; R. v. Teperman and Sons; R. v. Jack Crewe Ltd.; Browning v. J.H. Watson Ltd.; Lyons v. May; Korten v. West Sussex C.C.. For a mens rea construction see James & Son Ltd. v. Smee; Somerset v.

[Page 1328]

Hart;Grays Haulage Co. Ltd. v. Arnold;Smith & Hogan, Criminal Law (3rd ed.) at p. 87; Edwards, Mens Rea and Statutory Offences (1955), at pp. 98-119. The same is true of “cause.” For a non-mens rea construction, see R. v. Peconi; Alphacell Limited v. Woodward; Sopp v. Long;Laird v. Dobell; Korten v. West Sussex C.C., (supra); Shave v. Rosner. Others say that “cause” imports a requirement for a mens rea: see Lovelace v. D.P.P.; Ross Hillman Ltd. v. Bond, supra; Smith and Hogan, Criminal Law (3rd ed.) at pp. 89-90.

The Divisional Court of Ontario relied on these latter authorities in concluding that s. 32(1) created a mens rea offence.

The conflict in the above authorities, however, shows that in themselves the words “cause” and “permit”, fit much better into an offence of strict liability than either full mens rea or absolute liability. Since s. 32(1) creates a public welfare offence, without a clear indication that liability is absolute, and without any words such as “knowingly” or “wilfully” expressly to import mens rea, application of the criteria which I have outlined above undoubtedly places the offence in the category of strict liability.

 

[161]       While Dickson J. felt that the words "cause" and "permit" fit better into a strict liability offense he conceded, at least in my view, that the words of the operative statute will nevertheless be determinative as far as the presence or absence of a mens rea component is concerned. 

[162]       The first judge, as I have said, failed to look at the words of the statute in this context and to consider them in determining whether intention is an essential ingredient of the offence with the consequence that it must therefore be established beyond a reasonable doubt by the prosecution.

[163]       I suppose that it could be argued that the Supreme Court has since Sault Ste. Marie demonstrated a tendency to hold that words which may denote a mens rea requirement but which, in the opinion of the Court fit better into a strict liability context should be interpreted in that sense and therefore set aside. 

[164]       That appears to have been the result in the matter of Strasser v Roberge, [1979] 2 S.C.R.  953 .  In that decision the Court held that while the offence required some element of intention the statute had nevertheless created an offence of strict liability.  As a result the burden was shifted to the accused to establish that he had a reasonable belief in the existence of facts, which, had they been true, would have resulted in a finding of not guilty.

[165]       This decision was rendered a year after Sault Ste. Marie and appears to be another attempt to fit the words of the statute into the new regulatory scheme articulated by Dickson J. and in so doing amputate them from the statute. It is at first sight difficult to reconcile Strasser with the reserve that Dickson J. so carefully expressed in Sault Ste. Marie requiring a consideration of statutory indices of mens rea to which I have already referred. 

[166]       The distinction between Strasser and Sault Ste. Marie however is that in the former the court found a mens rea requirement which it declined to give effect to whereas in the latter the court contented itself to simply say that the words of the statute fit better into the strict liability scheme.  In any event Strasser is certainly not authority for the proposition that the notion of mens rea is foreign to regulatory offences. 

[167]       In attempting to reconcile these two decisions I take it that the approach mandated by the Supreme Court is that the words of the statute should be very clear indeed with regard to the requirement for a mens rea component otherwise the offence will be considered to be a purely regulatory one of strict liability with all that that implies. 

[168]       The minority decision in the Wholesale Travel Group Ltd. v R. [1991] 3 S.C.R. 154 seemed prepared to import into the equation some sort of complex hybrid system involving a rebuttable presumption of fault thereby expanding considerably the orbit of the defences available to the defendant.  The majority, however, came down in favor of the principles as previously set out in Sault Ste. Marie.  These principles in turn appear to be equally alive and well to-day in the light of the recent decision of the Supreme Court in Lévis (Ville de) v Tétreault [2006] 1 S.C.R. 420 . 

[169]       As the appellant points out at paragraph 101 of its Factum the legislature of a province, in its turn, is perfectly competent to create regulatory offences incorporating an element of mens rea.  Counsel cites the decision of the Quebec Court of Appeal in Dupont v O’Brien, 1989 QCCA 1219 (CanLII) in support of that proposition. The court of appeal puts it as follows:

« La législature, bien qu'elle ne puisse créer un acte criminel stricto sensu, peut néanmoins imposer la nécessité de la preuve d'une mens rea à l'endroit d'infractions édictées pour le bien-être général et les termes  « volontairement », « sciemment » ou « intentionnellement » ne sont pas les seuls qui permettent de conclure à la nécessité de la preuve de la mens rea. »

 

[170]       Me Henry and Me Hébert in paragraphs 98 to 106 cite numerous cases emanating both from Quebec and Ontario generally supporting the proposition set out in O'Brien.  This reinforces the fact that Sault Ste. Marie, as I have said, did not dilute the importance of the words of the statute.  Quite to the contrary it specifically mandates that they be considered in determining whether the statute contains a mens rea component or not. 

[171]       As far as the decision of the Court of Quebec in A.M.F. v Laliberté, 2008 QCCQ cited at paragraph 104 of the appellant's factum is concerned I suppose, at first blush, it is open to the criticism that Lamontagne J.C.Q. has attempted to resurrect the minority position in Wholesale Travel Ltd. (supra)

[172]       I do not however believe that to be the case. I think that Lamontagne J.C.Q. is correct in stating that the defendant simply has to raise a reasonable doubt with regard to the mens rea aspect of the infraction. That of course pre-supposes that the prosecutor has presented prima facie proof of the mens rea element in the first place. Where however a mens rea element is required but is not established beyond a reasonable doubt then, as least in my respectful view, that would be the end of the matter and the prosecution must fail. 

[173]       Furthermore, in Wholesale Travel Ltd. the statute sets out the defences available in the circumstances.  Putting aside the question of "stigma" that may attach to a conviction, an argument that was rejected by the court, there was nothing to make the offence anything but a regulatory one of strict responsibility in which the defence of reasonable diligence may be invoked. 

[174]       I also agree generally with the position adopted by the appellant in paragraphs 85 to 92 of its factum and with the authorities to which counsel refer.  In my respectful view the notion of "aiding" and "inducing" pre-supposes on the part of the appellant not only some sort of voluntary action as but also knowledge that that action will either "help" or "induce" Flanders to carry out the act in question.  A mere bystander cannot accomplish that.  It may be that it was not necessary for the respondent in to prove that the appellant knew that the circumstances constituted an offence but more than passive acquiescence is required.

[175]       It will suffice to reproduce paragraphs 91 and 92 of the appellant's factum to illustrate this point.

91. En droit pénal québécois, pour engager sa responsabilité - comme participant ou complice à une infraction de responsabilité stricte commise par un tiers - le défendeur doit savoir qu'il aide délibérément l'auteur principal à violer la loi. La Cour d'appel de l'Ontario a statué comme suit dans l'arrêt R. c. Woolworth:

"1. Even with respect to offences of strict liability the alleged aider must know that he is aiding. Although it is not necessary that it be proven that he know that the conduct he is aiding constitutes an offence it is necessary that the accused be proven at least to have known the circumstances necessary to constitute the offence he is accused of aiding."

92. Le même tribunal, dans l'affaire R. c. Fell, a confirmé la règle voulant que la poursuite soit tenue de prouver l'intention spécifique du complice lorsque l'auteur principal est responsable d'une infraction de responsabilité stricte:

"The trial Judge correctly held that even where the offence is one of strict liability in so far as the liability of the principal is concerned, the liability of an aider or abettor to be convicted of the offence requires the existence of mens rea on the part of the aider or abettor. Mens rea in this context means knowledge of the circumstances which make up or constitute the offence, that is, in this case, knowledge on the part of the respondent that the representations were made and knowledge of the true facts. It was, of course, not necessary for the prosecution to prove that the respondent knew that those circumstances constituted an offence: see R. v F. W. Woolworth Co. Ltd. (soulignés ajoutés).

 

[176]        I am in full agreement with the principles cited in the above extracts and the extracts drawn from R v Woolworth Co. Ltd. [1991] 3 S.C.R. 154 , and R v Fell, (1981) 64 C.C.C. (2d) 456, p. 463.  There is nothing that I can usefully add to them.

[177]       In the course of the oral argument the trial judge expressed the view that he found no evidence of bad faith on the part of the appellant.  In paragraph 59 of his decision he concludes that exhibit P-65 was prepared in collaboration with Flanders given the similarity between the terms employed in P-65 and the terms used by Flanders' attorneys in their communications with the various provincial regulatory authorities.  This is the springboard that the first judge later employs in order to bring the matter within certain of the words of the statute although not the operative ones.

[178]       At paragraphs 59 and 60 the first judge put it as follows:

59. La lettre de la défenderesse à l'AMF datée du 10 juin 2005 (P-65) est manifestement une réponse préparée en collaboration avec Flanders, vu la similarité entre les termes de cette lettre et ceux utilisés par les procureurs de Flanders dans des lettres de décembre 2004 et janvier 2005 (P-66) adressées aux autorités réglementaires d'autres provinces, malgré l'affirmation contraire de Robert G. Phillips. Ces lettres confirment que La Souveraine et Flanders partageaient l'opinion que les contrats couvrant les inventaires n'étaient pas soumis aux lois québécoises, et ce, antérieurement au renouvellement des certificats d'assurance le 25 août 2005.

 

60. La défenderesse a donc autorisé, permis ou consenti à ce que Flanders délivre des polices d'assurance sachant que cette dernière n'avait pas les permis requis. Cette délivrance ne s'est pas faite à l'insu de la défenderesse.

 

[179]       For my part, I would attach no significance whatever to the fact that there was communication between Flanders and the appellant. Indeed communication was essential in order for the appellant to obtain and assemble the information that the respondent had required that it furnish.

[180]       From his conclusion in paragraph 59 however, the first judge makes the quantum leap to the conclusion set out in paragraph 60. With respect not only is his conclusion unsustainable but in addition the operative terms of the statute namely of "helping" or "inducing" have not been proved.  In my view, the essential elements of the infraction have not been made out.  It follows from the foregoing that I simply cannot share the conclusion reached by the first judge for the various reasons that I have attempted to articulate. The appeal will accordingly be allowed.

 

FOR THESE REASONS, THE COURT:

MAINTAINS the appellant's Appeal.

QUASHES and ANNULS the judgment of the Court of Quebec rendered on November the 10th, 2008.

ACQUITS the appellant of the 55 counts brought against it.

The whole with costs.

 

 

__________________________________

J. FRASER MARTIN, J.S.C.

 

Me Patrick Henry

Me Jean-Claude Hébert

Counsel for the Petitioner

 

Me Éric Blais

Counsel for the Respondent

 

 

AVIS :
Le lecteur doit s'assurer que les décisions consultées sont finales et sans appel; la consultation du plumitif s'avère une précaution utile.

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