''R v Wholesale Travel Group Inc'' 9913 S.C.R. 154, is a leading

Supreme Court of Canada The Supreme Court of Canada (SCC; french: Cour suprême du Canada, CSC) is the Supreme court, highest court in the Court system of Canada, judicial system of Canada. It comprises List of Justices of the Supreme Court of Canada, nine justices, wh ...

case on the distinction between "true crime" and regulatory offences.

Background

Wholesale Travel sold vacation packages which it advertised as being at "wholesale prices" when, in fact, they were not wholesale prices at all. The company was charged with five counts of false or misleading advertising contrary to s. 36(1)(a) ow s. 60(2)of the ''Competition Act''. The charge was a

hybrid offence A hybrid offence, dual offence, Crown option offence, dual procedure offence, offence triable either way, or wobbler is one of the special class offences in the common law jurisdictions where the case may be prosecuted either summarily or as i ...

that could be either an

indictment An indictment ( ) is a formal accusation that a legal person, person has committed a crime. In jurisdictions that use the concept of felony, felonies, the most serious criminal offence is a felony; jurisdictions that do not use the felonies concep ...

consisting of a fine at the discretion of the court and to imprisonment for five years or to both, or a

summary conviction A summary offence or petty offence is a violation in some common law jurisdictions that can be proceeded against summarily, without the right to a jury trial and/or indictment (required for an indictable offence). Canada In Canada, summary offenc ...

consisting of a fine of $25,000 and a prison term for one year or both.Stuart, Don
"Canadian Criminal Law 11th Edition"
Carswell Publishing, 2009, p.383. At trial, the judge held that ss. 36 and 37.3, which allowed for a

due diligence Due diligence is the investigation or exercise of care that a reasonable business or person is normally expected to take before entering into an agreement or contract with another party or an act with a certain standard of care. It can be a l ...

defence, were in violation of ss. 7 and 11(d) of the

Canadian Charter of Rights and Freedoms The ''Canadian Charter of Rights and Freedoms'' (french: Charte canadienne des droits et libertés), often simply referred to as the ''Charter'' in Canada, is a bill of rights entrenched in the Constitution of Canada, forming the first part o ...

. The Crown's appeal for a dismissal was allowed and the case was resubmitted for trial. At appeal, the

Court of Appeal for Ontario The Court of Appeal for Ontario (frequently referred to as the Ontario Court of Appeal or ONCA) is the appellate court for the province of Ontario, Canada. The seat of the court is Osgoode Hall in downtown Toronto, also the seat of the Law Societ ...

upheld the order for a trial. The accused applied to the Supreme Court of Canada and was rejected the first time but was accepted on a second appeal. The issue before the Court was whether s. 37.3(2) of the Competition Act violated s. 7 of the Charter (which safeguards the "

security of the person Security of the person is a basic entitlement guaranteed by the Universal Declaration of Human Rights, adopted by the United Nations in 1948. It is also a human right explicitly defined and guaranteed by the European Convention on Human Rights, th ...

").

Ruling

The Court unanimously held that offences for which the mens rea is not necessary (as in cases of reglementary offences (See

R v Sault Ste-Marie (City of) ''R v Sault Ste-Marie (City of)'' 9782 SCR 1299 is a Supreme Court of Canada case where the Court defines the three types of offences that exist in Canadian criminal law and further defines the justification for "public welfare" offences. Backgro ...

) do not violate s. 7 of the Charter when a due diligence defence demonstrated by preponderance of evidence (s. 37.3(2)(a) and (b)) is available, but that the "timely retraction" provisions of s. 37.3(2)(c) and (d) did infringe s. 7 and could not be saved under s.1. The Court however was divided on whether a reversal of onus onto the accused in s. 37.3(2) was constitutional. The majority (Lamer with LaForest, Sopinka, Gonthier, McLachlin, Stevenson, and Iacobucci) held that the

reverse onus A reverse onus clause is a provision within a statute that shifts the burden of proof onto the individual specified to disprove an element of the information. Typically, this particular provision concerns a shift in burden onto a defendant in eith ...

infringed s.11(d) of the Charter. However, only four of the seven held that it could not be saved under s. 1. Since the remaining 2 judges (L'Heureux-Dube and Cory) found the reversal of onus did not violate s. 11(d), a majority was had by those that argued a reversal of onus was constitutionally justifiable by a 5 to 4 margin.

Comment

Note that the counsel for Wholesale Travel Group Inc. was led by

Ian Binnie William Ian Corneil Binnie (born April 14, 1939) is a former puisne justice of the Supreme Court of Canada, serving from January 8, 1998 to October 27, 2011. Of the justices appointed to the Supreme Court in recent years, he is one of the few app ...

who would be promoted to the Supreme Court a few years later.

External links

*
Wholesale Travel's website

Competition Bureau Canada

Sources Cited

{{DEFAULTSORT:Wholesale Travel Group Inc Supreme Court of Canada cases Section Seven Charter case law 1991 in Canadian case law Canadian criminal case law