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Midterm

LAW 534 Midterm Notes Chapters 1-4.docx

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Department
Law and Business
Course Code
LAW 534
Professor
Gil Lan

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Chapter 1 – Regulating and Deregulating Risk Deregulating Risk  Margaret Thatcher elected Prime Minister in Britain under conservative party in 1979.  Action plan based on superiority of the marketplace to predict human wants and needs.  Government was the problem  Privatization became the slogan of the Thatcher government.  Privatization recognized government need not engage in vertical and horizontal integration.  Private sector failed in the level of its scientific knowledge when compared to the cumulative knowledge of the government scientists.  Sound science should have formed the basis of policy under open democratic scrutiny.  Deregulation in Canada in 1990 Walkerton case p 1-14, 1-34.4, 1-42  Failure in risk management during a shift in risk management  Regulatory failure -failure to identify and manage risks associated with that privatization  Lack of consideration of scenarios overtime – if no lack, it would’ve been apparent that deregulation could not occur in a compressed time frames  Single scenario outlook of budget reductions Precautionary principal  Where there are threats of serious or irreversible damage, lack of full scientific certainty should not be used as a reason for postponing measures to prevent risk  Tackles the problem of absence of scientific certainty in certain areas of risk, and directs that this absence of certainty should not bar the taking of precautionary measures in the face of possible irreversible harm  Influenced environmental and public health policy. States that complete evidence of a potential risk is not required before action is taken to mitigate the effects of potential risk 3 Stages of Risk Analysis 1. Risk assessment 2. Risk management 3. Risk communication Risk Assessment  Divided into four activities 1. Identifying the potential hazard -determination of whether a particular chemical is or is not casually linked to particular health effects 2. Drawing a dose/response cure -determination of the relation between magnitude of exposure and the probability of occurrence of the health effects in question 3. Estimating the amount of human exposure - determination of the extent of human exposure before or after application of regulatory controls 4. Categorizing the result -determination of the nature and often the magnitude of human risk, including attendant uncertainty -Risk assessment is only as effective as the extent of disclosure to consumers of all the risks Risk Assessment: Expert Evidence vs. Public Opinion – pg 1-20  In a democracy, legislation driven by public opinion (good and bad)  Opinions are very different (knowledge gap)  Public seems to be short sighted  Government should try to narrow the gap by taking the lead on new scientific theories Risk assessment under the Competition Act - pg 1-26  “Bait and switch” selling – deceptive marketing practice  retailer who sells a product at a “bargain” price must ensure there are reasonable quantities of that product  involves risk assessment concerning prediction of consumer behavior and available supply Risk Management  Process of weighing policy alternatives in light of the risk assessment and selecting appropriate control options – including regulatory measures  Systematic approach to setting best course of action under uncertainty to identifying, assessing, understanding, acting on and communicating risk issues 4 Elements of Forward-Looking Risk Management – pg 1-27 1. Time horizon – over what period of time are we concerned to consider out exposure to risk? 2. Scenarios -what events could unfold in future & how would they affect value of investment? 3. Risk measure -what is the unit we are using to gauge our exposure to risk? 4. Benchmarks -what are the points of comparison against which we can measure our performances? Ford Pinto case – pg 1-29  Design defect – would explode on impact  Infamous “burn chart”  Risk measurement/assessment problem: would be better to compensate families rather than fix the problem  Punitive damages, not compensatory Codification of Risk: The Role of Regulation  Regulators should focus on fixing the big problems that cause the most harm by developing strategies that operate at operational level  Globalization will fundamentally transform the task of codification of risk, as it is no longer possible to restrict the risk within one’s own borders 5 Properties of Harm – pg 1-34.2 1. Invisible Harm – (risk to disabled people) 2. Conscious opponents 3. Catastrophic harms 4. Harms in equilibrium 5. Performance enhancing risks Public opinion & Lag Period – pg 1-35 Risk Communication (Interpretation)  Minority groups do not have resources to lobby for legislative change Chapter 2 – Evolution and Classification of Offences  Licensing regime (ex ante) – imposing prior restraint  Offence regime (ex post) – redress harm that occurs after the fact Ex-Ante p. 2-2  When human safety or health is at risk/stake  Prevention of catastrophic harms, food safety  Precedent for the use of ex-ante prior approval to protect human life  Tries to prevent harm from occurring in the first place by regulatory control or supervision  Advantages: using rational principled approach towards an issue in advance (guidelines)  Disadvantages: proposition that all universal laws made up in advance are going to be defective in addressing particular decisions. Criticized as being “one size fits all.”Ex ante systems are not well suited in areas where technological change moves rapidly. Inefficiency is also a disadvantage (ex. Reviewing all films in a given year). It is costly. Ex-Post  Regulatory offences follow an ex post model: the regulation/statue sets standard and if breached, one can be prosecuted after the fact  Compensation  Advantages: efficient (ex. Only reviews films that result in complaints and laying of charges) Proposed that two principles ought to govern the balance between ex ante and post systems 1. Governments and regulators ought to focus on prevention of harm and serving of human needs in order of their priority 2. Regulatory state should offer multiple models that reflect different needs and interests at stake within both the ex ante and post world Rules vs. Principles – pg 2-2.4 Paradigm Timing Ex Ante Ex Post Rules-based Harm related:imposition of Detailed rules in regulation detailed technical rules in (all smokestacks must be 40 feet) licences (brail on telephone keys) Principle-based Imposition of licensing terms General principles for conduct framed in reasonable contained in regulation parameters (licence, telecommunicaSecurities Act-Cartaway case) Cartaway case – pg 2-2.11  2 brokers made 5.1million profit by making mining claims  a principle-based system was suited to an environment (securities) that requires a lot of flexibility R vs. Pierce Fisheries case – pg 2-2.15  26 “short lobsters” out of 50,000 pounds  no knowledge of the fact by employees  absence of mens rea  court viewed the offence as one that was not truly criminal with little stigma  prosecution did not have to prove any level of knowledge LRCC (Law Reform Commission of Canada)  Influential in shaping of the “halfway house” of strict liability  Emphasize importance of social reform in the community as a mechanism and to use criminal law as a last resort  Justification for to use criminal law as a last resort was efficacy of the concept of deterrence  Deterrence – basic theory is that by making the cost of offences more onerous than the derived benefits, individuals will be deterred from committing crimes  In 1970’s LRCC recognized regulatory law should be separate from criminal law  In 1976, LRCC began drafting a new criminal code – would exclude regulatory offences- although it would have a new offence of criminal breach of regulatory law LRCC identified the differences between regulatory and criminal law – pg 2-5 1. Proactive prescription of conduct 2. Negligence built into deference 3. Simplified trials 4. Lower stigma 5. No jail Halfway House (middle ground)  Created by Dickson J.  3 bullets on pg 2-10 (threehold classification)  Made it clear that public welfare offences, whether absolute or strict liability, were not criminal in any sense  Contemplated that the accused could avoid liability by showing what the reasonable person would have done in the circumstances  The enactment of the Charter would not alter Dickson’s threehold classification  Now the halfway house has dropped by the wayside, because it was perceived by the state to be almost burdensome as proving a criminal offence – pg 2-36 R v. Sault Ste. Marie (City) case – pg 2-10  Dickson said jail should not be part of the picture but the offence under the Ontario Water Resources Act contained liability to imprisonment (up to1 year) - contrary to LRCC’s recommendations. Secondly, legal burden was shifted onto the accused in a full traditional trial  Court recognized the need for and existence of an intermediate category of strict liability offences  Under the approach adopted by the court the accused has both the opportunity to prove due diligence and the burden of doing so  An objective standard is applied under which the conduct of the accused is assessed against that of a reasonable person in similar circumstances  Seminal (ground-breaking) decision  Absolute liability could not be coupled with imprisonment after the Charter and decision by the Supreme Court  If the prosecution must prove any such mental element beyond a reasonable doubt, then the offence fits within a mens rea offence  A due diligence defence can be read into an offence even if not clearly articulated in statutory language R v. Wholesale Travel case – pg. 2-12  Advertised vacation packages at wholesale price while at the same time charging consumers a price higher than wholesale (misleading  Statute contained due diligence defence  After the decision in this case (1985), one need only determine if a given offence carries liability for imprisonment; if it does, regardless of the language, it must contain a common law defence of due diligence to withstand Charter scrutiny  This decision had the effect of moving some absolute liability offences into the category of strict liability by virtue of the potential liability to imprisonment  The result was that most public welfare offences were classified as strict liability offences  Onus was placed on defence (reverse onus in strict liability)  Was more concerned with the traditional criminal law burden  Now this regulatory offence has been replaced with a new true mens rea offence  This case which was a foundation case in regulatory law, was based on regulatory (strict liability) offence od misleading advertising contained in the Competition Act  The offence was subsequently decriminalized, leaving only two tracks: a true criminal offence of misleading advertising and a civil/administrative track for deceptive marketing practices.  The regulatory offence that was at the heart of this case no longer exists. R v. Oakes case – pg 2-14  The Oakes test (fourfold test) R v. Timminco Ltd. case – pg 2-16  Employee found dead, was pressed between an index beam  Was charged under Occupational Health and Safety Act (followed strict liability model)  At trial defence persuaded the trial judge that the mere fact of an accident was not proof of actus reus  The defence argument placed an onus on the prosecution to lead some evidence that the company was aware that the machine could endanger workers.  Trial judge agreed with the defence argument and in the absence of evidence, was acquitted  The actus reus of a strict liability defence does not include a mental element The presumption of st
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