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Reference Manual for the WHMIS Requirements of the Hazardous Products Act and Controlled Products Regulations
HPA Section 28 - Offence, Punishment and Procedure
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Offence, Punishment and Procedure
28. (1) Every person who contravenes or fails to comply with any provision of this Act or of any regulation made under this Act is guilty of an offence and is liable
(a) on summary conviction, to a fine not exceeding one hundred thousand dollars or to imprisonment for a term not exceeding six months or to both; or
(b) on proceedings by way of indictment, to a fine not exceeding one million dollars or to imprisonment for a term not exceeding two years or to both.
(2) Where a corporation commits an offence under subsection (1), any officer, director or agent of the corporation who directed, authorized, assented to, acquiesced in or participated in the commission of the offence is a party to and guilty of the offence and is liable on conviction to the punishment provided for the offence, whether or not the corporation has been prosecuted or convicted.
(3) Proceedings by way of summary conviction is respect of an offence under paragraph (1)(a) may be instituted at any time within but not later than twelve months after the time when the subject matter of the proceedings arose.
Interpretation / Discussion of Section 28
Section 28 outlines the scope of the penalties for a violation of any provision of the HPA or the regulations made under that Act.
Offenses punishable under section 28 include, in addition to the offenses set out in section 4, 13, and 14, obstruction of an inspector or knowingly making a false or misleading statement to an inspector as per subsection 23(1); removing altering or interfering with seized goods as per subsection 23(2); disclosure of privileged information, subsection 10(3); and refusal to supply information as required by section 30 of the Controlled Products Regulations.
The penalties stated in subsection 28(1) are the maximum penalties. The actual penalty is determined by the courts.
The term "person" means any legal entity. It includes individuals and corporations. Normally a business or corporation will be charged with an offence in the name of the business or corporation. The President or principal shareholder would not be charged unless he or she were directly involved in the alleged offence.
Summary Proceedings and Indictment:
Subsection 28(1) sets out two procedural options for prosecuting offenders. The choice is made by the Crown prosecutor when the alleged offender is charged and the choice normally depends upon the gravity of the offence and whether it is a repeat offence.
A summary proceeding is one in which a minor crime or misdemeanour is dealt with by a judge relatively quickly and without a jury. The magistrate has the authority to deal summarily ("at once", "without ceremony") with these charges, for which the maximum penalty is a $100,000 fine and/or six months imprisonment. The Act permits laying summary conviction charges at any time within twelve months after the time when the subject matter of the prosecution arose. If, for some reason, the prosecution cannot be initiated within the twelve month period, the charge must be laid by indictment. There is no time limit on proceedings by way of indictment.
The "time when the subject matter of the prosecution arose" refers to the time that the violation occurred; that is, took place. The enforcing jurisdiction may not become aware of the non-complying nature of the sale, etc., until a later date; for example, after a laboratory analysis of a sample of the product. Under section 28 of the Interpretation Act, if the offence occurred on June 1, 1996 the twelve month period would expire at midnight on June 2, 1997. If June 2, 1997 were a holiday, then the time period would expire at midnight of the next day that is not a holiday. If the month in which the twelve month period expires does not have a calendar day corresponding to the specified expiry date (e.g., September 31), then the time period expires at midnight of the last day of that month (e.g., midnight September 30).
An indictable offence is more serious than a summary offence and carries with it more severe maximum penalties. A person convicted of an indictable offence under the Act can be imprisoned for up to two years in addition to or instead of a fine in an amount determined at the discretion of the court but not to exceed one million dollars. Where the offender is a corporation, there is no individual to be imprisoned so the corporation can only be fined.
An accused charged with an indictable offence under the HPA has the right to choose to be tried before a provincial court judge, a justice of the superior court, or, unless the accused is a corporation, a judge and jury. If the accused does not elect to be tried by a provincial court judge, a preliminary hearing is held before a provincial court judge to determine whether there is a prima facie case against the accused; that is, whether the prosecution has sufficient evidence which, if believed, would establish that the offence had been committed. If the provincial court judge decides that the evidence is sufficient, he or she will commit the accused for trial. If the evidence is not considered sufficient, the case will be dismissed.
An example of where a violation might appropriately be prosecuted as an indictable offence is where the accused had been previously convicted of the same offence or where there are numerous apparent violations. In addition, where an accused has failed to cooperate with an investigation, a prosecutor may decide to proceed by way of indictment.
Most cases brought to prosecution under the HPA should be treated as summary offenses in view of the less lengthy and less complicated procedure involved.
