Canadian Criminal Law (January 2019) (12) Corporate & Association Liability

New Statutory Provisions for Corporate Criminal Liability (pp. 239-249)

● Bill C-45 amended the code for a new liability and punishment regime for corporations. They can be fined or on probation to
deter repeats.
● Organizational Liability
o Provisions apply to
▪ Corporations;
▪ Public body
▪ Body corporate
▪ Society
▪ Company
▪ Firm
▪ Partnership
▪ Trade union
▪ Municipality
o these are all not natural persons (no life, liberty or security of the person (s7))
● Representatives of an Organization
o The prohibited act (actus reus) must be committed by one or more of the organization’s ‘representatives’
▪ Broadly defined as directors, partners, employees, members of the organization, agent and contractors (s2)
▪ A public body who contracts out work to non-employees can still be held liable for prohibited acts performed
by the contractor or agent.
● Senior Officers of an Organization
o The required fault (mens rea) must be found in a senior officer of the organization
▪ Defined as a representative who plays an important role in the establishment of the organization’s policies or
is responsible for managing an important aspect of the organization’s activities and, in the case of a body
corporate, includes a director, its chief executive officer and its chief financial officer (s2)
o Follows the common law concept of ‘directing mind and will’
● Organizational Fault for Negligence Offences (s22.1)
o Requires;
▪ (1) the representative(s) of the organization commit the prohibited act (s22.1(a))
● they must be acting within the scope of their authority
● many representatives may be held cumulatively responsible (s22.1(a)(ii))
o ex. two or more employees failing to take safety precautions
▪ (2) ‘senior officer departs markedly from a standard of care that in the circumstances could reasonably be
expected to prevent a representative of the organization from being a party to the offence’ (s22.1(b))
● more than simple negligence or lack of due diligence
● all organizations should establish systems that prevent their representatives from committing
offence based on negligence
● there can be fault of multiple senior officers (‘collectively’)
● Organizational Fault for Subjective Intent Offences (s22.2)
o applies to all other offences, rather than those based on negligence
o one office must have all the fault (unlike s22.1)
o offences committed by;
▪ (a) senior officers acting on their own within the scope of their authority
● must be acting within the scope of their authority
● must have the intent to benefit the organization (at least in part)
● only needs to be a party to the offence (does not need to actually commit the offence)
▪ (b) senior officers directing representatives to that they commit the offence
● must be acting within the scope of their authority
● must direct the work of the representatives
● directs them in such a manner that they commit the prohibited act or omission
● must have the mens rea required to be a party to the offence
▪ (c) senior officers knowing that representatives are or will commit offences but failing to take all
reasonable measures to stop them from doing so
● senior officer knows that a representative of the organization is or is about to be a party to the
offence (subjective knowledge)
● senior officer fails ‘to take all reasonable measure’ to stop the representative from being a party to
the offence (objective fault)
o may look to the multiple factors that are relevant in determining due diligence
o distinct from regulatory offences here, senior officer requires guilty knowledge & failure
to take reasonable steps must be proven BRD (as opposed to BoP)