In Canada, legal persons – included in the category of “organisations” – can be held liable for most criminal offenses under the Criminal Code.
Article 2 of the Criminal Code specifies that the terms “whomever”, “individual”, “person” and “owner” used in the code include “Her Majesty and organisations.” Similarly, the word “person” in the Crimes Against Humanity and War Crimes Act includes legal persons, inter alia, given that Article 2 states: “Unless otherwise indicated, the terms of this Act shall be construed under the Criminal Code.” Canada therefore allows legal persons to be prosecuted for genocide, crimes against humanity, war crimes and breach of responsibility by a military commander or other superior.
The Canadian Criminal Code makes a distinction between crimes of negligence (art. 22.1) and offenses for which some knowledge or intent must be established (art. 22.2). Thus, Article 22.1 of the Criminal Code notes that “ In respect of an offence that requires the prosecution to prove negligence, an organisation is a party to the offence if (a) acting within the scope of their authority: (i) one of its representatives is a party to the offence, or (ii) two or more of its representatives engage in conduct, whether by act or omission, such that, if it had been the conduct of only one representative, that representative would have been a party to the offence; and (b) the senior officer who is responsible for the aspect of the organisation’s activities that is relevant to the offence departs — or the senior officers, collectively, depart — markedly from the standard of care that, in the circumstances, could reasonably be expected to prevent a representative of the organisation from being a party to the offence. ”
In other words, with regard to the material element, an organisation is liable for the negligent act or negligent omission of one of its agents. However, the offense may also be the result of the collective behaviour of several of the organisation’s agents. Regarding the moral element, the executive officer or senior management, must collectively make a marked departure from the standard of care expected in the circumstances to prevent neglect.
In addition, Article 22.2 of the Criminal Code notes that “ In respect of an offence that requires the prosecution to prove fault — other than negligence — an organisation is a party to the offence if, with the intent at least in part to benefit the organisation, one of its senior officers
- acting within the scope of their authority, is a party to the offence;
- having the mental state required to be a party to the offence and acting within the scope of their authority, directs the work of other representatives of the organisation so that they carry out the act or make the omission specified in the offence; or
- knowing that a representative of the organisation is or is about to be a party to the offence, does not take all reasonable measures to stop them from being a party to the offence. ”
Article 22.2 of the Criminal Code thus provides three ways in which a corporation may commit an offense requiring knowledge of a fact or a specific intent. In all cases, the emphasis is placed on executives who must have intended to use the organisation in order to commit an offence.
The Canadian Criminal Code provides for fines where organisations are deemed guilty of a breach of business law. The Code sets no ceiling for fines imposed on organisations. This amount is left to the discretion of the court and varies depending on a number of factors. 1
The Criminal Code also provides for probation orders for companies. 2 The conditions the court may impose on an organisation include:
- Providing compensation for victims of the offense to emphasise that their losses are among the sentencing judge’s primary concerns;
- Requiring the organisation to inform the public of the offense, the penalty imposed and the corrective measures it has taken;
- Implementing policies and procedures to reduce the possibility of committing other offenses;
- Communicating those policies and procedures to its employees;
- Designating a senior manager responsible for overseeing the implementation of those policies and procedures;
- Reporting on the implementation of various penalties