An Act to amend the Criminal Code (criminal liability of organizations) (S.C. 2003, c. 21)

Assented to 2003-11-07

An Act to amend the Criminal Code (criminal liability of organizations)

S.C. 2003, c. 21

Assented to 2003-11-07

An Act to amend the Criminal Code (criminal liability of organizations)

SUMMARY

This enactment amends the Criminal Code to

  • (a) establish rules for attributing to organizations, including corporations, criminal liability for the acts of their representatives;

  • (b) establish a legal duty for all persons directing work to take reasonable steps to ensure the safety of workers and the public;

  • (c) set out factors for courts to consider when sentencing an organization; and

  • (d) provide optional conditions of probation that a court may impose on an organization.

Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:

R.S., c. C-46CRIMINAL CODE

  •  (1) The definition “ “every one”, “person”, “owner” ” in section 2 of the Criminal Code is replaced by the following:

    “every one”, “person” and “owner”

    « quiconque », « individu », « personne » et « propriétaire »

    “every one”, “person” and “owner”, and similar expressions, include Her Majesty and an organization;

  • (2) Section 2 of the Act is amended by adding the following in alphabetical order:

    “organization”

    « organisation »

    “organization” means

    • (a) a public body, body corporate, society, company, firm, partnership, trade union or municipality, or

    • (b) an association of persons that

      • (i) is created for a common purpose,

      • (ii) has an operational structure, and

      • (iii) holds itself out to the public as an association of persons;

    “representative”

    « agent »

    “representative”, in respect of an organization, means a director, partner, employee, member, agent or contractor of the organization;

    “senior officer”

    « cadre supérieur »

    “senior officer” means a representative who plays an important role in the establishment of an 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;

 The Act is amended by adding the following after section 22:

Marginal note:Offences of negligence — organizations

22.1 In respect of an offence that requires the prosecution to prove negligence, an organization 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 organization’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 organization from being a party to the offence.

Marginal note:Other offences — organizations

22.2 In respect of an offence that requires the prosecution to prove fault — other than negligence — an organization is a party to the offence if, with the intent at least in part to benefit the organization, one of its senior officers

  • (a) acting within the scope of their authority, is a party to the offence;

  • (b) 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 organization so that they do the act or make the omission specified in the offence; or

  • (c) knowing that a representative of the organization 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.

 The Act is amended by adding the following after section 217:

Marginal note:Duty of persons directing work

217.1 Every one who undertakes, or has the authority, to direct how another person does work or performs a task is under a legal duty to take reasonable steps to prevent bodily harm to that person, or any other person, arising from that work or task.

 Paragraph 328(e) of the Act is replaced by the following:

  • (e) by the representatives of an organization from the organization.

  •  (1) The portion of paragraph 362(1)(c) of the Act before subparagraph (i) is replaced by the following:

    • (c) knowingly makes or causes to be made, directly or indirectly, a false statement in writing with intent that it should be relied on, with respect to the financial condition or means or ability to pay of himself or herself or any person or organization that he or she is interested in or that he or she acts for, for the purpose of procuring, in any form whatever, whether for his or her benefit or the benefit of that person or organization,

  • (2) Paragraph 362(1)(d) of the Act is replaced by the following:

    • (d) knowing that a false statement in writing has been made with respect to the financial condition or means or ability to pay of himself or herself or another person or organization that he or she is interested in or that he or she acts for, procures on the faith of that statement, whether for his or her benefit or for the benefit of that person or organization, anything mentioned in subparagraphs (c)(i) to (vi).

 Section 391 of the Act is repealed.

 The portion of subsection 418(2) of the Act before paragraph (a) is replaced by the following:

  • Marginal note:Offences by representatives

    (2) Every one who, being a representative of an organization that commits, by fraud, an offence under subsection (1),

Marginal note:1997, c. 18, s. 35(2)

 Paragraph 462.38(3)(b) of the Act is replaced by the following:

  • (b) a warrant for the arrest of the person or a summons in respect of an organization has been issued in relation to that information, and

 Section 538 of the Act is replaced by the following:

Marginal note:Organization

538. Where an accused is an organization, subsections 556(1) and (2) apply with such modifications as the circumstances require.

Marginal note:R.S., c. 27 (1st Supp.), s. 107; 1999, c. 3, s. 40

 Section 556 of the Act is replaced by the following:

Marginal note:Organization
  • 556. (1) An accused organization shall appear by counsel or agent.

  • Marginal note:Non-appearance

    (2) Where an accused organization does not appear pursuant to a summons and service of the summons on the organization is proved, the provincial court judge or, in Nunavut, the judge of the Nunavut Court of Justice

    • (a) may, if the charge is one over which the judge has absolute jurisdiction, proceed with the trial of the charge in the absence of the accused organization; and

    • (b) shall, if the charge is not one over which the judge has absolute jurisdiction, hold a preliminary inquiry in accordance with Part XVIII in the absence of the accused organization.

  • Marginal note:Organization not electing

    (3) If an accused organization appears but does not elect when put to an election under subsection 536(2) or 536.1(2), the provincial court judge or judge of the Nunavut Court of Justice shall hold a preliminary inquiry in accordance with Part XVIII.

Marginal note:R.S., c. 27 (1st Supp.), s. 203

 Subsection 570(5) of the Act is replaced by the following:

  • Marginal note:Warrant of committal

    (5) Where an accused other than an organization is convicted, the judge or provincial court judge, as the case may be, shall issue or cause to be issued a warrant of committal in Form 21, and section 528 applies in respect of a warrant of committal issued under this subsection.

Marginal note:1995, c. 22, s. 10 (Sch. I, item 21); 1997, c. 18, ss. 70 to 72

 The heading before section 620 and sections 620 to 623 of the Act are replaced by the following:

Organizations

Marginal note:Appearance by attorney

620. Every organization against which an indictment is filed shall appear and plead by counsel or agent.

Marginal note:Notice to organization
  • 621. (1) The clerk of the court or the prosecutor may, where an indictment is filed against an organization, cause a notice of the indictment to be served on the organization.

  • Marginal note:Contents of notice

    (2) A notice of an indictment referred to in subsection (1) shall set out the nature and purport of the indictment and advise that, unless the organization appears on the date set out in the notice or the date fixed under subsection 548(2.1), and enters a plea, a plea of not guilty will be entered for the accused by the court, and that the trial of the indictment will be proceeded with as though the organization had appeared and pleaded.

Marginal note:Procedure on default of appearance

622. Where an organization does not appear in accordance with the notice referred to in section 621, the presiding judge may, on proof of service of the notice, order the clerk of the court to enter a plea of not guilty on behalf of the organization, and the plea has the same force and effect as if the organization had appeared by its counsel or agent and pleaded that plea.

Marginal note:Trial of organization

623. Where an organization appears and pleads to an indictment or a plea of not guilty is entered by order of the court under section 622, the court shall proceed with the trial of the indictment and, where the organization is convicted, section 735 applies.

Marginal note:2002, c. 13, s. 60

 Subsection 650(1) of the Act is replaced by the following:

Marginal note:Accused to be present
  • 650. (1) Subject to subsections (1.1) to (2) and section 650.01, an accused, other than an organization, shall be present in court during the whole of his or her trial.

Marginal note:R.S., c. 27 (1st Supp.), s. 149

 Section 703.2 of the Act is replaced by the following:

Marginal note:Service of process on an organization

703.2 Where any summons, notice or other process is required to be or may be served on an organization, and no other method of service is provided, service may be effected by delivery

  • (a) in the case of a municipality, to the mayor, warden, reeve or other chief officer of the municipality, or to the secretary, treasurer or clerk of the municipality; and

  • (b) in the case of any other organization, to the manager, secretary or other senior officer of the organization or one of its branches.

 The Act is amended by adding the following after section 718.2:

Organizations

Marginal note:Additional factors

718.21 A court that imposes a sentence on an organization shall also take into consideration the following factors:

  • (a) any advantage realized by the organization as a result of the offence;

  • (b) the degree of planning involved in carrying out the offence and the duration and complexity of the offence;

  • (c) whether the organization has attempted to conceal its assets, or convert them, in order to show that it is not able to pay a fine or make restitution;

  • (d) the impact that the sentence would have on the economic viability of the organization and the continued employment of its employees;

  • (e) the cost to public authorities of the investigation and prosecution of the offence;

  • (f) any regulatory penalty imposed on the organization or one of its representatives in respect of the conduct that formed the basis of the offence;

  • (g) whether the organization was — or any of its representatives who were involved in the commission of the offence were — convicted of a similar offence or sanctioned by a regulatory body for similar conduct;

  • (h) any penalty imposed by the organization on a representative for their role in the commission of the offence;

  • (i) any restitution that the organization is ordered to make or any amount that the organization has paid to a victim of the offence; and

  • (j) any measures that the organization has taken to reduce the likelihood of it committing a subsequent offence.

Marginal note:1995, c. 22, s. 6

 Subsection 721(1) of the Act is replaced by the following:

Marginal note:Report by probation officer
  • 721. (1) Subject to regulations made under subsection (2), where an accused, other than an organization, pleads guilty to or is found guilty of an offence, a probation officer shall, if required to do so by a court, prepare and file with the court a report in writing relating to the accused for the purpose of assisting the court in imposing a sentence or in determining whether the accused should be discharged under section 730.

Marginal note:1995, c. 22, s. 6

 Subsection 727(4) of the Act is replaced by the following:

  • Marginal note:Organizations

    (4) If, under section 623, the court proceeds with the trial of an organization that has not appeared and pleaded and convicts the organization, the court may, whether or not the organization was notified that a greater punishment would be sought by reason of a previous conviction, make inquiries and hear evidence with respect to previous convictions of the organization and, if any such conviction is proved, may impose a greater punishment by reason of that conviction.

Marginal note:1997, c. 18, par. 141(d)

 Subsection 730(1) of the Act is replaced by the following:

Marginal note:Conditional and absolute discharge
  • 730. (1) Where an accused, other than an organization, pleads guilty to or is found guilty of an offence, other than an offence for which a minimum punishment is prescribed by law or an offence punishable by imprisonment for fourteen years or for life, the court before which the accused appears may, if it considers it to be in the best interests of the accused and not contrary to the public interest, instead of convicting the accused, by order direct that the accused be discharged absolutely or on the conditions prescribed in a probation order made under subsection 731(2).

Marginal note:1995, c. 22, s. 6
  •  (1) The definition “optional conditions” in subsection 732.1(1) of the Act is replaced by the following:

    “optional conditions”

    « conditions facultatives »

    “optional conditions” means the conditions referred to in subsection (3) or (3.1).

  • (2) Section 732.1 of the Act is amended by adding the following after subsection (3):

    • Marginal note:Optional conditions — organization

      (3.1) The court may prescribe, as additional conditions of a probation order made in respect of an organization, that the offender do one or more of the following:

      • (a) make restitution to a person for any loss or damage that they suffered as a result of the offence;

      • (b) establish policies, standards and procedures to reduce the likelihood of the organization committing a subsequent offence;

      • (c) communicate those policies, standards and procedures to its representatives;

      • (d) report to the court on the implementation of those policies, standards and procedures;

      • (e) identify the senior officer who is responsible for compliance with those policies, standards and procedures;

      • (f) provide, in the manner specified by the court, the following information to the public, namely,

        • (i) the offence of which the organization was convicted,

        • (ii) the sentence imposed by the court, and

        • (iii) any measures that the organization is taking — including any policies, standards and procedures established under paragraph (b) — to reduce the likelihood of it committing a subsequent offence; and

      • (g) comply with any other reasonable conditions that the court considers desirable to prevent the organization from committing subsequent offences or to remedy the harm caused by the offence.

    • Marginal note:Consideration — organizations

      (3.2) Before making an order under paragraph (3.1)(b), a court shall consider whether it would be more appropriate for another regulatory body to supervise the development or implementation of the policies, standards and procedures referred to in that paragraph.

Marginal note:1999, c. 5, s. 33(1)

 The portion of subsection 734(1) of the Act before paragraph (a) is replaced by the following:

Marginal note:Power of court to impose fine
  • 734. (1) Subject to subsection (2), a court that convicts a person, other than an organization, of an offence may fine the offender by making an order under section 734.1

Marginal note:1995, c. 22, s. 6
  •  (1) The portion of subsection 735(1) of the Act before paragraph (a) is replaced by the following:

    Marginal note:Fines on organizations
    • 735. (1) An organization that is convicted of an offence is liable, in lieu of any imprisonment that is prescribed as punishment for that offence, to be fined in an amount, except where otherwise provided by law,

  • Marginal note:1995, c. 22, s. 6

    (2) Paragraph 735(1)(b) of the Act is replaced by the following:

    • (b) not exceeding one hundred thousand dollars, where the offence is a summary conviction offence.

  • Marginal note:1999, c. 5, s. 37

    (3) Subsection 735(2) of the Act is replaced by the following:

    • Marginal note:Effect of filing order

      (2) Section 734.6 applies, with any modifications that are required, when an organization fails to pay the fine in accordance with the terms of the order.

 Subsection 800(3) of the Act is replaced by the following:

  • Marginal note:Appearance by organization

    (3) Where the defendant is an organization, it shall appear by counsel or agent and, if it does not appear, the summary conviction court may, on proof of service of the summons, proceed ex parte to hold the trial.

COORDINATING AMENDMENT

Marginal note:2002, c. 13

 On the later of the coming into force of section 9 of this Act and section 34 of the Criminal Law Amendment Act, 2001, section 556 of the Criminal Code is replaced by the following:

Marginal note:Organization
  • 556. (1) An accused organization shall appear by counsel or agent.

  • Marginal note:Non-appearance

    (2) Where an accused organization does not appear pursuant to a summons and service of the summons on the organization is proved, the provincial court judge or, in Nunavut, the judge of the Nunavut Court of Justice

    • (a) may, if the charge is one over which the judge has absolute jurisdiction, proceed with the trial of the charge in the absence of the accused organization; and

    • (b) shall, if the charge is not one over which the judge has absolute jurisdiction, fix the date for the trial or the date on which the accused organization must appear in the trial court to have that date fixed.

  • Marginal note:Preliminary inquiry not requested

    (3) If an accused organization appears and a preliminary inquiry is not requested under subsection 536(4), the provincial court judge shall fix the date for the trial or the date on which the organization must appear in the trial court to have that date fixed.

  • Marginal note:Preliminary inquiry not requested — Nunavut

    (4) If an accused organization appears and a preliminary inquiry is not requested under subsection 536.1(3), the justice of the peace or the judge of the Nunavut Court of Justice shall fix the date for the trial or the date on which the organization must appear in the trial court to have that date fixed.

COMING INTO FORCE

Marginal note:Order

 The provisions of this Act, other than section 22, come into force on a day or days to be fixed by order of the Governor in Council.