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.

 
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