Bill C45 Hey Buddy, Ever Been to Prison

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Bill C-45 - Hey Buddy, Ever Been to Prison?

• Geza R. Banfai
• CCA 86th Annual Conference
• Four Seasons Hotel
• Las Vegas, NV
• March 24, 2004

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Bill C-45

• An Act to amend the Criminal Code (criminal
  liability of organizations)
• Royal Assent November 7, 2003

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Summary

• Establish rules for attributing to organizations,
  including corporations, criminal liability for
  the acts of their representatives
• Establish a legal duty for all persons directing
  work to take reasonable steps to ensure the
  safety of workers and the public

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Summary (contd)

• Set out factors for courts to consider when
  sentencing an organization
• Provide optional conditions for probation that a
  court may impose on an organization

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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

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Representative means

• . . . a director, partner, employee, member,
  agent or contractor of the organization

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Senior officer means

• a representative who plays an important role in
  the establishment of an organizations policies
  or is responsible for managing an important
  aspect of the organizations activities, and, in
  the case of a body corporate, includes a
  director, its chief executive officer and its
  chief financial officer

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S. 22.1 (Offences of negligence corporations)

• 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 conductsuch that, if it had been the conduct
  of only one representative, that representative
  would have been a party to the offence and

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S. 22.1 (Offences of negligence corporations)
contd

• (b) the senior officer who is responsible for
  the aspect of the organizations activities that
  is relevant to the offence departs - or the
  senior officers, collectively, depart - from the
  standard of care that in the circumstances, could
  reasonably be expected to prevent a
  representativefrom being a party to the
  offence.

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S. 22.2 (Other offences corporations)

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

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S. 22.2 (Other offences corporations) contd

• (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

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S. 22.2 (Other offences corporations) contd

• (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.

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S. 217.1 (Duty of persons directing work)

• 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.

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S. 718.21 Sentencing factors

• Any advantage realized by the organization
• Degree of planning involved in the offence
• Duration and complexity of the offence
• Whether the organization attempted to conceal or
  convert assets to avoid paying a fine or making
  restitution
• Impact on continued viability of the organization
  and continued employment of employees

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S. 718.21 Sentencing factors (contd)

• Cost of investigation / prosecution
• Any regulatory penalty imposed
• Whether the organization or any of its
  representatives were convicted of similar
  offences

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S. 718.21 Sentencing factors (contd)

• Any penalty imposed by the organization upon the
  representative responsible
• Any restitution that the organization is ordered
  to make
• Any measures the organization has taken to reduce
  the likelihood of an offence In the future

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S. 732.1 Probation conditions

• Make restitution to any person for the loss /
  damage caused
• Establish policies, standards and procedures to
  reduce likelihood of another offence
• Communicate those policies, standards and
  procedures to the representatives
• Report to the court on the implementation of
  those policies, standards and procedures

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S. 732.1 Probation conditions (contd)

• Identify the senior officer responsible for
  compliance with those policies, standards and
  procedures
• Provide information to the public as to the
  offence for which convicted, sentence imposed and
  measures the organization is taking to reduce
  likelihood of repetition in the future

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S. 732.1 Probation conditions (contd)

• Comply with any other reasonable conditions that
  the court considers desirable to prevent any
  subsequent offence or to remedy the harm caused
  by the offence

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Penalty

• Summary conviction - fine of 100,000
• Indictable offence fine, no limit to amount

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Thank you.