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Unlike
the proposal in Britain, the reformed criminal Code
in Canada does not create a new offence, but creates
a new way in which organisations can be prosecuted
for offences - that is to say, it creates a new way
of attirbuting criminal liability on organisations
(replacing the identification doctrine).
This has more far reaching implications than simply
creating a new offence involving deaths. This is because
the new principle will apply to any of the criminal
offences set out in the Criminal Code - not just involving
deaths - and will include the offence of "causing
bodily harm by criminal negligence" as well as
financial and other offences which are not relevant
here.
To see the whole Act, click
here
To read a parliamentary briefing on the Act, click
here
To
whom will the new test apply: The reformed Criminal
Code redefines which "organisations" can
be prosecuted for criminal offences using this new
test.
It defines ‘organisation’ as:
| (a) |
a
public body, body corporate, society, company,
firm partnership, trade union or municipality,
or |
| (b) |
an
association of person that is created for (i)
a common purpose; (b) has an operational structure
and (iii) holds itself out to the public as an
association of persons. |
This
reformed test is more expansive than the previous
definition and is also wider than the term 'corporation'
used in the Australian Criminal Code Act 1995. In
England and Wales, only corporate bodies - that is
to day organisations incorporated under companies
legislation or by Statute - can be prosecuted.
It
is important to note that the new defirnition includes
any public body - including crown bodies. In England/Wales
crown bodies are immune from prosecution.
The New Test: The reform Act has created two
new principles - one for offences requiring proof
of ‘negligence’ and the other for offencxes
requiring proof of recklessness or intent or some
other form of culpability other than negligence. We
will focus on negligence offences since it is not
likely that an organisation (see below for what this
means) would be prosecuted – in relation to safety
issues – to anything other than these offences.
In order to understand the way the new principle operates,
it is important to note the following:
| • |
under
the existing criminal code, a person is “a
party” to an offence if they either commit
the offence or aid and abet or procure the offence; |
| • |
the
reformed criminal code defines:
| -
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a
representative of an organisation
as “a director, partner, employees,
member, agent or contractor of the organisation"; |
| -
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a
senior officer as a “representative
who plays an important role in the establishment
of an organisation’s policies or is
responsible for managing an important aspect
of the organisation’s activities and
in the case of a body corporate include
a director, its chief executive officer
and its chief financial officer. |
|
| In
relation to offences involving proof of negligence,
in order to make an 'organisation' party to an
offence it needs first to be shown that, acting
within the scope of their authority, either: |
| (a) |
one of the company’s “representatives”
is a party to the offence or |
| (b) |
two
or more of it representatives engage in conduct
such that had the conduct been committed by one
representative, that representative would have
been considered to be a party to the offence. |
In
addition, it then needs to be shown that either one
or more senior officers, - with responsibility for
the aspect of the organisation’s activities that
is relevant to the offence - have departed:
“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
order to make the second limb of this principle engage,
the reforms impose a duty upon:
“everyone who undertakes, or has the authority,
to direct how another person does work or performs
a task.”
The
reformed Criminal Code states that they are 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.”
To
see the relevant text of the reforms, Click
Here
Back
Extract from Act
Section 2: Offences of Negligence - Organisation
| 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 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 organization from being a party to the
offence. |
Section
3: 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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