INTRODUCTION AND BRIEF DESCRIPTION
The word representative as it relates to an organization is defined at section 2 of the Criminal Code of Canada.
SECTION WORDING
2. In this Act, "representative", in respect of an organization, means a director, partner, employee, member, agent or contractor of the organization;
EXPLANATION
The term "representative" as it is used in the context of organizations is designated at section 2 of the Code. The Criminal Code contains specific sections dealing with the liability of an organization's representative, notably section 22.1, which sets out the crime of organizational negligence. The definition will also come into consideration during sentencing, pursuant to section 718.21.
COMMENTARY
Section 2 of the Criminal Code of Canada is an important provision that defines the term "representative" in the context of an organization. The section specifies that a representative of an organization can be a director, partner, employee, member, agent or contractor of the organization. This provision is significant because it plays a key role in determining the criminal liability of an organization. The definition of a "representative" provided in this section is broad and inclusive. It covers a wide range of individuals who may be associated with an organization. This is important because organizations can have complex structures and the individuals who represent them can vary depending on the nature of the organization. The definition ensures that all individuals who have a connection to an organization can be held accountable for their actions. One of the main implications of this provision is that if a representative of an organization commits a criminal offence, the organization can also be held liable. The concept of organizational liability is an important one because it recognizes that organizations can be responsible for the actions of their representatives. This is particularly relevant in cases where the actions of an individual were undertaken in the course of their employment or representation of the organization. The provision also highlights the importance of due diligence on the part of organizations to prevent criminal activity. Organizations are responsible for ensuring that their representatives act in accordance with the law and do not engage in criminal activity. They must have policies and procedures in place to prevent criminal activity and must take steps to investigate and report any incidents that do occur. Failure to do so could result in criminal liability for the organization. Another implication of this provision is that it can help to deter criminal activity. Knowing that both individuals and organizations can be held accountable for criminal activity can act as a deterrent. This is important in cases where the potential harm caused by criminal activity is significant. The potential for criminal liability at both the individual and organizational level can help to prevent criminal activity from occurring in the first place. Overall, section 2 of the Criminal Code of Canada is an important provision that defines the term "representative" in the context of an organization. It plays a critical role in determining the criminal liability of organizations and their representatives. The provision is inclusive and recognizes the wide range of individuals who may be associated with an organization. It highlights the importance of due diligence on the part of organizations to prevent criminal activity and can act as a deterrent to criminal activity.
STRATEGY
To determine whether a representative will be held criminally liable for the actions of their organization, reference must be had to section 22.1, which states that an organization may be liable if "...one of its representatives is a party to the offence... and ... the senior officer who is responsible for the aspect of the organization's activities that is relevant to the offence departs ... 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." Basically, an individual will be charged based on that individual's actions, and based on whether the organization was sufficiently connected to the criminal behavior or reckless to its existence, the organization may also be criminally culpable.
QUESTIONS AND ANSWERS
Q.
Can a director of a company be held criminally liable for the actions of the corporation?
A.
The short answer is yes. However, ultimately it will still relate to the actions of the individual, to determine if their level of involvement or control is sufficient to meet the twin elements of actus reus and mens rea required to sustain a criminal conviction. An employee of an organization who wields no real control over the actions of an organization is not likely to be considered criminal responsible for actions taken by the organization at large. In contrast, a corporate CEO or director who wields decision making power of the organization would be seen to have sufficient mens rea to be criminal liable for the actions of their organization.
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