section 718.21

INTRODUCTION AND BRIEF DESCRIPTION

This section outlines factors that must be considered when imposing a sentence on an organization, including advantages gained from the offense, planning involved, attempts to conceal assets, impact on economic viability, investigation costs, regulatory penalties, prior convictions, restitution, and measures taken to prevent future offenses.

SECTION WORDING

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.

EXPLANATION

Section 718.21 of the Canadian Criminal Code outlines the factors that a court should consider when imposing a sentence on an organization convicted of an offence. These factors take into account the impact of the offence on both the organization and society as a whole. One factor that is considered is any advantage that the organization may have gained as a result of the offence. This could relate to financial gain or other benefits that the organization obtained. The degree of planning involved in the offence is another factor that the court takes into consideration. This considers the extent to which the organization planned and carried out the offence, as well as the complexity and duration of the offence. The court also considers whether the organization has attempted to conceal its assets or convert them to show that it is unable to pay a fine or make restitution. The impact of the sentence on the economic viability of the organization and the continued employment of its employees is also a factor that is considered. This includes the effect of the penalty on the organization's ability to operate, as well as its employees' livelihoods. Other factors that the court examines include the cost of investigation and prosecution, any regulatory penalties that were imposed on the organization, whether the organization or its representatives have been convicted or sanctioned for similar conduct, any penalties imposed on representatives for their role in the offence, any restitution that the organization is ordered to make, and any measures that the organization has taken to prevent future offences. Overall, Section 718.21 ensures that courts consider various factors when imposing sentences on organizations convicted of offences. This approach helps to ensure that penalties are proportionate to the offence and that organizations are held accountable for their actions.

COMMENTARY

Section 718.21 of the Criminal Code of Canada sheds light on the factors that a court must consider when sentencing an organization. It is a recognition of the fact that an organization can be held liable for criminal wrongdoing, and that such liability deserves a distinct sentencing regime from that which applies to individual offenders. The first factor listed in this section is the advantage realized by the organization as a result of the offence. This factor acknowledges that organizations can stand to gain financially or otherwise from criminal activity, and that this should be taken into account when determining the sentence. By imposing a fine or other penalty that exceeds the advantage gained, the court is discouraging future criminal behavior. The degree of planning involved in carrying out the offense, as well as the duration and complexity of the offense, are also factors that must be considered. This recognizes that not all crimes committed by organizations are the same in terms of seriousness or impact, and that certain cases may deserve more severe penalties than others. The amount of harm caused and the likelihood of reoffending may also be considered. The third factor listed is whether or not the organization has attempted to conceal its assets or convert them in order to show that it is unable to pay a fine or make restitution. This factor discourages such tactics and sends a message that organizations cannot escape punishment by hiding their assets. The impact that the sentence would have on the economic viability of the organization and the continued employment of its employees is also a factor that must be considered. While it is important to hold organizations accountable, the court must also be mindful of the wider ramifications of a sentence. Fines or penalties that bankrupt an organization, rendering its employees unemployed, may not be desirable if there are alternative methods of punishment available. The cost to public authorities of the investigation and prosecution of the offense is also taken into account. This insures that the costs incurred by investigating and prosecuting an offense of a large organization do not go unnoticed and the organization is punished accordingly. The sixth and seventh factors focus on whether or not the organization or its representatives have been convicted of similar offenses in the past. This signals that repeated offenses by an organization or its representatives will be dealt with more harshly than first-time offenses. It also encourages organizations to establish policies and procedures that help prevent reoffending. The eighth factor relates to whether or not the organization has imposed any penalty on a representative for their role in the commission of the offense. This acknowledges that individuals within an organization may have acted independently to commit a crime, and that the organization may have taken steps to hold them accountable. Organizations that cooperate fully with authorities may present mitigating circumstances that result in a lesser sentence. The ninth factor is restitution. This may involve compensating victims or paying for damages resulting from criminal activity. The court may order the organization to make restitution or impose a fine that takes into account the harm caused by the offense. Finally, the tenth factor focuses on what the organization has done to reduce the likelihood of future offenses. If the organization has taken steps to address the conditions that led to the offense and has demonstrated a sincere commitment to reform, this may be taken into account when determining the sentence. In conclusion, this section of the Criminal Code provides a comprehensive framework for sentencing organizations that encourages accountability, but also recognizes complex issues such as the effect that punishment may have on employees and the importance of preventing future offenses. These factors highlight the importance of applying a nuanced and practical approach that considers the unique circumstances of each case.

STRATEGY

When dealing with Section 718.21 of the Criminal Code of Canada, there are several strategic considerations that must be taken into account. These considerations include the nature and severity of the offense committed by the organization, the impact of the sentence on the organization's future operation, and the importance of compliance with regulatory bodies. Ensuring that all of these factors are properly addressed will help organizations navigate the legal system and minimize the potential for negative outcomes. One of the key strategic considerations is the potential impact of a sentence on the organization's future operations. If a sentence is overly punitive, it could lead to reduced public trust in the organization, a loss of clients or customers, and a decline in the organization's overall reputation. As such, organizations must carefully consider the severity of the offense and the degree of punishment that is necessary to address the issue at hand. This includes take into account the potential impact on employees and other stakeholders, such as investors or shareholders. Another key consideration is the importance of compliance with regulatory bodies. Organizations that are subject to regulation must ensure that they are in compliance with all relevant laws, regulations, and standards. This includes maintaining accurate records, implementing robust internal controls, and conducting regular audits to identify potential issues before they turn into major problems. By demonstrating a commitment to compliance, organizations can help to minimize the likelihood of being subject to legal action in the first place. One strategy that can be employed when dealing with Section 718.21 is to proactively engage with regulatory bodies. By demonstrating a willingness to work closely with these bodies and to address any concerns they may have, organizations can help to minimize the risk of legal action being taken against them. Additionally, by working collaboratively with regulators, organizations can often achieve more favorable outcomes when legal action is taken. Another strategy that can be employed is to implement robust internal controls and compliance programs. Organizations that have a strong compliance culture tend to have lower levels of legal risk, as employees are more likely to self-report any potential issues, and the organization as a whole is more likely to avoid serious legal infractions in the first place. By implementing comprehensive compliance training programs and regularly auditing internal controls and processes, organizations can help to minimize the risk of legal action being taken against them. In summary, organizations that are subject to Section 718.21 of the Criminal Code of Canada must carefully consider a range of strategic considerations when navigating the legal system. By carefully assessing the severity of the offense, the potential impact of a sentence on the organization, and the importance of compliance with regulatory bodies, organizations can help to minimize the risk of legal action being taken against them. Additionally, by implementing robust internal controls and compliance programs and proactively engaging with regulators, organizations can maximize the potential for positive outcomes when legal action is taken.