INTRODUCTION AND BRIEF DESCRIPTION

This section allows the court to impose a greater punishment on an organization convicted of a crime if previous convictions are proven, without notifying the organization beforehand.

SECTION WORDING

727(4) If, under section 623, the court proceeds with the trial of an organization that has not appeared and pleaded and convicts the organization, the court may, whether or not the organization was notified that a greater punishment would be sought by reason of a previous conviction, make inquiries and hear evidence with respect to previous convictions of the organization and, if any such conviction is proved, may impose a greater punishment by reason of that conviction.

EXPLANATION

Section 727(4) of the Criminal Code of Canada is a provision that allows the court to impose a greater punishment on an organization if the organization is convicted and has a previous conviction. This section is applicable when an organization has failed to appear in court and enter a plea. In such cases, the court can proceed with the trial of the organization and make inquiries and hear evidence with respect to its previous convictions. If there is evidence to suggest that the organization has been previously convicted, the court can impose a greater punishment as an enhanced sentence by reason of that conviction. The objective of this provision is to deter organizations from committing criminal offences by ensuring that they can face more severe punishments for repeat offences. Organizations that have a history of criminal conduct are likely to pose a greater risk to society, and therefore deserve a harsher sentence. The imposition of a greater punishment can also act as a deterrent for other organizations that may be considering committing similar crimes. It is noteworthy that this provision applies to organizations only, and not to individuals. This underscores the importance of holding organizations accountable for their criminal actions. The provision highlights the recognition that organizations are distinct entities that have their own legal status and responsibilities. It also recognizes that the criminal actions of an organization can have severe consequences and impacts on society as a whole. In summary, Section 727(4) of the Criminal Code of Canada is an important provision that allows the court to impose a greater punishment on organizations that are convicted and have a history of criminal conduct. This provision serves as a crucial deterrent to prevent organizations from repeatedly committing crimes and highlights the importance of holding organizations accountable for their actions.

COMMENTARY

Section 727(4) of the Criminal Code of Canada is a provision that allows for the imposition of greater punishment upon an organization that has been convicted and has previous convictions. The officials of the organization don't have to be present in the court for this provision to be applied. This section of the criminal code has been worded specifically to enhance the notion of criminal responsibility for organizations. The provision firmly states that organizations that have committed an offense can be held responsible to a greater extent, and prior offenses and convictions may contribute to the punishment. The provision's primary purpose is to ensure that organizations don't take criminal behavior lightly. It demands that they take responsibility for their activities and that they should develop systems to limit criminal behavior. While organizations don't have a conscience, they do have an impact on society and when their behavior indicates that they're a threat to society or a threat to individuals, action should be taken. By incorporating this provision, the government has introduced a checks and balances system for organizations. While corporations are viewed as legal entities in the eyes of the law, they're still subject to the laws of the land and the consequences of their actions. Therefore, it's necessary for a legal framework to exist to hold organizations accountable for their actions just like an individual. The application of the crime and punishment model to organizations acts as a deterrent for corporations' behavior. However, this provision can be controversial because it targets organizations rather than individuals. This makes it difficult to determine who is responsible for the offense, the people who operate the organization or the organization itself. This in itself creates new legal challenges, how do you punish an entity that doesn't have emotions and relies on individuals to conduct its practices? Should the responsibility be shifted to those who run the organization? These legal considerations make it difficult to enforce and contextualize the section in practice. While this section of the Criminal Code of Canada may seem to push corporate responsibility towards a right direction, it's essential to note that solely relying on this provision isn't enough to curb the crimes committed by organizations. The law enforcement system in Canada needs to strengthen the legal framework with additional measures to deter corporations from engaging in criminal activity in the first place. In conclusion, section 727(4) of the Criminal Code of Canada follows a different theory of punishment that doesn't focus on the individual but the entity. The application of this provision is significant because it enhances corporate accountability and helps in the prevention of offenses by corporations. However, the provision must work with other laws and measures to ensure a more effective path of accountability and enforceability.

STRATEGY

Section 727(4) of the Criminal Code of Canada gives courts the authority to impose greater punishments on organizations that have previous convictions. This provision is designed to deter organizations from engaging in criminal activities by increasing the cost of engaging in such activities. When dealing with this section of the Criminal Code of Canada, there are several strategic considerations that an organization must take into account. These considerations can be grouped into two main categories: preventative measures and reactive measures. Preventative Measures The best way for organizations to avoid the application of Section 727(4) is to prevent criminal activity. This requires implementing a robust compliance program that includes policies and procedures designed to detect and prevent criminal activity. Some strategies that organizations can employ to prevent criminal activity include: 1. Employee Training - Organizations should train their employees on the importance of compliance and how to prevent criminal activity. This should include regular training sessions on relevant legislation, as well as training on how to identify and report suspicious activity. 2. Risk Assessments - Organizations should conduct regular risk assessments to identify areas of potential exposure to criminal activity. This includes conducting background checks on employees, suppliers, and contractors, as well as implementing enhanced due diligence procedures for high-risk transactions. 3. Monitoring and Auditing - Organizations should implement monitoring and auditing programs to detect and prevent criminal activity. This includes monitoring transactions for unusual patterns of activity and conducting regular audits of financial and operational records. Reactive Measures If an organization is charged with criminal activity and faces the possibility of enhanced sentencing under Section 727(4), there are several reactive measures that can be employed to mitigate the consequences. These include: 1. Plea Bargains - If an organization is facing enhanced sentencing under Section 727(4), it may be possible to negotiate a plea bargain with the prosecution. This could involve pleading guilty to a lesser charge in exchange for a reduced sentence. 2. Sentencing Arguments - If an organization is convicted and faces enhanced sentencing under Section 727(4), it may be possible to argue for a reduced sentence based on mitigating factors. This could include demonstrating a commitment to compliance, cooperation with the investigation, or the absence of harm to victims. 3. Appeal - If an organization is convicted and faces enhanced sentencing under Section 727(4), it may be possible to appeal the sentence. This could involve arguing that the sentencing judge failed to properly consider mitigating factors or that the imposition of an enhanced sentence is unreasonable or disproportionate. Conclusion Section 727(4) of the Criminal Code of Canada is a powerful tool for deterring organizations from engaging in criminal activity. However, it also creates significant risks for organizations that have previous convictions. By implementing robust preventative measures and employing effective reactive measures, organizations can mitigate these risks and avoid the application of enhanced sentencing under Section 727(4).