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| Patrick Ducharme |
Section 2 of the Code demonstrates that a company is capable of being charged and convicted of a crime. The section refers to “everyone” as including an organization, and an organization includes a company. If the act complained of can be treated as that of the company, the corporation is criminally responsible for all such acts as it is capable of committing and for which the prescribed punishment is one that it can be made to endure.
The Code also provides specific procedural sections as to the charging and trying of corporations. Section 620 provides that an organization shall appear by counsel or agent. Other sections of the Code, such as sections 621 and 703.2, deal with service upon a corporation. Sections 732.1 to section 735 of the Code refer to potential punishment for a corporation.
In Canada, the leading theory that has emerged is the “identification” theory that states essentially that the company is independently responsible for all crimes committed by those who make up the directing mind of the company when acting out their assigned duties. This principle was clearly confirmed by the Supreme Court of Canada in Canadian Dredge and Dock Company. Here are the rules:
- Organizations may appear by counsel or agent, and, if it fails to do so, and the matter is a summary conviction matter, the Judge may conduct an ex- parte trial pursuant to section 556(1);
- Trial Judge may also proceed with the trial in the absence of an Organization that is charged with a section 553 offence;
- If the offence is neither summary conviction, nor an absolute jurisdiction offence, the Judge may proceed with a preliminary inquiry in the absence of counsel or agent for an Organization: Subsection 556(2)(b)
- Organizations charged with indictable offences that are not listed in section 553 have their indictments preferred and pursuant to section 621, the clerk of the court causes a notice of indictment to be served on the Organization. If the Organization does not appear, a plea of not guilty is entered and the trial proceeds as though the Organization had appeared.
The above is the an excerpt of Patrick J Ducharme's book, Canadian Criminal Procedure, available at Amazon or in bulk through MedicaLegal Publishing along with Criminal Trial Strategies.
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