Recent Criminal Code Amendments and Their Impact on Professional Associations

By Maureen Forestell

“Organizations”: “Professional associations” and “trade unions”

The Criminal Code was amended on March 31, 2004 to create criminal liability on the part of an ‘organization’ for the acts and omissions of its representatives. While the stated goal of the legislation was to create corporate responsibility, particularly in the case of an unsafe work environment, the provisions in fact capture a broad range of associations and unions and create broad liability on the part of the organization for the acts and omissions of its members.

‘Organization’ is defined as:

“...a public body, body corporate, society, company, firm, partnership, trade union, or municipality, or an association of persons that is created for a common purpose, has an operational structure and holds itself out to the public as an association of persons.”

A ‘representative of an organization’ is defined as:

“...a director, partner, employee, member, agent or contractor of the organization.”

The definition of organization explicitly applies to trade unions. It also applies to any professional association.

The new provisions create two separate tests for the liability of an organization. One test applies to offences which require proof of negligence and the other applies to offences which require proof of ‘fault’ other than negligence.

Offences Involving Negligence

In offences of negligence, section 22.1 provides:

22.1 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 organization'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.

The offences of criminal negligence causing death or criminal negligence causing bodily harm may be invoked in conjunction with the new provisions to charge an association if medical treatment of any kind is impeded by the withdrawal of services by its members. However, this would require proof of a marked departure from the standard of care that could reasonably have been expected of the senior officer/s of the organization to prevent the members from being parties to the offence. This would likely mean proof of knowledge on the part of the organization and an absence of any reasonable effort to prevent the act or omission on the part of the members.

Offences Involving other Levels of “Fault”

In offences of ‘fault’ section 22.2 provides:

22.2 In respect of an offence that requires the prosecution to prove fault - other than negligence - an organization is a party to the offence if, with the intent at least in part to benefit the organization, one of its senior officers

(a) acting within the scope of their authority, is a party to the offence;

(b) having the mental state required to be a party to the offence and acting within the scope of their authority, directs the work of other representatives of the organization so that they do the act or make the omission specified in the offence; or

(c) knowing that a representative of the organization is or is about to be a party to the offence, does not take all reasonable measures to stop them from being a party to the offence.

Fault is not defined except negatively, i.e. it is anything other than negligence. It therefore includes recklessness. The first portion of the section which makes the organization responsible for the acts and omissions of its senior officers acting within the scope of their authority will clearly capture picket-line disturbances if the prosecution can prove that the senior officers participated in the offence or directed members to participate. The organization would then be open to criminal liability.

The third subsection is even more broad. The organization is made liable if any one of its senior officers is aware of the actions or planned actions of a member to engage in any criminal act or omission and does not take all reasonable measures to stop them.

The effect of this is to impose a positive duty on a union or professional association to attempt to stop any possible offence by its members. The only time that this obligation is triggered is when the intent of the persons committing the offence is to benefit, even in part, the organization.

An obvious example is where a member of a union expresses an intention to commit an assault or to damage property in the course of a labour dispute.

While the amending provisions of the Criminal Code are said to have been aimed at issues of corporate responsibility and specifically workplace safety, the inclusion of trade unions and associations in the definitions creates a broader application. Professional associations, trade unions and even recreational clubs should be aware of these provisions and their potential implications.