The Quebec Superior Court Releases The First Ruling In Canada Regarding The Criminal Liability Of An Organization Since The 2004 'Criminal Code' Reform

On August 9, 2013, Mr. Justice Tôth of the Superior Court of Quebec handed down a long-expected decision in the matter of R. v. Pétroles Global inc.,1 the first ruling in Canada regarding an organization's criminal liability for an offence other than negligence that requires the prosecution to prove fault pursuant to s.22.2 of the Criminal Code. This section is based on the amendments made to the Criminal Code in 2004, which were designed, among other things, to facilitate the determination of the criminal liability and conviction of organizations, as well as to lay down new principles in matters of sentencing and probation orders for organizations. The Parliament wished to replace the identification doctrine previously developed in the case law, to the effect that only the "directing minds" of a body corporate could incur criminal liability on behalf of an organization. More specifically, one of the objectives of the amendments was to reverse the Supreme Court judgement in the Rhône2 case, which stood for the proposition that only those employees who have a decision-making authority in the adoption of an organization's policies formed part of the "directing minds" of the organization.

Since the 2004 amendment to the Criminal Code, a "senior officer" who is (i) acting within the scope of his or her authority, and is a party to the offence, (ii) acting within the scope of his or her authority, and directs the work of other representatives of the organization so that they commit an offence, or (iii) aware that a representative of the organization is or is about to be a party to an offence, and does not take all reasonable measures to stop him or her from being a party to the offence, incurs liability on behalf of the organization (provided such actions were committed with the intent at least in part of benefiting the organization). A "senior officer" is broadly defined to include a person who either "plays an important role in the establishment of an organization's policies" or "is responsible for managing an important aspect of the organization's activities".

The Global decision follows an investigation conducted by the Competition Bureau regarding the retail prices of gasoline in the Eastern Townships (Quebec). Two territorial managers and a General Manager of Global Fuels Inc. had already pleaded guilty to criminal charges relating to virtually the same price fixing allegations as were made against their employer Global in the present...