Canada: The Canadian Approach To Corporate Criminal Liability For Antitrust Offenses

Last Updated: March 31 2015

Article by Guy Pinsonnault1 and Pierre-Christian Collins Hoffman2


Organizations in both Canada and the U.S. have to be diligent in taking steps to prevent the perpetration of antitrust offenses by their members, such as implementing and applying effective compliance programs. Indeed, their representatives' criminal behavior may lead to the imposition of substantial fines, reputational damage, government contract debarment, and decrease in stock price. Between jurisdictions, however, the likelihood of being convicted for criminal antitrust offenses varies greatly, ranging from vicarious liability (pursuant to which the employer is liable for the wrongdoings of any employee) to the opposite end of the spectrum, where only a "directing mind" or alter ego of the organization may engage the criminal liability of the organization.3

This article summarizes the changes brought to the Canadian corporate criminal liability regime in 2004, yet only recently applied in a price-fixing cartel case,4 describes the essential aspects of the Canadian approach to corporate criminal liability in light of recent case law and compares the Canadian and U.S. models.

The Modern Canadian Approach

Following the U.K. approach, Canadian courts used to apply the "identification doctrine" whereby only the controlling mind of the corporation could engage its criminal liability for offenses requiring proof of intent (mens rea). In 2004, the Parliament of Canada adopted An Act to Amend the Criminal Code (Criminal Liability of Organizations) (Bill C- 45). This Act sought to broaden corporate criminal liability and, for that purpose, amended the Criminal Code,5 making organizations accountable for offenses committed by a "senior officer", being a representative who (1) plays an important role in the establishment of the organization's policies, (2) is responsible for managing an important aspect of the organization's activities, or (3) in the case of a corporation, a director, CEO or CFO.6

The second definition of "senior officer" is the one that most expanded the sphere of criminal liability for organizations conducting activities in Canada. Insofar as a representative manages an aspect of activities of a certain importance within the organization, even if his/her duties are limited to the application of policies rather than their design, the criminal liability of the organization may be incurred where such representative commits a criminal offense. The net of liability is quite broad, as one could argue that a rational organization will not pursue unimportant activities.

An organization will be found guilty of a criminal offense where such offense has been committed (1) for its benefit (at least in part) and (2) where one of its senior officers, "(a) acting within the scope of their authority, is a party to the offen[s]e; (b) having the mental state required to be a party to the offen[s]e 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 offen[s]e; or (c) knowing that a representative of the organization is or is about to be a party to the offen[s]e, does not take all reasonable measures to stop them from being a party to the offen[s]e."

Despite the changes brought in 2004, the Canadian model is still not quite one of vicarious liability (as is described more fully below). Another distinctive feature of the Canadian model is that it covers not only corporations, but also persons who do not possess separate legal personalities.7

Comparison with the U.S. Approach

Unlike in the U.S., Canadian courts have rejected the establishment of a criminal liability regime based on vicarious liability. Under such a regime, any employee may engage the organization's liability regardless of rank. Adopted by the U.S. Supreme Court in New York Central R. Co. v United States,8 the vicarious liability approach extends the tort doctrine of respondeat superior ("let the master answer") to criminal law.

In the U.S., a corporation may be held criminally liable where an individual of any rank within the organization, acting with the scope of his employment or authority, commits a crime with a view (at least in part) to benefit the organization. That said, the DOJ has included, on its own volition, an internal standard of moral culpability under principle 9-28.500 of the Principles of Federal Prosecution of Business Organizations when deciding whether or not to press criminal charges against an organization.9 For instance, where an offense has been committed by a rogue employee, the DOJ may be less inclined to commence criminal proceedings against the organization.

Another interesting distinction with the U.S. is the lack of policies and guidelines with respect to N/DPAs by the Public Prosecution Service of Canada (SPPC). While no N/DPA has been concluded so far in Canada, nothing would prevent the SPPC, in appropriate cases, from entering into a NPA with an organization in exchange for cooperation. Entering into DPAs in Canada does not currently appear possible, however, in the absence of legislation expressly providing for it. Moreover, a parallel may be drawn with s. 34(2) of the Competition Act, which provides that a criminal court may issue a "prohibition order" against a person that "has done, is about to do or is likely to do any act or thing constituting or directed toward the commission of an offen[s]e". Similarly to N/DPAs, prohibition orders issued under s. 34(2) provide, inter alia, that the organization is forbidden from committing further offenses (and no criminal conviction ensues). Certain prohibition orders have included conditions akin to those of N/DPAs, such as the disclosure of documents and information, the payment of a sum for the government's investigation costs, restitution and the implementation of compliance programs.10 That said, much like the Antitrust Division of the DOJ who has seldom entered into N/DPAs,11 courts have rendered very few prohibition orders in cartel cases, and none in recent years.

Recent Developments

As previously mentioned, it took almost ten years for the 2004 amended Canadian regime to be applied by a court. The case in question, R. v. Pétroles Global inc.,12 involved charges of conspiracy, agreement or arrangement between competitors under the Competition Act,13 an offense which requires proof of subjective mens rea.

The Superior Court of Quebec had to determine whether Pétroles Global Inc. (Global), a retail gasoline operator, could be held criminally liable for the involvement of its representatives in a price-fixing cartel in certain areas of the Province of Québec. A General Manager of the company pleaded guilty to having conspired with competitors. The prosecution had the task of proving that this General Manager satisfied the definition of "senior officer", thereby establishing Global's criminal liability.

The Superior Court held that the evidence demonstrated that Global's General Manager was a "senior officer" as defined by the Criminal Code, since he managed an important aspect of the company's activities. Indeed, the General Manager supervised over 200 service stations in Québec (which corresponded to approximately two thirds of the stations operated by Global across Canada); he was the third highest paid employee of Global; he ensured the application of the "Economics" developed by senior management; and he approved expenditures exceeding $1,000 before recommending them to senior management. The Superior Court further noted that the fact that certain expenditures required approval from the Vice-President did not reduce the scope of the General Manager's responsibilities within the company.

In its ruling, the Superior Court ruled that the legislature intended to ease the task of proving the criminal liability of organizations by removing the necessity of the offender having authority with respect to the establishment of the organization's policies, and that the purpose of the 2004 amendments was not solely meant to extend corporate criminal liability beyond the board of directors. The Court rejected the argument that the term "senior" could only apply to executives empowered with actual decision-making autonomy.

Another case of interest was rendered in 2013 by the Ontario Court of Appeal in R. v. Metron Construction Corporation.14 There, a site supervisor hired by the accused corporation was responsible for supervising the assembly and installation of a scaffold platform to perform repairs on a high-rise building. Due to major safety issues, the platform collapsed, causing the deaths of four employees, including the site supervisor.15 The company pleaded guilty to charges of criminal negligence. The Court of Appeal considered, in obiter, the site supervisor to be a "senior officer" under the second part of the definition, namely a representative managing an important aspect of the organization's activities (in this case, the health and safety of the employees), despite the fact that he had little authority. This case reinforces the idea that it may be possible, even for day-to-day managers occupying the lowest rung of an organization's corporate ladder, to qualify as "senior officers" and engage the criminal liability of the organization.

To summarize, in Canada, a mid-level manager can engage the criminal liability of his/her employer when he/she commits an antitrust offense, directs another employee to do so, or fails to take reasonable steps to prevent the offense. This however, does not mean that a low-level employee committing an antitrust crime will necessarily engage the organization's criminal liability. Such an employee's criminal behaviour may, however, result in the organization being convicted, where the employee has been directed by a senior officer to commit an offense, or where a senior officer has failed to take reasonable measures to prevent its perpetration, provided that its perpetration is imminent and that the senior officer had knowledge thereof.


After being found guilty, an organization may be fined,16 and that fine may also be accompanied by a probation order.17 There is no secondary criminal liability for directors and officers of an organization; they may not be vicariously punished for the criminal offenses committed by senior officers, unless they are otherwise party to the offense by aiding or abetting pursuant to s. 21 of the Criminal Code.

In determining that fine, the court must consider, in addition to general sentencing factors applicable to individuals,18 ten mitigating and aggravating factors, namely: (1) the advantage realized by the organization; (2) the complexity, duration and degree of planning of the offense; (3) the concealment and conversion of assets; (4) the economic viability of the organization and continued employment of its employees; (5) the costs of investigation and prosecution; (6) the concurrent imposition of regulatory penalties on the organization; (7) the prior conviction for a similar offense and the prior regulatory penalties for similar conduct; (8) the organization's imposition of penalties on its offending representatives; (9) the restitution or voluntary indemnification of victims; and (10) the measures taken to prevent recidivism.19 Regarding that last factor, it is worth noting that the implementation of an effective and credible compliance program will be a mitigating consideration when it comes to sentencing. While judges are afforded great discretion in determining an adequate fine, they must remain cognizant of the fundamental principles of sentencing: proportionality to the seriousness of the offense and level of involvement of the offender.20

In antitrust law cases, courts have developed additional factors that may be relevant in sentencing organizations. In a foreign price-fixing directives case, the Federal Court of Canada in Maxzone21 found that taking leadership in an antitrust scheme and committing offenses against vulnerable victims can be aggravating factors22 and so can the scope of the economic harm caused. Interestingly, the Federal Court refused to consider fines paid in another jurisdiction (in the U.S.) as mitigating in order to ensure that the objectives of specific and general crime deterrence in Canada are met.

The fine must also be more than a mere cost of doing business. In the words of the Court, it must meet the objectives of "(i) ensur[ing] that the accused corporation does not profit from its illegal conduct, and (ii) includ[ing] an additional significant amount to communicate the Court's recognition of the very serious nature of such illegal conduct, its substantial adverse impact on the economy, and society's abhorrence of the crime."23 The Court also noted that it would punish illegal cartel participants severely, commenting that "price fixing and other hard core cartel agreements therefore ought to be treated at least as severely as fraud and theft, if not even more severely than those offen[s]es."24


An accused organization may raise several defenses. Generally, it can try to raise a reasonable doubt with respect to one of the elements of the offense. For example, an organization may argue that an offense was not committed for the organization's benefit, or that the offending employee was not a "senior officer" or was acting outside the scope of his/her authority.25

Pursuant to section 22.2(c) of the Criminal Code, the organization may also contend that it exercised due diligence, in that it took all "reasonable measures" to prevent a representative from being part of the offense. It goes without saying that a policy not to commit crime within the organization is insufficient; the organization must take concrete steps to put an end to a discovered offense or prevent an imminent one, for example by diligently applying an adequate compliance policy in a timely manner. Careful selection and careful supervision of employees are also insufficient to avoid criminal liability on the part of the organization, although they may constitute mitigating factors in sentencing.

In a Nutshell

The criminal liability of organizations in Canada may be triggered by the perpetration of any criminal offense, including antitrust offenses and other economic crimes (e.g., bid-rigging, price-fixing, corruption, fraud, etc.). The fact that a member of an organization has committed a criminal antitrust offense will not inexorably lead to a conviction of the organization; the system is not one of vicarious liability as found in the U.S. Instead, the Canadian approach examines the behaviour of the "senior officers" of the organization, being representatives playing an important role in the establishment of policies or representatives responsible for managing an important aspect of the organization's activities and, in the case of corporations, directors, chief executive officers and chief financial officers. Recent case law teaches us that this definition may extend to quite low levels in the corporate hierarchy; certain mid-level managers may engage the criminal liability of the organization by committing antitrust offenses. Finally, organizations doing business in Canada should take note that a compliance program, even where credible and applied effectively, is no defense to the commission of an offense, but is considered as a mitigating factor for sentencing.

Originally published by Cartel & Criminal Practice Committee Newsletter – Spring 2015.


1. Partner, McMillan LLP. Prior to joining McMillan, Mr. Pinsonnault acted as General Counsel at the Competition Law Section of the Public Prosecution Service of Canada.

2. Lawyer, McMillan LLP. The authors wish to thank Émile Catimel Marchand for his contribution.

3. Moreover, in certain states, such as Germany, corporations are not subject to criminal liability.

4. R v. Pétroles Global inc., 2013 QCCS 4262,

5. RSC 1985, c. C-46 (Criminal Code),

6. Ibid, s. 2.

7. The definition includes "a public body, body corporate, society, company, firm, partnership, trade union or municipality [...]"; ibid, s 2.

8. 212 U.S. 481 (1909).

9. Lucian E. Dervan, Re-Evaluating Corporate Criminal Liability: The DOJ's Internal Moral Culpability Standard for Corporate Criminal Liability, Stetson Law Review (Mar. 8, 2011),

10. Prohibition Order between Her Majesty the Queen and Toyota Canada Inc., T-1065-02, March 27, 2003; Prohibition Order between Her Majesty the Queen and John Deere Limited, T-1836-04, October 19, 2004; Prohibition Order between Her Majesty the Queen and Sotheby's and Sotheby's (Canada) Inc., T-1529-06, August 28, 2006.

11. Eliot T. Burriss, "The Antitrust Division speaks: trends in criminal enforcement and what to expect next", DLA Piper, April 24, 2013,

12. See supra note 4.

13. RSC 1985, c. C-34,

14. 2013 ONCA 541,

15. In particular, the evidence revealed the presence of marijuana in the systems of three out of the four deceased, including the supervisor, and that the four employees who died in the accident were not wearing safety belts.

16. Criminal Code, s 735(1).

17. Ibid, s. 732.1(3.1).

18. Ibid, ss. 718-718.2.

19. Criminal Code, 718.21.

20. Criminal Code, s. 718.1.

21. Canada v Maxzone Auto Parts (Canada) Corp., 2012 FC 1117, 1117.html.

22. Ibid, at para 96.

23. Ibid, at para 57.

24. Ibid, at para 56.

25. This defense would only apply to subparagraphs (a) and (b) of s. 22.2 of the Criminal Code. Subparagraph (c) does not contain the requirement that the senior officer was acting within the scope of his/her authority.

The foregoing provides only an overview and does not constitute legal advice. Readers are cautioned against making any decisions based on this material alone. Rather, specific legal advice should be obtained.

© McMillan LLP 2015

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions