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Criminal - Vicarious Liability

. R. v. Khan

In R. v. Khan (Ont CA, 2022) the Court of Appeal considered that a natural person cannot be held criminally vicariously liable:
B. The trial judge did not err in referring to Mr. Khan as the “directing mind” of the fake identification card business

[30] Mr. Khan argues that the trial judge made a legal error by finding him guilty on the basis that he was the “directing mind” of the fake identification card business. Mr. Khan argues that the trial judge thereby improperly found him guilty based on vicarious liability.

[31] I reject this ground of appeal. The trial judge did not rely on vicarious liability to find Mr. Khan guilty of the charges or forgery.

[32] In R. v. Canada Dredge and Dock, 1985 CanLII 32 (SCC), [1985] 1 S.C.R. 662, at para. 31, the Supreme Court made clear that an individual person cannot be found guilty of a crime on the basis of vicarious liability:
In the criminal law, a natural person is responsible only for those crimes in which he is the primary actor either actually or by express or implied authorization. There is no vicarious liability in the pure sense in the case of the natural person.
[33] Here, the trial judge clearly stated that he was using the term “directing mind” colloquially and that he understood that he was precluded from finding Mr. Khan guilty based on vicarious liability:
[429] “Directing mind” has a technical connotation and application in Canadian law, but is often used in a more colloquial manner. In its more technical sense, criminal liability is imputed to a corporation on the basis of the criminal conduct of one of that corporation’s “directing minds.” That doctrine has now been partially codified through the addition of ss. 22.1 and 22.2 to the Criminal Code, provisions that create corporate criminal liability for negligence and fault-based offences.

[430] More colloquially, however, and as more directly relevant here, a “directing mind” is said to be someone who formally or informally directs the activities of an organization or corporation. The person may occupy a position of authority or wield authority and influence more informally. [Emphasis added, citations omitted.]
[34] Most significantly, after reviewing these general principles, the trial judge explained that he could find Mr. Khan guilty only if he found that Mr. Khan knowingly directed others to commit the criminal conduct for his benefit:
[435] The controlling case law shows that it is open to me to find [Mr.] Khan guilty of an offence, not simply where he directly and personally acts in a manner that makes out the elements of the offence, but also where other individuals are proven to have been engaged in criminal conduct for and on his behalf and for his benefit, operating as actors under his direction and control. In such circumstances, the persons who perform the elements of the offences do not act for their own use and benefit. They act for the benefit of those who are behind the scenes, persons who manipulate their conduct as employees or agents through various means to act in the manner they direct for their own personal benefit and reward, like the puppet-master controlling the actions of the marionette. The puppet can be seen dancing, but it is sometimes harder to see who it is that is controlling and pulling the strings. [Emphasis added.]
[35] Therefore, it is evident that the trial judge instructed himself not to find Mr. Khan guilty on the basis of vicarious liability, and that he understood that he could only find Mr. Khan guilty if Mr. Khan knew about and directed the fake identification card business.

[36] Mr. Khan argues that, despite this explicit caution by the trial judge, he did in fact base his finding of guilt on indicia that Mr. Khan was the owner of Flash Jack’s rather than indicia that Mr. Khan directed and benefitted from the illegal activities of the business. I do not accept this argument. While the trial judge referred to Mr. Khan’s control of the business through such things as his hiring and firing of employees, he also referred to specific activities that implicate Mr. Khan in knowingly directing the operation of the forgery business. For example, the trial judge accepted evidence that Mr. Khan took control of the machines that made the fake identification cards soon after the business was started and that Mr. Khan ordered and took delivery of supplies required to run the business. In addition, through a careful analysis of banking evidence, the trial judge found that Mr. Khan benefitted from the business and other businesses at 361 Yonge Street, through five bank accounts held in the name of his employees and his son.

[37] In my view, Mr. Khan mischaracterizes the trial judge’s findings as relying on a theory of vicarious liability. Mr. Khan was not found guilty because the actions of his employees reflected that he was the “directing mind” of the organization in the sense of being vicariously liable for their actions. Rather, Mr. Khan was found guilty because he was directing his employees to carry out criminal activities on his behalf – criminal activities about which he had knowledge and over which he had control.

[38] Ultimately, it may have been preferable for the trial judge to refer to Mr. Khan’s role in the forgery business as a “principal” rather than as a “directing mind”. However, I see no legal error in his use of the term “directing mind”, given his factual findings that Mr. Khan knew about the forgery business, directly controlled its operation and benefitted from the business.


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