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War Crimes and Related Law (Canada)
(February 2008)

Chapter 2 - Parties

    Preliminary Note
  1. Overview
  2. Individuals
  3. "Organizations"
    (a) Overview
    (b) Organizational Liability
    (c) Corporations
    (d) Unincorporated Organizations
  4. Governments
    (a) Overview
    (b) Canada, the Provinces and Crown Agencies
    (c) Foreign Governments

____________________________
Preliminary Note

The issue of WHO can be charged with and convicted of international crimes is a good example of the point made in the previous chapter ("Overview") that the terms of the implementing legislation (ie. the Crimes Against Humanity and War Crimes Act [CAHWCA]) do not necessarily coincide with those of the Rome Statute of the International Criminal Court - which the CAHWCA is meant to "implement" in Canadian law.

While the CAHWCA extends itself to several forms of "organization" which the Criminal Code of Canada conventionally treats as potential defendants, the Rome Statute expressly limits itself in this respect:
Rome Statute: Art 25.1
The Court shall have jurisdiction over natural persons pursuant to this Statute.
Of course (as also was noted in Ch.1) it is Canadian law that governs international crime prosecutions conducted within Canadian courts, so the limitations of the Rome Statute in this respect do not protect "organizations" which are otherwise liable for international crimes.

1. Overview

So WHO - or WHAT - can be a international crime defendant?

To start with, when the Crimes Against Humanity and War Crimes Act (CAHWCA) sets out offences, it usually speaks of "persons" (there are some exceptions, see Ch.6: "Supervisory Offences"). To understand what is included in this term, - as is the case with most CAHWCA law - reference must be had to the Criminal Code of Canada (CCC):
s.2(2) CAHWCA
Unless otherwise provided, words and expressions used in this Act have the same meaning as in the Criminal Code.
Typically when CCC sets out an offence it starts out "(e)veryone who", rather than "persons" but the definition of "every one" in s.2 of the CCC is quite inclusive:
s.2 CCC
"every one", "person" and "owner", and similar expressions, include her Majesty and an organization;
Typically Canadian law divides legal entities into "natural persons" (ie. individuals), corporations, unincorporated associations - and of course "governments". There can be additional entities which have legal standing, such as partnership and trusts, but the four mentioned are the main ones - and they are addressed in turn below.


2. Individuals

"Persons" simply means individual human beings, commonly referred to in law as "natural persons". Not surprisingly, they can be charged with international crimes under the CAHWCA.

Note is that there is no restriction on either domestic or international crimes liability by virtue of the defendant's citizenship - or even complete lack thereof, for that matter.

Individuals commit crimes by having the necessary mental elements ("mens rea": usually criminal intent to perform an act or omission) and having performed the act or omission ("actus reus") which completes the crime. Unless otherwise stated, it is presumed that conviction for any criminal offence requires proof that the individual charged intended to do (or intended to omit doing) the actus reus of the crime. International crimes are no exception to these requirements.

It is also a basic principle of criminal law that the necessary mental intent does not need to attach to the ultimate consequence of the act or omission (though of course it can), but is met when the intent is present to do any acts or omissions (eg. pulling the trigger) which have as a "natural consequence" the ultimate actus reus of the offence (ie. causing death).

For specific forms of "immunity" which may attach to some individuals at some times, see Ch.3: "Immunities".


3. "Organizations"

(a) Overview

"Organizations" are more complicated. Section 2 of the Criminal Code defines them as follows:
s.2 CCC
"organization" means

(a) a public body, body corporate, society, company, firm, partnership, trade union or municipality, or

(b) an association of persons that

(i) is created for a common purpose,

(ii) has an operational structure, and

(iii) holds itself out to the public as an association of persons.
(b) Organizational Liability

Of course, an unavoidable theme in the criminal prosecution of ANY organization is that of how the "elements" (mens rea and actus rues) of the offence are committed by a non-person.

Usually (but not always), any organization is ultimately controlled by one or more real people - however the permutations of that obvious statement are many. In the case of a corporation they can be any or all of the "share-holders" (who own it), the directors (who manage it), and numerous employees of varied description (who typically run it on a day-to-day basis). Sometimes these are one and the same people, sometimes they are not - and sometimes some of them are and some of them are not. Further complications can arise with corporations as they can also be controlled by a mixture of persons and other corporations - or even totally by other corporations - thus compounded the disparate nature of responsibility to new levels.

As for unincorporated organizations, they can be as - or even more - anarchic in their constitution.

Clearly, with any organization problems can arise with criminal prosecution over the issue of "criminal intent" - for how can intent be determined over a group of entities, some of whom themselves are other corporations. These issues are addressed below with respect to each organization form.

Thankfully, Canadian criminal law provides the elements of a crime charged against an "organization" are proven whenever one of its senior officers, acting with intent to benefit the organization [CCC 22.2]:
  • acting within the scope of their authority, commits an offence;

  • having the mens rea for the offence and - acting within their authority - directs the committing of the actus reus of the offence by others; or

  • knowing that a representative of the organization is or is about to be a party to the offence, and fails to take all reasonable measures to stop them.
See also the discussion of the Rhone case below in the discussion of "Corporations".
Note: This issue of organizational criminal liability is distinct - but conceptually similar to - from that of "piercing the corporate veil", which involves the assignment of CIVIL liability to INDIVIDUALS WITHIN a corporate structure for behaviour on behalf of the corporation.
(c) Corporations

A "body corporate" is an artificially-created legal entity which has most of the legal property rights of an individual such as rights of ownership, ability to contract and rights of legal standing (to sue and be sued). Corporations are usually created by such statutes as the Ontario Business Corporations Act, the Ontario Corporations Act, the Ontario Co-operative Corporations Act, and their sister statutes in other provinces and at the federal level. Even "corporations" created under similar legislation in other countries are regularly accorded the basic legal rights of a Canadian "corporation".

In Canada, corporations can be charged with crimes. That is, while logically they can't "commit" ALL crimes (for example: sexual assault might be a stretch), but they are not - solely by virtue of their nature - immune from criminal prosecution.

As well - as alluded to above - any consideration of the criminal liability of a non-person involves difficult issues of collective mens rea. In the case of corporations (unlike unincorporated associations), this issue has at least been addressed with some intellectual effort. In Rhone (The) v Peter AB Widener [1993] 1 S.C.R. 497 the Supreme Court of Canada re-stated from an earlier case the governing doctrine of corporate criminal mens rea (criminal intent):
This Court considered the issue of corporate identification in Canadian Dredge & Dock Co. v. The Queen, [1985] 1 S.C.R. 662. Estey J. found that in order for a corporation to be criminally liable under the "identification" theory, the employee who physically committed the offence must be "the 'ego', the 'centre' of the corporate personality, the 'vital organ' of the body corporate, the 'alter ego' of the employer corporation or its 'directing mind'" (p. 682). However, he also acknowledged that there may be more than one directing mind and highlighted that there may exist the "delegation and sub-delegation of authority from the corporate centre" and the "division and subdivision of the corporate brain". In this regard, Estey J. provided the following guidance as to who may qualify as the directing mind of a corporation at p. 693, casting doubt in the process of whether the specific conclusion reached in Tesco Supermarkets, supra, is appropriate in the Canadian context:
The identity doctrine merges the board of directors, the managing director, the superintendant, the manager or anyone else delegated by the board of directors to whom is delegated the governing executive authority of the corporation, and the conduct of any of the merged entities is thereby attributed to the corporation .... [A] corporation may, by this means, have more than one directing mind. This must be particularly so in a country such as Canada where corporate operations are frequently geographically widespread. The transportation companies, for example, must of necessity operate by the delegation and sub-delegation of authority from the corporate centre; by the division and subdivision of the corporate brain; and by decentralizing by delegation the guiding forces in the corporate undertaking. The application of the identification rule in Tesco, supra, may not accord with the realities of life in our country, however appropriate we may find to be the enunciation of the abstract principles of law there made.
As Estey J.'s reasons demonstrate, the focus of inquiry must be whether the impugned individual has been delegated the "governing executive authority" of the company within the scope of his [page521] or her authority. I interpret this to mean that one must determine whether the discretion conferred on an employee amounts to an express or implied delegation of executive authority to design and supervise the implementation of corporate policy rather than simply to carry out such policy. In other words, the courts must consider who has been left with the decision-making power in a relevant sphere of corporate activity.
(d) Unincorporated Organizations

As mentioned above, there are a range of non-corporate "organizations" that ostensibly have potential criminal liability. Those mentioned in the CCC include: societies, forms, partnerships, trade unions, municipalities and the catch-all:
... an association of persons that

(i) is created for a common purpose,

(ii) has an operational structure, and

(iii) holds itself out to the public as an association of persons.
Canadian courts have yet to adopt any consistent theory of criminal mens rea for such entities, though it is tempting to adapt the "identification theory" of corporate criminal intent for such purposes. It is also noteworthy how close fact situations of criminal liability of unincorporated associations parallel those of criminal conspiracy (see the Ch.7: "Ancillary Offences: Conspiracy").

Section 22.2 CCC may be difficult to apply to non-hierarchical unincorporated associations as they lack "senior officers".

In any event, the Supreme Court of Canada has considered and confirmed criminal liability (contempt of court) of an unincorporated association, albeit without engaging in any mens rea analysis beyond stating the basic form that applies to individuals: United Nurses of Alberta v Alberta (A-G) [1992] 1 SCR 901. The court held that the nurses association met the definition of "society" as it was then part of the definition of "person" to whom criminal liability could attach.


4. Governments

(a) Overview

The issue of whether (and where) governments - including Canadian government(s) - can be prosecuted with international crimes is an interesting one both legally and practically.

As noted in the "Preliminary Note" above, the Rome Statute limits itself to the prosecution of "natural persons' [Rome Statute, Art 25.1]. Thus it is plain that the ICC as such cannot prosecute governments.

This leaves the issue to "local" Canadian law embodied in the CAHWCA - and the Criminal Code of Canada, which contains the primary body of procedural law applicable to international crimes prosecutions.

While below I consider the situations of the federal Crown, the provincial Crown, and Crown bodies as potential defendants, an initial - and perhaps obvious - point on this issue is that the definition of "organization" in the Criminal Code [CCC s.2] (discussed above) is certainly broad enough to encompass all forms of governments, both in subsection (a) ["public body"] and on the broad terms of subsection (b) (repeated here):
s.2 CCC "organization" means

(a) a public body, body corporate, society, company, firm, partnership, trade union or municipality, or

(b) an association of persons that

(i) is created for a common purpose,

(ii) has an operational structure, and

(iii) holds itself out to the public as an association of persons.
(b) Canada, the Provinces and Crown Agencies

Even without recourse to the definition of "organization" just mentioned, it appears that "Canada" as a state - and all the provinces could be prosecuted with international crimes in Canadian criminal courts:
s.2(2) CAHWCA
Unless otherwise provided, words and expressions used in this Act have the same meaning as in the Criminal Code.

CCC s.2
"every one", "person" and "owner", and similar expressions, include Her Majesty and an organization;
"Her Majesty" includes "Her Majesty in Right of Canada" and "in Right of Canada". Provinces and other Crown Agencies are sometimes charged with provincial "quasi-criminal" offences in regulatory areas such as securities, environment and such.

This conclusion is further reinforced by s.3 of CAHWCA, which reads:
CAHWCA s.3
This Act is binding on Her Majesty in right of Canada or a province.
This does however leave some practical issues. As criminal prosecution duties are delegated to the provincial A-Gs by the federal government - how would Canada prosecute itself? Or a province prosecute itself? These situations have arisen before and been dealt with by the practice of bringing in a prosecutor from a neighbouring province or a private prosecuting lawyer.

(c) Foreign Governments

While one can argue for international crimes exposure of foreign governments under Canadian law under the broad definition of "organization" discussed in subsection (a) above, other governments are not expressly mentioned as potential defendants in the CAHWCA. But then again, while such prosecutions have not before been made, neither has such legislation as international crimes legislation before existed.

Given the political implications of such a proceeding and the many practical permutations that could ensue I will not venture to predict on this issue any further. However, the Ch.3 discussion of state-related "immunities" - while technically distinct from the status of foreign governments as "parties to an offence" - may shed some light on this issue.
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