What Statutes Set Out Criminal Offences in Canada?

Canada's criminal law is set out in the Criminal Code. The Criminal Code is made by Parliament and applies equally in every province and territory.

The Criminal Code criminalizes a wide range of acts and omissions. These include offences of fraud, insider trading, tipping, making a false prospectus, corruption, paying or receiving secret commissions, laundering the proceeds of crime, criminal breach of trust, charging a criminal interest rate, destroying documents of title, uttering a forged document, and operating a "gaming" house.

While the Criminal Code is the statute that sets out the majority of Canada's criminal laws, it is not the only statute that creates "white-collar" offences for which an organization can be prosecuted. There is a wide range of regulatory statutes at both the federal and provincial level that are directed at regulating how organizations carry out their business. The breach of "regulatory" statutes — while not criminal — may result in equally significant fines and, in certain cases, the imprisonment of officers and directors of the organization. Accordingly, when considering what actions may give rise to a risk of prosecution, it is important to be aware of not only the Criminal Code, but also numerous regulatory statutes that may apply.

It is also important for Canadian organizations to be aware of the potential application of foreign law and, specifically, both foreign criminal and regulatory statutes. This is particularly important for organizations that conduct business across national borders. For example, offering securities in the United States may be sufficient to expose an organization to the United States' criminal and regulatory statutes, such as the Foreign Corrupt Practices Act. Where a Canadian business operates in a foreign jurisdiction, it is important for the organization to be aware of the relevant regulatory regime in that jurisdiction and have access to knowledgeable foreign counsel when the need arises.

Does the Criminal Code Apply to Offences Committed "Outside" Canada?

Subject to limited statutory exceptions (such as, for example, financing terrorism), subsection 6(2) of the Criminal Code provides that no person shall be convicted of an offence committed "outside Canada." However, this does not mean that only criminal offences that are committed wholly within the territorial limits of Canada are subject to Canadian criminal law. The Supreme Court of Canada has held that Canadian courts may prosecute an offence if there is a real and substantial connection between the offence and this country.1 Canadian courts will, for example, assume jurisdiction if a significant portion of the activities constituting the offence took place in Canada. An example of a situation where a Canadian court may assume jurisdiction, notwithstanding the fact that the offence originated in a foreign state, is a fraudulent mailing prepared and sent from the United States but directed at Canadians. It will be a question of fact in every case whether there is a real and substantial connection between the alleged offence and Canada such that Canadian courts assume the jurisdiction.2

Special note should also be taken of the jurisdiction that Canadian courts have over criminal conspiracy charges. A conspiracy is an agreement between two or more persons to commit a criminal offence. Under section 465(4) of the Criminal Code, Canadian courts have jurisdiction to prosecute a conspiracy where the agreement was made outside Canada to commit an offence in Canada.

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Footnotes

1 R. v. Libman (1985), 21 C.C.C. (3d) 206 (S.C.C.).

2 See, e.g., R. v. Karigar, 2017 ONCA 576 at paras. 24-26, 29.

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