SECTION 39

Prosecution of Officers, etc., of a Corporation

39. Where a corporation commits an offence, an officer, director or agent of the corporation who directed, authorized, assented to, acquiesced in or participated in the commission of the offence is a party to and guilty of the offence and is liable on conviction to the punishment provided for the offence, whether or not the corporation has been prosecuted for the offence.

BEHIND THE WORDS

Section 38 provided that one could "pass over" an employee and go directly to a corporation with respect to a prosecution. Section 39 extends this such that one can pass over the employee and the corporation and go directly to an officer, director or agent of the corporation. In actual practice one would expect that the officer. director or agent to be prosecuted would have been made aware of the specific offence. It must be clear that the officer, director or agent had directed, authorized, assented to, acquiesced in or participated in the commission of the offence. Thus to proceed under this section, unless prior knowledge is clearly certain, an inspector should have advised the officer, director or agent of the circumstances. In addition, even if prior knowledge is certain, it might be reasonable to advise a specific individual who is considered by the inspector to be an agent of the corporation that he/ she is viewed as an agent.

It may be reasonable in some instances to prosecute officers rather than a corporation if it is envisaged there will be an order (Section 34) to prohibit the officer from engaging in certain activities for a particular period of time. This would then apply regardless of whether or not the individual changed employment.

As a result of Sections 38 and 39, when an employee or agent of a corporation commits an offence, any one of the three levels of employee, company and officer may be prosecuted regardless of the situation of the other two. Thus, none, one, two or three could be found guilty and punished as the Act provides.

RELATED SECTIONS

Section 34 - Court orders

Section 38 - Prosecution of a corporation

COURT DECISIONS OF INTEREST

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