Secret Commissions (Offence)

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Secret Commissions
s. 426 of the Crim. Code
Election / Plea
Crown Election Indictment
Jurisdiction Prov. Court

Sup. Court w/ Jury (*)
Sup. Court w/ Judge-alone (*)

* Must be indictable. Preliminary inquiry also available.
Types of Release Releaseable by Office-in-Charge or Judge
Indictable Dispositions
Avail. Disp. Discharge (730)

Suspended Sentence (731(1)(a))
Fine (734)
Fine + Probation (731(1)(b))
Jail (718.3, 787)
Jail + Probation (731(1)(b))
Jail + Fine (734)

Conditional Sentence (742.1)
Minimum None
Maximum 5 years incarceration
Reference
Offence Elements
Sentence Digests

Overview

Offences relating to secret commissions are found in Part X of the Criminal Code relating to "Fraudulent Transactions Relating to Contracts and Trade".

Pleadings

Offence
Section
Offence
Type
Crown Election Defence Election
s. 536(2)
s. 426(1)(a) [corrupt provider]
s. 426(1)(b) [corrupt receiver]
Indictable Offence(s) N/A Yes

Offences under s. 426 are straight indictable. There is a Defence election of Court under s. 536(2).

Release

When charged under s. 426, the accused cannot be given an attendance notice or a summons without arrest, nor can he be released by an arresting officer. He can be released by an officer-in-charge under s. 498 on a promise to appear or recognizance. He can also be released by a justice under s. 515. A youth will be subject to a maximum penalty of 3 years under s. 42(15) of the YCJA and can be given an attendance notice without arrest under s. 496 or a summons and if arrested, can be released by the arresting officer under s. 497 on a attendance notice or by an officer-in-charge under s. 498 on a promise to appear or recognizance. The youth can also be released by a justice under s. 515.

If police decide to bring the accused before a Justice pursuant to s. 503, there will be a presumption against bail (i.e. a reverse onus) if the offence, prosecuted by indictment, was committed:

  • while at large under s. 515 [bail release], 679 or 680 [release pending appeal or review of appeal] (s. 515(6)(a)(i));
  • "for the benefit of, at the direction of, or in association" with a criminal organization (s. 515(6)(a)(ii));
  • where the offence involved a firearm, cross-bow, prohibited weapon restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance, while the accused was subject to a prohibition order preventing possession of these items (s. 515(6)(a)(viii)); or
  • where the accused is not "ordinarily a resident in Canada" (s. 515(6)(b)).

Publication Bans
For all offences there is a discretionary general publication ban available on application of the Crown, victim or witness to prohibit the publishing of "any information that could identify the victim or witness" under s. 486.5(1) where it is "necessary" for the "proper administration of justice". Other available publication bans include prohibitions for publishing evidence or other information arising from a bail hearing (s. 517), preliminary inquiry (s. 539) or jury trial (s. 648). There is a mandatory publication ban in all youth prosecutions on information tending to identify young accused under s. 110 of the YCJA or young victims under s. 111 of the YCJA.

Designations
Offences under s. 426 are designated offences eligible for wiretap under s. 183.

See below in Ancillary Sentencing Orders for details on designations relating to sentencing orders.

Offence Wording

Secret commissions
426. (1) Every one commits an offence who

(a) directly or indirectly, corruptly gives, offers or agrees to give or offer to an agent or to anyone for the benefit of the agent — or, being an agent, directly or indirectly, corruptly demands, accepts or offers or agrees to accept from any person, for themselves or another person — any reward, advantage or benefit of any kind as consideration for doing or not doing, or for having done or not done, any act relating to the affairs or business of the agent’s principal, or for showing or not showing favour or disfavour to any person with relation to the affairs or business of the agent’s principal; or
(b) with intent to deceive a principal, gives to an agent of that principal, or, being an agent, uses with intent to deceive his principal, a receipt, an account or other writing
(i) in which the principal has an interest,
(ii) that contains any statement that is false or erroneous or defective in any material particular, and
(iii) that is intended to mislead the principal.

Privity to offence
(2) Every one commits an offence who is knowingly privy to the commission of an offence under subsection (1).
Punishment
(3) A person who commits an offence under this section is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years.
Definition of “agent” and “principal”
(4) In this section, “agent” includes an employee, and “principal” includes an employer.
R.S., 1985, c. C-46, s. 426; R.S., 1985, c. 27 (1st Supp.), s. 56; 2007, c. 13, s. 7.


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Proof of the Offence

Proving corrupt provider under s. 426(1)(a) should include:[1]

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. the culprit either:
    1. "gives offers or agrees to give" something to a person "or to anyone for the benefit of" that person
    2. the culprit, "being an agent, directly or indirectly, corruptly demands, accepts or offers or agrees to accept from any person, for themselves or another person" something
  5. the culprit "gives offers or agrees to give" something to a person "or to anyone for the benefit of" that person;
  6. that person is an "agent"
  7. the thing is "any reward, advantage or benefit of any kind" and
  8. the act is "consideration" for "doing or not doing, or for having done or not done, any act relating to the affairs or business of the agent’s principal, or for showing or not showing favour or disfavour to any person with relation to the affairs or business of the agent’s principal"

Proving corrupt receiver under s. 426(1)(b) should include:

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. the culprit intended "to deceive a principal"
  5. he "gives to an agent of that principal" or "being an agent, uses ... , a receipt, an account or other writing"
  6. the writing is one:
    1. "in which principal has an interest",
    2. "that contains any statement that is false or erroneous or defective in any material particular", and
    3. "that is intended to mislead the principal."
  1. R. v Kelly, [1992] 2 SCR 170, 1992 CanLII 62 (SCC) - re previous wording of s. 426

Interpretation of the Offence

Offeror Offence
The "gravamen of the offence [under s. 426(1)(a)] is the offer to the agent and the corrupt intention accompanying the offer."[1]

Principal
There does not need to be "a specific principal at the time the prohibited offer was made".[2]

Agent
Whether or not the agent was actually influenced is not an essential element to the offence.[3] A "corrupt" offer occurs "even though the agent may not intend to carry out the corrupt act".[4]

Corruptly
Secrecy is "the corrupting element of the offence". This includes non-disclosure "that makes it impossible for the principal to determine whether to act upon the advice of the agent or accept the actions of the agent".[5]

The "secrecy" of the benefit, "not the benefit itself which constitutes the essence of the offence".[6]

The "act of doing the very thing which the statute forbids is a corrupt act" and satisfies the meaning of "corruptly" in s. 426.[7]

  1. R v Wile (C.A.), 1990 CanLII 6830 (ON CA)
  2. Wile, ibid.
  3. Wile, ibid.
    R. v Reid, 1968 CanLII 394 (ON CA), [1969] 1 O.R. 158, [1969] 2 CCC 31 (C.A.)
  4. Wile, supra
    Reid, supra
  5. R. v Kelly, [1992] 2 SCR 170, CanLII 62 (SCC)
  6. Kelly, ibid.
  7. R v Brown, 1956 CanLII 154 (ON CA)

Misc Definition

426
...
Definition of “agent” and “principal”
(4) In this section, “agent” includes an employee, and “principal” includes an employer.
R.S., 1985, c. C-46, s. 426; R.S., 1985, c. 27 (1st Supp.), s. 56; 2007, c. 13, s. 7.


CCC

Participation of Third Parties

See also: Role of the Victim and Third Parties and Testimonial Aids for Young, Disabled or Vulnerable Witnesses

Testimonial Aids
Certain persons who testify are entitled to make application for the use of testimonial aids: Exclusion of Public (s. 486), Use of a Testimonial Screen (s. 486), Access to Support Person While Testifying (s. 486.1), Close Proximity Video-link Testimony (s. 486.2), Self-Represented Cross-Examination Prohibition Order (s. 486.3), and Witness Security Order (s. 486.7).

A witness, victim or complainant may also request publication bans (s. 486.4, 486.5) and/or a Witness Identity Non-disclosure Order (s. 486.31). See also, Publication Bans, above.

On Finding of Guilt
Under s. 738, a judge must inquire from the Crown before sentencing whether "reasonable steps have been taken to provide the victims with an opportunity to indicate whether they are seeking restitution for their losses and damages".

Under s. 722(2), the judge must inquire "[a]s soon as feasible" before sentencing with the Crown "if reasonable steps have been taken to provide the victim with an opportunity to prepare" a victim impact statement. This will include any person "who has suffered, or is alleged to have suffered, physical or emotional harm, property damage or economic loss" as a result of the offence. Individuals representing a community impacted by the crime may file a statement under s. 722.2.

Sentencing Principles and Ranges

See also: Purpose and Principles of Sentencing, Sentencing Factors Relating to the Offender, and Sentencing Factors Relating to the Offence

Maximum Penalties

Offence(s) Crown
Election
Maximum Penalty
s. 426 Straight Indictable 5 years custody

Minimum Penalties
These offences have no mandatory minimum penalties.

Available Dispositions

Offence(s) Crown
Election
Discharge
s. 730
Suspended
Sentence

s. 731(1)(a)
Stand-alone
Fine

s. 731(1)(b)
Custody
s. 718.3, 787
Custody and
Probation
s. 731(1)(b)
Custody and
Fine
s. 734
Conditional
Sentence
(CSO)
s. 742.1
s. 426 any OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png


Consecutive Sentences
There are no statutory requirements that the sentences be consecutive.

Ancillary Sentencing Orders

See also: Ancillary Orders

Offence-specific Orders

Order Conviction Description
DNA Orders s. 426

General Sentencing Orders

Order Conviction Description
Non-communication order while offender in custody (s. 743.21) any The judge has discretion to order that the offender be prohibited "from communicating...with any victim, witness or other person" while in custody except where the judge "considers [it] necessary" to communicate with them.
Restitution Orders (s. 738) any A discretionary Order is available for things such as the replacement value of the property; the pecuniary damages incurred from harm, expenses fleeing a domestic partner; or certain expenses arising from the commission of an offence under s.402.2 or 403.
Victim Fine Surcharge (s. 737) any A mandatory surcharge under s. 737 of 30% of any fine order imposed, $100 per summary conviction or $200 per indictable conviction. If offence occurs on or after October 23, 2013, the order is discretionary based on ability to pay and the minimum amounts are smaller (15%, $50, or $100).

General Forfeiture Orders

Forfeiture Conviction Description
Forfeiture of Proceeds of Crime (s. 462.37(1) or (2.01)) any Where there is a finding of guilt for an indictable offence under the Code or the CDSA in which property is "proceeds of crime" and offence was "committed in relation to that property", the property shall be forfeited to Her Majesty the Queen on application of the Crown.
Fine in Lieu of Forfeiture (s. 462.37(3)) any Where a Court is satisfied an order for the forfeiture of proceeds of crime under s. 462.37(1) or (2.01) can be made, but that property cannot be "made subject to an order", then the Court "may" order a fine in "an amount equal to the value of the property". Failure to pay the fine will result in a default judgement imposing a period of incarceration.
Forfeiture of Weapons or Firearms (s. 491) any Where there is finding of guilt for an offence where a "weapon, an imitation firearm, a prohibited device, any ammunition, any prohibited ammunition or an explosive substance was used in the commission of [the] offence and that thing has been seized and detained", or "that a person has committed an offence that involves, or the subject-matter of which is, a firearm, a cross-bow, a prohibited weapon, a restricted weapon, a prohibited device, ammunition, prohibited ammunition or an explosive substance has been seized and detained, that the item be an enumerated weapon or related item be connected to the offence", then there will be a mandatory forfeiture order. However, under s. 491(2), if the lawful owner "was not a party to the offence" and the judge has "no reasonable grounds to believe that the thing would or might be used in the commission of an offence", then it should be returned to the lawful owner.
Forfeiture of Offence-related Property (s. 490.1) any Where there is a finding of guilt for an indictable offence, "any property is offence-related property" where (a) by means or in respect of which an indictable offence under this Act or the Corruption of Foreign Public Officials Act is committed, (b) that is used in any manner in connection with the commission of such an offence, or (c) that is intended to be used for committing such an offence". Such property is to be forfeited to Her Majesty in right of the province.

History

See also: List of Criminal Code Amendments

Prior to 2007. s. 426 read:

Secret commissions
426. (1) Every one commits an offence who

(a) corruptly
(i)gives, offers or agrees to give or offer to an agent, or
(ii)being an agent, demands, accepts or offers or agrees to accept from any person,

any reward, advantage or benefit of any kind as consideration for doing or forbearing to do, or for having done or forborne to do, any act relating to the affairs or business of his principal or for showing or forbearing to show favour or disfavour to any person with relation to the affairs or business of his principal; or

(b) with intent to deceive a principal, gives to an agent of that principal, or, being an agent, uses with intent to deceive his principal, a receipt, an account or other writing
(i) in which the principal has an interest,
(ii) that contains any statement that is false or erroneous or defective in any material particular, and
(iii) that is intended to mislead the principal.

Privity to offence
(2) Every one commits an offence who is knowingly privy to the commission of an offence under subsection (1).
Punishment
(3) A person who commits an offence under this section is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years.
Definition of “agent” and “principal”
(4) In this section, “agent” includes an employee, and “principal” includes an employer.
R.S., 1985, c. C-46, s. 426; R.S., 1985, c. 27 (1st Supp.), s. 56.


CCC

See Also

Reference

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