Secret Commissions (Offence)

This page was last substantively updated or reviewed January 2020. (Rev. # 96366)

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Secret Commissions
s. 426 of the Crim. Code
Election / Plea
Crown Election	Hybrid
Jurisdiction	Prov. Court Sup. Court w/ Jury (*) Sup. Court w/ Judge-alone (*) * Must be indictable.
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)	Preliminary Inquiry
s. 426(1)(a) [secret commissions - corrupt provider] s. 426(1)(b) [secret commissions - corrupt receiver]	Hybrid Offence(s)			(under 14 years max)

Offences under s. 426 are hybrid with a Crown election. If prosecuted by indictment, there is a Defence election of Court under s. 536(2) to trial by provincial court, superior court judge-alone or superior court judge-and-jury.

Release

Offence(s)	Appearance Notice by Peace Officer s. 497	Summons by Judge or Justice s. 508(1), 512(1), or 788	Release by Peace Officer on Undertaking s. 498, 499, and 501	Release By a Judge or Justice on a Release Order s. 515 to 519	Direct to Attend for Fingerprints, etc. Identification of Criminals Act s. 2 ID Crim. Act
s. 426

When charged under s. 426, the accused can be given an appearance notice without arrest under s. 497 or a summons. If arrested, he can be released by the arresting officer under s. 498 or 499 on an undertaking with or without conditions. He can also be released by a justice under s. 515.

Reverse Onus Bail

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 weapon, being 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)).

And, regardless of Crown election, if the offence alleged was one:

• where the offence was an allegation of violence against an "intimate partner" and the accused had been previously convicted of an offence of violence against an "intimate partner" (s. 515(6)(b.1));
• where the offence alleged is a breach under s. 145(2) to (5) while (s. 515(6)(c));
• where the offence committed (or conspired to commit) was an offence under s. 5 to 7 of the CDSA that is punishable by life imprisonment (s. 515(6)(d));

Publication Bans

For all criminal or regulatory prosecutions, 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.

Offence Designations

Offence(s)	Wiretap Eligible s. 183	Dangerous Offender Designated Offence s. 752	Serious Personal Injury Offence s. 752	AG Consent Required	Serious Criminality Offence s. 36 IRPA
s. 426(1)(a) [secret commissions - corrupt provider]					(max 5 year penalty)
s. 426(1)(b) [secret commissions - corrupt receiver]					(max 5 year penalty)

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) [Secret commissions – various methods].

Punishment

(3) A person who commits an offence under this section is guilty of

(a) an indictable offence and liable to imprisonment for a term of not more than five years; or

(b) an offence punishable on summary conviction.

[omitted (4)]
R.S., 1985, c. C-46, s. 426; R.S., 1985, c. 27 (1st Supp.), s. 56; 2007, c. 13, s. 7; 2019, c. 25, s. 161.

– CCC (CanLII), (DOJ)

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Draft Form of Charges

		Pre-ambles
		"THAT [accused full name] stands charged that, between the <DATE> day of <MONTH>, <YEAR> and <DATE> day of <MONTH>, <YEAR>***, at or near <COMMUNITY/TOWN/CITY>, <PROVINCE>, he [or she]..." OR
		"THAT [accused full name] stands charged that, on or about the <DATE> day of <MONTH>, <YEAR>, at or near <COMMUNITY/TOWN/CITY>, <PROVINCE>, he [or she]..." OR
		"AND FURTHER at the same time and place aforesaid, he [or she]..."
Code Section	Subject of Offence	Draft Wording
426(1)(a)	giving of offering secret commissions	"..., directly or indirectly, corruptly give, offer or agree to give or offer to [name1], a reward, advantage or benefit of any kind as consideration for doing or not doing, or for having done or not done, an act relating to the affairs or business of [name1]’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, to wit: [particulars], contrary to section 426(1)(a) of the Criminal Code."
426(1)(a)	demanding or accepting secret commissions	"..., being and agent, directly or indirectly, corruptly did demand, accept, offer to accept or agree to accept from [name1], a reward, advantage or benefit of any kind as consideration for doing or not doing, or for having done or not done, an act relating to the affairs or business of [name1]’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, to wit: [particulars], contrary to section 426(1)(a) of the Criminal Code."
426(1)(b)	deceiving a principal	"..., did with intent to deceive [name1], a principal, gives to [name2], an agent of that principal, a receipt, an account or other writing in which the principal had an interest and that contain a statement that was false, erroneous, or defective, in a material particular and that was intended to mislead [name1], to wit: [particulars], contrary to section 426(1)(b) of the Criminal Code."
426(1)(b)	deceiving a principal	"..., being the age of [name1], with intent to deceive them, did use a receipt, an account or writing in which he had an interest and that contained a statement that was false, erroneous or defective in a material particular and that was intended to mislead [name1], to wit: [particulars], contrary to section 426(1)(b) of the Criminal Code."

Proof of the Offence

Proving corrupt provider under s. 426(1)(a) should include: ☐ identity of accused as culprit ☐ date and time of the incident ☐ jurisdiction (incl. region and province) ☐ the culprit either: "gives offers or agrees to give" something to a person "or to anyone for the benefit of" that person ☐ 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 ☐ the culprit "gives offers or agrees to give" something to a person "or to anyone for the benefit of" that person; ☐ that person is an "agent" ☐ the thing is "any reward, advantage or benefit of any kind" and ☐ 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: ☐ identity of accused as culprit ☐ date and time of the incident ☐ jurisdiction (incl. region and province) ☐ the culprit intended "to deceive a principal" ☐ he "gives to an agent of that principal" or "being an agent, uses ... , a receipt, an account or other writing" the writing is one: ☐ "in which principal has an interest", ☐ "that contains any statement that is false or erroneous or defective in any material particular", and ☐ "that is intended to mislead the principal."

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."

Principal

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

Agent

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

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."

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

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

Misc Definition

426
[omitted (1), (2) and (3)]

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; 2019, c. 25, s. 161.

– CCC (CanLII), (DOJ)

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Participation of Third Parties

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

Offence(s)	Victim Notice of Agreement s. 606(4.1) [SPIO]	Victim Queried for Interest in Agreement s. 606(4.2) [5+ years]	Victim Notice for Restitution s. 737.1	Victim Notice of Impact Statement s. 722(2)
s. x [x]

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

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

Consecutive Sentences

There are no statutory requirements that the sentences be consecutive.

Ancillary Sentencing Orders

Offence-specific Orders

Order	Conviction	Description
DNA Orders	s. 426	For conviction under s. 426, a DNA order is discretionary as a secondary designated offence listed under s. 487.04 (a) or (b).

General Sentencing Orders

Order	Conviction	Description
Non-communication order while offender in custody (s. 743.21)	any	The judge has the 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 discretionary surcharge under s. 737 of 30% of any fine order imposed, $100 per summary conviction or $200 per indictable conviction. If the offence occurs on or after October 23, 2013, the order has smaller minimum amounts (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 His Majesty the King on application of the Crown. NB: does not apply to summary offences.
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. NB: does not apply to summary offences.

Record Suspensions and Pardons

Convictions under s. 426 are eligible for record suspensions pursuant to s. 3 and 4 of the Criminal Records Act after 5 years after the expiration of sentence for summary conviction offences and 10 years after the expiration of sentence for all other offences. The offender may not have the record suspended where the offender was (1) convicted of 3 or more offences with a maximum penalty of life, and (2) for each 3 offences he "was sentenced to imprisonment for two years or more".

History

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

• Pre-Trial and Trial Motions Checklist

Related

• Bribery (Offence)