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Holding Corporations to Account

By Jennifer A. Quaid, PhD Candidate

[Jennifer Quaid photo]

On what basis, if at all, should corporations be held criminally responsible for wrongful conduct that causes harm?

Public awareness of this question has increased in recent years. Events such as the tragic Westray mine disaster in 1992, the discovery of multiple incidences of accounting and financial fraud on Wall Street, and the BP oil spill in the Gulf of Mexico and others have left the public with a strong sense that corporations can do things serious enough to warrant being held to account under the criminal law. Yet, often this does not happen. Why?

I believe the root of the problem lies in the basis of Canadian criminal law, which does not acknowledge the differences between corporations and human beings. Our current law focuses only on crimes made up of human acts and intentions that can be easily imputed to the corporation. It is ill-equipped to deal with those cases where the wrong is not the human behaviour itself, but the role the corporation plays in combining human activity in ways that cause harm, such as when there is a systemic failure to implement adequate corporate policies and procedures to protect against known risks – as was the case in Westray mine – or when the cumulative effect of what might be individually insignificant acts results in catastrophic harm, as with an oil spill or a ferry sinking.

The goal of my thesis, which is being supervised by Prof. Malcolm Thorburn, CRC in Crime, Security and Constitutionalism, is to use contemporary understanding of organizational behaviour to change how we think about corporate action and intention under the criminal law. In my view, re-imagining corporate criminal liability to better reflect how corporations actually behave is the best way to ensure that corporations, like human beings, are called to account on a sound basis – when the particular nature of their conduct and intentions demands it.

By focusing on when the wrongdoer is truly the corporation, we can rebut a long-standing criticism – that holding corporations criminally responsible is inappropriate, and even unfair, because it is merely a convenient way to get around cases where a human being can’t be held accountable for a crime. Second, by removing the need to analogize to human beings, we can craft offences and punishments adapted to the distinct attributes of corporate behaviour, thereby better aligning the law with our expectations of when corporations ought to answer criminally for the consequences of their wrongful conduct.

In 2011, to celebrate the 10th Anniversary of the Canada Research Chairs (CRC) program, Queen’s University Vice-Principal (Research) launched a writing contest for current graduate students working with CRCs at Queen’s. Both masters and doctoral students were encouraged to submit entries. The contest sought to showcase the research of a Queen’s CRC through engaging stories that highlighted the successes of students’ research experience and demonstrated the research’s benefits to society. This is an abridged version of one of the winning stories.