Corporate Criminal Liability Discussion Paper 1999

By Anne-Marie Boisvert
Professor, Faculty of Law, University of Montreal


[1]  Much has been written on the appropriateness of attributing criminal liability to corporations, 1 and the debate is still far from over. The opponents of this idea argue primarily that a corporation has no mind of its own, so it cannot demonstrate the moral turpitude required to establish criminal guilt. It is completely artificial, they say, to treat a corporation as if it had a blameworthy state of mind which, by definition, it cannot have. The notion of blame is meaningless in this context. Furthermore, the impossibility of jailing an organization foils any attempt to attain the goals of deterrence, punishment and rehabilitation pursued by penal sanctions.  2 The partisans of corporate criminal liability approach the issue from a quite different perspective. Corporations, they note, are not mere fictions. They exist, occupy a predominant position within the organization of our society, and are as capable as human beings of causing harm. It is only just and consistent with the principle of equality before the law to treat them like natural persons and hold them liable for the offences they commit. Such organizations, which have a major impact on our social life, must be required to respect the fundamental values of our society upheld by the criminal law. Furthermore, the position that punitive measures are necessarily ineffective against corporations reflects a narrow view of the notion of personal fault and a chronic lack of imagination in regard to the use of criminal sanctions.3

[2]  Such debates may appear, at first blush, theoretical and outmoded, in that the common law jurisdictions have adopted the second approach and recognize that corporations may be held criminally liable. However, they do highlight the conceptual difficulty in applying a theory of criminal liability based on a view of fault centred on the psychological processes of humans to what is simply a fictional person. There is an apparent need, now, to adapt the notion of fault to the structure and particular modus operandi of corporations. The existing mechanisms used to attribute criminal liability to corporations are but a partial solution, and should be improved.

[3]  These debates to which we have briefly alluded further illustrate the difficulty in treating equally two types of "persons" that have nothing in common. In this context, the very notion of equality before the law calls for an original approach. And even from the perspective of recognizing corporate criminal liability, there remains the critical issue of how the objectives of the criminal law can be fulfilled most effectively and equitably.

[4]  These objectives cannot be achieved in any meaningful way unless some serious thought is given to a number of fundamental questions, including the ability of criminal sanctions to effectively fulfill, in the corporate context, the objectives of punishment, deterrence and rehabilitation traditionally associated with them. A full reply, genuinely responsive to these concerns, would necessitate considerable research and a detailed knowledge of corporate culture. Some writers, primarily Americans and Australians, have been addressing these issues for several years and have come up with many suggestions, particularly in regard to expanding the arsenal of potential sentences.4 It is often argued in opposition to corporate criminal liability that the imposition of fines provides no guarantee that delinquent conduct will be deterred. The fines imposed on corporations are often minimal in comparison with the devastating effects of their wrongful acts, and virtually amount to a cost of doing business. But there is also a concern that excessive fines can have perverse effects that may have to be borne by innocent shareholders, creditors, employees or consumers.

[5]  These issues will not be addressed in this paper. We will note only that the insertion in the Criminal Code of a provision that would make corporations criminally liable for their actions would not, by itself, resolve all of the difficulties inherent in using criminal sanctions in the corporate context. Some serious thinking should be initiated on the appropriateness of adopting fines as the sole possible penalty.

[6]  This study will be devoted instead to the principles of criminal liability. Essentially, it will examine whether it is possible to conceptualize a notion of true corporate fault that is neither artificial nor impracticable.

[7]  What follows, then, is a presentation of the applicable principles of corporate criminal liability, a review of the major criticisms of those principles, a discussion of the various solutions that have been proposed, and, in conclusion, a series of proposals for the purpose of promoting discussion.

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