LAW 534 Lecture Notes - Lecture 5: Actus Reus, Respondeat Superior, Corporate Liability
22 May 2018
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Lecture 5: Chapter 5
Introduction
• Chapters 3 and 4 related to strict liability (actus reus and due diligence)
• This chapter is about criminal liability for corporations (and as well as other
organizations)
• Note Bill C-45 is now law although the textbook will often refer to its provisions as Bill C-
45 anyway.
• Itoduto setio efes to dietig id – will be discussed further in the chapter
• Overview of basic issue
o Corporation – a legal fitio a legall eated peso distit fo its
shareholders)
o Criminal liability – es ea euied i additio to atus eus
o Implications:
▪ To hold a corporation liable, Crown must show that the corporation had
the mens rea
▪ But es ea is a state of id, ad the opoatio is’t eall a peso
▪ How does one show that the corporation had the necessary mens rea or
intent?
• Overview continued
o I ode to fid the eessa es ea, hat e do is assoiate a eal peso’s
state of mind with that of the corporation:
▪ Attribution theory
▪ Identification doctrine
• Exaple: ofte a dieto’s itetio ill suffie as eig the itetio of the
corporation
• Societal significance:
o Westray tragedy
o Textbook also lists many other recent disasters
• Comparative big picture –different approaches to corporate criminal liability (more
discussion later)
o identity approach or identification doctrine (old approach)
o Cuet Caadia appoah: seio offie e appoah
o US approach: vicarious liability (US approach)
o Authors feel current Canadian approach is a good compromise
Directing Minds
• Context – Canadian Dredge Dock case
o Identity or directing mind doctrine
o Method fo holdig opoatio iiall liale ut do’t at to go as fa as
holdig opoatio aoutale fo all iial ogs of eploees i.e. do’t
want to use iaious liailit aka espodeat supeio fo opoate liailit
▪ Multiple minds
find more resources at oneclass.com
find more resources at oneclass.com
▪ Policy vs. operational decisions
• Rhone case
• Safety Kleen Canada Inc. case
o Essentially, under this doctrine, only the intention of policy-akes outs as
intention of the corporation
▪ Frustration Westray disaster
o Rogue managers and directors
▪ Practical question: what if directing mind also benefits from the illegal
activity?
▪ Caadia Dedge Dok: totall i faud of the opoatio
▪ Side note: is this concept still applicable after Bill C-? Authos’ ie?
Modern Organizations and Problems of Proof
• Complexities of modern society
o dietig id ased o assuptio of deteiate hieah – valid?
o Cumulative effect of actions (see Glasbeek)
o Sydanmaanlakka – multiple levels in organization
o Authos’ poit? Note oet aout MBA.
• Application of the identification doctrine
o Zanzibar Tavern case
o Note comments about limited applicability of Bill C-45
The new law of expanded organizational criminal liability
• Definitions:
o Organization
o Senior officer
▪ More expansive than identification or directing minds doctrine
▪ Includes directors, CEO, CFO
▪ But also:
• Important policy-makers
• Those responsible for managing an important aspect of
ogaizatio’s atiities
• Functional approach that looks beyond mere title of the job –
goes beyond the name
• IF the ee the oes ho ke ee if eo did’t ko es
ea a e estalished
• Fundamental Shift – Global Fuels case
• Responsible for Managing
o “ie aagig is’t defied i Ciial Code -authors draw on concepts from
other areas of law (i.e. not criminal law) → business judgment rule
o Managing – authorized to make business decisions (involving reasonable risks)
• Important aspect of the Organization Activities
o Global Fuels case:
find more resources at oneclass.com
find more resources at oneclass.com
