Competing theories of corporate criminal liability range along a spectrum. At one end is vicarious criminal liability for the acts of employees or agents. At the opposite end of the spectrum is the "directing mind" doctrine which requires the prosecution to prove that the Board of Directors set policy that authorized the criminal conduct. The Canadian corporate criminal model is. like many things that are Canadian, in the middle of the spectrum, based on the concept of a "senior officer".
Two recent cases demonstrate how the Canadian model works in practice. Global Fuels (R. c. Pétroles Global Inc.2013 QCCS 4262 leave to appeal to the Court of Appeal granted (2013 QCCA 1604)) was convicted of price fixing where a regional manager participated in collusion and let territory managers participate in collusion with his knowledge without interference. The Ontario Court of Appeal in Metron Construction (2013 ONCA 541) has affirmed that the actions of an independent agent who manages an important aspect of a corporations' activities and qualifies as a senior officer may result in a conviction of that corporation for criminal negligence causing death where the agent demonstrates a marked and substantial departure from the standard that could be expected of a reasonably prudent person.
The Canadian model is one that ought to be studied by other jurisdictions as it encourages and rewards corporate compliance by recognizing defences based on reasonable measures taken by senior officers with respect to those sectors under their supervision.
Corporate compliance systems must recognize the wider ambit of persons who qualify as senior officers, including agents and contractors who manage an important aspect of the organization’s activities. New compliance programs in leadership, training, monitoring and auditing must be specifically designed for the new classes of senior officers at both policy and operational levels. A different level of compliance programme must also be developed for the spheres under the supervision of senior officers; at this level, the taking of reasonable measures may qualify as a defence.
For more information, see Archibald, Todd, Jull, Ken and Roach, Kent, "Corporate Criminal Liability: Myriad Complexity in the Scope of Senior Officer". 2013 50(3) Criminal Law Quarterly. Available at SSRN: http://ssrn.com/abstract=2354562.
Kenneth Jull, Baker & McKenzie LLP, Adjunct Faculty, teaching "Financial Crimes and Corporate Compliance"
