Sections 22.1 & 22.2 – When Corporations Are Criminal: Episode 26 of the Ideablawg Podcast on the Criminal Code of Canada

In the early morning hours of May 9, 1992, the small mining village of Plymouth, Nova Scotia witnessed a disaster. The Westray coal mine, which opened only eight months previously, exploded with such ferocity houses shook and windows shattered. In the aftermath, twenty-six miners, working near the end of their shift, perished.  

The mine had a storied history even before it was opened on September 11, 1991. Politics and big business played a large role in the founding of the mine: multi-million dollars worth of Federal and Provincial funds and loans were secured and lucrative agreements with the provincially owned utility company were negotiated. In other words, much was riding on the success of this mine in the heart of Pictou County. So much so that the owners of the mine were eager to portray the mine as a “state of the art” operation even if the realties were very different.  It would be these realities which foretold the tragedy: the Inquiry, headed by Mr. Justice Richards, found the mine was grossly mismanaged, violated numerable safety standards and simply failed to protect the health and safety of its workers. Westray was an “accident” waiting to happen and yet Westray received a safety award a mere eleven days prior to the explosion.

Certainly, Pictou County experienced methane gas explosions before but nothing to match the loss of human life at Westray. This time, something needed to be done. It was clear that the explosion was no mere “accident” but was the inevitable consequence of heedless corporate behaviour. However, out of the whole organization, including the various subsidiaries, two Westray middle managers, who were not even at the mine prior to the disaster, were charged with manslaughter and criminal negligence causing death.  After slowly making their way through court, the charges against the two men were stayed as a result of a Stinchcombe application for a failure to disclose the prosecutorial evidence in a timely manner. In 1997, the Supreme Court of Canada ordered a retrial of the case based on the trial judge’s conduct creating a reasonable apprehension of bias.  The Crown decided not to re-prosecute as there was, in the opinion of the Crown, insufficient evidence to connect the men to the crimes charged. There was also no conclusive evidence to show how or why the methane ignited to cause the explosion. The Crown simply could not prove the men were criminally liable even though the Inquiry report was clear the explosion would not have happened if the corporate body would have followed proper safety measures and if the government had enforced safety regulations.

The question is not how this could have happened but how to ensure that it could not happen again. This is where the story ends but the legislative response begins.

In the last few episodes, we discussed liability and modes of participation: how an individual accused can be criminally responsible for a crime even though he or she was not the principle offender.  The story of Westray extends this theory of participation to corporations and to employer-employee relationships. This legislative story essentially starts on May 9, 1992 but does not come to fruition until June 12, 2003, when the federal government introduced legislation holding corporations criminally responsible for failing to provide a safe workplace. The legislation has three parts, necessitating two categories of amendments to the Code. The first category relates to connecting the corporation to the prohibited conduct. Amending the Code in two areas does this: the first, which concerns us in this podcast, provides the corporate connection to a crime. The second area, which we will discuss further down this Criminal Code road when we come to s. 217.1, provides the legal duty to which corporations must be held. The final category of amendments is the sentencing piece, under s. 718.21, outlining the unique factors to be considered in sentencing a corporation.

Sections 22.1 and 22.2 read as follows:

22.1 In respect of an offence that requires the prosecution to prove negligence, an organization is a party to the offence if

(a) acting within the scope of their authority

(i) one of its representatives is a party to the offence, or

(ii) two or more of its representatives engage in conduct, whether by act or omission, such that, if it had been the conduct of only one representative, that representative would have been a party to the offence; and

(b) the senior officer who is responsible for the aspect of the organization’s activities that is relevant to the offence departs — or the senior officers, collectively, depart — markedly from the standard of care that, in the circumstances, could reasonably be expected to prevent a representative of the organization from being a party to the offence.

 

22.2 In respect of an offence that requires the prosecution to prove fault — other than negligence — an organization is a party to the offence if, with the intent at least in part to benefit the organization, one of its senior officers

(a) acting within the scope of their authority, is a party to the offence;

(b) having the mental state required to be a party to the offence and acting within the scope of their authority, directs the work of other representatives of the organization so that they do the act or make the omission specified in the offence; or

(c) knowing that a representative of the organization is or is about to be a party to the offence, does not take all reasonable measures to stop them from being a party to the offence.

Both sections provide a mechanism for an organization to be considered a party to an offence. Section 22.1 outlines the liability in cases of criminal negligence – as would have been the case in the Westray charges of manslaughter and criminal negligence causing death. Please remember that the actual corporate body was not charged in the Westray incident – only those two managers. Section 22.2 outlines liability as a party where the charges are fault based such as fraud or theft.

For negligence based offences a corporation is deemed a party to an offence on the basis of the actions of one or more representatives of the organization, who are acting within the scope of their authority, as long as the senior officer or officers in charge of that aspect of the organization relevant to the offence markedly departs from the standard of care reasonably expected to prevent the representatives or representative from engaging in that prohibited conduct. Similarly under s. 22.2, a corporation would be a party to an offence if a senior officer, with the intent to benefit the corporation, while acting within the scope of their authority, directs other representatives of the corporation to commit the offence or knowing that a representative is or will commit an offence and that officer fails to take reasonable steps to prevent the offence.

As I am sure you have realized these are very complicated sections and it is a difficult way to deem participation but there are reasons for this based on prior case law. Before we come to this I want to highlight some features of these sections for future reference and thought.

First, the sections do not refer to “corporations” but to “organizations.” “Organization” is a defined term under the Criminal Code pursuant to s. 2 and it means:

 a) a public body, body corporate, society, company, firm, partnership, trade union or municipality, or

(b) an association of persons that

(i) is created for a common purpose,

(ii) has an operational structure, and

(iii) holds itself out to the public as an association of persons

This definition is extremely broad and under (b) captures really any gathering of people who have come together for a common organized purpose. There is also in the Code the concept of a “criminal organization,” also defined under section 2 and referring to organizations created mainly for a criminal purpose (see s. 467.1) such as a criminal gang or in media nomenclature a biker gang, drug cartel or mafia. So, “organization” would capture both criminal organizations and legitimate organizations, hence the broad definition. Another reason for the broad definition may be the need to ensure an organization cannot “opt out” by tailoring its structure to fall outside of the definition.

Looking back at the sections, although the definition of “organization” is broad, the section operates in very limited circumstances. The sections are very careful to capture only prohibited conduct, which arises out of an individual’s corporate authority and duties. Those criminal actions unconnected to the organization are not relevant. In those circumstances the individual alone would be charged for their actions.

Another limitation in the sections is the distinction between “representatives” of the organization and “senior officer.” Again, looking at the section 2 interpretation section, “representative” means director, partner, employee, member, agent or contractor of the organization and “senior officer” is “a representative who plays an important role in the establishment of an organization’s policies or is responsible for managing an important aspect of the organization’s activities and, in the case of a body corporate, includes a director, its chief executive officer and its chief financial officer.” The “senior officer” is therefore a specialized representative of the corporation. Thus, the sections are structured around the corporate hierarchy with the senior officers in charge of the representatives, be they director or employee, with the senior officer having an enhanced placement in the organizational structure. To understand why the sections make this distinction and have this requirement, we now must look at the doctrinal dimension of corporate criminal liability.

Traditionally, as criminal law was concerned with intentional or subjective mens rea offences, criminal liability did not attach to the corporation but only to those individual employees who had the required subjective criminal intent. These employees essentially represented the corporation. Thus the “identification theory” was created to attach liability to the corporation but via an actual corporal body in the form of an individual player. This principle, arising from English common law and a 1915 case from the House of Lords provided that the corporation is only liable for what is done by “the directing mind and will of the corp., the very ego and centre of the personality of the corporation.” Case law thus formulated the test to identify the corporation with the senior official who acts as the “directing mind” or “alter ego.” If the directing mind has the requisite fault for the crime, the corporation would be guilty but if not the corporation would be acquitted.  To ensure that the corporation could not “hide behind the corporate veil,” a corporation would still be criminally liable even with no formal delegation of authority to the directing mind, even if the directors were unaware of the actions of the directing mind, and in certain circumstances, even if the corporation expressly prohibited the conduct in question. A corporation, however, would not be liable if the directing mind acted wholly fraudulently and wholly against the interest of the corporation.

Originally the term “directing mind” was defined broadly as in the 1985 SCC Canadian Dredge and Dock case. Due to the size of Canada, there could be, therefore, more than one directing mind could include board of directors, managers or anyone delegated the “governing executive authority” as in regional heads. Since this line of cases, the courts have placed some limits on who is a directing mind. The person must be an officer or manager of a corporation acting in the scope of work duties and responsibilities and must have the authority to “design and supervise the implementation of corporate policy” rather than merely carrying out policy. The problem became that the designers of corporate policy may be so far from the criminal acts that the court cannot find fault with the “directing mind.”

As a result of these weaknesses, critics have called to the end of the “identification theory” in favour of a more individualistic approach. For large multi-national corporations, critics have suggested replacing the theory with liability based on a “corporate culture” which encourages or condones the crime. This is where the new amendments come in as they do go far to reimagining the Identification Theory in favour of a corporate culture aspect. Thus, under section 22.1 a corporation would be guilty of manslaughter if within its organizational structure there was an objective foresight of an unlawful act which could cause bodily harm or if there was a marked departure from the reasonable corporate behaviour.

As an aside, there are further difficulties with section 22.1 on a conceptual basis as it relies upon objective mens rea, which is a marked departure from the standard of care required, and is very different from the traditional criminal law concepts of subjective mens rea. I have discussed in previous blogs (most notably here) the various issues with the importation of objective mens rea into the criminal law through the regulatory field (here wherein I discuss the Costa cruise ship tragedy, and here wherein I discuss laboratory safety and here wherein I discuss the criminalization of prediction -  as in weather and earthquake). It becomes an even wider societal issue as we, as a society, struggle with what kind of behaviour we want to be considered as criminal. This struggle is framed by the special stigma and loss of liberty attached to the criminal law. As a result, only those behaviours we deem egregious should be criminalized. The import of regulatory type behaviour into the criminal law should cause us to pause and question whether these types of behaviour are best addressed in the criminal law as opposed to the regulatory field. Concomitantly, we should be constantly reviewing those crimes presently in the Criminal Code, which no longer reflect societal norms and realities. Similarly, we should question whether the correct response to certain corporate behaviour is the criminal sanction, with its traditional fair trial and due process provisions originally created to protect the individual from the more powerful state. Corporations are not an easy fit into that system and yet certain behaviours, as exemplified by the Westray incident, require that special response of the criminal law.  

Thus, this podcast ends as it started with the story of twenty-six men who died while doing their job. The legacy these men left is found in the Westray memorial found in New Glasgow in Pictou County, in the poem written by a surviving son, and in the legislative amendments, which reflect society’s desire to protect the vulnerable worker through the full force of the criminal law.

 

Episode 26 of the ideablawg Podcast on the Criminal Code of Canada - Sections 22.1 and 22.2 - When Corporations Are Criminal