Week 10

CORPORATE CRIME
DOCUMENTARY: PBS.ORG/FRONTLINE : THE UNTOUCHABLES
Predatory Lending Fund em Provable Fraud Underwriting Lanny Breuer

REVIEW & BACKGROUND

Background Charter rights and corporations Degrees of liability

CHARTER RIGHTS AND CORPORATIONS

Irwin Toy Ltd v Quebec [1989]
Do charter rights apply to corporations? Appellant: Attorney General of Quebec Respondent: Irwin Toy Limited Appealed from Quebec Court of Appeal Freedom of expression rights of company. At Quebec appeal level, court sided with the company. Facts
ITL challenging ss 248 and 249 on Consumer Protection Act (Quebec Law); age restrictions on advertising Do age restrictions on ads (ss 248 & 249) violate Charter ss 2(b) & 7? justifiable 248: No commercial advertising directed at persons under 13 249: Take into account: o nature and intent of purpose and goods in ad o manner of presenting ad o time/place it is shown Appeal Allowed (Attorney General won) Ss 248 & 249 do violate Charter 2(b) justified under section 1; section 7 does not apply. S 2(b) test for expression; not convinced ITL would be harmed; limit on s 2(b) in childrens interest; s 7 applies to humans (not corporations)

Issue

Decision Reason Relevance

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LIABILITY
Absolute Liability: o Only focus on actus reus o Proof beyond reasonable doubt (ex. Statutory rape doesnt matter if you didnt know how old she was, if it can be proved that you were the one who had sex with the minor, you will be charged) o No additional fault element required o Violates principles of fundamental justice Strict Liability o Ex. Regulatory offences o Proof beyond a reasonable doubt o Accused can prove due diligence o Middle ground between absolute liability and mens rea offences o CASE: Sault Ste Marie Vicarious Liability o When anothers faults and acts attributed to accused o Criminal law = individual responsible for acts (s)he commits But what id employee commits wrongs that the employer knowingly benefits from? o Potential basis for corporate liability Directing Mind o Hesitant to extend vicarious liability o Favoured directing mind approach Acts by directing mind or ego Those who design/supervise policy o Automatic primary responsibility o Problems: hierarchy; geography

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Canadian Dredge & Doc Co v R [1985]

Appellants: Canadian Dredge & Dock Company; Marine Industries; JP Porter Company; Richelieu Dredging Corporation Respondent: Crown On appeal from the Ontario Court of Appeal Facts
Corporations entered into bidding process with government; alleged collusion; 4 corporations convicted under Fraud: o 338(1): Everyone whodefrauds public/any personof property, money or valuable security (a) is guilty of an indictable offence, liable to imprisonment for 10 years Conspiracy: o 423(1)(d) Everyone who conspires with any one to commit an indictable offenceis guilty of an indictable offence Managers acting (a) against corporations; (b) for own benefit; (c) against instruction Appeal Dismissed Crown won Identity Theory; managers vital to corportation; primary liability applies; corporations benefitted Ignorance or instructions to the contrary do not insulate corp from liability; can be more than 1 directing mind

Issue

Decision Reason Relevance

NEW STATUTE & AMENDMENTS

Westray Law (2004) Bill C-45 = CC s 217 (a): Everyone who undertakes, or has the authority, to direct how another person does work or performs a task is under a legal duty to take reasonable steps to prevent bodily harm to that person, or any other person, arising from that work or tasks Organizational Liability CC s 221(1) amendment re. Negligence o One or more representatives must have committed actus reus o Senior officer found to have mens rea o Requires marked departure (Beatty) CC s 22(2) amendment re. subjective intent o Ex. Fraud, obscenity, terrorism o Senior officers acting on own, directing others, or knowingly permit representatives

RECAP & NEXT CLASS