Archibald, Jull and Roach, “Corporate Criminal Liability: Myriad Complexity in the Scope of Senior Officer”

The Honourable Mr. Justice Todd L Archibald (Ontario Superior Court of Justice and Osgoode Hall Law School – York University) Kenneth E. Jull (Baker & McKenzie) and Kent Roach (University of Toronto – Faculty of Law) have posted “Corporate Criminal Liability: Myriad Complexity in the Scope of Senior Officer” , 2013 50(3) Criminal Law Quarterly. Here is the abstract:

The authors of this article argue that the Canadian model for corporate criminal liability is one that ought to be studied by other jurisdictions as an efficient model that strikes the right balance between the previous “directing mind” doctrine and the vicarious liability model that is utilized in the United States. This article reviews the recent cases of Global Fuels and Metron as case studies of how this model works.

Global Fuels was convicted of price fixing where a regional manager participated in collusion and let territory managers participate in collusion with his knowledge without interference. In the context of criminal negligence, the Ontario Court of Appeal in the case of Metron Construction 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. Companies must now be fully aware of the reality that the scope of what constitutes a “senior officer” has been significantly broadened. The result is that potential criminal corporate liability has been dramatically increased.

Corporate compliance must operate on myriad levels of complexity. At the senior officer level, 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.

A major advantage of the Canadian model is that 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.

Download a copy of he article via SSRN here.

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