Archive for the ‘criminal practice’ Category

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

January 20, 2014

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.

“Swab First, Ask Questions Later”

June 5, 2013

Deoxyribonucleic acid (DNA): the wonder molecule.  It encodes the genetic instructions used in the development and functioning of all known living organisms and many viruses.

From genetic engineering to forensics to bioinformatics to nanotechnology, DNA is the defining characteristic of of human evolution and scientific progress. It is —for any fan of Law & Order of CSI — the stuff of which dreams of guilt or innocence are made of.

In his post, “The Slippery Swab (Update)” Scott Greenfield tackles the issue of DNA in a thought-provoking post on the U.S. Supreme Court decision in Maryland v. King, which approved the Maryland law permitting the taking of DNA from presumptively innocent defendants. Greenfield writes, (more…)

Cherry Picking at the Supreme Court of Canada: R. v. Cole

October 19, 2012

Today’s decision by the Supreme Court of Canada in R. v. Cole 2012 SCC 53 (S.C.C.) addresses the constitutional scope of the reasonable expectation of privacy based on unreasonable search and seizure under s. 8 of the Charter. By a 6-1 majority, the Court concluded that a warrantless search and seizure of laptop computer and disc containing Internet files breached the accused’s rights under s. 8 of Charter, but ought not to have been excluded pursuant to s. 24(2) of Charter. (more…)

Ontario appeal court: No reasonable expectation of privacy in using IP address to obtain customer info

October 3, 2012

In R. v. Ward,2012 ONCA 660, the Court of Appeal for Ontario has confirmed that that there is no reasonable expectation of privacy in identifying an internet user through his IP address in the course of a child pornography investigation.  (more…)

Chilenye Nwapi, “Litigating extraterritorial corporate crimes in Canadian courts”

September 26, 2012

Chilenye Nwapi  (D. Phil. Candidate, University of British Columbia, Faculty of Graduate Studies (Law)) has published a doctoral thesis entitled: Litigating extraterritorial corporate crimes in Canadian courts [PDF] (September 2012). The abstract reads:

This study investigates whether and how Canadian courts may assume jurisdiction (both criminal and civil) over extraterritorial crimes/wrongs committed by Canadian corporations operating overseas. It examines the current state of international law to see whether there is any international legal rule prohibiting a state from assuming jurisdiction over conduct occurring outside its territory. It finds that no such positive rule is in existence, whether in customary international law or in treaty law, and that the only concern is the likelihood of diplomatic protests by states which believe that the jurisdiction sought to be assumed is a threat to their territorial integrity. It argues that although the type of jurisdiction envisaged in this study is not widespread among states, the absence of widespread state practice is not tantamount to prohibition, at least in principle. The study then looks at the Canadian domestic jurisdictional bases, both criminal and civil. On the criminal front, it finds that the real and substantial link test has enough flexibility to reach the extraterritorial conduct of Canadian corporations and that the expansion of the substantive bases of corporate criminal liability that occurred in Canada in 2003 bolstered the criminal jurisdiction of Canadian courts over extraterritorial corporate crimes. On the civil front, it finds that Canadian courts may assume extraterritorial jurisdiction under three distinct theories: the real and substantial connection test, necessity jurisdiction and the recently enacted Torture Victims Protection Act. It examines the bases for declining jurisdiction under the doctrine of forum non conveniens and calls for a reformulation of the doctrine to require a Canadian court to decline jurisdiction only when it finds that it is a “clearly inappropriate” forum, in contrast to the current rule that requires the existence of a “clearly more appropriate alternative” forum. The question of choosing the applicable law in tort cases is also interrogated. A call is made for the adoption of a rule that considers the nature of the conduct in litigation as an important element in the determination of the applicable law. On the whole, this study concludes that Canada holds prospects for transnational litigation.




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