Competing theories of corporate criminal liability range along a spectrum. The Canadian model is in the middle of the spectrum, based on the concept of “senior officer”. The following two recent cases demonstrate how the Canadian model works in practice:
- R. v. Global Fuels: The company was found guilty of price fixing due to its regional manager’s awareness of an illegal price-fixing strategy implemented by two of the territory managers he supervised and his failure to interfere. The Judge found that the regional manager qualified as a “senior officer” as he was responsible for the management of an important field of activity at Global Fuels. This case is the first litigated case in Canada to test the parameters of the corporate criminal liability provisions in the Criminal Code, established by Bill C-45.
- R. v. Metron Construction: The Ontario Court of Appeal affirmed that an independent agent who manages an important aspect of a corporation’s activities qualifies as a senior officer. The actions of such an agent may result in a conviction of that corporation. The scope of what constitutes a “senior officer” has been significantly broadened by the inclusion of agents and contractors in the Criminal Code. The potential criminal liability of corporations has been increased.
In this article the authors argue that the Canadian model is the one that ought to be studied by other jurisdictions as an efficient model that avoids the difficulty of proving fault at the level of the board of directors or directing mind but also is a fair model that avoids holding the corporation vicariously responsible for the wrongs of every employee or contractor. 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.