What’s Good for the Goose Is Good for the Gander: Considering the Merits of a Presumption of Organizational Capacity in Canadian Criminal Law
in Marie-Ève Sylvestre, Julie Desrosiers & Margarida Garcia, eds, Réformer le droit criminel au Canada: défis et possibilités/Criminal Law Reform in Canada: Challenges and Possibilities, Cowansville: Les Éditions Yvon Blais, 2017, 93-131
40 Pages Posted: 14 Sep 2017 Last revised: 21 Oct 2018
Date Written: June 22, 2017
A disconnect has emerged between the promise of the 2004 Westray reforms, which stressed the importance of holding organizations criminally responsible separately from individuals, and the state of current enforcement, which continues to be dictated by the availability of a single culpable individual on whom prosecutors can readily pin the elements of the offence. Is there a way to encourage enforcement more consistent with the spirit of the reforms? I suggest that one way of doing so is to create a presumption of organizational capacity, analogous to s. 16 Cr.C. Anchored to the idea that organizations are designed to do what is necessary to conduct their affairs, the presumption would simplify proof of what seems obvious – that the source of wrongdoing that occurs in the course of the pursuit of organizational goals is, absent proof to the contrary, best analyzed as a collective rather than individual phenomenon.
Keywords: corporate criminal liability; organization studies; criminal law; Canada
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