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

See all articles by Jennifer Quaid

Jennifer Quaid

University of Ottawa - Civil Law Section

Date Written: June 22, 2017

Abstract

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

Suggested Citation

Quaid, Jennifer, What’s Good for the Goose Is Good for the Gander: Considering the Merits of a Presumption of Organizational Capacity in Canadian Criminal Law (June 22, 2017). 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, Available at SSRN: https://ssrn.com/abstract=3036165

Jennifer Quaid (Contact Author)

University of Ottawa - Civil Law Section ( email )

57 Louis Pasteur Dr
Ottawa
Canada
613-562-5800 x 3240 (Phone)

HOME PAGE: http://https://droitcivil.uottawa.ca/en/people/quaid-jennifer

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