After Lac-Mégantic, there is Reason to Worry about Corporate Liability in Canada
The acquittal of Thomas Harding and two others for their role in the Lac-Mégantic train disaster should cause concern for those desirous of seeing corporations held liable for crimes of negligence. Public sentiment was generally sympathetic toward the three accused, who were employees of Montreal Maine and Atlantic Railway (MMA).
Academics and laypersons alike expressed the view that the accused did not deserve to be punished for a crime that seemed the fault of the corporation for which they worked.1 It is precisely this sympathy that should worry those who would see corporations held liable. This is because Canadian law makes it exceedingly difficult to convict a corporation of criminal negligence without also implicating the employee most proximate to the crime. If, therefore, the public—and juries—cannot stand to see low-level employees held criminally liable, the Crown will face tremendous difficulty in securing corporate convictions for crimes of negligence.
This problem stems from the structure of s. 22.1(a)(i) of the Criminal Code. If the Crown had wanted to prosecute MMA under this section, it is not obvious that it could have secured a conviction without also implicating Harding et al. personally. This is because, as a first step toward a corporate conviction under s. 22.1(a)(i), the Crown must prove that one or more of the corporation’s representatives, acting within their scope of employment, was party to a crime of negligence. The criminal liability of the representative is the bedrock upon which the Crown builds its case against the corporation. Representative is defined with sufficient breadth to capture everyone from labourer to director. But it seems reasonable to think that the representatives most likely to do the physical act or omission of criminal negligence are the workers on the ground; the low-level employees, like Thomas Harding, whom the public generally does not like to see punished simply for being at the tail-end of a chain of corporate screw-ups. The Crown could get around this problem by taking a view of causation which considers more than physical proximity to the crime. This is the solution proposed by Professor Jennifer Quaid.2 It would allow the Crown to argue that a train derailment, for example, was caused not just by the actions of the engineer, but by the policies of managers and directors. The actions of those higher-ups could then serve as the bedrock of a corporate charge. But this would introduce new complexity; it is much easier to say the engineer crashed the train.
At first glance, s. 22.1(a)(ii) seems tailor-made to skirt this problem. It retains the general scheme of s. 22.1(a)(i), but allows the collective action of a corporation's representatives to ground corporate liability. This means that the Crown can build a case against a corporation by arguing that the actions of two or more of that corporation’s representatives, had they been done by a single person, would amount to criminal negligence. On this basis, the Crown can charge a corporation without also targeting a low-level employee. But here, too, the trial at Lac-Mégantic gives reason to dismay. This is because the jury there found the charge of criminal negligence almost too difficult to deal with. A charge under s. 22.1(a)(ii) would be vastly more complex.
Professor Quaid explains that a charge of criminal negligence causing death is difficult to prosecute because it asks jurors to measure the accused's conduct against that of a hypothetical reasonable person.3 This exercise in abstract reasoning caused problems for the Lac-Mégantic jurors.4 A charge under s. 22.1(a)(ii) would layer abstraction upon abstraction to the point of madness. It would demand that the jury first construct an abstract mental aggregate of the collective accused. It would then demand that the jury assess whether the aggregated collective actions represented a marked departure from what would be expected of a hypothetical reasonable person. If so, the jury would then analyze the conduct of senior officers, dealing, again, in the abstract and the hypothetical. This is enough to make the hypothetical juror’s head spin. Another layer of complexity arises from the differential negligence standards applicable to a charge under s. 220 and the wording in 22.1. The former requires proof of a “marked and substantial departure” according to the Supreme Court of Canada in R v JF,  3 S.C.R. 215 at paras 8-10. The latter suggests a “marked departure” standard.
The trial in Lac-Mégantic thus brought to the fore a problem that will surely bedevil future prosecutors of corporate crime. Where public opinion is sympathetic towards the low-level employee, but hostile to the corporation, s. 22.1(a)(i) offers nothing but trouble. It demands that prosecutors implicate the employee to get at the corporation. Lac-Mégantic also showed that s. 22.1(a)(ii) is unlikely to prove a viable alternative. It threatens to confuse jurors to the point of exhaustion. And so, the trial of Thomas Harding and his co-accused gives reason to worry about Canada’s law of corporate liability.
1 Steven Bittle, “Said by father of one of victims: “I felt relieved because these are not the right people who should be there” @quaid_jennifer @katherinelippel @jhebe087” (19 Jan 2018 at 3:38pm), online: Twitter https://twitter.com/SteveBittle/status/954498293156937729
2 Jennifer Quaid, “Indeed. It is a failure of imagination. Accountability can be done differently than simply thinking about who was the most physically proximate to the event. But that means questioning the "moral neutrality" of profit and business decisions.” (20 Jan 2018, at 11:04pm), online: Twitter: https://twitter.com/quaid_jennifer/status/954791836610154496
3Anne-Marie Dussault, “Impasse au procès de Lac-Mégantic, le jury est incapable de s'entendre après 6 jours de délibérations, quelle sera la suite? Entrevue avec @quaid_jennifer, @DrCiviluOttawa #RDI2460” (16 Jan 2018 at 5:00pm), online: Twitter: https://twitter.com/AMarieDussault/status/953431771332280320
4 Giussepe Valiante, “Lac-Mégantic trial jurors ask for dictionary, clarifications as deliberations continue” The Star (15 Jan 2018), online: https://www.thestar.com/news/canada/2018/01/15/jury-in-lac-mgantic-rail-disaster-trial-to-enter-fifth-day-of-deliberations.html