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7. Glasbeek, “Why Corporate Deviance is Not Treated as a Crime.”

8. Snider, “Corporate Crime in Canada”; Snider, “Traditional and Corporate Theft”; Reasons, C. and Goff, C., “Corporate Crime: A Cross-National Analysis,” in Stotland, E. and Geis, G. (eds.), White-Collar Crime: Theory and Research (Beverly Hills: Sage Publications, 1980)Google Scholar; Snider, L. and West, G.W., “A Critical Perspective on Law in the Canadian State: Delinquency and Corporate Crime,” in Fleming, T. (ed.), The New Criminologies in Canada (Toronto: Oxford University Press, 1985)Google Scholar.

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21. Henry, “Capitalism, Capital Accumulation and Crime,” 79.

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26. Reasons, Ross and Patterson, “Your Money or Your Life.”

27. Ibid., 120.

28. Ibid.

29. Ibid., 119. This recommendation by Reasons, Ross and Patterson has now been overtaken in part by the recent decision of the Supreme Court of Canada in R. v. Vaillancourt, [1987] 2 S.C.R. 636, striking down s. 213(d) of the Criminal Code (the constructive murder rule) on the basis that s. 213(d) permits an accused to be convicted of murder despite the existence of a reasonable doubt as to the accused's state of mind with respect to an essential element of the offence, in violation of s. 7 and s. 11 (d) of the Charter of Rights and Freedoms.

30. A recent case which supports this argument involved the prosecution and conviction of the president and a driver of a one-man Ontario trucking company for criminal negligence causing death in respect of their deliberate failure to repair the brakes on a truck, resulting in the death of two innocent persons. Both the president of the company and the driver were sentenced to five years in jail, Globe and Mail, June 3, 1988, A1.

31. Glasbeek, “Why Corporate Deviance is Not Treated as a Crime,” 399.

32. Ibid., 429.

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53. Hunt, “The Ideology of Law,” 16.

54. Hunt, “The Ideology of Law”; Poulantzas, “Law”; Fine, “Law and Class”; Piciotto, “The Theory of the State, Class Struggle and the Rule of Law.”

55. Hunt, “The Ideology of Law,” 15.

56. Gavigan, “Law, Gender and Ideology”; Fine, “Law and Class.”

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76. Brickey and Comack, “The Role of Law in Social Transformation,” 107.

77. Piciotto, “The Theory of the State, Class Struggle and the Rule of Law,” 166.

78. Ibid., 172.

79. Ibid., 171. For two detailed case studies of judicial interpretations of legislative reform initiatives in the areas of labour law and civil rights which support this thesis see Klare, Karl, “Judicial Deradicalization of the Wagner Act and the Origins of Modern Legal Consciousness 1937–41,” Minnesota Law Review 62 (1978), 265Google Scholar; and Freeman, Allan, “Legitimizing Racial Discrimination Through Antidiscrimination Law: A Critical Review of Supreme Court Doctrine,” Minnesota Law Review 62 (1978), 1049Google Scholar.

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93. Ibid. This analysis appears to be equally applicable in Canada. See, for example, s. 24(2) of the Canadian Charter of Rights and Freedoms, providing that evidence obtained in a manner which infringes upon or denies any of the rights or freedoms guaranteed by the Charter shall be excluded if it is established, having regard to all the circumstances, that its admission “would bring the administration of justice into disrepute.” The burden therefore lies upon the accused not only to establish that the evidence was obtained in a manner which violates any of the accused's rights under the Charter, but also that its admission “would bring the administration of justice into disrepute.” For a discussion by the Supreme Court of Canada which reveals the indeterminacy of this requirement see Collins v. The Queen (1987), 33 C.C.C. (3d) 1, [1987] 1 S.C.R. 265. Canadian courts have a lengthy history of reticence when asked to exclude evidence which has been obtained unlawfully or in violation of an accused's “rights,” see, for example R. v. Wray, [1971] S.C.R. 272, [1970] 4 C.C.C. 1 (S.C.C.); Hogan v. The Queen, [1975] 2 S.C.R. 574, 18 C.C.C. (2d) 65 (S.C.C.).

94. The Law Reform Commission of Canada points out that over seventy per cent of all federal offences are strict liability offences, Law Reform Commission of Canada, Report #3, Our Criminal Law (Ottawa: Supply and Services, 1976), 12Google ScholarPubMed.

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96. This point is reinforced by studies of criminal justice administration in Canada, the United States and the United Kingdom which reveal that the bulk of criminal cases heard before lower court judges or magistrates do not involve a trial of the accused's guilt, see for example Ericson, R. V. and Baranek, P.M., The Ordering of Justice: A Study of Accused Persons as Dependants in the Criminal Process (Toronto: University of Toronto Press, 1982)Google Scholar; also Newman, D.J., Conviction: The Determination of Guilt or Innocence Without Trial (Boston: Little Brown, 1966)Google Scholar; Heumann, Milton, Plea Bargaining: The Experience of Prosecutors, Judges and Defense Attorneys (Chicago: University of Chicago Press, 1978)Google Scholar; and McBarnett, Conviction.

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101. Law Reform Commission of Canada, Our Criminal Law, 171Google ScholarPubMed. See also the Department of Justice, The Criminal Law in Canadian Society (Ottawa: Supply and Services, 1982), 47Google Scholar, which explicitly endorses the Law Reform Commission's recommendation that the principle of responsibility should remain the cornerstone of criminal sanctioning.

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While two of the remaining justices making up the majority found it unnecessary to decide this issue, it does appear that the effect of s. 7 of the Charter, at least as interpreted by the Supreme Court of Canada in this decision and in Reference re Section 94(2) of the B.C. Motor Vehicle Act (1985), 13 C.C.C. (3d) 289, [1985] 2 S.C.R. 486, has been to reinforce the ideological discourse which links the requirement of mens rea to the “seriousness” of an offence, and the social stigma associated with prosecution and conviction.

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104. Mandel, “Democracy, Class and Canadian Sentencing Law”; M. Foucault, Discipline and Punish: The Birth of the Prison (London: Allen Lane, 1977).

105. Mandel, “Democracy, Class and Canadian Sentencing Law,” 140.

106. Ibid.; Mandel, “Democracy, Class and the National Parole Board.”

107. Mandel, “Democracy, Class and Canadian Sentencing Law”; R. v. Ruddock (1978), 39 C.C.C. (2d) 65 (N.S.C.A.).

108. And it appears that the evidence bears this out. Thus in R. v. McNamara (No. 2) (1981), 56 C.C.C. (2d) 516 (Ont. C.A.), which involved the longest criminal trial in Canadian history and resulted in jail sentences for two corporate executives for terms of five and three years respectively (which represented the severest sentences ever imposed in Canada on corporate executives for their participation in an offence committed by a corporation), both executives were released on 24-hour day parole after serving the statutory minimum of one-sixth of their sentences. The Chairman of the National Parole Board, in justifying the decision in a letter to the Globe and Mail argued that “[t]he opprobrium attached to [the two executives] during their trial and incarceration is the greatest deterrent to this type of non-violent crime,” Globe and Mail, May 11, 1982, 7, quoted in Mandel, Michael, “Democracy, Class and the National Parole Board,” Criminal Law Quarterly 27 (1984–1985), 159 at 165Google Scholar.

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116. Stone, Where the Law Ends; Sargent, “Legal Individualism and Corporate Accountability.”

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124. Southam Inc. v. Hunter (1983), 147 D.L.R. (3d) 420, 3 C.C.C. (3d) 497.

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128. Braithwaite and Geis, “On Theory and Action for Corporate Crime Control.”

129. Sargent, “Legal Individualism and Corporate Accountability.”

130. Ibid.

131. Braithwaite and Geis, “On Theory and Action for Corporate Crime Control”; Reasons, C.E., “Crime and the Abuse of Power: Offences and Offenders beyond the reach of the law,” in Wickman, and Dailey, (eds.), White-Collar and Economic CrimeGoogle Scholar.

132. Reasons, “Crime and the Abuse of Power,” 68; Reasons, Ross and Patterson, “Your Money or Your Life”; Glasbeek, “Why Corporate Deviance is Not Treated as a Crime”; Sargent, “Legal Individualism and Corporate Accountability.”

133. Cotterell, R., The Sociology of Law. An Introduction (London: Butterworths, 1984)Google Scholar; Sargent, “Legal Individualism and Corporate Accountability.”

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137. Carson, “Some Sociological Aspects of Strict Liability and Enforcement of Factory Legislation”; Carson, “The Conventionalization of Early Factory Crime”; Carson, “The Institutionalization of Ambiguity”; Paulus, I., “Strict Liability: Its Place in Public Welfare Offences,” Criminal Law Quarterly 20 (1978), 445Google Scholar.

138. R. v. Sault Ste. Marie (1978), 40 C.C.C. (2d) 353 (S.C.C.), per Dickson J. at p. 353; Sargent, “Legal Individualism and Corporate Accountability.”

139. Glasbeek, “Why Corporate Deviance is Not Treated as a Crime”; Reasons, Ross and Patterson, “Your Money or Your Life”; Glasbeek and Rowland, “Are Injuring and Killing at Work Crimes?”

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142. The Law Reform Commission's recommendation in Working Paper 44, Crimes Against the Environment, has been further weakened by Report 31, Recodifying Criminal Law, which proposes a new offence of “disastrous damage to the environment,” in place of the recommendations in Working Paper 44. The new Criminal Code offence proposed in Report 31 would provide: “s. 19(1) Disastrous Damage to the Environment. Everyone commits a crime who recklessly causes disastrous damage to the environment.” It goes almost without saying that the potential impact of such a Criminal Code offence on corporate violators of emission standards is likely to be practically nil.

143. This was explicitly made clear by the judgment of Dickson J. in R. v. Sault Ste. Marie (1978), 40 C.C.C. (2d) 353, [1978] 2 S.C.R. 1299 (S.C.C.), which articulated a three tiered hierarchy of offences based on the mental element required for conviction, with those requiring proof of mens rea at the top, and absolute liability offences at the bottom. See also Reference re Section 94(2) of the B.C. Motor Vehicle Act (1985), 13 C.C.C. (3d) 289, [1985] 2 S.C.R. 486 (S.C.C.), in which a majority of the Supreme Court held that legislative creation of absolute liability offences under federal or provincial regulatory statues contravenes s. 7 of the Charter of Rights and Freedoms in so far as imposition of liability for such an offence has the potential to deprive a person of life, liberty or security of the person. Consequently, the enactment of absolute liability offences which could result in the imprisonment of an accused person, even if imprisonment is not mandatory, violates the principles of fundamental justice under s. 7 of the Charter, and can only be constitutional if the appropriate government authorities establish under s. 1 of the Charter that such a deprivation of liberty is a justified reasonable limit in a free and democratic society.

144. Paulus, “Strict Liability”; Sargent, “Legal Individualism and Corporate Accountability.”

145. R. v. Sault Ste. Marie (1978), 40 C.C.C. (2d) 353, (S.C.C.), per Dickson J. at p. 363.

146. Carson, “The Sociology of Crime and the Emergence of Criminal Laws”; Carson, “Symbolic and Instrumental Dimensions of Early Factory Legislation”; Carson, “The Conventionalization of Early Factory Crime”; Carson, “The Institutionalization of Ambiguity”; Comack, “The Origins of Canadian Drug Legislation”; Paulus, The Search for Pure Food; Smandych, “The Origins of Canadian Anti-Combines Legislation”; Snider, “Towards a Political Economy of Reform, Regulation and Corporate Crime.”

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148. Snider, “Towards a Political Economy of Reform, Regulation and Corporate Crime.”

149. Glasbeek, “Why Corporate Deviance is Not Treated as a Crime”; Reasons, Ross and Patterson, “Your Money or Your Life.”

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151. Brickey and Comack, “The Role of Law in Social Transformation”; Piciotto, “The Theory of the State, Class Struggle and the Rule of Law”; Hunt, “The Ideology of Law.”

152. Brickey and Comack, “The Role of Law in Social Transformation”; Gabel, P. and Harris, P., “Building Power and Breaking Images: Critical Legal Theory and the Practice of Law,” New York University Review of Law and Social Change 11 (1983), 369Google Scholar.

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157. Brickey and Comack, “The Role of Law in Social Transformation”; Gavigan, “Law, Gender and Ideology.”