Accountability of Canadian Mining Corporations for Their Overseas Conduct: Can Extraterritorial Corporate Criminal Prosecution Come to the Rescue?

Abstract

AbstractThis article is set against the backdrop of the inability of Canadian courts to hear civil cases brought by victims of the operations of Canadian mining corporations in developing countries where accountability mechanisms are weak. The article examines the legal framework for extraterritorial criminal prosecution in Canada with a view to seeing how corporate criminal prosecution could fill the accountability gap and contribute to the promotion of the accountability of Canadian mining corporations involved in human and environmental rights abuses in developing countries. The article argues that extraterritorial criminal prosecution holds prospects for success in Canada, if only the Canadian government is willing to utilize it. The real and substantial link test, the Crimes against Humanity and War Crimes Act, and several sections of the Criminal Code provide sufficient jurisdictional bases for such prosecution. The amendments to the doctrine of corporate criminal liability that were made in Canada in 2003 bolster the criminal jurisdictional strength of Canadian courts. Lastly, there are no compelling international comity concerns to discourage the Canadian government from utilizing the criminal justice process to contribute to the global fight against corporate impunity in human and environmental rights abuses. This article seeks to contribute to the knowledge of the powers at the disposal of the Canadian government to do so.