Enhancing Corporate Accountability under the Criminal Code through Enforcing Corporate Social Responsibility

Abstract

Domestic and international legislation and jurisprudence continues to recognize the prominent role that corporations play in, and the significant impact they have on, contemporary society. As a result, in Canada, corporations are subject to multifarious regulation and penalties for noncompliance, which traditionally result in substantial fines against corporate entities and, more rarely, piercing of the corporate veil to impose individual liability. However, it is widely recognized that those directly responsible for the offending behaviour often go unpunished, or that the fines and punishment are simply the cost of doing business. This approach to sentencing is of limited effect in curbing recidivism and promoting respect for the law and the maintenance of a just and safe society. In this paper, I seek to draw attention to and expand on the paucity of legal scholarship and jurisprudence considering whether greater emphasis on rehabilitation and corrective sentencing for corporate offenders under the Criminal Code would be more consistent with the legislated objectives of sentencing and good corporative citizenship. Ultimately, I take the position that a more principled approach to sentencing, which would utilize, for example, the existing probation and policy-making powers where appropriate, would result in more meaningful sentencing process and effective sanctions to combat corporate accountability and achieve corporate social responsibility in greater accord with the public interest. Part one of the paper outlines the purpose and objectives of sentencing under the Criminal Code of Canada and examines why a narrow approach of deterrence is not effective in achieving corporate accountability. Part two explains the concept of CSR and how it accords with the sentencing objectives and considerations for corporate offenders. Finally, part three provides practical examples of how CSR principles have and can be employed by courts to more effectively achieve corporate accountability.