1Civil Law Section, Faculty of Law, University Of Ottawa, Ottawa, Canada
Sentencing has an outsized role in setting the tone of enforcement against organizational/corporate offenders because nearly all such cases are settled with a guilty plea. When Canada enacted the Bill C-45 “Westray reforms” in 2004, the addition of a wide judicial discretionary power to craft probation orders as well as specially tailored organizational sentencing factors was heralded as a key change that would promote a much-needed shift away from monetary fines as the default response to organizational wrongdoing toward behavioural remedies designed to address the underlying structural and cultural causes of the offence.
In this paper, I assess the concrete impact of these reforms by examining a representative cross-section of reported sentencing decisions in those areas of regulatory and criminal law where prosecutions against organizations tend to be more common (workplace health and safety, environmental and wildlife protection, fisheries, competition law) and find that they have done little to move the enforcement mindset away from one centred on calculating the level of optimal deterrence in dollars. I argue that altering sentencing practice to one where the central focus is rehabilitation is possible but requires two key changes: (1) training for enforcement officials and judges to provide them the specialized knowledge and analytical tools to design non-fine measures that are both feasible and consistent with sentencing objectives and (2) meaningful participation within the sentencing process for stakeholders, other than senior management, who are affected by sanctions imposed on the organization and whose insights could inform the fashioning of an appropriate sentence.
Jennifer Quaid, BSocSci (Econ), LLL, LLB (Ottawa), LLM (Cantab), LLM (Colum), PhD (Queen’s) is an expert on corporate criminal liability. Applying an interdisciplinary approach that combines criminal law and organization theory, her research focuses on developing principled and effective enforcement responses to organizational crime. Prof. Quaid’s other research interests lie in general criminal law, punishment theory and business law, particularly competition law. A member of the Bars of Québec, Ontario and New York, Prof. Quaid practised law for several years before joining the academy. She clerked for the Honourable Frank Iacobucci of the Supreme Court of Canada.