Criminal prosecutions of corporations are rare in Canada. The police and Crown appear to prefer the prosecution of individuals, reflecting, perhaps, a shared belief that the conviction and punishment of real, as opposed, to artificial persons, best serves the interests of the criminal justice system. Whatever the reason may be, the result is that we have precious little (or any?) case law available that applies and interprets the corporate liability provisions added to the Criminal Code by Bill C-45 in 2004.

With the benefit of a number of post-Charter decisions of the Supreme Court of Canada, we have a clear conceptual understanding of the level of culpability required by “criminal negligence”, in comparison to “negligence”. Anyone, who in doing anything, or, omitting to do anything that is his or her duty to do, shows wanton or reckless disregard for the lives or safety of others is, by law, criminally negligent. The fault requirement is more than simple negligence; a breach of the standard of care reasonably expected in the circumstances. Instead, there must be at least a marked and substantial departure from the standard of care.  The words “wanton or reckless” would suggest that the accused must have actual knowledge of the risk created by its conduct, but the Court has concluded that the accused need only have recognized and run an obvious and serious risk or, alternatively, gave no thought to that risk.

Good enough, conceptually, for the three employees who are co-accused with the company with 47 counts of criminal negligence causing death. But how does this apply to the company? Section 22.1 of the Code provides:

 In respect of an offence that requires the prosecution to prove negligence, an organization is a party to the offence if

(a) acting within the scope of their authority

     (i) one of its representatives is a party to the offence, or

     (ii) two or more of its representatives engage in conduct, whether by act or omission, such that, if it had been the conduct of only one representative, that representative would have been a party to the offence; and

(b) the senior officer who is responsible for the aspect of the organization’s activities that is relevant to the offence departs — or the senior officers, collectively, depart — markedly [and substantially] from the standard of care that, in the circumstances, could reasonably be expected to prevent a representative of the organization from being a party to the offence.

The unlawful acts of one or more three accused employees (paragraph (a)) would engage the liability of the corporation. But the guilt of the company would follow only if paragraph (b) was satisfied.

How could this play out? If the train engineer, despite reasonable corporate procedures, training and supervision, failed to engage a sufficient number of hand brakes (as the company has claimed), the company could be exculpated.

On the other hand, assume sufficient hand brakes were engaged but failed because they had been poorly maintained. The company could be exposed to conviction if the failure to have an adequate maintenance program is caused by the marked and substantial departure of one or more senior officers from the standard of care one would reasonably expect a railway company to exercise in ensuring the adequate maintenance of its rolling stock.

Unfortunately, to this point we have very little guidance on what constitutes “a marked and substantial departure from the standard of care” in comparison to a less serious, and, therefore, non-culpable departure. Differentiating between the two may well prove challenging, particularly when the resulting damage as in this case is catastrophic. There may be an understandable, but nevertheless, incorrect, temptation to measure the seriousness of the departure by the damage it caused.

All of the charges at this early stage remain unproven in court and all of the accused are entitled to the presumption of innocence.