Penalizing corporations for environmental offences : a comparative study of the Canadian experience and the Finnish law proposal

This thesis reviews some of the issues involved with penalizing corporations in environmental cases. The Canadian experience and the Finnish law proposal on corporate criminal liability form the basis for this study. Imposing criminal liability on corporations and using criminal sanctions in environmental protection have been opposed by a number of legal scholars. Both the theoretical and practical feasibility of holding a corporate entity criminally liable has been questioned. The criticism addresses such issues as assigning liability to a "mindless" entity, and fashioning an appropriate sentence to a "body" that cannot be imprisoned, and whose form varies from a multinational corporation to a company comprised of a single individual. Traditional penal sanctions have also been criticized for their inability to compensate the victim or repair the damaged environment. This thesis addresses and challenges this criticism by attempting to design a system of corporate criminal liability that would efficiently comprise the problem of corporate non-compliance with environmental legislation. While it is acknowledged that penal measures cannot provide an exclusive solution against unwanted corporate environmental behaviour, it is premised that such measures have their place among other control strategies. Therefore, instead of giving in to the mounting criticism, this thesis attempts to further develop the existing law on corporate criminal liability and seek solutions to some of the problems surrounding the issue of penalizing corporations in environmental cases. The existing law studied in this thesis consist of the Canadian experience and the Finnish law proposal on corporate criminal liability. The two approaches are introduced in chapters 2 and 3 of the thesis. The two systems are then evaluated inlight of three social functions of law in chapter 4; the functions of restoring equilibrium to the social order, maintaining predictability, and molding and advancing the moral and legal conceptions and attitudes of a society are used as the “measuring stick" against which the Canadian experience and the Finnish law proposal are evaluated. The evaluation discloses both strengths and weaknesses in the two systems of corporate criminal liability. The most predominant problems appear to involve the question about the very foundation for imposing penal liability on a non-human offender, and the difficulties in designing an efficient and just sentence to the corporate offender. Other difficult issues revealed in the evaluation are the question about the entities liable, and the interrelationship between the corporation and its individual agent. Chapter 5 confronts these problems and suggests some ideas for the development of the law. The most comprehensive change to the present corporate criminal liability schemes is in the proposition that corporate criminal liability should be founded on the blameworthiness entertained in corporate policies and operations rather than on the guilt of an individual corporate agent. Treating blameworthy corporate policies and structures as a proof of genuine corporate guilt emphasizes the collective nature of corporate offences, and promotes uniform and fair treatment of different corporations. Such a system may also inspire more uniform enforcement by forcing the prosecutor to select only those cases that imply genuinely blameworthy corporate policies behind the illegal conduct. With regard to sentencing, it is suggested in chapter 5 that instead of resorting to deterrence as the sole sentencing objective, an assortment of objectives should be employed. In addition to deterrence, a sentence should reflect the condemnatory nature of the offence by clearly denouncing the unwanted behaviour, and where appropriate, a sentence should be designed to encourage compensation and redress. In order to meet these diverse goals, a variety of measures should be employed and the exclusive use of the fine should be rejected. The principle of proportionality is recommended as the leading principle for the apportionment of a sentence.

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