Guilty minds and criminal intent are not just for people, says UBC Philosophy prof. Roger Shiner. He’s making a case that these legal concepts ought to apply to corporations.
UBC professor Roger Shiner is working to prove his theory that corporations should be held to the same standards of accountability for criminal offences as a person is.
Shiner, who teaches philosophy at UBC’s Okanagan campus, received $67,466 from the Social Sciences and Humanities Research Council (SSHRC) to develop his theory for the criminalization of corporate wrongdoing.
“Corporations can cause harm in much the same way that human beings cause harm,” explains Shiner. “Our legal system is a public mechanism for holding individuals accountable for the harm that they do, especially the criminal law.”
Despite the kind of harm corporations do—whether they act in careless ways that result in death or environmental damage, for example —Shiner says corporations are very rarely charged with criminal offences.
“If done by an individual, he or she would be charged under the criminal law,” he says. “My fundamental interest is finding out why that is, and making a pitch that this shouldn’t be the case.”
One of the issues Shiner is examining is how the courts find it difficult to apply to corporations the standard conditions for criminal guilt or criminal fault.
“For example, take the legal term Mens Rea (the guilty mind),” says Shiner. “If you or I ought to be found guilty of a criminal offence the court has to prove we knew what we were doing—meaning we did it intentionally or knowingly or recklessly. “How do you apply terms like that to corporations?” he asks. “The usual argument is that we can’t apply it to corporations because they don’t have minds. So a big part of my research is really to take that question on—to look at exactly what it is to attribute an intention to somebody and to try and show there is really no problem in treating corporations in the same way.”
The second part of Shiner’s research addresses the notion of strict liability—the idea that you can be held criminally liable just because you caused the harm, without further investigation into intent.
“And of course everybody says that would be a horrible thing to do to a person,” says Shiner. “You can’t subject persons to strict liability, and again the tendency in both the legal and philosophical literature is to think the same would be true of corporations.
“I want to show that, no, it isn’t. The moral reasons for not subjecting persons to strict liability don’t apply to corporations: so there is nothing wrong, in principle, in subjecting corporations to strict liability, even under the Criminal Code.”
Roger argues that the reasons for not subjecting persons to strict liability have to do with their moral status as natural persons.
“Persons are ends in themselves, and should be treated as such. Corporations may be legal persons, but they are not natural persons,” he says. “The Supreme Court has recognized this legally in not extending to corporations some of the protections the Charter affords to natural persons.”
In time, Shiner hopes his research could have an impact on the design and application of the law in Canada.
“If someone said we have to start looking at these corporate cases differently, or we have got to start prosecuting where we didn’t before, or we have to change the way we are handling the regulation of corporations, that would be the ultimate payoff for me.”