Chapter 6 – Corporate Directing Minds and Regulatory
Directing Mind In Regulatory Offences
The “Directing Mind” of Corporate Due Diligence: True Crimes Compared to
• Regulatory offences main advantage from prosecutorial POV is that it need not
call witnesses with respect to the internal “directing mind.”
• Prosecution of corporation with “true crime” may fail, while a regulatory
prosecution may be successful
Ontario Court of Appeal R. v. Safety Kleen Inc 62 to 65
• Charged with true crime and regulatory offence
• Judgment reinforces the fact that regulatory offences turn the concept of
“directing mind” on its head ▯corporation must prove its directing mind set up a
system of due diligence.
• Identification Doctrine used to identify Directing minds
• Mr Howard was not in charge of an important aspect of the company (any role in
shaping corporate policies) and therefore not a directing mind.
• Guilty of regulatory offense because did not establish due diligence
• Courts referred to R. v. Sault Ste. Marie and R v. Timminco ▯no requirement that
Crown must prove employer in fact knew of danger caused by exposure.
• Employer must show that there is not only a system of due diligence in place but
also that reasonable steps are being taken to ensure its effectiveness.
The regulatory offence: Primary Corporate Liability
• Primary Liability flows from Ownership and Control
• Reference R.v. Timminco (not necessary to show negligence of employee)
• Always exceptions to the notion of control by an owner (R. v. Edmonton)
R. v. Canadian Dredge & Dock Co. 65, 66
• Corporate liability in regulatory offences is not vicarious but primary
R. v. Glenshiel 66 67
• Charged with strict liability offense under the Canada Shipping Act.
• The Court if Appeal held that the discharge of the pollutant constituted the
actus reus and not dependent on the misconduct of others.
• Onus on ship to prove it took all reasonable care to avoid discharge of oil