Episode 028: Steven Bittle
Dr. Steven Bittle is an Associate Professor of Criminology at the University of Ottawa and an expert on corporate crime. We discuss how so many of the Canadians who have died from COVID have been elderly residents of for-profit long term care homes. At what point would the death of so many of a corporation’s customers be considered a crime? Steven walks us through this question, and explains what would have to happen for a long term care corporation to be prosecuted for a crime.
Transcript
Cameron Graham: My guest today is Steven Bittle, Associate Professor of Criminology at the University of Ottawa. Dr. Bittle studies corporate crime, and I've asked him to join me today to discuss an issue that has gripped Canadian society during the pandemic. I'm talking about the fact that over 75% of the Canadians who've died from COVID-19 have been elderly residents of long term care facilities -- what we used to call nursing homes. Long term care is a hugely profitable industry in Canada. But when a corporation's business model appears to lead to the death of many of its customers, I think it's worth asking at what point the corporation might be considered to have committed a crime. This is a conversation we need to be having as Canadians. Steve, welcome to the podcast!
Steven Bittle: Great. Thanks for having me.
Cameron: This is a somewhat unusual episode of the podcast because I usually focus entirely on the research of my guests. In this case however, I wanted to talk about a research project that I'm working on. After some prodding by Nora Loreto, a journalist from Quebec City, I refocused my current research on for-profit long term care homes. Nora is the one who has compiled all the data on COVID deaths in long term care. You'd think that this was something that regulators would be doing, but to our shame it's been left up to a freelance journalist to do this work. Unlike some other countries, the vast majority of Canadian COVID deaths have been in long term care. And disproportionately, those deaths have occurred in the facilities that are run on a for-profit basis. There are three large publicly traded firms that operate chains of long term care homes in Canada. There's also at least one big private equity firm from the states that's making money in Canadian long term care. These for-profit companies have continued to pay dividends to their shareholders at the same time as their customers have been dying from COVID. In some cases, the standard of care has been so awful that the army was called into sort out the mess. In short, it's been a disaster. To be fair, nonprofit and public long term care facilities have had major COVID outbreaks as well, but there have not been as many deaths, proportionately speaking, in these facilities as in the for-profit facilities. And also to be fair, some smaller for-profit homes have done quite well in managing the virus. But there's clearly a systemic problem here. And my research question has been, how are we as a society supposed to hold these companies accountable for all these deaths? We've got the stock market, which holds them accountable for earning a profit. We've got healthcare regulators which hold them accountable for their standard of care, but which obviously haven't been effective. We've got class action lawsuits underway from families who've lost relatives in these facilities. We've got the court of public opinion in which news media organizations are expected to attention to these situations, but the media for a long time ignored these deaths and has only recently started following Nora Loreto is lead in investigating these firms. None of these accountability mechanisms seem to be working. There are still too many deaths in these facilities and the for-profit firms involved continue to earn profits and pay dividends. So that leaves one way to hold these firms accountable, the criminal courts. I know next to nothing about corporate crime though. So Steve, I'm asking you to help me out. Why don't we start with this question, what's the legal framework for corporate crime in Canada?
Steven: Well, I think it's a really great question. I mean, first of all, I think your raising the issue of what's happened in long term care homes is extremely important. I don't think anybody has looked at this issue and not wondered how it was possible for so much harm, so much death and dying to happen before anybody even took note, let alone took action. And I for one -- and I know others working in the area as well -- have stood back and asked questions about accountability for these matters. Not on the part of government but certainly on the part of many of these private corporations that are running these long term care homes and whether there are in fact any criminal liability issues that arise from these situation. But back to your question about what it is about the nature of corporate crime and how we regulate it. I mean, that's really quite a large question that the answer to which comes in several different layers. So if I can just take a minute, I want to go back to some of the points you raised about how we regulate or control corporations. We can think about the ways that we control corporations, we can use the word "regulation" to broadly refer to all these different mechanisms that we have or all these different tools we have at our disposal to try to control or regulate what business does. And I think the first thing we have to recognize in having that conversation is that in my field, we often refer to private corporations or the corporation itself as being inherently criminogenic. By saying so, I'm not suggesting, or the people in the field aren't suggesting, that people who work in corporations are inherently criminal, but that there's something about the very structure of corporations in modern society, the way that they are legally constituted, that makes them (as some would characterize) a legally created site of irresponsibility. And the best way to think about that is, we have these organizations that enjoy limited liability. So the people that contribute their money to the shares of a company are not liable for what the company does on a daily basis, unless those people are individually involved in decisions that are made in the company and their decisions can be linked to some kind of wrongdoing that they can be therefore charged with a crime. But generally speaking, those who invest in the company enjoy limited liability. So they're not responsible for, and in general terms not interested in, what the company does on a day to day basis, as long as the company's making money. And that's what their investments are about. This tendency for these large companies that have investments from different investment firms, people are investing for their futures and their retirements. These are what many people refer to as paper entrepreneurs. Not involved in the day-to-day running of the business. They're there to make maximum profits. In today's marketplace, that pressure for maximum profits is everywhere. So there are some real serious issues that arise out of this fact that we have this thing called the corporation that is predicated on making money. And in that context, we often see situations where there's not enough attention paid to health and safety or to environmental matters, at the expense of that profit-making imperative. Okay. So what does that mean for corporate crime? Well, we've been told for a long time now, since the advent of neo-liberalism now more than 40 years ago, that markets are naturally self-regulating. That any company that doesn't operate ethically or responsibly or within the confines of the law will be punished in the marketplace either by people who aren't going to want to invest in their company because they're not seen as a good company or people aren't going to want to buy the products. That kind of thing. The problem has been that we have, again, this profit-making imperative that is driving the markets. Many of the markets are driven by these, again, faceless "paper entrepreneurs" who are more about maximizing their investments than really about how companies are run on a day-to-day basis. Coupled with the fact that we now have markets that really are just about not producing things, but creating exotic financial products that people can just make more and more money with. From a really critical perspective, many would argue that it's become just a giant casino. So this idea that markets can be self-regulating in that respect is failing as an element of that overall system. From there, we can look at the regulations that are in place to deal with businesses. We made reference to the fact that there are regulators who are supposed to be overseeing, in this instance, long term care homes, who obviously haven't done their jobs or who haven't adequately regulated many of these workplaces to prevent these things from happening.
Cameron: Well, one of the issues would be whether those regulations are ever adaptable enough to cope with something new like COVID. So that's something I think is undetermined. Were the regulations good enough for the status quo and they've simply been the situation with COVID has pushed beyond their capability or were they always too lax? And that's a research question.
Steven: Yeah. It's an important question. And I tend to fall into the camp where I say that what the pandemic has done is laid bare the problems that exist with the ways that we regulate or control corporations overall. For sure, there are probably laws that need to be in place to deal with pandemic-like scenarios. But I think it really does start to reveal the limitations that we have when it comes to controlling or regulating powerful individuals and powerful organizations. So we take the question of regulation, for example. Now, before we ever get to the criminal law -- because once we engage with criminal law, you are really talking about a serious situation where lives have been lost. Nobody wants to be in that situation. We want to avoid those kinds of circumstances. So that's why when we start talking about what should be done, then we have to think about these larger questions of regulation. Now, for me, when we look at this question of regulation, we have to situate it again within this context of neoliberalism. And what can we say about the nature of regulation over the past 40, 50 years? Well, increasingly corporations have been left to self-regulate. Governments might set the rules but there's this inherent belief that corporations are necessarily a rational entities capable of understanding the risks that are involved and that they will automatically do what's necessary to ensure that they are running safely and running within the confines of the law. Unfortunately, that just hasn't been the case. And I think a lot of that has to do with the fact that (a) there's that profit making imperative that always interferes with that process of regulation, but (b) I think just organizations generally, large corporations, aren't able to operate in that rational way that they can actually control many of the risks in ways that they think that they can. So we have a system of regulation in which corporations have been largely left to self-regulate. Regulations, if they exist, are usually not adequate enough to deal with the situation. So they're poorly worded laws, or they're not adaptable enough to deal with situations like you're describing with the long term care homes and COVID. In addition to that, you have regulatory agencies that are extremely underfunded. They're not able to do their jobs. Most of these places rarely ever get inspected. And then again, we can add to that, is this style of regulation, and there's more of a compliance model of regulation that's dominated in recent decades than necessarily what have to be the case. And by that I mean, we see time and time again where regulators give companies second, third, fourth, fifth chances, and warnings before actually intervening to stop the practice that's causing harms. And in my research, one example that I always turned to is, my research in this area emanates from the Westray Mine disaster in 1992, where 26 miners were killed in an underground explosion that was by any standard a result from dangerous and illegal working conditions. The inquiry report around that disaster was entitled "A Predictable Path to Disaster." That company had been warned more than 50 times before the explosion, that there were problems with the way that they were [operating], with the mine safety, and that if they didn't take measures to correct their safety measures -- in this case, cleaning up the coal dust in the coal mines -- that an explosion was possible. They were warned 50 times before that happened. And so sadly nothing was ever done. No stop-work order was ever issued before the disaster happened.
Cameron: So there was basically the regulations in place, the regulators observed the unsafe conditions, they issued the orders -- and there were no consequences to the corporation for not following through?
Steven: Right. So in that case again, the nature of the regulatory intervention never got to the point where the company was shut down or stop-work order was issued. It was always just a warning in terms of, "Well, you'd better do something about this, please, we've noticed this." And I raise that as an example because that's not to say regulators aren't trying to do their job. I think regulators are severely under-resourced as it is. But at the same time, there's this belief, again, in this compliance model where it's these second and third chances that are given to corporations, and many argue that we should probably intervene sooner than that to prevent these kinds of disasters from happening so that we don't have to ever resort to the criminal law. And then we get to your question about the criminal law and how it works. And so again, I think many people who are doing research in this area, I think in their eyes there are serious questions to ask about criminal liability for what's happening in the long term care homes. And essentially the way it's supposed to work is, as a result of the Westray Mine disaster, changes were made to the criminal code in 2004 that try to make or try to create a legal structure in which, if there was some kind of criminal negligence that caused death involved in a working environment or workplace, or by a company or by an organization, and there was a senior officer within that company who basically knew or ought to have known about what was going on and did not do, or failed to do, something to stop the harm or the crime from happening, that person's actions or inactions or decisions or non-decisions could be used as a basis for imputing responsibility or criminal liability to the corporation itself. And this is a long historical aspect of trying to hold companies criminally liable for instances where members of the public or workers are killed. We had the old common law doctrine in which, again, in situations where somebody is killed in the workplace, either a worker or a member of the public, in common law doctrine what the courts tried to do was to say, "Okay, let's try to find the brain of the corporation -- that person most senior in the organization who has control of the entity. And let's try to see if that person, again, has some kind of negligence in this case." In other words, again, did they know or should they have known about what was happening? And did they fail to act, or should they have acted? And when they did, they would assign criminal liability to the corporation itself -- not to the person, but to the corporation. And that's a distinction we can talk about in a minute. The problem with that, in the past, was that when you start talking about large complex organizations, transnational or multinational corporations with several decision-making centers, how do you pin responsibility on one individual or even a couple of individuals for the purposes of assigning this criminal liability to the organization of the corporation itself? And we saw that with the Westray disaster. The Westray disaster was a case where they tried to pursue criminal charges but in the end, due to some prosecutorial mishaps -- but also the courts could never get their mind wrapped around, could they identify the one causal factor in the disaster and could they say that the people in charge of the company had that requisite guilty mind or "mens rea" to impute their behavior to the company and find it criminally liable.
Cameron: Let's just pause there, and just make sure we understand the basic nature of a criminal act because it's based on the idea that an individual person commits a criminal act. And there's this, as I understand it -- I am no legal scholar at all -- but there's two basic things that have to happen. You have to have evidence that a criminal act occurred. This is the facts of the matter. Did the act actually happen? But then there's this other part that you refer to as mens rea, it has to do with like the criminal intent, right?
Steven: Yeah.
Cameron: So that's at the individual level. So the problem is, as I hear what you're saying, the problem is, how do you deal with that criminal intent question because it should be fairly easy to observe -- as we've observed how many people died at the Westray Mine or how many people have died in long term care -- the facts are there, but it seems to hinge on this issue of intent. And you've got this corporation that you're trying to show that the corporation had intent and how on earth do you go about proving that?
Steven: And that's the difficult part. So when law was changed in 2004 -- the so-called Westray Law, or Bill C-45 or Criminal Liability of Organizations -- it was intended to try to deal with these exact kinds of situations: the Westrays, or even potentially what's going on with the long term care homes. And it was meant to try to, "make it easier" is not the right way to say it, but to try to come up with a logical and coherent way to assign criminal liability to the organization. And basically all it did in lay terms was to say, "Okay, we don't necessarily need to find the most senior person in the organization and try to use their behaviours as a way to impute responsibility to do the corporation." It can be somebody lower down that has significant policy making decisions in the company, and we can say that their activities can be used as a basis to try to assign liability to the company itself. So on paper, that seems like a reasonable approach. To try to, again, get at the organization, the corporation itself. But as you point out, one of the problems is first off that despite the changes to the law, the law itself is still about guilty individuals. And the way that the law works, the way that the criminal justice system works, is still about trying to find that guilty person, the smoking gun, make that direct causal link between decisions or indecisions or acts and the outcome itself. And these scenarios do not fit that mold very well. And so I think what we've seen since the Westray Law was introduced in 2004, we've only seen it be used in a handful of times, in a handful of circumstances, I should say. And most of those cases involve small companies where it's not difficult to trace the chain of command. Usually, in many instances, there's small ma-and-pa type organizations where the people who own the company also work at it. Well, those were never cases that were difficult to deal with in the past. It's the big companies where that becomes problematic. So again, I think the law still has a problem getting its mind wrapped around -- and when I say the law, both the law itself and the administration of justice -- has a difficult time getting its mind wrapped around the fact that we're not dealing with guilty minds in the same way that we would with individual offenses. There's also the problem just generally that in our society we just don't think corporations are criminals. We've been inundated with messages that corporations are inherently good. That they only ever have our best interest in mind, if things happen they're typically accidents, or there might be one or two rogue companies that we need to dispose of or dispense of. But otherwise there is not a problem here. And so I don't think anybody working in the criminal justice system is immune to this idea that corporations are not criminals, or that what happens in these instances, they might be harmful, they might be bad, there might be things that we can learn and do differently about it, but they don't rise to the level of crime. And that's as much a social, cultural phenomenon as it is a legal one. And I don't think that can be underestimated in this conversation.
Cameron: It's interesting. You talk about the corporation as a way of kind of creating a place where irresponsibility can rule. You've got a number of challenges here. You've got to prove that the organization was responsible and had intent, and we're fixated on this individual. So there's a couple of possible outcomes of this. One is that you could end up with no assignment of criminal intent to the organization because it was just the individual, and you could have the individual held out as a scapegoat, right?
Steven: Yeah. And those raise some really good questions as well. So first of all, what does it mean to hold a corporation criminally liable? Well, the new law, the Westray Law, has all kinds of things that if it was enforced on a regular basis, it could have things like probation orders, where a company might be overseen by an independent auditor in terms of, they've got to make certain changes and prove that they made certain changes to make the workplaces safer. But generally speaking what we see is, we see companies get fined. And what's a fine to a company? We'll a fine to a company is-
Cameron: It's the cost of doing business.
Steven: Exactly, right? It's a cost of doing business. And if we go back to that, that's why I raised that question about the way that corporations are structured. That doesn't harm individuals who make decisions about how corporations have run. They're not paying out of pocket. The company might pay but in most instances, particularly for large companies, well it's a cost of doing business but they're still going to be profitable. We can look at many companies that have been involved in serious devastating disasters. Going back to the Bhopal chemical disaster, going to the BP Deepwater Horizon disaster. All these companies paid massive fines. Volkswagen in the emissions scandal. But they continue to exist. They continue to make money. They continue to make their shareholders money. So to fine a corporation is problematic in that respect. It's also problematic because in the end, who pays for fines when companies have to pay? Well, consumers probably will pay them by having to pay higher prices for products that the company produces, or worse, workers pay the price because of decreased wages or lost wages that they don't get because the company's not going to pay them more or further cuts to workplace safety that contribute to further problems down the road. So there's a problem with just fining a company, with a fine is that. The other issue though is, you could find an individual within the company who becomes a scapegoat. But what's I think really important about the way that Westray Law works in Canada is it's about the organization. It's about the corporation itself. There's nothing specifically that mentions director liability. Now, when we look at this law in Canada and we look at similar laws that have emerged in the United Kingdom, when they started out, those who were pushing for reforms, those within the labor movement, for example, wanted to see laws around director liability. Because after all, it's the boards of directors who ultimately made decisions about how companies are run.
Cameron: Can I just pause you for a second? I just want to make sure that... Not every listener to this podcast is going to be familiar with the way corporations are organized. The board of directors is supposedly an independent group of people who don't work for the corporation. They may be paid an honorarium just for their service, but their job is to oversee the corporation. And so the chief executive officer, the CFO, and so forth, all these people are actually employees of the corporation. And they may or may not have seats on the board themselves, but they work for the board of directors conceptually. The board of directors oversees them. The board of directors is the group that would ultimately make the decision to hire or fire the CEO of the corporation. Now they're supposed to be independent, right?
Steven: Correct. But as you just pointed out, they are intricately involved in how the company is run and could certainly make decisions about, for example, what should be done around issues of safety or what shouldn't be done. And certainly they're the ones who appoint these executives, who are the ones who make the decisions as to how to affect the company's business on a day-to-day basis. Again, with the overall goal being to try to maximize profits for the shareholders. So what the argument is about director liability in this instance, which would include some senior executives in larger companies. It's those at the level who make decisions about how the companies are run. Why are they not held responsible for the decisions that they make, or perhaps the decisions they don't make? Now, in each instance where we see these laws have come up -- they're a relatively recent phenomenon, to have these laws on the books -- is that, they started out as measures to have director liability or senior executive liability for these kinds of situations. There was massive pushback under all of these instances to not have that, the result being that we have these laws that don't deal specifically with liability at that level. The reason why people push for liability at that level is, it kind of removes those false distinctions that are made in many ways between the different elements of the organization. So in other words, if somebody's making the decision around how a company is run has some kind of accountability for those decisions, and they may be held accountable if they don't do something to prevent these disasters from happening, the argument is their motivation for their decision-making is going to change as opposed to a situation where it is just this corporation, this individual in the eyes of the law, the corporation itself who's not an actual person who ends up being held accountable to it. So it changes the motivations for how the decisions are made and introduces an element of deterrence that you just wouldn't get through a law that focuses on the corporation itself.
Cameron: So one of the arguments against this kind of hard responsibility for directors would be that, if directors are going to be held accountable in this way, then you wouldn't get good people serving on the board.
Steven: Yeah. That's a common argument that's made. It's one that I find a bit, uh, "disingenuous" might be a way to put it, in some respects. It's not one that I subscribe to in the sense that -- and others working in the field of corporate crime, many don't subscribe to as well. One of the problems becomes if you look at many of these individuals that are involved, they're more than willing to take credit for how things go in a corporation when they go well. But when things all of a sudden don't go well, they like to hide behind their friend called The Corporation and say, "Well, it wasn't me." As Harry Glasbeek, who's a legal scholar who's worked for decades in this area, would say, "They like to say, 'It's not me. It's my friend the corporation who's the problem here. You need to go after them.'" And so I find it hard to believe that you can accept responsibility for things going well on one hand, but then hide behind this legal fiction on the other hand when things don't go well. You know this idea also that, I remember interviewing somebody years ago about this topic, and their response to me was while they can't imagine a line-up at the job bank of people from boards of directors choosing a minimum wage job over a lucrative board-of-directors job because they think they're going to be held liable for something. So it's often one of those arguments that I think is used to dissuade any conversations about liability. But I mean, I think if we look at the way that decisions are made in companies, if we see the serious impact of the decisions when they result in disasters, I mean, I do think there's some serious questions we need to ask about who's making the decisions? How are decisions being made, and why should they not bear responsibility for what's happening?
Cameron: Well, there's also the question of the financial liability. And I know that there is a fair bit of money paid by corporations in insurance premiums to buy directors insurance, so that at least the directors won't be held financially liable. But this just raises the question of, at what point in time does this become a crime that goes beyond a financial penalty to the corporation or to the senior officer or to the director, and involves some sort of legal punishment, jail time for instance, right?
Steven: Well, I think this is really important. When we go back to the question of regulation, I'm not sure if you're familiar with John Braithwaite's work. John Braithwaite is a criminologist who has long written about issues of corporate crime. And while I wouldn't agree with many of his positions on the nature of regulation, one of the things that he's advocated is what's called a pyramid of regulation, where you would start -- and if you visualize a pyramid, you would start at the bottom of the pyramid -- [it] would be about engaging a corporation about its safety practices, for example. It could be about the environment. It could be about financial matters or something other. But engaging them at that level about how their organization is structured, about the laws that are in place. And then if things are noticed that are wrong, it could be escalated into warning notices, up to fines, up to ... all the way up to criminal prosecutions. And at the very top of the pyramid you could take away a company's corporate charter, which governments have the ability to do if they wanted to. The problem becomes that the pyramid, we never get past that lower end of the pyramid. And a lot of that has to do with the nature of corporate power in modern society. It keeps us from actually ever escalating up that scale of intervention in anything beyond very simple fines or issuing warnings. And so many people working in the field say we have to find a way to be more proactive to escalate our intervention sooner, so that, again, we're not in a situation where we're talking about, "Oh, now, now that all these deaths have happened, how can we hold them responsible?" For the people who have lost loved ones in those situations, understandably they want justice, but obviously they would have preferred their loved one not die in the first place. And that's what that kind of more stringent intervention would be about.
Cameron: So I'm just wondering about the sequence of events when you move from a situation where say, a healthcare regulator has observed conditions in a particular nursing home, a particular long term care facility, and has decided that there needs to be some sort of an intervention. That's at that first level. Moving on up to the point where there's been a criminal charge against the corporation, there's a long series of events that has to take place. Is the regulator tied directly into the next step of pressing criminal charges? Who is responsible for saying, we need a criminal investigation here? What's the link?
Steven: That's another complicated area. And the one thing that... I'll point to an example that explains just how complicated this is. And before I do so, I'll note that those who are pushing for greater enforcement of the Westray Law, this Bill C-45, which is Criminal Liability of Organizations. So that's mainly labour and union groups. And I think that's really telling in many respects, it's that -- and I've written about this in the past -- it's that but for the efforts of organized labour to push for the enactment of these laws and push for their enforcement after those laws have come into effect, this issue would not even be on the table. It's not something that's politically popular. It's not something that politicians take very seriously. So there's that element that's part of this. But when we look at the way that the system works, they are right now pushing for better relationships between regulators and the police. Because typically what happens is, let's say there is a fatality in the workplace. The police would probably be called because somebody has called 911 and the police would come and they typically would secure the scene and wait for the Health and Safety inspectors to arrive to do their investigation. Traditionally what the police might do is they might look to see if there's been a crime on the surface. And that typically is, they'll look to see whether there was a workplace incident that was actually a homicide covered up to make it look like a workplace accident. And if it isn't, then they hand the investigation over to the regulators or the inspectors who do the hard work just find out what happened and whether or not there are any rules that have been broken. So the way it works now is, in the course of their investigation, if they get a sense that there's some criminal negligence involved, then they would call the police back in to do their own investigation. And essentially the police would have to start their investigation from scratch. They can't just piggyback on the investigation by the health and safety inspectors, because the health and safety inspectors are working under a different set of laws and they haven't read anybody their rights. So right to counsel and all those things. Now, the police will have some knowledge of the state of the investigation, but they'll have to come back in and interview everybody. And then they can recommend whether there should be charges laid. And they recommend that to the Crown and the crown prosecutor decides whether they want to go ahead with the criminal case. Now that's complicated, and it's complicated for a number of reasons. And this is where the example comes in. There was a case a number of years ago in British Columbia where a man was killed at a Weyerhaeuser wood processing plant in New Westminster. And he was killed cleaning out this machine that processes wood chips, takes wood waste and makes it into wood chips. I'll spare all the details, it will be too long to tell the story of it. But in a sense, when the regulators did their investigation, they felt perhaps it was some criminal negligence on the part of the company involved. The police came onboard at that particular time. They did their investigation. They recommended charges to the crown prosecutor. The crown prosecutor declined to proceed with a criminal case.
Cameron: On what basis?
Steven: Well, here's where the real trick is. So getting crown prosecutors to talk about these kinds of things, I haven't had a lot of success at it, but this is where the two different forms of law come into play. So you're a crown prosecutor, you're the same person who has to decide, "Should I proceed with regulatory charges or should I proceed with criminal charges?" And when they proceed with criminal charges, they're always going to ask themselves, "Do I have a chance of winning this case?" If not, then the case might not be in what they call the public interest. Or can I just proceed with the regulatory offenses, fine the company, and sometimes fine them substantially and not have to get caught up in that complex process that we just talked about, where they have to prove intent and mens rea and all that stuff. There's a built-in incentive, almost, for them to take the non-criminal route. And again, I'm not suggesting that crown prosecutors are negligent in their decision-making, but just that they're faced with the choice. There is this built-in incentive to go the non-criminal route because all they have to do is prove, they're called, inchoate offenses. So all they have to do is prove that something was done. They don't have to prove intent.
Cameron: Right.
Steven: So it's usually, did the act happen and did the company not follow particular safety procedures? Done. They're found guilty of that particular offense. And so that is a very enticing prospect for a crown prosecutor, particularly when they're going to be faced with a long trial against a big company with all kinds of resources to defend themselves in court. Those things are all part of that. So that's why I think we see a lot of these situations where we don't see these laws get enforced even when police and regulators might think that something else is worthy. I should note in that case I was telling you about, after that the crown prosecutor refused to proceed with criminal charges, then the union in British Columbia, the Steelworkers union, became so incensed because they thought it was such an egregious case, that they embarked on what's called a private prosecution. So basically under the criminal court, you can start a private prosecution. And what that entails is they went out and recollected the evidence, got the evidence together, brought it before a judge who makes a determination as to whether there's enough evidence to proceed. On the face of it, is there enough evidence to proceed with a criminal trial? They did that in that case. And the judge said, "Yeah, I think there's enough evidence here to proceed with a criminal trial." Even in that circumstance, that case goes back to the crown prosecutor who then makes the ultimate decision as to whether it's in the public interest to proceed with criminal charges. In that case, they again refuse the second time to proceed with criminal charges. So it's really complicated, but there are a lot of ways in which the system itself is just not wired to deal with these kinds of incidents as crimes. Even when to a lay person, I'm sure many of the people, rightfully so, that are looking at what has happened in the long term care homes are screaming that there's criminal liability to this. They can't believe what looks to be the negligence that they see involved in these cases. And I would add the other complicating ingredient here is that the state, the government's hands are not clean on these matters as well. I mean, many successive governments have reduced the level and the nature of regulation. They have embraced privatization to the extent that we see long term care homes like this now.
Cameron: This is specifically a problem in Ontario. The former premier of Ontario who was responsible for the deregulation of this sector of the health industry is now one of the board chairs of one of these for-profit homes. So it's problematic.
Steven: Yeah. Well, we've had just decades of successive governments of different political stripes championing private enterprise, private corporations, to the extent where we're in this situation now where we see formerly publicly-run institutions that have been privatized. And we can see some of the consequences that result from that when we inject that profit making imperative. And I think you're right. I mean, that's not to say, as you've made reference to, it's not to say that not-for-profit organizations haven't had their own problems, but when you insert that profit-making imperative to the extent that it has, we do see the kinds of problems that resulted, the kinds of crimes that it resulted in. Now -- and that has been something that's been forwarded and championed again by the state -- now, the state's got to turn around and discipline the very entity that it helped rise to such prominence. So it is a really a contradictory position for many governments throughout the global North to be in at this particular moment in time.
Cameron: Right. This has been a real education for me to have you explain how these things work. This is a podcast about academic research, just a couple more questions for you. What does your research look like in this area? What do you actually do day-to-day to do research on corporate crime?
Steven: Yeah. There's been lots written about how researching the powerful is not an easy thing to do. Access to information and data is always a challenge when you are doing research in this area. For me, I have focused primarily on criminal liability for negligence causing death, or what I call in my own work, corporate killing. And that has entailed examining in close detail the formulation of laws. And I think the formulation of the Westray Law for example, tells us a lot about not only our ability to actually regulate corporations. And proper rules and laws in place matter. They save lives. But they're also a reflection of the priorities that we have in our society. So to me, it's also a foil for talking about the problems of capitalism in modern society and the role of the corporation therein. So it's really an area where not only do we look at the formulation of laws by looking at legislative initiatives, by looking at legislative debates, by looking at the examination to particular laws, but I have done interviews. When I do research in this area, I like to do, as much as I can, interviews with different people in the field, whether it be in the labour movement, the union movement, government sector, non-government sector, lawyers in private practice, to get a sense about how we understand what corporate crime is. Because to me, when we talk about corporate crime we are necessarily confronted with very serious questions about the nature of the society that we live in. And so I've done that a lot in the context of corporate criminal liability, but more recently I've been looking at issues of corporate corruption in Canada. A lot of things stemming from, for example, the SNC Lavalin affair that we're all familiar with over the last couple of years. And then there, again, it's just about the kind of stronghold that private interests have taken over our political processes and the implication that has for how we think corporate crime or how governments respond, or probably more accurately don't respond to these very serious harms and crimes.
Cameron: As an academic, you are, I suppose the appropriate phrase here is, "speaking truth to power." That can have some reputational consequences. As your work becomes known, that may open some doors but it may also close some doors. I don't imagine you get invited to any lucrative positions on boards of directors.
Steven: No. Full transparency to the work that I do, I typically work from a lot of Marxist-informed perspectives of law and society, and in so doing, I think it's really important to note that I really think that there are important struggles to have around the nature of our regulations. Because adequate rules and laws, we know that. We know from the evidence globally, we know a couple of things. We know that if we had adequate rules and laws in place, that it would matter, that it would make a difference. It wouldn't prevent all the ills that many of us would argue capitalism causes in society, but it would save lives and that is worth the struggle in and of itself. And that's part of what my work always tries to do. It's not solely about raging against the structure of society. It's about trying to come up with practical ways to save lives and to make things better for people that are trying to just in many instances, just trying to live lives and an earn a living. But for me, again, I just think that we can't understand or look at these questions with[out] at least stepping back and asking some serious questions about what it is we're doing in society. What it is that we're doing? What is this modern corporation? How is it why we are faced with these oligopolies, the Amazons of the world, these powerful companies that dictate every aspect of our life? Is that healthy for who we are as a society? And right down to those individual instances where people are sick and killed as a result of decisions made within these organizations. It's a complicated area that I really think it's important for us to at least have these conversations.
Cameron: When I look at the work that you're doing, I see a couple of things that would distinguish you from other people, non-academics working in the field. One is you've got a particular theoretical perspective. You're well-read in different ways of looking at the world. And you've also got tenure. So there's this aspect of job security. And I wonder how those two things affect the way that you can contribute to these kinds of discussions compared to say, a union activist or a journalist or an active politician in this field. What is it that you as an academic can contribute that might be missing from other contributors to this conversation?
Steven: Well, I mean, I think first of all, there's some wonderful people doing amazing work. You mentioned Nora Loreto, by example, at the beginning. She's somebody who just does some fantastic work, independent journalism and gives a voice that reaches a much broader audience than I do. I mean, I've tried to reach as broad of an audience as I can. I've worked with union and labor groups to try to bring what's seen as another voice to the table to raise issues about these things. I don't know how successful I've been. I've tried to as much as I can, but I think as you pointed out, once you are put into a camp, then you are there to struggle from within that perspective. What I can say is, we know historically any improvements that have been made to the way that workplaces are run, the way that corporations are held accountable has only come about as a result of struggle. It was only struggled that led to the introduction of the Westray Law. It is only now the struggle that many groups are involved in to see those laws applied in situations where it's deemed appropriate. And so I try to think of my work is being part of those voices. Part of those voices for struggling for accountability while realizing or thinking about broader notions of social justice. I did a project with a couple of grad students about two years ago now, where one of the things that we did was we tried to come up with, re-estimate, the number of work-related fatalities on the country. You know there's this systemic under-reporting of workplace accidents in this country because it's in our compensation system. So for our workplace fatality to be counted as a work fatality, somebody has to have been compensated under the system -- found to have had a work-related instance incident that's compensable under this insurance scheme. And we went through a process where we had an alternative counting method, and were able to argue that we think that the number of workplace fatalities is 10 to 13 times greater than the 1000 or so officially reported work-related fatalities thre are each year in Canada. And to me, that's an example of how we can bring the institutional structure that we have in place to be able to do the research to access the information, to try to build these arguments and help inform those discussions, to try to give some additional voices based in research. We still let here to research protocols and are doing what is considered legitimate research to try to inform public debate with those additional voices in an area where not many people do research, an area where there's a need for more voices.
Cameron: In terms of contemporary social issues like the pandemic, do you think academics are doing enough?
Steven: On the issue of the pandemic itself?
Cameron: Well, I'm thinking of the idea that with my complete freedom to choose a research topic, I could equally study something that happened in the 1800s, and spend my time trying to understand what had happened there. What's our obligation as academics to contribute to discussions of current issues and are we doing enough there?
Steven: Yeah. So my background is in critical sociology, critical criminology, and that's an area where there has been a conscious decision made to step outside that kind of so-called traditional objective role of the academic who doesn't engage in messy political debates, to advocate for social justice issues. So I'd be the one who would say there are many people out there doing great work in those areas, but we probably should be doing more. And the one area where I think we should do more would be that I think we should all be having serious conversations about the structural issues. I think one place where we fall down in academia generally speaking is, we do a good job of talking about those kinds of primary or first-order causes to many problems that we see in society. But there's a real reticence in many instances to talk about those more structural or second-order causes. And that raises questions about the nature of politics, the nature of the political economy, the nature of society itself. And I understand and acknowledge that those are difficult questions, but we can't push them away by ignoring them. I think we have an obligation to think about our research and situate our research on particular phenomena within that broader context, and try to link up those issues in ways that analytically connects the dots, so to speak, and pushes us as a society generally, or governance and states and powerful individuals, to be held to account for the things that they do. There are just way too many harms that are caused by, in my mind, for example, the modern corporation, for us to just stand by idly and take more of what we've been given. Because, I mean, not to be overly dramatic about it but many would say the fate of the planet is at stake when we start talking about global warming and all of those things that are caused by primarily by industrial development over the last several decades. So the stakes are high.
Cameron: Well, that's a really wonderful way of describing the role of an academic. Hadn't really necessarily thought of before. Maybe I'll add it to my Twitter bio which is "connecting the dots."
Steven: Yeah. The issues are so big that it's hard to do and we could get into a whole other podcast about how there's incentives within the academy itself that are less than inclined to lead people in this direction. There's that practical kind of policy-centered knowledge tends to take priority. And I, for one, that's why I said earlier and why I engage in that area as well, because I think it's important. But I think there are also related and bigger questions that we should be asking at the same time.
Cameron: Great. Well Steve, thank you so much for your time today. It's been a pleasure to talk to you and I look forward to reading deeper into your work as I'm working on my own research project, and hopefully we'll have a chance to talk again someday.
Steven: Great. Thanks for having me and good luck with your research.
Links
Steven Bittle’s faculty webpage at the University of Ottawa
Steven Bittle on Twitter
Revisiting Crimes of the Powerful
Credits
Host: Cameron Graham
Producers: Cameron Graham, Bert Imai
Photos: University of Ottawa, UBC Press
Music: Musicbed
Tools: Squadcast, Audacity
Recorded: March 10, 2021
Locations: Ottawa and Toronto
