- Still Dying for a Living: Corporate Criminal Liability After the Westray Mine Disaster by Steven Bittle
The 1992 deaths of 26 workers at the Westray Mine resulted (11 years later) in federal legislation criminalizing some forms of corporate wrongdoing. The Westray amendments to the Criminal Code represent a departure from Canada’s traditional (and ineffective) regulatory approach to occupational injuries and fatalities. Yet, despite several workplace deaths each day in Canada, there have only been a handful of prosecutions under Westray provisions of the Criminal Code. Steven Bittle’s 237-page book examines this seeming disjunction by considering the reluctance of legislators and prosecutors to equate corporate wrongdoing with “crime.”
Bittle’s literature review suggests the notion of corporate crime sits uneasily in the dominant perspective on crime. Ideologically constructing crime as street crime performed by street criminals constructs wrongs committed by formal organizations as non-criminal matters. This perspective helps explain the historical development of regulatory mechanisms (emphasizing education and persuasion) to deal with corporate wrongdoing. The Westray explosion created an opportunity to revisit this predominant approach to corporate crime and corporate criminal liability. Yet analysis of the development of the Westray amendments to the Criminal Code reveals how such reframing efforts were constrained and redirected by the dominant discourses and antagonisms that exist in Canada’s social, political, and economic context.
Bittle applies qualitative discourse analysis to parliamentary transcripts, interviews, and other reports about the Westray amendments. His theoretical framework combines Marxist (“why?”) and Foucauldian (“how?”) analyses to reveal the relationships between discourse and social structures. This analysis highlights the privileged status of “The Law” and its role in constraining proposals to expand criminal liability to the boardroom. In this way, Bittle draws our attention to how discursive formations around legal norms (mens rea, in particular) can limit which reform options are considered realistic as well as the way such formations can marginalize those advocating (seemingly) unrealistic options.
Similarly, Bittle’s analysis identifies how neoliberal “common sense” about the importance of corporations to society and the threat posed by corporate regulation constrained legislators’ appetite for certain regulatory options. Interestingly, these economic “constraints” operated in the absence of any concerted public effort by corporate Canada to influence the eventual shape of the regulation (although there is some evidence of quiet lobbying). The reflexive acceptance by legislators that criminalizing corporate behaviour is contrary to the public good highlights how neoliberalism blurs the distinction between private and public interests.
In an interesting aside, Bittle notes the way in which unions and workers – groups who rarely have any control over which hazards exist in the workplace or how they are mitigated – were incorporated as potential targets for prosecution under the Westray amendments. This may reflect the freedom of choice narrative that makes workers responsible for the risks they assume upon employment – a notion that permeated 19th-and early 20th-century thinking about workplace injury. Bittle also explores the development of consultancies that emphasize employers immunizing themselves from prosecution, rather than preventing injuries. [End Page 325]
Overall, Bittle’s analysis demonstrates how the political sensibilities of corporate capitalism shaped how legislators evaluated proposals for heightening corporate criminal liability around workplace injury. While the Westray amendments provided a moral (in both senses of the word) victory for the labour movement, the amendments have largely gone unused. The (non)enforcement of the amendments is explained as a function of a competing regulatory framework (provincial Occupational Health and Safety laws) that are easier to convict under, a lack of awareness of the Westray amendments among prosecutors, and workplace safety having low societal priority. More important, non-enforcement also reproduces the existing order whereby corporations remain largely immune to the consequences of workplace injury.
A cynic might conclude that the Westray bill represents a politically palatable solution to a threat to government legitimacy flowing from an egregious corporate misbehaviour. In one sense this is true: clearly the amendment (and its subsequent non-enforcement) privileges corporate interests. But Bittle’s analysis reveals that discursive formations also played an important role in shaping...