The seemingly endless list of serious crimes and human rights abuses by corporations around the world in recent decades has generated considerable discussion and debate about how best to regulate and control increasingly multinational/transnational corporations. Whilst the dominant academic and policy focus has centred on cooperative and/ or voluntary initiatives by corporations to operate ethically and responsibly (for example, see Hawkins 1987, 2002; Hutter 1988; Ruggie 2011), there is also a significant body of literature that contemplates more formal rules and laws in response to corporate offending (Bittle & Snider 2013; Glasbeek 2002; Pearce & Tombs 1998; Tombs & Whyte 2007). This paper addresses the latter issue, examining recent efforts to criminalise corporations that seriously injure and/or kill workers, and/or members of the public. It interrogates the limits of using the law to address abuses of corporate power and protect workers' safety, focusing on the ways in which struggles to enact and enforce corporate criminal liability legislation challenge and/or reinforce corporate capitalism. In so doing, it contemplates whether demands to discipline corporations through law, particularly by labour/unions (Glasbeek 2002, 2013), (1) misrecognise (Althusser 2001 ) the problems of workplace safety--problems that demand broader strategies that challenge the capitalist mode of production.
In Canada, the issue of corporate criminal liability came to the fore following the death of twenty-six miners at the Westray mine in Pictou County, Nova Scotia in 1992, a disaster caused by dangerous and illegal working conditions. The ensuing public inquiry, which characterised the tragedy as 'foreseeable and preventable', along with outrage from the surviving workers, victims' families and the labour movement over the fact that nobody was held accountable for what happened at Westray, produced demands for new laws to get tough on corporate killers (Bittle 2012; Glasbeek & Tucker 1993). The United Steelworkers union, certified to represent the Westray workers shortly after the disaster, (2) was instrumental in this regard, tirelessly lobbying the federal government for more than a decade to enact corporate criminal liability legislation (Bittle 2012). In 2004, after considerable political controversy, discussion and debate, the federal government introduced Bill C-45, An Act to Amend the Criminal Code (Criminal Liability of Organizations), creating a legal duty for 'all persons directing work to take reasonable steps to ensure the safety of workers and the public', and attributing criminal liability to an 'organisation' if a senior officer knew or ought to have known about the offence. (3)
Despite official rhetoric that Bill C-45, commonly referred to as the Westray Bill, would end the lenient treatment of corporate criminals, and regardless of the fact that roughly 1,000 workers still die each year in Canada as a result of work-related incidents or illness (Sandborn 2013), to date there have only been a handful of Westray Bill charges, and even fewer convictions (Bittle 2013) (4) What is more, none of the cases thus far exemplify what those who lobbied for the Westray Bill had in mind; none of them, that is, hold senior executives and board members to account, and none has targeted large and complex corporations. This situation has prompted renewed calls, particularly within the union/labour movement (the Steelworkers again being prominent), for the federal and provincial/territorial governments to take the necessary steps to ensure the law's enforcement. Unfortunately, there appears to be little political appetite to heed this advice, although pressures to act continue in the wake of two recent high-profile cases: a controversial decision by the Crown in British Columbia in January 2014 not to lay criminal charges against Babine Forest Products for its role in the death of two workers and injuries to 19 others, following an explosion at a sawmill plant in Burns Lake, BC; and the equally controversial actions following the Lac-Megantic rail disaster that killed 47 residents in July 2013, after an unmanned and runaway train carrying crude oil derailed in the town's centre, triggering a massive and devastating explosion. The Crown argued that criminal charges in the first case would be inappropriate because the investigation into the disaster by the province's health and safety authority was not conducted to a criminal standard (Hoekstra 2014). In the second case, controversy ensued after criminal negligence charges were laid against three employees and the company, the Montreal, Maine and Atlantic Railway, at the centre of the Lac-Megantic disaster. The accident generated concerns about rail safety in Canada, and local residents were outraged when charges were not laid against the company's chair, Ed Burkhardt, for his role in the disaster (Quaid 2014).
This paper draws empirically from a high-profile Westray Bill case, and critically examines demands that corporations be held criminally accountable for serious injury and death in the workplace. On Christmas Eve 2009, five workers fell thirteen stories when the swing-stage scaffold they were working on to repair the outside of a Toronto, Ontario apartment building broke in half, killing four of the workers and leaving the fifth with debilitating injuries. The scaffold broke as the workers were descending from the rooftop at the end of the day; at the time, they were carrying all of their equipment, which was too heavy for the scaffold, and they only had two lifelines (Keith 2011). In 2012, Joel Schwartz, president of Metron Construction, the small construction/contracting company responsible for the repairs, pled guilty to four (non-criminal) provincial Occupational Health and Safety Act offences and received a $90,000 fine for the incident, while the corporation pled guilty to one count of criminal negligence causing death, and was fined $200,000 (Edwards 2012). The fine against Metron was subsequently increased to $750,000 after the Ontario Court of Appeal ruled the original sentence was 'manifestly unfit', and that the trial judge had erred in relying on provincial health and safety case law in calculating the criminal fine (R v. Metron 2013; Chevalier & Kmiec 2013). In addition, shortly after the Metron tragedy, the Ontario government launched the Expert Advisor Panel on Occupational Health and Safety (EAP) to review the province's occupational health and safety (OHS) system, and to recommend ways to achieve improved compliance and zero workplace injuries, illnesses and fatalities' (EAP 201).
In theoretical terms, the paper relies on neo-Marxist claims to conceptualise state processes as fulfilling a fundamental, albeit not predetermined or automatic role in reproducing the capitalist social formation (Gibson-Graham, Resnick & Wolff 2001). This approach eschews essentialist thinking in which the mode of production determines social relations, in favour of exploring the complex and varied ways in which 'real relations' help to (re)produce certain definitive effects' (Hindess & Hirst 1975). From this perspective, the mode of production is constitutive of, or over-determined by, various class struggles at the political, economic and ideological levels, the outcomes of which generate particular and definitive conditions (Althusser & Balibar 1997 ; Hindess & Hirst 1975). Class is therefore about ongoing processes that play a fundamental role in (re)securing the capitalist social formation, not simply about struggles between two opposing classes, the proletariat and the bourgeoisie (Resnick & Wolff 1987).
Drawing from this neo-Marxist framework, then, I am particularly interested in how class subjects are created through state processes that share ideological affinities with corporate capitalism, as well as in how this subjection challenges and/or reinforces the status quo. Louis Althusser's (2001) notion of interpellation is instructive in this regard, guiding us to consider how individuals are hailed or named as concrete subjects by the already-existing ideological processes that are imbued within various social institutions (Ferretter 2006; Wolff 2005). Ideology, which Althusser (2001: 107) conceived as the 'ideas and representations' that dominate society and help the conditions for capitalist exploitation to prevail (Ferretter 2006: 79), recruits or invites individuals to adopt a particular subject position, personified by the individual who becomes a concrete subject by responding to the police officer's hail: 'Hey, you there!' (Althusser 2001: 163). For Althusser (2001: 96), ideology is (re)produced through two mutually reinforcing state apparatuses: the repressive state apparatus (RSA), or the state's ultimate power and authority to quash threats to capitalism; and the ideological state apparatus (ISA), including schools, family, media, religious institutions, unions, which rely more on ideology than repression to influence our thinking and actions. ISAs help to constitute the dominant common sense within the social formation (Ferretter 2006).
Relying on Althusser's notion of interpellation does not mean that we are unconscious dupes to capitalist demands; however, it does challenge us to reflect on the ways in which ISAs interpellate, or call forth, already-existing class subjects and, as such, help to re-secure class exploitation. Of particular interest for this paper is that the ideologies contained in ISAs represent a 'pure dream' or illusion that distorts the 'existing relations of production' (Althusser 2001: 108, 111). 'Ideology never says "I am ideological"', argues Althusser (2001: 118); instead, it creates the conditions within which subjects believe that they 'freely' submit to the 'rules of the established order' (Althusser 2001: 89). As Richard Wolff (2005: 226) notes, while ISAs leave the impression that we...