The Civil and Criminal Applications of the Identification Doctrine: Arguments for Harmonization
The identification doctrine refers to the attribution of mental states to a corporation. This article analyzes the two types of situations in which this doctrine is used. Tlte first is where the Crown wishes to hold a corporation liable for crimes requiring proof of mental fault. Canadian Dredge & Dock Co. Ltd. v. R. serves as the cornerstone case in which the doctrine is firmly established as a "sword" against corporations in the criminal law. The second situation in which the doctrine has been used is where the corporation sues in tort, and the defendant wishes to say that the mental state of the plaintiff corporation disentitles recovery. In other words, the doctrine can be used as a "shield" for individuals against claims in tort by corporations.
Legislative amendments to the Criminal Code have altered criteria for the doctrine in the criminal law. These changes do not affect the "shield" use of the doctrine, which is still governed by the common law.The author argues for the harmonization of the common law doctrine with its criminal legislative counterpart.
Author(s) retain original copyright in the substantive content of the titled work, subject to the following rights that are granted indefinitely:
- Author(s) grant the Alberta Law Review permission to produce, publish, disseminate, and distribute the titled work in electronic format to online database services, including, but not limited to: LexisNexis, QuickLaw, HeinOnline, and EBSCO;
- Author(s) grant the Alberta Law Review permission to post the titled work on the Alberta Law Review website and/or related websites.
- Author(s) agree that the titled work may be used for educational or instructional purposes and/or in educational or instructional materials. The author(s) acknowledge that the titled work is subject to other such "fair dealing" provisions and applicable legislation.
- Author(s) grant a limited license to those accessing the titled work from an electronic database or an Alberta Law Review website to download the titled work onto their computer and to print a copy for their own personal, non-commercial use, subject to proper attribution.
To use the journal's content elsewhere, permission must be obtained from the author(s) and the Alberta Law Review.