Harry J. Glasbeek

Missing the targets — Bill C-45: reforming the status quo to maintain the status quo

Abstract The meek approach adopted by Canadian regulators to the grossly deviant conduct by the corporate owner and management of the Westray mine forced law-makers, brought under pressure by union militants and public disgust, to demonstrate that they have always believed in, and continue to be wedded to, profit maximisation, but only if pursued by virtuous private actors. After 12 years, the Westray Bill was given life. It does not challenge the logic of capitalism. The chase for profits by wealth owners continues to be seen as desirable and normal, and to be criminalised only in extreme circumstances. This paper sets out the assumptions that allow us to treat the catastrophic incidence of workplace harms as acceptable collateral damage to be subjected to administrative regulation and mediation rather than to the strictest sanctions available to law. This is achieved by underplaying the fact that, in our political economy, the purpose of production is profit, rather than need. The paper elaborates the way in which the logic of the Westray Bill reflects those capitalist-favouring assumptions and how the Criminal Code amendments have been drafted to maintain and perpetuate what should be seen to be an intolerably benign approach to workplace slaughter.

The Corporation as a Legally Created Site of Irresponsibility

The recent Enron-type scandals were portrayed as assaults by venal corporate officials and their ethically challenged professional advisors on the legitimacy of the Anglo-American corporation and, therefore, as attacks on everything that is to be treasured. They were depicted as a form of terrorism by evil-doers who hate decency and achievement. The overblown analogy came easily to “spin doctors.” The 9/11 assaults had destroyed the towers that symbolized the interconnection between the American way of life and the corporation. George W. Bush embraced this imagery when he signed the remedial Sarbanes-Oxley Act into law: During the past year the American economy has faced several sudden challenges and proven its great resiliency. Terrorists attacked the center and symbol of our prosperity. …. And now corporate corruption has struck at investor confidence, offending the conscience of our nation. Yet, in the aftermath of September the 11th, we refuse to allow fear to undermine our economy. And we will not allow fraud to undermine it either… [T]he law says to honest corporate leaders: your integrity will be recognized and rewarded, because the shadow of suspicion will be lifted from good companies that respect the rules.”1 Despite the rhetoric, however, the steps taken did not amount to an attempt at regime change. Rather, the focus was to reassure the public that, as bad apples would be taken out of the barrel, it would be safer than ever to invest in private corporations and that this would help to provide ever-increasing economic welfare.