The Civil and Criminal Applications of the Identification Doctrine: Arguments for Harmonization


  • Darcy L MacPherson Assistant Professor. Faculty of Law, University of Manitoba; Associate, Marcel A. Desautels Centre for Private Enterprise and the Law, University of Manitoba.



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.