The Handbook of Board Governance, 2nd Edition

42Board Risk and Responsibility Under Regulatory and Criminal Law

Norm Keith B.A. J.D. LL.M. CRSP

Partner, Fasken Toronto

Board Governance, Regulatory and Criminal Law

The subject of regulatory and criminal law enforcement is often foreign to many directors. This subject is critical for directors' personal knowledge and compliance decisions. As my friend and colleague, Dr. D. Richard Leblanc,¹ has said, excellence in board governance requires diversity of understanding of the drivers of good corporate governance. However, the recent recruitment trend for directors has focused more on the diversity of appearance than the diversity of expertise in those drivers. As a result, very few boards have experts in regulatory and criminal law standards and enforcement. This is painfully clear when it comes to a general lack of knowledge by directors of regulatory and criminal risk and risk mitigation. This lack of knowledge and expertise at the board level has put boards, individual directors, and organizations at greater risk of regulatory and criminal liability.

The purpose of this chapter is to provide directors with a fundamental understanding of regulatory and criminal law standards, enforcement, and risk mitigation. This topic is not only of vital importance for all directors but also for corporate executives. It is also critical for improving corporate governance. As Professor Miller, from NYU Law School, has written, “criminal prosecution of corporations may seem odd…[however]… a ...