Bill C-45 (Historical)
An Act to amend the Criminal Code (criminal liability of organizations)
This bill was last introduced in the 37th Parliament, 2nd Session, which ended in November 2003.
Martin Cauchon Liberal
This bill has received Royal Assent and is now law.
November 7th, 2003 / 1:15 p.m.
I have the honour to inform the House that when the House went up to the Senate chamber, Her Excellency the Governor General was pleased to give, in Her Majesty's name, the royal assent to the following bills:
Bill C-45, an act to amend the Criminal Code (criminal liability of organizations)--Chapter No. 21.
Bill C-25, an act to modernize employment and labour relations in the public service and to amend the Financial Administration Act and the Canadian Centre for Management Development Act and to make consequential amendments to other acts--Chapter 22.
Bill C-6, an act to establish the Canadian Centre for the Independent Resolution of First Nations Specific Claims to provide for the filing, negotiation and resolution of specific claims and to make related amendments to other acts--Chapter 23.
Bill C-459, an act to establish Holocaust Memorial Day--Chapter 24.
Bill C-55, an act for granting to Her Majesty certain sums of money for the public service of Canada for the financial year ending March 31, 2004--Chapter 25.
Bill C-37, an act to amend the Canadian Forces Superannuation Act and to make consequential amendments to other acts--Chapter 26.
Bill C-50, an act to amend the statute law in respect of benefits for veterans and the children of deceased veterans--Chapter 27.
Bill C-48, an act to amend the Income Tax Act (natural resources)--Chapter 28
Bill S-21, an act to amalgamate the Canadian Association of Insurance and Financial Advisors and The Canadian Association of Financial Planners under the name The Financial Advisors Association of Canada.
Statements By Members
November 7th, 2003 / 11:10 a.m.
Alexa McDonough Halifax, NS
Mr. Speaker, today Bill C-45 will gain royal assent.
The Westray bill is a victory for working people across Canada and culminates 11 years of work by New Democrats in solidarity with families of mine disaster victims, Westray survivors, steelworkers and other trade union partners.
This brings us one step closer to ensuring that corporations are held liable for irresponsible working conditions that end up costing workers their lives.
Justice Peter Richard, who presided over the Westray public inquiry, described Westray, as, “a story of incompetence, mismanagement, bureaucratic bungling, deceit, ruthlessness, cover-up, apathy, expedience and cynical indifference”.
Bill C-45 will ensure in future that corporate managers and employers are held criminally responsible for endangering the lives of workers. Let there not be another Westray.
November 3rd, 2003 / 4:55 p.m.
Bev Desjarlais Churchill, MB
Mr. Speaker, I am pleased to have the opportunity to speak on the bill for a couple of reasons. First it will give me the opportunity to speak for a bit on the companion legislation that was tabled on the same day as this legislation, and that is Bill C-45, the corporate manslaughter bill, and also on this piece of legislation, which certainly is timely.
To indicate some of the reasons we have the bill before us, I will read out of few of them just in case somewhere along the way someone has forgotten what prompted governments in the U.S. and Canada to finally put in place legislation to address some of the problems we are having in the corporate world and which are having an extremely detrimental effect on the markets. I say extremely because although things have been happening for a number of years it was not too severe and not quite as much money was being lost. Not quite as many people were affected, nor were so many of the pension funds of people we knew. Nothing was being done for a lot of years.
Over the course of the years from the early 1990s and on, we were hit with a number of problems. I will read through them just to remind Canadians of why we are here with the legislation and why it is personally important that the legislation gets support. I would agree with my colleagues on why we should strengthen it. We should be strengthening it in a number of areas.
There was the Enron Corporation. At one time the seventh largest company in the U.S., Enron announced in November 2001 that it had overstated its earnings back to 1997 by about $600 million U.S. Is that not great? It was by about $600 million U.S., give or take $1 million or maybe $100 million. The company camouflaged the huge debt in a web of off the balance sheet partnerships. The company collapsed in the biggest bankruptcy filing in U.S. corporate history. The shares now trade for pennies in the over the counter markets. The bottom line is that people's pension funds, employees' benefit plans and numerous areas are affected as a result of companies doing this type of underhanded businesses.
Tyco, the conglomerate company, abandoned plans to split into four parts when concerns arose over its accounting practices in the wake of the Enron fiasco. In early June, the company announced the resignation of its CEO, Dennis Kozlowski, who was later charged for allegedly avoiding payment of over $1 million U.S. in sales tax on $13.2 million U.S. in artwork. Tyco shares are down 80% since the start of the year.
There was Adelphia Communications. In March, the Pennsylvania based cable company said it had loaned billions of dollars to the founding Riga family. The family relinquished control of Adelphia, which defaulted on a $7 billion U.S. debt and filed for chapter 11 bankruptcy protection on June 25.
Livent, the Toronto entertainment company, collapsed in 1998 amid allegations of financial impropriety that led to its financial results being restated. Soon after the collapse, the new management of Livent filed a $225 million lawsuit against Garth Drabinsky and Myron Gottlieb, the two Canadians who founded the theatre company. Livent then fired Drabinsky and Gottlieb, saying they fraudulently manipulated financial records to hide losses of $100 million. They have countersued for $200 million. Livent also filed for bankruptcy protection, citing debts of $334 million.
When we see companies like this filing for bankruptcy protection, we have to wonder about those involved and whether or not there should be some very strong criminal legislation in place to ensure that they cannot do those types of things that have such a great effect, not just on their employees but on the markets overall and, again, on pension funds and pensioners.
Going on to ImClone and the Martha Stewart affair, the drug company's co-founder and former CEO, Sam Waksal, and his daughter were charged on June 12 with insider trading relating to sales of ImClone stock. In the days leading up to the release of the federal ruling that rejected the company's new cancer drug, Martha Stewart came under investigation after she sold nearly 4,000 shares of ImClone on December 27, a day before the regulator's announcement. She is a friend of Waksal's and shared the same stockbroker. ImClone shares are off more than 90% from the high. As for Martha Stewart, of course her shares are down a little bit these days too.
Then, of course, there is Canada's own Michael Cowpland. The founder and former CEO of the software company Corel Corporation is still involved in the OSC's case over insider trading allegations after a company he controlled sold $20 million worth of Corel shares five years ago, just before it posted poor earnings. The OSC has rejected a proposed settlement that would have seen Cowpland pay a $575,000 fine and his company pay $1 million.
I mentioned those examples for a couple of reasons. The next time someone in the House talks about corporations being good citizens and that we should always trust them and allow them voluntary recognition of certain practices, I want everybody to remember each and every one of those corporations and why we need legislation in place to hold them as well as individuals accountable for their crimes. Just because a corporation has millions of dollars does not mean it is a good corporate citizen unless there is legislation in place that ensures it remains a good corporate citizen.
I indicated the reasons for including capital markets fraud in the bill, but Bill C-46 is an act to amend the Criminal Code as it relates to capital markets fraud and evidence gathering. Evidence gathering relates to whistleblower protection to which a number of colleagues have already spoken today. There have been criticisms that the sanctions in place are not strong enough and will not provide protection for whistleblowers. I have to agree that stronger legislation needs to be in place.
If employees or others know that these kinds of actions are taking place and they do not feel secure and feel that their livelihood will be jeopardized as a result of their evidence, it will be tougher to get these types of actions halted in the early stages. People must be assured that if they disclose this information they will not have to worry about getting another job in their field.
This is not just about being with one employer. We all know what blacklisting can do within business sectors in the world. There is a tendency to blacklist anyone who is seen as a squealer or a whistleblower. It has become a negative thing to squeal or whistleblow even if someone who has been committing a criminal act is caught, especially if that individual is in the corporate world. We have to ensure that we provide strong sanctions so people can feel safe if they whistleblow.
A number of my colleagues in the House have tried to bring in whistleblower protection for our own public service employees. Some individuals in the Office of the Privacy Commissioner wanted to mention things that had been going on but because they could not be assured of protection, actions went on for a period of time that ended up costing taxpayers huge amounts of dollars. As a result, huge amounts of taxpayer dollars were spent in that office without proper scrutiny. Had there been whistleblower protection within the public service, I submit that would not have happened.
In spite of the government bringing forward this piece of legislation, we still do not have whistleblower legislation in place that will protect public servants. The minister has stated that she does not think it is necessary because public servants would not do that kind of thing.
I need to remind people again of various situations that have happened in a number of government departments where deputy ministers or assistant deputy ministers have absconded with funds. There have been criticisms about the Indian health branch and a number of other departments. It is crucially important that there be whistleblower protection for the public service as well.
There is one area in Bill C-46 which has not been discussed a lot today and I want to make a point of emphasizing it. In spite of always being concerned about taxpayers' dollars being spent, I know what a tough job it is to ensure that legislation is enforced. Legislation can become just words on paper unless some enforcement mechanisms are in place.
I was pleased to see that the federal government would create a number of integrated market enforcement teams composed of RCMP officers, federal lawyers and other investigators such as forensic accountants to deal with capital market fraud cases. They will be located in cities throughout Canada and are scheduled to become operational over the next two years. They will work with securities regulators as well as provincial and local police forces.
It is crucially important to ensure that these types of mechanisms are in place, otherwise the legislation is not worth the paper it is written on. If there is going to be meaningful action against corporate fraud, there have to be people who are trained in those areas to get to the crux of the problem and do the job that is needed.
I want to take the time to comment on the Office of the Superintendent of Financial Institutions, OSFI, which deals with pensions and keeps track of pension funds in Canada. There has been criticism that there are not enough dollars in pension funds and OSFI is supposed to be keeping tabs on them. The bottom line is that in a good number of instances, OSFI does not have the resources to keep tabs on those pension funds.
As a result, we have ended up with situations like the Air Canada pension fund fiasco where the company did not put enough dollars into the pension fund. By the time OSFI got around to telling the company it had to put in enough money, Air Canada was going bankrupt. We now have a situation where a number of employees are not getting their pension funds. Certainly their families, their communities and Canadians throughout the country are being affected by the failure to properly support a program that is in place to keep tabs on pension funds.
My colleague from Regina—Qu'Appelle had introduced amendments at committee stage to strengthen Bill C-46. One of those was in regard to whistleblower protection. I emphasize again that there was a need to do that. Ideally it would have increased the penalties for employers who intimidated employees who were taking part in whistleblowing. In the other area, it was to have stronger penalties for insider trading.
Quite frankly I want to commend the government for bringing forward this legislation a whole lot quicker than it brought forward the legislation on corporate manslaughter, the corporate liability bill, commonly referred to as the Westray bill, which was introduced at the same time as this legislation. Bill C-45 also addressed corporate responsibility, but it did not address something that seems to hit home so much more with people, which is really too bad.
Bill C-46 deals with the money aspect and it certainly hits home with people, but Bill C-45 dealt with the lives of workers who were injured or killed on the job as a result of gross negligence and disregard by corporations. It took the government almost 11 years to finally come through with the legislation. I am extremely pleased that the House and the other place have seen fit to finally pass that legislation.
I will commend the government on Bill C-46 and indicate that it should be strengthened, but I will also make the point of emphasizing that it took far too long for Bill C-45 to come into place. I personally believe that a number of accidents have happened since that time that may have resulted in corporations being held criminally responsible for the deaths of workers. I am not going to mention specific instances, but I think those corporations out there that have had accidents like that know who they are.
Corporations will know that from the day the Westray bill, the corporate liability legislation, Bill C-45 takes effect, they will not have that freedom any more. At least there is going to be a challenge out there. If that is enough to smarten up corporations to put in place better work processes by not ignoring safety mechanisms, then it has done the job. It is far better to have that legislation in place to ensure that there is a bit of fear.
To this point there has been nothing. Somehow being fined a couple of thousand dollars, whether it be $10,000 or $50,000, because they did not want to fix an unsafe action in the workplace that might cost them $100,000 was no big deal. Somehow the workers' lives were an okay kind of bargain for certain employers to say, “To heck with it. It is more cost effective this way, so if we lose a couple of lives, no big deal”.
That is not going to happen any more, or at least I hope it will not happen any more. I hope corporations recognize that if they take a life, they will be giving up something at least close to a life on their part. Certainly if the legislation does not do the trick, we will be back here ensuring that the legislation is strengthened.
In January 2002 the Canadian Democracy and Corporate Accountability Commission issued a call for the Canadian government and corporations to follow the wishes of the majority of Canadians and to adopt measures to expand corporate accountability.
The commission did not just talk about corporate accountability with respect to the dollars that corporations were making or with regard to lives. It expected that corporations would look at things differently and would take a lot of factors into consideration when they dealt with whether or not they were good corporate citizens. It would consider whether or not they were following good human rights practices, whether they dealt with companies that followed good human rights practices, good labour standards, good environmental standards.
In the same way that people say there is honour among thieves, there was a time when there was honour among business people, that things were done in a certain way because it was beneficial for society. Somewhere in the course of our history not only in Canada but in the U.S. and throughout the world that has been lost. Somehow the bottom line is about making the most money with total disregard for the environment, for lives and for everyone else. Times have changed. People have said they will not accept that any more and if corporations are not good corporate citizens, they will make their lives miserable. That is the way it should be.
Things are changing in the world. There have been too many Enrons, too many Tycos, too many issues with ships spilling oil into the oceans. The fines have been so limited that they did not worry about cleaning it up because it really did not affect their bottom line. In some cases corporations can deduct the cost of their fines from their income tax. That is unacceptable. Those are the kinds of things we cannot allow to continue.
I mentioned the Canadian Democracy and Corporate Accountability Commission. A good friend and a former leader of the NDP, Ed Broadbent, was very much a part of that commission. He has been involved with others as well.
Members of the commission travelled throughout Canada. They not only talked to a few people here in Ottawa and a few in one province and here and there, they talked to people throughout the country. The message the commission heard was that Canadians want to see good corporate citizens in every aspect, in dealing with the environment, workers' lives, human rights. That is the route we have to take.
The NDP will certainly be supporting the legislation. We want to make it perfectly clear that we would like to see it strengthened in a number of areas, certainly the whistleblower protection and as well the amounts of the fines and penalties that corporations should have to pay in a number of areas.
I cannot think of the countries offhand, but there are countries in the world that actually put in place fines that are commensurate with a person's income or wealth. For a person who is a millionaire and is operating a business that is making millions of dollars, there is a $2,000 fine for some environmental damage or corporate fraud, the fine is a percentage of the person's income or wealth. For someone who makes $200, a fine of $20 has an impact, but a fine of $20 for someone who makes $2 million has no impact.
Maybe it is time we put in place those penalties that are a percentage of the amount of yearly income or profit that someone makes. We would truly see some strong action taken for corporations to improve their actions in this world and penalties that really did fit the crime.
October 27th, 2003 / 5:55 p.m.
Paul Crête Kamouraska—Rivière-Du-Loup—Témiscouata—Les Basques, QC
Mr. Speaker, I rise once again regarding this bill, of which I have already spoken at other stages. It is as industry critic for the Bloc Quebecois that I am taking part in this debate. I used to be human resources development critic and, as such, I may have had more opportunity to deal with issues that have to do with workers, employment insurance and things like that.
In this case, I think that this is a bill that deserves our support. Indeed, it is the result of several years of work as well as the result of the tenacity of certain members of this House. The involvement of members of the Standing Committee on Justice and Human Rights was mentioned. The work that led to this bill was initiated by NDP members. They were the ones who were closest to those who went through this terrible experience.
As was mentioned earlier, this bill follows several bills that were brought forward by individual members. Basically we realized, following the explosion at the Westray mine in Nova Scotia, that we did not have the necessary tools to conduct a thorough inquiry.
This could also have a preventive effect so that, in future, people would not engage in more or less acceptable behaviours for which they could not punished previously. Now, with this legislation, before engaging in such behaviours, people will know that there are consequences, and chances are that they will choose not to go in that direction. Indeed, they will have been warned in advance that it is very dangerous to engage in these types of behaviours.
First, let us go back to Bill C-468, which was introduced in February 1999. The purpose of this bill was to establish in certain circumstances the criminal liability of corporations for criminal acts or omissions carried out by their officers or staff and to create a new offence in the Criminal Code for corporations that do not provide a safe workplace.
This bill was also aimed at making it easier to establish the criminal liability of directors and officers, something that was missing from the legislation and the Criminal Code. It was impossible to clearly put the blame on those who were actually responsible for these situations.
After Bill C-468 died on the Order Paper in June 1999, a motion was presented to amend the Criminal Code and other federal legislation to hold corporate managers and administrators responsible for workplace security. At that time, the Bloc was in favour of such an amendment. The members of the Bloc Quebecois took part in the work needed to ensure that the end result would be as good a bill as possible and one that would solve the problem at hand.
The bill was introduced again in October 1999, as Bill C-259. Once again, it died on the Order Paper. In February 2001, the bill was introduced again. At that time, the hon. member for Laurentides spoke in favour of the bill while explaining that Quebec already had such an agency—the Commission de la santé et de la sécurité du travail—that oversees the safety of employees. Thus, in Quebec, we already had a framework for dealing with such situations. Nevertheless, that did not correct the weaknesses of the Canadian Criminal Code. Thus, the Bloc Quebecois thought it relevant to push for the adoption of a satisfactory bill.
For example, in the House on November 11, 2001, the member for Hochelaga—Maisonneuve expressed his support for such a bill. For him, it was important to pass this bill as a kind of legislative corrective measure, and especially important to strengthen the Criminal Code in order to prevent loss of life among workers.
Finally, it was the Standing Committee on Justice and Human Rights that began to deal with the issue. It held hearings on the issue in the spring of 2002 and tabled its report in June 2002. It recommended that the government introduce legislation in the House on criminal responsibility of corporations, managers and administrators.
That has been the legislative process so far. Beginning with a private member's bill, facing many challenges, we have finally, through sheer tenacity, ended up with a government bill. In the end, the government had almost no choice but to introduce something. We started with a vague private member's bill, and ended up with a recommendation from the Standing Committee on Justice and Human Rights, telling the government that it must act. And that is how Bill C-45 came to be introduced in the House.
The main changes pertain, first, to the use of the term “organization”, rather than “corporation”. This will take in more institutions, including institutions that otherwise would not have been covered and could have continued to engage in inappropriate behaviour.
The bill also says that a company can be held criminally liable for the acts of employees who are not necessarily senior officers in the company. We know that with the multitude of hierarchical levels, under the current Criminal Code there would be no way to ensure that someone who committed a reprehensible act could be prosecuted accordingly and forced to assume the consequences of what he had done. Part of this is corrected in the current bill.
The material aspect—the act of committing a crime—and the moral aspect—the intent to commit a crime—of criminal offences attributed to companies and other organizations no longer need be the work of the same person. It is possible that in an organization where a criminal act has been committed, that someone utters the intent to commit the crime and directs someone else to do it. Now this distinction can be made in charges and in the how the behaviour of people involved in this type of situation is judged.
When it comes to criminal negligence, the moral aspect of the offence could be attributed to the organization insofar as it can be attributed to one of the organization's senior officers. For these aspects, it is essential that fault be attributable to one of the senior officers of the organization.
With regard to mens rea, the organization could be held responsible for the actions of its senior officers if a senior officer is party to the offence or directs other employees to commit an offence or if a senior officer, knowing that an employee is about to be party to an offence, does nothing to stop them.
I would say that this is the crux of the bill. It was truly this side of it that had major flaws and blame could go back and forth without anyone ever having to take responsibility.
The bill also explicitly imposes an obligation on those with the authority to direct the work of other employees to take the necessary steps to prevent bodily harm to those individuals.
The bill also establishes sentencing principles and conditions of probation for organizations. It was important to have clear and specific penalties, so that people would know exactly what the consequences of their actions would be. This did not exist previously in the Criminal Code, which led to the Westray mine situation, where it was impossible to establish liability and to ensure that it was assumed correctly. This gave a very bad example for the future and created legal precedents. This is why it was necessary to legislate.
We know that, in Canada, the conditions under which a corporation can be held criminally liable are essentially based on jurisprudence. Therefore, it was important to have adequate legislation as a basis for jurisprudence.
The bill also amends current legislation so that organizations other than corporations can be held criminally liable. Indeed, under this bill, the term organization includes a public body, body corporate, society,company, firm, partnership, tradeunion or municipality. Let us hope that we did not forget other types of organizations that could be placed in such situations. The definition appears to be broad enough to cover all those who should be covered.
The bill also says that the term organization includes any association of persons thatis created for a common purpose,has an operational structure, andholds itself out to the public as anassociation of persons. We see that the legislator really wanted the definition to be as broad as possible. It is not only the employer that is included but any other type of organization, so as to prevent the same kind of situation from happening again. The government is ensuring that the legislation was not corrected only to cover a certain type of organization or employer, but all the different types of associations.
The bill also deals with the issue of safety in the workplace when it says, with respect to section 217.1, that every one who undertakes, or has theauthority, to direct how another person doeswork or performs a task is under a legal dutyto take reasonable steps to prevent bodilyharm to that person, or any other person,arising from that work or task. This new provision will make it possible to charge people in positions of responsibily who have failed to meet this obligation with criminal negligence.
Again, this measure comes from the impact analysis of the tragedy at the Westray mine. Of course, it will not bring back those who died in that terrible accident and are still mourned by their families.
However, this bill at least gives those families the assurance that legislators have learned their lessons and are trying to ensure that such a tragedy never occurs again.
Sentencing these organizations is another issue on which we put a lot of emphasis. The bill would add new sections and expand existing sections to take into account, during sentencing, factors that are characteristic of organizations. A specific section is also added to regulate the probation conditions applicable to organizations.
Overall, this bill seems to solve one of the problems linked to the tragedy at the Westray mine. For all these reasons, the Bloc Quebecois supports the principle of Bill C-45.
Given the current state of the law, we believe it is important to establish a regime of criminal responsibility for businesses that is effective and takes into account the differences between an individual and an organization.
However, I would like to voice a concern regarding offences. Indeed, mens rea is required, in other words, to prove that intent is above and beyond that required for criminal negligence. A first look at clause 22(3) leaves questions as to how effective this clause will be when it is applied to a specific situation.
We have reached a level of proof that, in practice, might be difficult to achieve. We made these comments in committee and at other stages. This has not been corrected, but let us hope that with respect to jurisprudence, we will not end up in a situation where we have to amend the legislation because it was not accurate enough in the first place.
I want to reiterate that Bill C-284, which had been presented by the NDP, proposed a solution to this difficulty by including the possibility of reversing the burden of proof for corporations. Reversing the burden of proof would work as follows: once it has been established that the employees of an organization have committed an act or made an omission leading to the commission of a crime, that organization would have to prove that it neither authorized nor tolerated such behaviour.
Thus, it would be a kind of preventive measure to avoid that kind of situation. We also should note that the bill does not in any way make it possible to impute criminal responsibility to administrators of corporations, unless the corporation itself has committed a criminal act.
Perhaps this amendment was not included in Bill C-45 for constitutional reasons. Still, it remains open to interpretation, which I hope will not leave an opportunity for people with bad intentions to commit a criminal act without being subject to the appropriate sanctions.
Certainly, the entire bill must be examined very carefully to ensure that it is effective; still, its objective remains valid and necessary in order to make organizations answer for their acts.
I believe that this is the kind of law on which we will look back in 10, 15 or 20 years and say that it brought in real improvements to prevent unacceptable behaviour. It will have corrected something that had caused a great deal of pain in the past, particularly to the families of the victims of this accident.
Nevertheless, it will be clear that the measures that legislators in this field have taken will have helped correct the situation. We can hope that this kind of situation will never happen again and that there will be no need to intervene before the courts to obtain convictions. The way the bill has been written and the information that will be provided to various organizations are intended to make people in all kinds of organizations aware of the fact that they will be held responsible for the consequences of their actions. Thus, we hope to avoid a repetition of the terrible accident at the Westray mine.
In conclusion, I want to express my wishes, and those of many members of this House, that we will be able to pass this bill and that it will come into effect as soon as possible.
October 27th, 2003 / 5:45 p.m.
Alexa McDonough Halifax, NS
Mr. Speaker, I am happy on this occasion to have the opportunity to speak briefly in the final reading stage of the so-called Westray bill, Bill C-45, that is now before the House.
I want to take the opportunity to pay tribute, where I think tribute is owing, to those Canadians who have worked long and hard to bring the bill to the point where we in fact will have a vehicle to hold criminally accountable corporations, their officers and executive members who knowingly put at risk the lives of their employees.
I think credit must first and foremost go to the families, the survivors of the Westray miners, 26 of whom lost their lives in my province of Nova Scotia over a decade ago, and to the surviving miners who had been employed at Westray but, fortunately, were not working in the mine on the occasion when this tragic disaster occurred.
Second, credit is owing to the trade union movement and, in particular, to the United Steel Workers of America which made a commitment that was not required in law and not a commitment it had entered into in any contractual way but in fact a commitment to help the Westray miners organize. A vote had been cast by the Westray miners but because the ballots were counted after the 26 deaths occurred, it turned out that the Westray miners had sought to be represented by the United Steel Workers of America.
The mine closed but the steel workers never faltered, never hesitated. They poured their heart and soul, blood and guts into pressing for the kind of changes in law, the changes in health and safety practices in Nova Scotia and across the country, that would ensure never again would there be an occurrence permitted in this country such as what happened at Westray.
Credit must also be shared with those who have lost their lives and others who have advocated on behalf of workers who lost their lives or lost their health or lost limbs in workplace accidents, who have also understood the need for changes in the Criminal Code to make it possible to establish corporate responsibility and accountability and, where appropriate, corporate criminality when employers act in grotesquely irresponsible ways that endanger the lives of their workers.
I want to underscore the tragedy of the government having taken so long to reach this point of bringing the legislation forward by mentioning 21 year old Lewis Wheelan. He was employed by Ontario hydro to clear brush. In Nova Scotia we call it Power Corporation. Through what was a horrendously irresponsible set of circumstances, for which the employer was responsible, this young man initially suffered a serious workplace injury and became a triple amputee. He struggled valiantly to rehabilitate himself but in a double tragedy and a double irony he lost his life during the recent Ontario hydro power outage.
His father wrote to me a few days ago expressing concern about the possibility that the bill would die on the Order Paper as a result of premature prorogation or the recessing of this session of Parliament. I do not think we should leave it to chance. We should ensure that the legislation is effective.
Had the legislation now before the House been in place in May 2001, when Mr. Wheelan's son suffered his severe workplace accident, the employer, Great Lakes Power Corporation, a subsidiary of Brascan Corporation, would have found itself in the criminal courts facing the kind of sanctions and ultimate justice that are in the bill.
It is too late for Lewis Wheelan and the other Lewis Wheelans of the world who have lost their lives over the last 10 years in what might have been preventable workplace accidents or injuries and ultimately workplace fatalities but let us not delay further the full implementation of the legislation.
I have been concerned, and I know others have been concerned from the beginning, about whether the legislation is as far-reaching as it needs to be. We do not know whether the bill captures all of those intended by the recommendations of the judge who presided over the Westray inquiry. Departmental officials have insisted that those concerns are unfounded and they have been adamant that executives, officers or CEOs of corporations who might engage in criminally irresponsible activity as it relates to the lives of their employees will be fully covered under the legislation. I hope those assurances are based on solid ground.
There also has been a concern about whether the definition of organizations is one that is entirely appropriate and whether there is any possibility that inadvertently those who would be least expected to be held responsible for workplace injuries or fatalities might find themselves being blamed and others in fact finding themselves getting off scot-free. We have been given assurances that these concerns are, if not ill-founded, that there is a remote possibility that those concerns are on solid ground.
For that reason, I and the New Democratic Party caucus are prepared to indicate our support for the legislation. It may not give us the most stringent possible measures but in this instance it is certainly an improvement over the disgraceful situation as it relates to holding employers fully responsible for criminally irresponsible actions in the workplace.
I again pay tribute to those who have worked to bring this about. I think some credit also needs to go to the justice committee. Sometimes it is not evident to the general public that parliamentary committees working under the umbrella of Parliament, in this case the parliamentary committee on justice, get the job done. It is true that sometimes committees are hopelessly bogged down, paralyzed or engaged in dismaying partisan manoeuvring in the eyes of the public but in this case some credit has to go to the chairman of the justice committee, the member from the Fredericton area and two other members of the committee for ensuring that this necessary legislation has now reached this stage in the completion of the parliamentary process.
The bill was first introduced by me in a private member's bill and died on the Order Paper. It was then introduced by my colleague, the member for Churchill, and died on the Order Paper.
It is much appreciated that enough members of the House saw the necessity of moving forward. The justice committee had a genuine and sincere debate on whether it was necessary, once the government sponsored its own legislation, to have a full array of witnesses come before the committee yet again. Given the urgency of getting on with the legislation, we appreciate the cooperation at the justice committee to recognize the possibility that bringing forward a whole series of witnesses all over again was perhaps unnecessary and, in any case, could jeopardize the importance of the legislation being enacted before the House faces the possibility of prorogation.
To all those who have contributed, I send a heartfelt expression of appreciation. In the final analysis, to those who have paid with their lives in preventable workplace deaths, accidents and injuries, it is hoped that this, in the future, will allow family members to say that lives and limbs were not lost, that people did not sacrifice their health without there finally being an appropriate response from the federal government to do what it could to prevent such fatalities and tragedies in the future.
October 27th, 2003 / 5:35 p.m.
Inky Mark Dauphin—Swan River, MB
Mr. Speaker, it is a pleasure on behalf of the Progressive Conservative Party to take part in the debate on this very important bill, known as the Westray bill. Certainly, the Progressive Conservative Party wishes to see its quick passage.
The purpose of the bill is to amend the Criminal Code to establish rules for attributing organizations with criminal liability for the acts of their representatives. It would establish the legal duty of persons directing work to ensure the safety of workers. It sets out factors for courts to consider when sentencing organizations and provides conditions for court imposed probations.
Bill C-45 is billed as the government's long awaited response to the findings of a public inquiry into the Westray mining disaster.
On May 9, 1992, an explosion at the Westray site in Plymouth, Nova Scotia, killed 26 coal miners. As a result, the mine's parent company, Curragh Inc., and two on-site managers were charged with manslaughter and criminal negligence causing death. Despite evidence of lax safety standards and hazardous conditions in the mine, the case failed at trial sparking allegations of abuse of the court process and appeals to the Supreme Court.
The founder of Curragh Inc. refused to testify at the subsequent public inquiry calling it a farce, which prompted a public outcry over the lack of corporate accountability.
In 1997, inquiry commissioner Justice Peter Richard, issued the final report that accused mine managers and government inspectors of dereliction of their duties. A key recommendation from the report called upon the federal government to ensure that corporate executives and directors were held properly accountable for workplace safety.
Let me go over some of the highlights of the bill.
The criminal liability of corporations and other organizations will no longer depend on a senior member of the organization with policy making authority; that is, a directing mind of the organization having committed the offence.
Another highlight is the physical and mental elements of criminal offences attributable to corporations and other organizations will no longer need to be derived from the same individual. The class of personnel whose act or omissions can supply the physical elements of a crime attributable to a corporation or other organizations will be expanded to include all employees, agents and contractors.
Another highlight is that for negligence based crimes, the middle element of the offence, mens rea , will be attributable to corporations and other organizations through the aggregate fault of the organization's senior officials, which will include those members of management with operational as well as policy making authority.
For crimes of intent or recklessness, criminal intent will be attributable to a corporation or other organizations where a senior officer is a party to the offence or where a senior officer has knowledge of the commission of the offence by other members of the organization and fails to take all reasonable steps to prevent or stop the commission of the offence. Sentencing principles specifically designed for corporate organizational offenders will be adopted.
Another highlight is that special rules of criminal liability for corporate executives will be rejected.
The last highlight that I will provide is that an explicit legal duty will be established on the part of those with responsibility for directing the work of others, requiring such individuals to take reasonable steps to prevent bodily harm arising from such work.
It should be noted that none of the provisions in the bill are retroactive. The government claims that the bill should make it easier to convict companies and other officials of crime that injure workers or the public.
Although specifying that an organization may be held responsible for occupational safety matters is a step forward, the bill does not address what happens if a negligent organization ceases to exist.
For example, Curragh Inc. was bankrupt by the time the Westray prosecutions could have started, meaning that imposing a fine and preventative safety measures in that case would have been meaningless punishment.
The Canadian Federation of Independent Business said that the bill has the potential to end up as mere feel good legislation, meaning that it would have little practical impact. It says that it would rather see the federal government assist businesses to meet their existing health and safety obligations.
However, many groups have come out in favour of this legislation. Physicians for a Smoke-Free Canada, for example, have stated that it believes Bill C-45 will effectively ban smoking in all workplaces, as second-hand smoke is considered a health hazard, and the bill requires employers to take reasonable measures to protect employee safety.
Also nothing in the bill suggests that it will be easier for workers or members of the public to receive direct compensation from corporations for their wrongdoings. One possible way to address this would be to distribute fines collected from organizations found guilty of workplace safety violations to the individuals directly harmed by the offence.
The bill also does not deal completely with the responsibility and accountability of corporate directors for unsafe work environments. The definition of a “senior officer” specifically includes the director, chief executive officer and chief financial officer, but does not mention lower level corporate executives and officers.
In closing, despite the failings of the bill, the PC Party believes that it is better than no bill at all and we certainly encourage its quick passage through this House as well as the Senate.
October 27th, 2003 / 5:30 p.m.
Richard Marceau Charlesbourg—Jacques-Cartier, QC
Mr. Speaker, it is with great pleasure that I rise today to speak to Bill C-45. As you know, the purpose of the bill is to carry out an indepth review of the principles of law governing the liability of corporations and other associations of persons for all criminal offences.
I want to commend committee members for their cooperation. All parties put their shoulders to the wheel so that the bill could be passed quickly, and in as non-partisan a fashion as possible.
It is also interesting and crucial to remind the House that this bill is the outcome of the efforts of ordinary members of this House and not an initiative of the government. Members worked hard to ensure that tragedies such as the one we saw at the Westray mine would never occur again or, if they did, that very harsh penalties could be incurred.
To understand the issues, it is important and even essential to put them into context. We remember that at the Westray mine, in Nova Scotia, 26 men, 26 mine workers died, leaving wives and children behind, creating sadness for women and children who did not deserve to lose their loved ones. We also remember that the public inquiry revealed that the tragedy was caused in large part by the negligence of the bosses, who had turned a blind eye to some serious safety problems.
For more than five years, the government did not do a thing in response to this inquiry. MPs had to bring pressure to bear to get substantial legislative changes passed to ensure that such a situation will happen again. These members worked hard, with the fierce and constant support of the families of the victims of Westray.
In June 1999, a motion was put forward to amend the Criminal Code and other federal legislation so that the directors and officers of a company would be held responsible for workplace safety. At the time, the Bloc Quebecois supported the motion, but when Parliament was dissolved, the motion died on the order paper. Since then, similar motions were brought in on several occasions. But we must recognize that the government dragged its feet until it introduced Bill C-45.
Bill C-45 is based on eight key points I will review here:
First, to the use of the term organization, rather than corporation. This will broaden the definition, thereby affecting more institutions.
Second, companies can now be held criminally liable for the acts of their employees who are not necessarily in positions of authority or, as they are commonly referred to, the higher ups.
Third, the material aspect—the act of committing a crime—and the moral aspect—the intent to commit a crime, the mens rea —of criminal offences attributed to companies and other organizations no longer need be the work of the same person.
Fourth, the category of persons whose acts or omissions can constitute the material aspect—meaning the criminal act that can be attributed to a corporation or any other organization—is broadened to include all employees, representatives or contractors.
Fifth, with regard to crimes resulting from negligence, generally referred to as criminal negligence, the fault can now be attributed to the organization to the extent that one of the senior officers of the organization can be charged with the offence.
Sixth, in the case of deliberate crimes, an organization can now be held responsible for the actions of its senior officers to the extent that a senior officer is party to the offence, directs other employees to commit an offence or, knowing that an offence will be committed by other employees, does nothing to prevent it. It is important to clarify, nonetheless, that the acts or actions of senior officers must be committed with the specific purpose of procuring an advantage for the organization.
Seventh, the bill is designed to place the onus explicitly on anyone who undertakes to direct the work of other employees to take all reasonable steps to prevent bodily harm to these employees
Finally, the bill also contains provisions for establishing general sentencing principles and probation conditions in respect of the organizations.
We are therefore extremely pleased with this bill. We support it, although we would have liked to have seen it sooner.
Although enactment of Bill C-45 cannot of course compensate the families, the women and children who have lost husbands, fathers, brothers, we do hope that Bill C-45 will at least lessen their suffering somewhat and will give those who have lost loved ones in such tragic circumstances some feeling that justice has been done.
October 27th, 2003 / 5:25 p.m.
Darrel Stinson Okanagan—Shuswap, BC
Mr. Speaker, it is a pleasure to comment on Bill C-45. I would really like to think of it as the Westray bill.
When I was first elected in 1993, representatives of the small communities of Plymouth and Stellarton, Nova Scotia were among the first to come to see me as I was serving as the mining critic for the official opposition. They still come to see me today .
Back in 1993 they sought justice regarding 26 working miners, their neighbours, friends and customers, sons and fathers, husbands and brothers, who died underground in the Westray mine disaster on May 9, 1992. Since then, at least one folk song has been written about it, the title of which is “Everybody Knew”. I have travelled to the area several times and have found that is a fact; everybody knew there were problems with that coal mine. Everybody knew conditions were not safe, yet management sent those men into unsafe conditions day after day until what seemed to be almost inevitable happened.
According to the Westray mine public inquiry, sparks struck by cutting bits from the continuous miner, a machine working the southwest 2 section of the mine, ignited coal dust and she blew, taking not only those families' dear ones, and hopes and dreams, but also the traditional Cape Breton coal mining economy with it. That inquiry also found:
Had there been adequate ventilation, had there been adequate treatment of coal dust, and had there been adequate training and an appreciation by management for a safety ethic, those sparks would have faded harmlessly.
Today, over 11 years later, to the best of my knowledge not one representative of the resource company, not one mining inspector, not one provincial or federal bureaucrat from the Department of Natural Resources, Environment Canada or the Department of Labour has served one day in jail for what seems to me, admittedly not a lawyer, their criminal negligence in those 26 preventable deaths.
The federal government helped finance this mine so it cannot simply wash its hands and point the finger of blame solely at the province. As the report states:
Westray took over development from Canadian Mining Development in early April 1991, at a much earlier stage of development than originally planned, and began using continuous mining machines to drive the mains.
Still quoting from the report:
In the rush to reach saleable coal, workers without adequate coal mining experience were promoted to newly created supervisory positions. Workers were not trained by Westray in safe work methods or in recognizing dangerous roof conditions--despite a major roof collapse in August. Basic safety measures were ignored or performed inadequately. Stone dusting, for example, a critical and standard practice that renders coal dust non-explosive, was carried out sporadically by volunteers on overtime following their 12-hour shifts.
Here are some further quotes:
Management trivialized the concerns of workers, some of whom quit their jobs at the mine. Although the mine inspectors asked the company for roof support plans, as well as stone dusting plans, it repeatedly deferred supplying them. Westray is a stark example of an operation where production demands resulted in the violation of the basic and fundamental tenets of safe mining practice.
As Mr. Don Mitchell, mining consultant for the Nova Scotia department of labour concluded from his post-explosion investigation of mining safety training, Westray mine “had no program that was appropriate to the needs of that mine”.
I have to ask, why was there no such investigation in time to prevent those 26 deaths? Such blatant disregard for the safety of employees must not be allowed to be repeated. Nevertheless, every day in Canada, workers are still being killed or injured on the job while some corporations simply continue what they do best, make a profit.
Of course most corporations do have a heart and also recognize that good, safe working conditions also are good business practice. It is also true that provincial workers' compensation rates will go up after accidents, and sometimes they go up a lot. However, that financial aspect has not proven to be enough to motivate all corporations into creating safe workplaces.
Therefore, Canada needs both big carrots and big sticks, including federal legislation for criminal liability, to protect vulnerable workers, like the new kid in his job, those young workers most likely suffer workplace injuries.
In conclusion, as mining critic for the official opposition and as one who has personally visited the communities and the United Mine Workers local most affected by the Westray disaster, regardless of whatever other concerns may affect our scheduled business this fall in Parliament, this bill is shamefully overdue. I believe we should pass this legislation post-haste.
October 27th, 2003 / 5:20 p.m.
Paul MacKlin Parliamentary Secretary to the Minister of Justice and Attorney General of Canada
Mr. Speaker, the passage of Bill C-45 represents the final step in the House in making significant reforms to the criminal law as it applies to all organizations. The bill has its origins in the terrible tragedy of the Westray mine explosion. All parties in the House cooperated in ensuring that the bill received high priority.
As members know, the bill when passed will significantly modernize Canadian law by expanding the circumstances in which an organization can be held criminally responsible for the actions taken in its name by its representatives.
To accomplish this it will introduce definitions of “organization”, “senior officer” and “representative” that in combination expand the current directing mind test of liability to include persons who manage important aspects of the organization's business. It will codify rules for attributing criminal liability to organizations that reflect the modern, complex decision making structures of organizations. It will set out factors for a court to consider when sentencing an organization. It will provide optional conditions of probation that a court can impose on an organization.
Well run organizations that take seriously their responsibilities as corporate citizens have little to fear from these changes. They would of course be well advised to review their practices and procedures and how much discretion they give to managers. However, the organization will only be held liable when there has been fault on the part of a senior officer. In offences based on negligence, the senior officer will have to have shown a marked departure from the standard of care that could reasonably be expected.
Where the offence is based on fault other than negligence, for example, knowledge or intent, the organization will only be liable if a senior officer who intends to benefit the organization either is a party to the offence personally, or directs the commission of the offence or turns a blind eye to the criminal activity of others.
These new rules are balanced and fair.
With respect to safety, the bill proposes not to separate out corporations and other organizations, but rather to emphasize the importance of ensuring the safety of workers and the public by introducing into the Criminal Code new section 217.1 making it a legal duty for everyone who directs the work or other persons, or who has the authority to do so, to take reasonable steps to prevent bodily harm to that person or any other person.
Officials of the Department of Justice told the standing committee that in an organization with a complex structure, this new duty would apply not only to the organization itself, but also to individuals who may be personally liable in their own capacity, such as senior officers, low level managers, shop foremen, indeed anyone in the corporation who has the authority to direct how work is to be done.
Ultimately, the chief executive officer and the board of directors are responsible for how work is carried out. Clearly, they are not involved in the day to day decisions on the shop floor, but if they act with total disregard of their obligations with respect to work or worker safety and put pressure on the lower level managers to sacrifice safety to production, they could be personally liable.
I believe that Bill C-45 is already having an effect. Worksite News in August ran an editorial under the title “Bill C-45: What You Need To Know To Protect Your Assets Against The New Criminal Liability For Workplace Safety”. In that editorial the author wrote:
Corporate Canada would be well advised to assess their current OHS programs, training budgets and real commitment to workplace health and safety. An effective program with demonstrated clear communication throughout the organization is not only the way to ensure compliance with your legal obligations, but more importantly it helps to ensure the health and safety of your employees.
I understand that officials of the Department of Justice have met with the Canadian Chamber of Commerce and with the occupational health and safety committee of the Canadian Manufacturers and Exporters to explain the potential impact of Bill C-45. They have also participated in a panel on Bill C-45 and the implications of proposed amendments to the Criminal Code as part of the Health and Safety Law Conference 2003 held in Toronto. All members should be encouraged by these signs that corporations and other organizations are considering their policies in the light of this new duty.
I believe that all parties in the House have approached this bill, the previous debate on Bill C-284 and the hearings of the standing committee last year in a non-partisan way, seeking to improve the operation of the law in this important area. I believe that all parties can take pride in their contribution to developing this bill and that the House can unanimously pass this bill and send it to the other place where we hope it will receive the same expeditious, non-partisan consideration.
Business of the House
Oral Question Period
October 23rd, 2003 / 3 p.m.
Don Boudria Minister of State and Leader of the Government in the House of Commons
Mr. Speaker, insofar as the last part of the question, in fact such a motion would not change a law in any case. Let me first of all start by saying that this afternoon we will continue with debate on the opposition day non-confidence motion.
Tomorrow we shall consider Bill C-50, respecting veterans benefits, followed by the Senate amendments to Bill C-6, concerning first nations. Then, if we have time, we will consider Bill S-13, an act to amend the Statistics Act.
On Monday, we will consider bills left over from this week, as well as Bill C-32, the Criminal Code amendments, Bill C-13, the Assisted Human Reproduction Act, and Bill C-45, the corporate governance bill.
Tuesday shall be the last allotted day in this budget cycle.
On Wednesday and on subsequent days, we shall return to any unfinished business, adding to the list any bills that may be reported from committee. We will also start debate on Bill C-19, the First Nations Fiscal and Statistical Management Act, and Bill C-43, an act to amend the Fisheries Act.
This is the part of the session when it would be normal for bills that have been in committee for some time to be reported back to the House. I am hopeful that committees, such as the Standing Committee on Justice and Human Rights, the Standing Committee on Citizenship and Immigration and the Standing Committee on Transport, will soon complete their legislative work, so that the House may dispose of them in an orderly fashion.