Stephen Owen

[Terrorism, September 21st, 2001]

Mr. Speaker, we have an extensive list of criminal legislation in the country to deal with acts of terrorists, including all the major offences under the criminal code.

The Minister of Justice mentioned that we will be moving quickly to bring in legislation that will allow us to implement the two remaining of 12 anti-terrorist conventions which Canada has already signed on to. We have money laundering legislation which is being extended through Bill C-24, which will have a much broader scope to take control of the proceeds of crime and the proceeds that may go to--

[Criminal Code, September 20th, 2001]

Mr. Speaker, I would like to express my gratitude to all hon. members for their very thoughtful and important comments on this proposed bill.

Bill C-284 is a proposed response to the Westray mine tragedy. At this time, given the tragedy of last week, it is immensely important that we think back almost 10 years to the families of the victims of that terrible tragedy. It makes it even more appropriate that we consider this carefully and with deep humanity at this time.

Although this is not a new issue for the House, it is an important one and it is one that deserves very wide consideration. The issues that have been raised demonstrate both the importance and the wide number of considerations.

As we have heard, Westray was an underground coal mine in Nova Scotia owned by Curragh Resources, a company based in Ontario. An explosion in the mine killed 26 miners. It was a great tragedy on May 9, 1992. Our hearts, our thoughts and our prayers go out to the families of those victims.

The Nova Scotia government established an inquiry into the causes of the disaster. However, hearings were delayed by almost three full years while the principals of Curragh Resources went all the way to the Supreme Court of Canada in an effort to have the inquiry quashed.

When the inquiry was finally able to start it was thorough. There were 76 days of hearings held over more than one year. Justice Richard heard testimony of ongoing safety violations and a series of unacceptable practices. His report was entitled “The Westray Story: A Predictable Path to Disaster”. It made 85 findings of fact about all aspects of the operation of the mine, including the inspections carried out by the Nova Scotia government. There was plenty of blame to go around. More positively, the report contained 74 recommendations, and we have heard some of them tonight.

Previous debates in the House, as well as motions and proposed bills, this one and a previous one, have demonstrated the wide concern in the House that those who are responsible for criminal acts, either natural or corporate, should be held accountable for the consequences of those criminal acts. That appears to be, and from all that I have heard tonight, the widely held view in the House.

While the Richard inquiry was proceeding, an attempt was made to use the criminal law to hold the principals of Curragh responsible. Unfortunately, highly unusual circumstances, including a failure to make full disclosure and the trial judge seeking to have the crown prosecutor replaced, led first to a stay of the charges and then, after an appeal all the way to the Supreme Court of Canada, there was an order for a new trial. In 1998 the Nova Scotia prosecution service decided it would not go to a new trial and dropped all charges.

In those circumstances, not surprisingly, one of the recommendations made by Mr. Justice Richard was for the Government of Canada to study the accountability of corporate executives and directors for the wrongful or negligent acts of the corporation and to introduce such amendments to the legislation as were necessary. Mr. Justice Richard did not make a specific recommendation as to the changes that should be made in federal law.

There is currently a civil action in the Nova Scotia courts by the families of the Westray miners seeking damages against the government of Nova Scotia and against the Government of Canada.

On the motion by the government of Nova Scotia, the action against the province was struck out. That decision has been appealed. Accordingly, almost 10 years after the disaster, the matter is still before the courts and the families of the victims have not seen justice done in either the criminal or civil courts.

All of us in the House sympathize with the victims and we wish to do whatever we can to prevent such a tragedy from recurring. I will address the role of the criminal law in the process and particularly how the criminal law is applied when corporations are involved in wrongdoing.

Of course the criminal law only comes into play after the fact. Its effect on workplace safety is through deterring individuals from breaking the law by the threat of punishment.

The overwhelming majority of Canadian directors and company officials seek to maintain safe working conditions. The criminal law must focus on those who are reckless with the lives and safety of the employees but it must proceed with caution with regard to the possibility of casting its net so wide that persons who may have been negligent but who had no criminal intent are subject to criminal sanctions.

Most of the complexity and difficulty in devising an effective regime of criminal responsibility for corporations arises from the fact that the imposition of penalties under criminal law is based on a finding that there was mens rea, an intent to commit a crime.

When the courts are dealing with a person, whether accused of murder or shoplifting, they must determine not only if the accused committed the act but also what the intent was at the time. If the accused is found to have done the deed and to have had the necessary state of mind, the court then determines the appropriate sentence.

Corporations do not fit into the mould of criminal law as it has developed over the centuries. Corporations do not carry out a criminal act in the traditional sense. A corporation does not have a mind. A corporation cannot be imprisoned. For these reasons, as recently as 1909, Halsbury's Laws of England stated:

By the general principles of the criminal law, if a matter is made a criminal offence it is essential that there should be something in the nature of mens rea, and therefore, in ordinary cases, a corporation aggregate cannot be guilty of a criminal offence.

While the apparent immunity of corporations from the criminal law may appeal to logical purists, the courts and legislatures have recognized that the importance of corporations in modern life makes it essential that they be brought within the ambit of criminal law. The objective has been clear but the means of achieving it are not self-evident.

The Supreme Court of Canada stated in the leading case of Canadian Dredge & Dock Co. v The Queen, 1985:

The position of the corporation in criminal law has been under examination by courts and lawmakers for centuries. The questions which arise are manifold and complex. They are not likely to be answered in a permanent or universal sense in this appeal, or indeed by the courts acting alone.

The Commonwealth and the United States have taken much different approaches to the basis upon which to find a corporation guilty of a criminal offence.

In England criminal intent is found in the directing mind of a corporation, which is embodied in the board of directors or a high official who has such control over the corporation that “his action is the very action of the company itself”.

In the United States the law has generally made a corporation prima facie liable for the acts of all its employees acting within the scope of their employment as long as they had a guilty mind and intended by their crime to benefit the corporation. It is a different approach.

In practice, however, the difference between the two theories for attributing liability may not be so profound. American courts allow a corporation to exonerate itself by showing that it took reasonable steps to ensure its employees would not act in contravention of the law. American courts therefore examine the policies of senior officials and the practices of managers charged with implementing those policies

In Canadian Dredge and Dock Co. v. The Queen [1985], the Supreme Court of Canada applied the directing mind test of corporate responsibility but broadened the application of the test. In particular, the court held that a corporation can have more than one directing mind. As noted:

This must be particularly so in a country such as Canada where corporate operations are frequently geographically widespread. The transportation companies, for example, must of necessity operate by the delegation and sub-delegation of authority from the corporate centre; by the division and subdivision of the corporate brain; and by decentralizing by delegation the guiding forces in the corporate undertaking.

In a later case the Supreme Court of Canada specified that the directing mind is someone who has decision making power with respect to matters of corporate policy as opposed to broad discretion in implementing corporate policy.

This, then, is the somewhat confused state of the law today and as it existed when the explosion in the Westray mine took 26 lives. It is not at all clear that the law was not sufficient to bring charges successfully against the corporate owners of Westray.

The prosecutorial service of Nova Scotia had concluded there was sufficient evidence to go to trial. For reasons utterly unconnected with the law, the charges were eventually stayed under circumstances that led to an inquiry into the manner in which the case had been handled. Nor is it clear that the changes proposed by Bill C-284 would have changed the result of the criminal trial.

We in the House must ensure that we devise the best possible regime to foster safety for all workers. Most of that consists of ensuring workers have the right to safe working conditions and the right to refuse hazardous work. A proper system of inspections to ensure laws are obeyed and not circumvented is another vital component of ensuring safety.

The criminal law is the last step when previous measures have failed. We must ensure that any changes we make to the criminal law advance the cause of promoting safety. We must take the time to study the issue thoroughly and consult with all stakeholders. The government will do so.

[Attack on the United States, September 17th, 2001]

Mr. Speaker, I thank the hon. member for his observation. However accurate the hon. member might be in certain situations, he is far too narrowly focused.

Of course there are groups exactly as he described that are bent only on evil for matters unrelated to poverty, human rights abuses or whatever. However we must all be extremely careful to realize that this is a much broader problem than this particular act of evil.

If we do not appreciate the breadth of the problem then we will not deal with the force and scope of it.

[Attack on the United States, September 17th, 2001]

Mr. Speaker, I thank the hon. member for his observations and his question. In the face of this horror and this potential danger in the future Canada needs to expend greater resources on intelligence and even within the police community itself to become much more effective at sharing information.

The nature of terrorism is linked to and is very similar to the nature of organized crime in its universal reach, in its neglect of borders and its absolute viciousness, and in its network structure, its operation through cells and its sharing of information.

Enforcement agencies and intelligence gathering agencies in the western world have not kept up in terms of the willingness of terrorist groups and organized crime to share information with each other on a need to know basis through cells and individual operations. They are way ahead of us in the use of technology and in the sophistication of their structures. We will have to mimic some of those dynamics if we are to effectively combat them.

Already in this country law enforcement agencies are starting to adapt that great integrated approach to sharing information, to pooling resources together on operations and to co-ordinating their efforts. That is an immensely important advance. It maintains for combating terrorism just as it does to organized crime.

[Attack on the United States, September 17th, 2001]

Mr. Speaker, there has been no motion this year, nor will there be, of such importance as the one we are debating today. I am pleased to stand to speak to it.

In my short time in parliament I have never been so proud to be a member of the House of Commons, to observe the debate and the unanimity that have been expressed regarding the horror of the immense evil that has been perpetrated on the United States and, through that horror, on the people of the world.

I know that the citizens of Vancouver Quadra whom I have the honour to represent will join me in expressing absolute sorrow for the people of the United States and the families of the victims of this horrible evil.

The Prime Minister and many members in the House today have stated that we as Canadians will stand by the Americans and with our allies around the world for peace and to fight terrorism every way we can. However I would caution that we take great care in addressing this immense evil. It is extremely complicated and we should take care not to act indiscriminately.

I will mention three aspects of terrorism that have been mentioned in one way or another today, though perhaps not all at once.

First and most important, terrorism has become a global issue. It is no longer a matter of isolated acts however immense. These are connected acts. They are connected not only to other acts of terrorism but have, in their great magnitude, become a threat to the sovereignty and security of states. That makes them acts of war. The extreme act we saw on September 11 brings to our attention much more vividly what we are confronted with behind the scenes and around the world.

Second, global issues are by definition linked to other global issues. They are not only borderless; they are linked. To suggest, as has the member opposite, that there are no links between terrorism, poverty, environmental degradation, sickness or human rights abuses is not to be paying attention to what is going on in the world.

These are global issues. This is globalization writ large. Globalization is not simply about spreading our goods from the western countries around the world. Globalization has a reverse thrust, and terrorism is the thrust we are feeling. Terrorism is with us. It is linked to poverty, sickness, human rights abuses and autocratic governments that abuse their citizens.

We must not close our eyes to that. We must deal with those as a unit or we will never deal with terrorism. To suggest, as some have, that the root causes of evil need not be attended to is to miss the point.

Third is the concept of human security. Perhaps no contribution to the world that Canada has made in the last 10 years is greater than our expression and definition of the concept of human security.

I will speak about human security in the sense of terrorism and democracy. Terrorism is, by definition, indiscriminate violence. That is what spreads terror. It is carried out indiscriminately in populations with no particular target where no one can feel safe.

In our response to terrorism we must be immensely cautious not to respond indiscriminately. We in a democracy pride ourselves in and benefit daily from the rule of law. It is the essence and fundamental notion of democracy. In responding to acts of violence inside our society we are bound by our criminal law to stringent rules of investigation, charge, criminal procedure and sentencing.

This attack has been described as war. It is war when it is of this magnitude and this widespread around the world, as terrorism is. It is war against the security and sovereignty of nations.

There are rules of law for war as well. We must be extremely cautious to stay within them when we plan and execute our cautious response.

One of the greatest injustices and horrors of the 20th century was the fact that at the beginning of the century 80% to 90% of the victims of war were actually members of armed forces and 20% were civilians. By the end of the century that had been reversed and nearly 90% of casualties in civil strife and military action were civilians. We must be immensely careful that in our response we do not act indiscriminately and unnecessarily harm civilians and take civilian lives.

The people who perpetrate the evil of terrorism draw some of their recruits from the privileged. Some are unstable but many are drawn through the roots of despair. If anyone suggests otherwise they have not observed what happens in impoverished communities of despair and stinking refugee camps that have intergenerational hopelessness.

In our society we know that suicide rates among youth are very high in impoverished communities. If they are facing intergenerational despair, looking into the future with no hope and are about to commit suicide, that is the ultimate act of despair as a youth. If someone comes to them with a gun and a martyr ethic or a warrior ethic and says, “Do not waste your life; be a martyr”, that is a breeding ground for violence. We cannot ignore that, even as we recognize that there are other sources of this evil.

Finally I would like to speak briefly about the nature of terrorism. It is extremely complex. As we plan what will be an immensely complicated and expensive response, we must clearly understand the nature and how unconventional this enemy is. It is diverse yet it is networked and universal. It conducts its vicious acts in cells that then pull apart and are not traced back to obvious sources.

We have to increase our investigative capacity, our intelligence gathering capacity, our willingness and our ability to co-ordinate activities and share information across borders with our allies, and we have to be in this for the long haul.

Let us remember this is a global issue and it must be approached as such. It must be approached with reference to other global issues with which it is linked. Let us remember as well that what is at risk is our democracy. We must not risk the fundamental nature of our democracy which is the rule of law in our response.

Finally, we must appreciate the complexity of what we are faced with and be willing, together with our allies and perhaps with the expenditure of resources we have not yet dreamed of, to increase our capacity to secure our way of life and to assist our allies to secure theirs.

We must ensure that we share the fruits of our democracy with people around the world because, as we have noted throughout our democratic history, our democracy and justice are indivisible. As we look at a global world and the global issues that surround us, that indivisibility is becoming clearer to maintain universally and not simply within our privileged borders.

[Backcountry Safety Day, May 28th, 2001]

Mr. Speaker, Canada's first national Backcountry Safety Day will be held this fall on September 8 as designated by the Kokanee glacier alpine campaign.

The Government of Canada supports this important effort to promote backcountry injury prevention and backcountry safety. The Kokanee glacier alpine campaign is a national campaign in memory of Michel Trudeau and other Canadians who have lost their lives in pursuit of their passion for the backcountry.

We applaud the organizers of this campaign for their hard work and dedication to help raise national awareness of this important safety issue. I invite everyone to join me on Grouse Mountain in North Vancouver on September 8 for the celebration of Canada's first national Backcountry Safety Day.

[Justice, May 17th, 2001]

Mr. Speaker, I have another question for the Parliamentary Secretary to the Minister of Justice. We all know that the crime rate in most categories of crime in most parts of the country have been reducing steadily over the last decade. Yet crime still happens daily causing more victims.

Will the parliamentary secretary explain to us what the government is doing to prevent and further reduce crime in our communities?

[Forestry Industry, May 10th, 2001]

Mr. Speaker, British Columbians care deeply about the environment. This is why we demand sustainable forest practices.

The American lobby is now charging that Canadian forest practices are so poor that they amount to a countervailable subsidy.

My question is for the Parliamentary Secretary to the Minister for International Trade. Are these charges really about environmental protection or are they merely about further trade protectionism?

[Supply, May 1st, 2001]

Mr. Speaker, I will be splitting my time.

I will address the issue of the value of foreign investment for Canada.

First, we know that there is almost $300 billion of foreign investment directly into Canada each year. This is immensely important.

When companies from other countries invest in our country, they bring ideas as well as support jobs. One in ten jobs in Canada is supported by that nearly $300 billion investment per year. They also bring ideas and technology to our country. Also, in an increasingly cyclical way, they support 50% of our exports by investing in this country. Investment into Canada is immensely important for jobs, the GNP and bringing in ideas and technology.

Investment outside of Canada by Canadians is even larger. It is more than $300 billion a year. This provides great opportunities for us to deal with other countries but it must be protected. Canadian companies and individuals investing abroad deserve protection. However investors in Canada also need the protection of rules.

Trade and investment inside and outside of Canada is immensely important to our country. We also have important domestic responsibilities. Those are to protect very strategic parts of our public services and our governance models. Our health care, education, social services and water absolutely need to be protected.

Canada has not put out its negotiating position yet in terms of the investment provisions in the FTAA because they are being developed. There is a great deal of consultation going on and more will continue. Those will be made public when they have been properly consulted on and prepared. The government has consistently said that it will protect and will not sign any agreement that does not protect those important strategic policy issues in Canada.

However our interests are not just domestic. Our interests and our social responsibilities are global. The democracy clause in the FTAA framework is a major first step toward this. We must ensure that other global issues of social importance, whether they be environmental, human rights, the rule of law or the promotion of democracy, are protected and linked in some effective way to our trade agreements. The advance that we have made in the FTAA discussions in Quebec City demonstrates that well.

The hon. member mentioned that he was aware of the North American agreement both on environmental co-operation and labour co-operation. He felt that they had not been perhaps as effective in allowing NGOs to challenge governments. However he did not answer the question whether those could be improved, just as chapter 11 rules, interpretation and processes need to be and will be in future agreements.

If those could be improved should NGOs be able to effectively challenge governments? I challenge hon. members to consider carefully the reality of new governance in a modern society where the market and civil society have a powerful and important role to play with governments. If NGOs should be able to challenge governments and other non-state actors, why not corporations as long as those rules are fair, transparent and they meet other social responsibilities?

I will talk about this concept of new governance a little further. NGOs will come up to the governance table as they are invited to do more and more effectively. We saw that opportunity in the FTAA lead-up consultations across the country and the people's summit and the civil society committee taking part in the negotiations of the free trade of the Americas. However, if civil society is going to step up to the governance table, it has to demonstrate its democratic nature and its representative nature, just as corporations must prove their social responsibility.

One of the most powerful forces to exact social responsibility from corporations trading abroad is the democracy of the market. If a company such as Levi thinks it is going to get 10 year old kids in India or Bangladesh to stitch its jeans, then the North American, European and increasingly other markets are simply not going to buy its product. We had a striking example of market democracy in my province of British Columbia where not only were civil society and the market involved in looking at land use planning and forestry practices on the mid coast, but they were making decisions without government.

We have powerful forces that need to be brought to bear. We not only need linkages between free and fair trade but also social responsibilities, environmental, democratic, rule of law and labour practices.

Finally, chapter 11 of NAFTA needs to be clarified. There are problems which have been properly pointed out. However that does not mean corporations should not have the opportunity, under a proper set of rules and processes, to challenge governments in courts as they do domestically.

Foreign investment helps developing countries. Globally, however, there is not sufficient public money or public interest to provide the investment necessary for countries to pull themselves out of poverty. Direct or indirect foreign investment through private companies is an effective way of supplementing the public money available for that purpose.

[Supply, May 1st, 2001]

Mr. Speaker, I would be interested in knowing the hon. member's views on articles 14 and 15 of the North American agreement on environmental co-operation which provides the ability for organizations of civil society and NGOs to challenge the states in the North American Free Trade Agreement for failing to effectively enforce their environmental standards.

Is the hon. member aware of that opportunity and does he agree that in that situation it is appropriate for non-state actors to challenge states and foreign countries?