Bill C-259 (Historical)

An Act to amend the National Defence Act (Snowbirds)

Criminal Code

[Lynn Myers, Liberal, Parliamentary Secretary to the Solicitor General of Canada]

Mr. Speaker, I am pleased to enter the debate with respect to Bill C-284. The bill is essentially the same as Bill C-259 in the last parliament. The only change is that the maximum fine has been doubled to $2 million.

The Standing Committee on Justice and Human Rights held a single day of hearings on the issue in the last parliament. No submissions were heard from the corporate sector, or from any experts in criminal law or for that matter the charter of rights and freedoms. There was no review of what was being done in other countries and no presentations were made with respect to specific legislation abroad.

The committee passed a motion that the criminal code or other appropriate federal statutes should be amended after consideration by the Standing Committee on Justice and Human Rights in accordance with recommendation 73 of the inquiry into the Westray disaster by the province of Nova Scotia. Given the brevity of the committee's hearing, it is understandable that it called for changes without specifying precisely what those changes should be.

The issue of corporate liability for criminal acts is complex and has been the subject of study by legislatures and courts for many years. There is no simple solution.

Attempts to reform the law in this area invariably require a great deal of study. In Britain the law commission began consulting on the law of manslaughter, including corporate responsibility for wrongful death in 1994. In May 2000, six years after the study began, the government accepted in principle the law commission's recommendation to create a new offence of corporate killing. It then proceeded to further consult on some points. No legislation has yet been introduced.

Australia passed new legislation dealing with corporate criminal liability in 1995, but the legislation was to come into force on proclamation or after five years to allow time to prepare for the changes. The process there began in 1987 with a report by experts reviewing the criminal law. The proposals were then studied by the standing committee of attorneys general and by the model criminal code officers committee.

We do not have to follow the approach taken in Australia or England in changing the law. We can make use of their experience and, more important, we can deal with a narrower question. What changes need to be made to make the criminal law reflect the reality of business in the 21st century?

Both the British and Australian processes were much wider with corporate liability as just one of many issues. Nevertheless, we must expect to take time to consider the issue fully because we will have to wrestle with very complex issues such as: Who for the purposes of criminal law is the corporation?

In some cases this may be clear. An individual often is the mind directing a large corporation and what that individual thinks and does is what the corporation thinks and does. However, if someone is killed in an industrial accident in a corporate office, it is quite probable that the individual who is the directing mind has never set foot in that office and has absolutely no idea of working conditions.

Bill C-284 proposes one model for determining who is the corporation by assigning criminal liability to a corporation for acts and omissions of directors, officers or persons to whom day to day management of a part of the company's activities has been delegated .

This is, at least on the surface, somewhat wider than the current Canadian law which looks to the directing mind of the corporation, but it does not appear to be as broad as the American vicarious liability standard.

However the proposed legislation still requires an examination of the corporate structure. How much control is implied by day to day management and what is a part of the corporation? Would this mean that a retailer is criminally responsible for the actions of the head of a shipping department in one of its stores even when he or she acted directly contrary to specific instructions? We must have legal advice on the implications of the proposed wording because these are important questions.

Should the change in the law be general or specific to certain offences?

The criminal code currently includes Her Majesty, public bodies, bodies corporate, societies and companies as persons, so that all of the offences in the code would apply to corporations, to the extent that a corporation is capable of committing them.

The leading case of Canadian Dredge and Dock, for example, dealt with a conspiracy to defraud. The Westray principals were charged with manslaughter and causing death by criminal negligence.

Bill C-284 both makes a corporation liable for any offence of which an individual could be found guilty and creates a separate new offence for a corporation of failing to take reasonable steps to provide safe working conditions. It is not clear why this particular offence should apply only to corporations. It is possible for a government to turn a blind eye to the many violations and not enforce the laws that are in fact on the books.

As I previously stated, in England the government has accepted a proposal by the law commission to create a new offence of corporate killing, where death results from corporate conduct far below the standard of what is reasonably to be expected. Fashioning a specific offence for a corporation might, in the result, prove to be the best approach.

The Australians, however, did not choose to proceed in this fashion. They created a new part which begins with the general principle “This code applies to bodies corporate in the same way as it applies to individuals. It so applies with such modifications as are set out in this part, and with such other modifications as are made necessary by the fact criminal liability is being imposed on bodies corporate rather than individuals”. The part then sets out rules regarding such matters as how to determine negligence.

In a paper prepared for the Uniform Law Conference, Professor Anne-Marie Boisvert of the faculty of law of the University of Montreal in 1999 recommended that there should be codified a notion of corporate fault that is more closely related to the way in which bodies corporate actually operate. She also recommended that there should be a distinct part of the criminal code expressly covering corporations. Such a part would define the conditions under which a corporation can be criminally liable; provide that any body corporate including not for profit corporations may be held liable; define what is an act of the corporation; clarify whether a corporation can raise such defences as necessity or compulsion by threats; and define what constitutes fault.

On what basis do we attribute criminal intent to a corporation? This too is a very important question.

The directing mind test, especially because it requires the same responsible person to have the necessary intent and to commit the offence, may not fit well with the way complex organizations work with head offices issuing directives, regional offices interpreting them and local managers implementing them.

It is highly unlikely that evidence will be found of a single person in a large corporation who issued an order to break the law. The actual criminal activity may be, as was the case in Westray, the result of many officers and employees of the company cutting corners.

Bill C-284 follows to some extent the recent changes to the law in Australia which provide that where negligence is a fault element and no individual in the company has that fault element, it is possible to find the necessary fault by proving that a corporate culture existed that directed, encouraged, tolerated or led to non-compliance.

It is important that we note a number of these issues. It is important that we deal with them appropriately. They are important questions.

I want to simply say in summary that while we recognize the desire of the sponsor of the bill to ensure that the criminal law copes better with potentially criminal activity by corporations, we are not convinced that Bill C-284 is necessarily the best model. Significantly more study and very broad consultation are required before the House can be satisfied that it has fashioned the best amendments to the criminal law.

Finally, I feel it is appropriate to remind members of the House that the criminal law always requires the highest level of proof, namely, proof beyond a reasonable doubt. Given the complexities of modern corporations, any criminal investigation is going to be lengthy and complex. Criminal law and criminal trials will also be long and complex.

The charge to the jury in the leading case, Canadian Dredge and Dock, took 11 days. It is highly unlikely that the investigation or prosecution of those charges would have been any simpler if the crown had to prove a corporate culture.

For this reason, it is vital that we ensure that the law governing Canadian corporations has appropriate penalties for breaches of safety. Action to prevent tragedies will always be more effective than trying to use criminal law after the fact.

This is an important issue, one well worth debating in the House. I look forward to listening to other members of parliament on this very important issue.

[Scott Reid, Canadian Alliance, Lanark—Carleton, ON]

Mr. Speaker, it is a pleasure to rise today to address Bill C-284, an act to amend the criminal code, sponsored by my hon. colleague from Churchill.

The bill would amend the criminal code in order to introduce new provisions for corporate criminal liability. Bill C-284 originated in response to the horrible catastrophe that occurred at the Westray mine in Stellarton, Nova Scotia in 1992 in which 26 people, just named by my hon. colleague, were killed.

On May 9, 1992, all the miners in the Westray mine were killed following an explosion that could have been prevented. A commission of inquiry was established under Mr. Justice Richard of the Nova Scotia Supreme Court. Mr. Justice Richard concluded that the miners were in no way responsible for the explosion but rather that safety conditions at the mine were at fault.

It was also revealed that the miners who worked at Westray had been attempting to reform their working conditions but to no avail. Their efforts were seemingly ignored by management, by regulators and by the government.

Justice Richard recommended that parliament introduce criminal code amendments to strengthen corporate criminal liability and to introduce a new offence of corporate killing.

Since that time there have been two legislative initiatives in this regard. Bill C-259, similar to the current bill, was introduced by the member for Halifax in the 36th parliament. The member for Pictou--Antigonish--Guysborough later introduced a motion to bring forth similar legislation and the Standing Committee on Justice and Human Rights voted unanimously to act in accordance with the motion. The bill was introduced in this new parliament and we have it before us today.

Bill C-284 contains provisions that would have the effect of holding directors and officers of corporations criminally liable for the actions or omissions of the employees of a corporation. It would also hold directors and officers criminally liable for failing to provide a safe working environment for employees. Both the United Kingdom and Australia have embarked upon similar legislative provisions.

I will begin my assessment by stating that I believe in principle with the general intention of the bill in addressing the issue of negligence on the part of corporations in providing safe working conditions for employees. I believe all actors in society, including corporations and government agencies, act rationally in their own self-interest and that it therefore makes sense to craft laws that provide incentives to act in a manner that promotes the well-being of their employees and of their clients.

I do however have certain concerns with the bill in its current form. I believe we must tread very carefully in our legislative endeavours for fear that we may inadvertently alter our legal system in such a fashion as to provide a basis for criminal culpability without criminal intent, which would not be congruent with natural justice.

I believe firmly that in any case of criminal prosecution the person or persons absolutely responsible for any acts or omissions must be held accountable. Generally, however, the larger a corporation gets the more divorced the directors are from day to day operations and decision making by management. I do not mention this fact to deflect responsibility from these directors. I mention it in order that we may most accurately direct matters of investigation, responsibility and prevent potential culpability in order to ensure that the intended end of fewer workplace deaths is actually achieved.

Directors of corporations tend to deal with issues such as strategic marketing and profit margins, whereas middle management tends to deal with operations on the ground. Is it fair to say that the manager who oversees the safety conditions in the factory is not ultimately responsible for the safety conditions in the factory, whereas the director who spends his or her time studying pie charts relating to relative market share is culpable of corporate killing?

If corporate directors knew of the risks involved, as they did at Westray, then they should face penalties. If they did not, and could not reasonably be expected to do so, then no culpability can properly be assigned.

Our criminal code contains provisions for criminal negligence. Perhaps these need to be strengthened for there is no question that workplaces are responsible for the safe conduct of business. Should we go down a path that would automatically pursue company directors, even when they are entirely removed from day to day operations, in order to satisfy a need for quick blame and closure? I am hesitant to believe so.

Equally important, I find a great deficiency in the bill as it addresses private corporations while leaving Canada's largest and most impersonal institutions, that is to say, government departments and crown corporations, outside its reach. Let me offer an example.

Several years ago here in Ottawa an employee of the transit company, OC Transpo, walked into his workplace and opened fire at his colleagues. There were fatalities. The later investigation revealed that the abnormal behaviour of the person in question was reported on more than one occasion to staff supervisors but that they had failed to take action.

Surely that would be a textbook example of the kind of criminal culpability the bill seeks to create. However, under the proposed legislation, the fact that OC Transpo is publicly owned would exonerate its directors and managers and the politicians who oversee it. It seems incomprehensible to me that no one would be held criminally responsible, other than the shooter, for the simple reason that these events transpired in a public sector workplace rather than in the private sphere.

However I do think there is a need for such measures to be applied in a manner that creates liability for governmental and semi-governmental agencies so that they too can be prosecuted when they abuse their trust. This should certainly be so in cases that lead to needless deaths and, let me suggest, it should also be so in cases where the abuse of power leads to a loss of property or civil liberties.

One interesting example of how this was done can be drawn from the United States. Under a 1997 law, government agencies, such as the internal revenue service, now face severe financial penalties if they abuse their power in order to engage in malicious prosecution, when they conduct actions toward those who are in their care in bad faith, or when they otherwise violate their legal mandates. This law, which is known as the Hyde amendment, has been remarkably successful in reining in this notoriously abusive agency.

If such a law were to apply in Canada with regard to any gross abuses in the behaviour of governmental and semi-governmental agencies toward their employees, we might see some form of justice toward the victims of tragedies like the one that occurred at the OC Transpo sheds.

I wish to conclude by congratulating my colleague from Churchill. She is right to highlight the need for improved workplace safety. I say to my colleague, yes, the cause is just, but we must be careful not to create new injustices in our efforts to remedy existing ones.

[Bev Desjarlais, NDP, Churchill, MB]

moved that Bill C-284, an act to amend the Criminal Code (offences by corporations, directors and officers), be read the second time and referred to a committee.

Madam Speaker, I rise today to begin the debate on Bill C-284, an act to amend the Criminal Code of Canada concerning offences by corporations, directors and officers.

The bill has been a long time coming before parliament and has been known by many names: the corporate responsibility act; the workplace safety act; the corporate manslaughter act; and the corporate killing act. However most people still call it by its original name, the Westray act.

People call it the Westray act in reference to the tragic Westray mine disaster in Stellarton, Nova Scotia on May 9, 1992. On that day 26 miners died when a methane gas explosion tore through the Westray mine. Those 26 deaths, like so many deaths and injuries that occur in the workplace, could have been prevented were it not for the company management practices that deliberately and systematically refused to comply with health and safety regulations.

Mr. Justice Richard's inquest into the Westray mine disaster was very clear on this point. It was the wilful decision of the mine managers to ignore and indeed encourage violations of safety regulations that led to the fatal gas explosion. The miners themselves tried to complain about the unsafe working conditions but their complaints were ignored and they were threatened with dismissal unless they kept quiet.

The Westray case exposed a major hole in our criminal law system which the bill addresses. Right now the law simply does not allow our justice system to hold company managers criminally accountable when they show the kind of heinous disregard for human life shown by the Westray mine managers. The bill amends the Criminal Code of Canada and creates new provisions to hold corporations, their directors and managers accountable in such cases.

The Westray tragedy has been called the worst case of corporate mass murder in Canadian history. It has even been the subject of an acclaimed National Film Board documentary which was screened last week at the Toronto International Film Festival. Yet despite all this, not a single criminal charge could be laid against the managers who were responsible for what happened. Local crown attorneys tried to lay charges but concluded that they could not get a conviction under existing laws.

In the report from his inquest, Mr. Justice Richard wrote that this was a weakness in our system that should not be allowed to exist. He went on to recommend that:

The Government of Canada, through the Department of Justice, should institute a study of the accountability of corporate executives and directors for the wrongful or negligent acts of the corporation and should introduce in the Parliament of Canada such amendments to legislation as are necessary to ensure that corporate executives and directors are held properly accountable for workplace safety.

Unfortunately the government so far has not responded to this recommendation. I am sure that this lack of response is what prompted the hon. member for Pictou--Antigonish--Guysborough to introduce Motion No. 79 in the last parliament. His motion reads as follows:

That, in the opinion of this House, the Criminal Code or other appropriate federal statutes should be amended, after consideration by the Standing Committee on Justice and Human Rights, in accordance with recommendation 73 of the province of Nova Scotia's public inquiry into the Westray disaster, specifically with the goal of ensuring that corporate executives and directors are held properly accountable for workplace safety.

I commend the hon. member for Pictou--Antigonish--Guysborough whose constituency includes the town of Stellarton, home of the Westray mine, for his tremendous work on the motion in the last parliament. Thanks in large part to his efforts, it was made votable and passed in the House on March 21, 2000.

While Motion No. 79 was working its way through parliament, the hon. member for Halifax, who is also the leader of the New Democratic Party, was also working very hard on the issue. She introduced private members' Bill C-259 to amend the criminal code as recommended by Mr. Justice Richard. I am proud that I had the honour of seconding that bill. When Motion No. 79 made its way to the justice committee after being passed by the House, the justice committee considered both the motion and Bill C-259 and issued a unanimous report which recommended the following:

That the Minister of Justice and the Department of Justice bring forward proposed legislation in accordance with Motion 79, agreed to by the House on March 21, 2000 and the principles underlined in Bill C-259 for consideration by the Standing Committee on Justice and Human Rights.

The government had 60 days to respond. Unfortunately before this time limit had elapsed the Prime Minister dissolved parliament for the general election and both the hon. member for Halifax's bill and the hon. member for Pictou--Antigonish--Guysborough's motion died on the order paper without resolution. What did not die, however, was the urgency of the issue and the determination of those of us who believe passionately in workplace safety to close this huge loophole in the criminal code. That is why, following the election, the hon. member for Halifax resubmitted her bill and I introduced my own version of it as well, with higher fines.

This issue is very important to me personally and to my constituents in the Churchill riding where many people are employed in heavy resource industries like mining and forestry, where health and safety is literally a matter of life and death.

Injury and death on the job is an ongoing problem in Canada. The statistics are shocking. On an average work day three Canadians are killed on the job.

National Defence Act

[Inky Mark, Canadian Alliance, Dauphin—Swan River, MB]

moved for leave to introduce Bill C-259, an act to amend the National Defence Act (Snowbirds).

Mr. Speaker, I am pleased to reintroduce my private member's bill from the last session which amends the National Defence Act to protect the Snowbirds. I thank the member for Kootenay—Boundary—Okanagan for his support in seconding my private member's bill.

Canadians across the country perceive our Snowbirds as a Canadian icon. They thrill millions of people throughout North America annually. Unfortunately their future is unsure and is certainly not protected. The only way we could protect this national icon is to amend the National Defence Act so that the Snowbirds are entrenched in the act itself. This is exactly what my private member's bill calls for.

I ask all members of the House and all Canadians to support it.

(Motions deemed adopted, bill read the first time and printed)