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.