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 , 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.