An Act to amend the Canada Evidence Act

This bill was last introduced in the 37th Parliament, 3rd Session, which ended in May 2004.

This bill was previously introduced in the 37th Parliament, 2nd Session.

Sponsor

Ken Epp  Canadian Alliance

Introduced as a private member’s bill. (These don’t often become law.)

Status

Not active, as of Nov. 1, 2002
(This bill did not become law.)

Elsewhere

All sorts of information on this bill is available at LEGISinfo, provided by the Library of Parliament. You can also read the full text of the bill.

Criminal CodeGovernment Orders

October 27th, 2003 / 5:55 p.m.
See context

Bloc

Paul Crête Bloc 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.

Criminal CodeGovernment Orders

October 27th, 2003 / 5:20 p.m.
See context

Northumberland Ontario

Liberal

Paul MacKlin LiberalParliamentary 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.

Criminal CodeGovernment Orders

September 19th, 2003 / 12:35 p.m.
See context

Bloc

Bernard Bigras Bloc Rosemont—Petite-Patrie, QC

Madam Speaker, it is with great pleasure that I take part in this debate today on Bill C-45, which deals, among other things and most importantly, with the criminal liability of organizations.

It is with great pleasure that I do so, because I had the opportunity, over a year ago, to attend the convention of the Canadian Labour Congress, the CLC, in Montreal. The CLC had made a number of parliamentarians aware of the problem. I remember this convention in Montreal quite well. Some parliamentarians were present. I was there, but there were also representatives from the NDP. Unfortunately, the Liberal Party had refused to attend, as had the Conservative Party and the Canadian Alliance.

The delegates made us aware of the importance of making legislative changes to better protect workers. They gave as an example, of course, the explosion at the Westray mine, in Nova Scotia. The explosion inside the mine had caused the death of more than 26 men. After a rather extensive public inquiry, it was concluded that, most likely, if some prevention or safety measures had been taken to protect workers, the tragedy would not have occurred. The public inquiry into the Westray mine showed that there had been negligence on the part of company directors, with respect to safety.

The delegates had made us aware of the importance of enacting legislation. Essentially, Bill C-45 is merely the expression of a willingness to react to this problem and to make the necessary legislative changes.

I must remind the House that we had studied this issue many times before, through private members' bills such as Bill C-468, Bill C-259 and, more recently, Bill C-284, containing similar provisions. Of course, some aspects have been omitted from Bill C-45. We know that some provisions of Bill C-284, particularly with regard to penalties, have not been included in Bill C-45. Consequently, we would like to amend it.

First of all, the bill uses the word “organization” instead of “corporation”. As a result, it applies to a larger number of institutions. We must raise the awareness of firms regarding the need for prevention and protection of workers in the workplace. However, we must realize that some workplaces are more dangerous than others.

As the Westray mine disaster taught us, it is essential to make the organization, in other words the institution or the firm, responsible for the protection of workers.

Another aspect of the bill is that from now on a firm will be criminally liable for the actions of employees who are not necessarily very high in the hierarchy. What does this mean? It means that in the case of bosses who are not necessarily executives but foremen or third or second level bosses, the firm would have organizational liability insofar as these bosses are responsible for the enforcement of stringent security standards.

Negligence is no longer acceptable, it is now a criminal offence. This is not a trivial issue when we know that some workplaces are more dangerous than others, especially for human health. Moreover, in some workplaces, negligence relating to safety can result in the loss of human life. The Westray mine is a case in point.

Offences of negligence are another important aspect. Let us take criminal negligence as an example. The moral element of the offence will be attributable to the organization insofar as the moral element of the offence can be attributed to one of the senior officers of the organization.

So, as I mentioned earlier, there is now criminal liability for offences of negligence. In reality, the whole issue of prevention in the workplace is at the heart of these provisions.

Another aspect of the bill is that it explicitly makes it a duty for those who have the authority to direct how employees do work, to take the necessary steps to prevent bodily harm to the employees. In other words, this is about the responsibility of foremen and managers and the need to have stringent prevention standards in dangerous workplaces. That is another important aspect.

Clause 3 of Bill C-45 is even more interesting and it is the key element of the bill. It reads as follows, and I quote:

Every one who undertakes...to direct how another person does work or performs a task is under a legal duty to take reasonable steps to prevent bodily harm to that person or any other person, arising from that work or task.

This will make it possible to charge those who fail to comply with this requirement with criminal negligence.

With clause 3 of the bill, occupational safety is improved. This is fundamental.

We agree with certain aspects relating to the principle of the bill. But we can only condemn the fact that between the time when we studied Bill C-284, during the first session of this Parliament, and Bill C-45 now before us, some substance was lost, with respect to the criminal liability of directors and officers, for example.

With respect to the penalties that could be imposed on organizations, I should point out that they would have no effect in cases of bankruptcy. Given the very principle that underlies it, Bill C-45 should therefore not be allowed to provide loopholes to businesses which are in a difficult fiscal situation or have declared bankruptcy.

In our opinion, there should be full liability, not only for businesses which are operating but also for those that have declared bankruptcy. It seems clear to us that this bill bears some resemblance to Bill C-284, but there are significant omissions as well. The danger is that this could lead to loopholes with respect to criminal liability.

Another significant omission is that, contrary to Bill C-284, Bill C-45 contains no provisions for making directors and officers of corporations criminally liable if they are not the ones who, materially, committed a criminal act.

Once again, there are significant omissions in this bill and, in some respects, Bill C-284 was more comprehensive than the one before us today.

I will point out in closing that, with a vote in favour of this bill today, we are telling those working in conditions hazardous to their health and safety that the message from the Westray mine workers has come through loud and clear: negligence must be punished.

We have also understood that prevention is the most fundamental action, the cornerstone of worker protection. We believe nothing like this must ever be allowed to happen again. We believe that imposing penalties and taking stringent measures, up to and including punishment of negligence under the Criminal Code, cannot help but improve workers' lives, as well as their working conditions.

The message we are sending out today is that we have understood the Westray mine workers, and intend to make the necessary legislative changes to protect them better. Workers have the right to protection, particularly when they work in a dangerous environment.

Criminal CodeGovernment Orders

September 15th, 2003 / 5:50 p.m.
See context

Bloc

Paul Crête Bloc Kamouraska—Rivière-Du-Loup—Témiscouata—Les Basques, QC

Mr. Speaker, I rise today to speak on Bill C-45 concerning the criminal liability of corporations. Before getting into the pith and substance of the legislation, I would like to say that I examined this bill as my party's industry critic to see what impact it would have on the industry sector, while recognizing the fundamental merit of plugging a loophole in the Criminal Code that absolutely had to be plugged.

Unfortunately, a terrible situation existed where it was later realized that liability could not be correctly assigned and that measures had to be taken accordingly.

I am also speaking as a former director of personnel. In a previous life, before I was elected to this place, I was the director of personnel and secretary general of the CEGEP in La Pocatière. I have lived though various labour relations situations. Organizations obviously have a major moral responsibility to take. The absence of any clear indication of how to deal with these things in the future created a loophole that absolutely had to be plugged.

The last aspect I wanted to raise was the process for improving the legislation. People often wonder whether the efforts made by lawmakers, that is the hon. members, ever pay off. In this case, the result has been a government bill, which was introduced on June 12 by the Minister of Justice and Attorney General of Canada.

The purpose of the bill is to review the principles of law concerning the criminal liability of corporations and other organizations. But to get there required sustained efforts. I want to acknowledge in particular the efforts of the members of the NDP.

If we look briefly at the history of this bill, it was based on Bill C-468 and Bill C-259, put forward by the NDP in the thirty-sixth Parliament, and on Bill C-284, put forward by the same party in the first session of the thirty-seventh Parliament.

This goes to show that the NDP kept up the pressure following the public inquiry into the causes of the explosion at the Westray mine in Nova Scotia. We all remember this tragic accident. Without going into the evidence of the case, it was realized that, basically, this accident was caused by neglect. Efforts were made to clearly identify who was responsible. Under the current code, it was impossible to really hold responsible those who ought to have been held responsible.

From that point, steps were taken to establish, under certain circumstances, the criminal liability of companies for omissions or criminal acts by their directors or employees and to add a new offence to the Criminal Code for companies that fail to ensure a safe workplace.

In the mining industry, this was more evident than ever. It is an industry where all problems absolutely have to be eliminated from the outset. Negligence has very significant direct consequences. This aspect needed to be corrected and broadened to incorporate all employers and organizations that, until then, could slip through the cracks. This aspect of liability needed to be defined.

This has to do with the criminal liability of companies for omissions or criminal acts perpetrated by their managers or employees. We are trying to have a new offence added to the Criminal Code for companies that fail to ensure a safe workplace.

In addition, there is everything that is not criminal in nature, but results in accidents. However, in this case, we are truly talking about situations where an act can be recognized as being criminal.

Initially, the bill that was introduced by the NDP was designed to facilitate establishing the criminal liability of company administrators and directors. The bill died on the Order Paper at the end of the first session of the 36th Parliament, in September 1999.

The NDP raised the issue once again. In June 1999, a motion was moved to review the Criminal Code and other federal legislation so that company executives and administrators could be held responsible for workplace safety.

At that time, the Bloc Quebecois, which was in favour of such a review, supported the motion. This motion was moved in 2000 and the Bloc Quebecois voted in favour of it. There were also motions brought forward in 2001 and 2002 on the same subject.

In October 1999, the NDP reintroduced its bill, which also died on the Order Paper.

There has therefore been continuity in the desire to regularize this situation, not only because of the difficulties identified in the Criminal Code in connection with past situations, but also and particularly for future situations, in order to ensure that a dissuasive effect is created and that employers and organizations are well aware of the potential consequences if they do not fulfill their responsibilities properly.

In the same vein, the fact that these past actions are today culminating in Bill C-45 is very good news indeed.

Obviously, the bill needs to be examined carefully. Perhaps some corrections will have to be made in committee, as my colleague suggested earlier. Basically, however, this is a positive bill.

On November 11, 2001, the member for Hochelaga—Maisonneuve indicated his support for a similar bill. He felt that it was important to pass such a bill in order to improve the legislation and particularly in order to tighten up the Criminal Code to prevent any workers from losing their lives. As I was saying, through prevention and increasing employers' awareness of their responsibilities, there is more likelihood that the approaches adopted will be what they need to be.

Most employers, like most members of the public, are honest. Unfortunately, the Criminal Code is there for those who are not. That is the purpose pf this bill.

The member for Laurentides also spoke out in favour of this bill. In expressing her support, she indicated that Quebec already has in place a body, the CSST, or Commission de la santé et de la sécurité au travail, to ensure worker safety.

We wanted to ensure that the bill did not interfere with the responsibilities of the CSST. In this case, this being an amendment to the Criminal Code, it can be considered that this is really a federal responsibility. As a result, we feel it is appropriate to move ahead with this bill.

What is also significant is that Bill C-284, the previous version tabled, was withdrawn before Bill C-45 was arrived at. There had been an agreement to examine the matter in the Standing Committee on Justice and Human RIghts in February 2002.

The committee held hearings and presented a report. It asked, and I quote:

that the Government table in the House legislation to deal with the criminal liability of corporations, directors, and officers.

Bill C-45 is the result of all these actions. I think there is still room to make improvements as we study the bill, so that we end up with legislation that is exactly what is requested to eliminate the shortcomings in the Criminal Code.

Quickly looking at the main issues addressed by Bill C-45, we first notice the use of the term “organization” instead of “corporate body.” This is a way to truly include all possibilities. For example, the definition of “organization” is:

(a) a public body, body corporate, society, company, firm, partnership, trade union or municipality, or (b) an association of persons that (i) is created for a common purpose, (ii) has an operational structure, and (iii) holds itself out to the public as an association of persons;

This very broad definition, will cover all situations that might arise. Of course, when the bill is passed, all associations and organizations must be informed about the implications of the law, in order to ensure they are aware of it.

A company can also, according to the bill, be criminally liable for acts carried out by employees who are not necessarily highly placed in the company. Previously, it was absolutely necessary to have a manager who was in an untenable situation. That concept is now being extended to ensure that no one can slip through the safety net. The organization could consider that these people were not really under its control. The safety net will be tightened up, so that organizations will feel more responsible for all of their employees and so that employees will act with propriety.

The bill also mentions the categories of persons whose actions may actually constitute a criminal act for which a corporate body or any other organization is liable. This has been broadened to include all employees, representatives or contractors.

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.

Therefore, this section ensures that, in the case of criminal negligence, someone is responsible and that liability is tied to one of the organization's senior officers.

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.

Obviously, it must be noted that the actions of this senior officer must seek to benefit the organization.

The bill explicitly imposes a duty on those with the authority to direct the work of other employees to take steps to prevent bodily harm to those individuals.

The bill also adopts sentencing principles and probation conditions for organizations, because, in fact, persons cannot be sentenced, when an organization is sentenced, in the same way as if it were a person.

Currently in Canada, it is essentially jurisprudence that determines the conditions under which a company can be held responsible for a criminal offence.

In the case of criminal offences that require mens rea or the intent to commit a crime, companies are only responsible for acts or omissions by persons who may be said to constitute the directing mind of the company. In fact, according to the identification theory, persons who constitute the directing mind of a company personify its intentions.

The bill also amends, in different sections, the types of institutions, and establishes an organization's criminal liability. It integrates the notion of who can be a “representative”. Earlier, it was mentioned that liability was being extended not only to senior officers, but in many cases to other employees. For example, a “representative” essentially includes any person working for or affiliated with the company. This could be a director, an employee or a member, agent or contractor. A “senior officer” is any representative who plays an important role in the establishmentof the organization’s policies or is responsiblefor managing an important aspect of theorganization’s activities.

This bill, specifically clauses 22.1 to 22.3, contributes to changing the current state of the law by introducing new elements to the identification theory. In terms of what are essentially acts of criminal negligence, we could, under clause 22.2, hold an organization criminally liable in cases where the physical offence—the act of committing a crime—is perpetrated by a representative in the scope of tht person's authority, and fault lies in the hands of a senior executive.

To prove that a senior executive acted at least partially to benefit an organization, it would have to be confirmed that they participated in an offence in the scope of their authority by having someone else knowingly commit an offence or by knowing that someone else was committing or was about to participate in an offence and the executive failed to take the necessary actions to prevent it.

There is nonetheless a framework that would prevent peculiar situations from being subject to the prosecution under the Criminal Code based on new sections resulting from Bill C-45.

In terms of sentencing an organization, the bill suggests adding new sections and completing existing sections to take into account, during sentencing, factors that are characteristic of organizations. Therefore, a specific section was added for organizations to regulate the probation conditions applicable to organizations, which are not of the same nature as those for individuals.

The bill increases the maximum fine for an organization when a guilty plea is entered by summary conviction or for a less serious offence, increasing it from $25,000 to $100,000. This provides a very clear incentive not to repeat a situation whereby the organization's liability could be determined and the organization could be convicted.

Currently there are no limits for fines for criminal acts or more serious offences, and this is not being changed by the proposed legislation. If there is a very serious situation, the sum could be determined based on the seriousness. This will continue to be the practice.

This bill is the result of a series of steps taken by several parliamentarians in this House. The Bloc Quebecois is in favour of the principle of this bill.

Given the current state of the law, it is important that a criminal liability regime be established for businesses that is effective and takes into account the differences between an individual and an organization.

We will see in committee if the bill could not be improved where it deals with offences, and it is said that an intent must exist which goes beyond criminal negligence. The suggestion was made to reverse the burden of proof, that is to say that when it has been established that an act or omission was committed by the personnel of an organization, resulting in a criminal act taking place, the onus will be on the organization to prove that it did not authorize or condone such behaviour. When we hear witnesses in committee, we will be able to see if this would not be a better approach than the one put forward in the bill as it now stands.

Note also that this bill does not allow directors, executives or a corporation to be held liable if they did not physically and personally commit a criminal act. This may tie in with the constitutional issue, but it deserves nonetheless to be examined further to ensure there are no loopholes which, we will find out in a few months or years, ought to have been plugged when Bill C-45 was passed.

I should point out also that the penalties that may be imposed would have no effect on a business that has declared bankruptcy. This touches on the whole issue of a big organization taking some action which results in its going bankrupt because it has lost its business name and can no longer sell its product. In this case, when penalties are paid, it will be too late, and the fact of the matter will be such that the business will not be able to assume the costs.

While particular attention must be paid to a number of things in Bill C-45, as this was explained, for the system to be effective, the fact remains that the purpose of this bill is valid and necessary to ensure that organizations are held accountable for what they do.

I believe we are making an addition here that does not fix what happened at the Westray mine, but at least for the families of those who died in the mine, for the entire community that was affected and for the future also, I think that we are taking an appropriate, responsible step, as parliamentarians, in proposing that this bill introduced by the government be passed.

Criminal CodeGovernment Orders

September 15th, 2003 / 5:40 p.m.
See context

Bloc

Paul Crête Bloc Kamouraska—Rivière-Du-Loup—Témiscouata—Les Basques, QC

Mr. Speaker, I congratulate the hon. member on her speech. She truly covered all the issues addressed in the bill.

The Bloc Quebecois supports this bill, but one particular point caught my attention. I am talking about the offences known as mens rea in Latin.

I get the impression, in reading the bill in its current form, that it will be extremely difficult to make the application of the bill truly effective in real situations.

I want to ask the hon. member a question. Would it not have been better to use the New Democratic Party's hypothesis relating to Bill C-284, which was introduced during the first session of the 37th Legislature? The suggestion then was that, rather than using mens rea , which is the requirement to prove intent above and beyond that required for criminal negligence, there could be a mechanism allowing for the burden of proof to be reversed.

In other words, once it is 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. Would this not be more effective and ensure that the desired results of the bill would be obtained? Given the bill's current wording, it is possible that the House will be called upon to amend the proposed legislation once it has been put to the test a few times.

Criminal CodeGovernment Orders

September 15th, 2003 / 4 p.m.
See context

Bloc

Richard Marceau Bloc Charlesbourg—Jacques-Cartier, QC

Mr. Speaker, I am pleased to initiate, on behalf of the Bloc Quebecois, the debate on Bill C-45 sponsored by the Minister of Justice and dealing with criminal liability of organizations.

Hon. members will recall that this bill was introduced at the very end of last spring's session, when the leadership crisis within the Liberal Party of Canada was at its peak.

At that time, people may have wondered just how far the government might go to get its bills through. The answer to that question provided today is pretty revealing.

It seems that the government will try anything it can to curb controversy, in order to keep a lid on the tensions within the Liberal caucus and the divisions within the government. As a result, it will opt as much as possible for passing legislative measures that will gain the support of the House and not stir up any debate.

That said, the odds are pretty good that the government leader will attempt to minimize the untenable situation his party finds itself in, and it is possible that we will not sit beyond November 7, the date of the coronation of the member for LaSalle—Émard as leader of the Liberal Party of Canada.

In the meantime, however, it is important for us to do our jobs conscientiously, because the Liberals do not seem to be on top of their game, and they have lost sight of our primary role: to legislate.

Coming back to the bill of concern to us today, I will state at the outset that the Bloc Quebecois will be supporting this amendment to the Criminal Code, and will also be in favour of its prompt passage in order to address an important ethical aspect in the role of corporations and organizations.

The objective of Bill C-45 is, in fact, 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.

It must be kept in mind that Bill C-45 is the outcome, first and foremost, of the efforts of ordinary members of this House and not an initiative by the government, which has put off taking action for a long time, too long we might say.

Before offering a historical overview, it would be worthwhile making reference to the findings of the public inquiry into the causes of the explosion that took place at the Westray mine in Nova Scotia.

This explosion, which took place several years ago, as hon. members will recall, left 26 men dead. The public inquiry revealed that the tragedy was in large part caused by the negligence of the bosses, who had turned a blind eye to some serious safety problems.

Thus, as I said, the government's inertia in enacting legislation is balanced by the tenacity of some members in trying to get substantial legislative changes passed so that such a situation cannot happen again, or, at the very least, there is a form of criminal recourse if a similar unfortunate tragedy were ever to take place.

The purpose of these private members' bills was to establish and clearly set out, under certain circumstances, the criminal liability of corporations for the errors of neglect or criminal intent committed by their directors or employees, and to create a new category of offence in the Criminal Code, with respect to companies that fail to provide a safe workplace for their employees.

Similarly, in June of 1999, a motion was brought 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 that time, the Bloc Quebecois supported the motion, but when Parliament was dissolved the motion was deferred. Since then, similar motions have been presented three times to the House, but the government, unfortunately, has dragged its feet until now.

Many similar bills have been introduced in recent years, and I think it is important to remind the House of the position taken in 2001 by my hon. colleague for Laurentides, with respect to Bill C-284.

In fact, the Bloc Quebecois supported passage of Bill C-284, but we also pointed out that in Quebec, an organization already exists, called the Commission de la Santé et de la Sécurité au Travail, or CSST, whose mandate is to ensure the safety of employees in the workplace.

Similarly, also in relation to that bill, we maintained that it was essential to adopt the proposal so as, legally, to establish a method of redress and to strengthen the Criminal Code, in order to prevent loss of life among workers.

The Standing Committee on Justice and Human Rights also held public hearings on this matter in the spring of 2002; it recommended and I quote:

That the Government table in the House legislation to deal with the criminal liability of corporations, officers and directors.

The government's concrete response to the Standing Committee on Justice and Human Rights and the ongoing efforts of members have resulted in Bill C-45, of which we are proud. We regret the delay, but the adoption of Bill C-45 will be our just reward.

This bill to amend the Criminal Code before the House contains eight key points that I want to list for my hon. colleagues and those interested in this matter.

The main changes pertain, 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 which 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.

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.

Similarly, 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.

Before going any further in our deliberations on Bill C-45, it should be noted that in our justice system it is essentially jurisprudence that determines the conditions under which a company can be held responsible for a criminal offence.

In criminal offences that require culpable intent or intent to commit a crime, companies are only responsible for acts or omissions by people who may be said to constitute the directing mind of the company. In order for a company to be found guilty of an offence with culpable intent, it must be shown that the individual who materially committed the criminal act in the performance of his duties had implicitly or explicitly been given the authority to write policies for the company and to oversee their implementation.

For each situation, the court must decide whether the individual who committed the criminal act in the performance of his duties can be deemed the directing mind of the company. This is commonly referred to as the identification theory.

Ultimately, we are entitled to believe and maintain that, based on this approach, individuals who are the directing mind of the company personify the intentions of the company.

I could also enter into a technical argument justifying our support of Bill C-45, but I will settle for merely pointing out that this bill defines an organization as including a public body, body corporate, society,company, firm, partnership, tradeunion or municipality. Thus the term organization also includes any association of persons created for a common purpose, which has an operational structure and holds itself out to the public as such.

The main intent of the bill is to broaden the category of individuals whose actions and intentions may engage criminal responsibility of the organizations they represent. Therefore a differentiation will be made between two groups of individuals, namely representatives and senior officers, whose conduct may constitute a criminal offence attributable to an organization.

Thus a representative includes essentially any person who works on behalf of an organization or is affiliated with it, which generally means a director, partner, employee,member, agent or contractor of the organization. In this view, a senior officer means a representative who plays an important role in the establishment of the organization's policies or is responsible for managing an important aspect of the organization's activities.

The effect of this new designation will be to change the present state of the law by introducing new elements to the theory of identification.

It is also proposed to add sections to and expand existing sections of the Criminal Code to take into account in sentencing a reality peculiar to organizations. The same goes for the definition of specific conditions of probation applicable to organizations.

Once passed, Bill C-45 will increase from $25,000 to $100,000 the maximum fine for an organization under summary conviction or convicted of lesser offences.

There is currently no limit set on the maximum amounts of fines for criminal acts or more serious offences, a situation that the proposed legislation does not address. However, the bill specifies factors the court will have to take into account in setting the amount of fines.

For example, the courts will have to take into account aggravating factors such as the degree of planning and any financial advantage realized by the organization as a result of the offence or, conversely, mitigating factors such as efforts made by the organization to reduce risks.

Before concluding, I want to reiterate the support of the Bloc Quebecois for the principle of Bill C-45 at this stage of the legislative process. The committee stage will also provide an opportunity to consider further the proposed legislation and, above all, ensure once and for all that there are no loopholes organizations can use to abdicate their responsibilities.

I remind the House that the current state of the law forces us to establish a regime of criminal responsibility for businesses that is effective and takes into account the differences between an individual and an organization. I also look forward to hearing what my hon.colleagues have to say on this matter. I remain convinced that we will be able to pass this legislation with diligence for the benefit of our fellow citizens thanks to, among other things, the evidence we will be hearing in the Standing Committee on Justice and Human Rights.

Criminal CodeGovernment Orders

September 15th, 2003 / 3:50 p.m.
See context

Canadian Alliance

Vic Toews Canadian Alliance Provencher, MB

Mr. Speaker, I am pleased to rise today to discuss this bill, an act to amend the Criminal Code (criminal liability of organizations).

The incident that took place in the Westray Mine near New Glasgow, Nova Scotia in 1992, in which 26 miners were killed, resulted from gross negligence on the part of managers, directors and workplace inspectors. It was a tragedy that could have been prevented. It was a crime that should never have taken place.

I think it is appropriate that we have this discussion to determine whether that action on the part of the corporation and its directors in fact should result in the criminal penalties being proposed here.

The inquiry released in November 1997 by Mr. Justice Peter Richard made the recommendation for the federal government to institute a study of the accountability of corporate executives and directors for the wrongful or negligent acts of the corporations and suggested that the government introduce amendments to ensure that corporate executives and directors are held accountable for workplace safety and health.

In the last session of Parliament, a private member's bill to deal with this issue, Bill C-284, was approved in principle by all parties in the House of Commons, including the Canadian Alliance. However, at that time we cited concerns about the legislation and maintained that certain constitutional issues must be addressed before the bill could be passed.

In May 2002, the justice committee referred the subject matter to the Department of Justice in order to draft legislation in accordance with the objectives of the bill. The result is Bill C-45.

Bill C-45 accomplishes three main goals: first, it makes changes to the Canada Labour Code to protect against workplace hazards; second, through changes to the Criminal Code, if employers and managers do not take reasonable measures to protect employee safety and harm results, the organization could be charged; and third, it expands conditions for liability.

I fully agree that the issue of corporations providing safe working conditions for employees must be addressed by the federal law. I agree that it is not sufficient that we simply have provincial legislation in place. However, I would at the same time caution members of the House against passing legislation that could be legally or constitutionally flawed. If the legislation is in fact put to use in the future, let us not put the families of future victims through the agony of a trial only to find out that there are legislative or constitutional flaws that make the entire legal proceeding under these provisions defective.

It should be noted that one defence that previously existed under the Criminal Code has been repealed by this legislation. For example, section 391 of the Criminal Code states:

Where an offence is committed under section 388, 389 or 390 by a person who acts in the name of a corporation, firm or partnership, no person other than the person who does the act by means of which the offence is committed or who is secretly privy to the doing of that act is guilty of the offence.

Without this defence, concerns have been raised that a person could be held responsible for an offence even if he had no knowledge of the commission of that offence. While the motivation behind the bill and its predecessors are obviously well intentioned, and I think strive to meet an existing need, we must carefully consider the implications of these amendments. That is why we need to be careful in the context of our constitutional framework to ensure that they do in fact comply with the requirements of our Constitution.

In further discussion on the bill it must be remembered that the one of the principal reasons that businesses choose to incorporate in the first place is to protect shareholders and directors from personal liability arising from the activities of the business. I am not suggesting that simply because individuals have arranged their affairs in such a way as to avoid personal responsibility it should excuse criminal conduct. Criminal conduct should be punished whether it is done directly by individuals or indirectly through the mechanism of the corporation.

Executives, directors or other officers and employees of the corporation presently do not and should not have the benefit of immunity from criminal liability. Under our current Criminal Code provisions, they are legally accountable for their own personal wrongdoing. As well, corporations can be held criminally liable in their own right. In cases of offences of absolute or strict liability, a corporation would be subject to penal liability for unlawful acts or omissions of such persons who, because of their position or authority in the corporation, may be said to constitute the directing mind of the corporation.

However, this bill expands further conditions of liability, which must be carefully studied once the legislation is referred to the committee.

Another matter to consider is that this legislation could create concerns among corporations, be they large or small, successful or struggling. I am not suggesting that we jeopardize the health or safety of our workers at the expense of economic growth and jobs, but we do have to be mindful of the impact that these amendments may have if the legislation is not legally or constitutionally sound.

Furthermore, some businesses may have difficulties in attracting viable candidates to sit on a board with the prospect of such Criminal Code penalties. Smaller or struggling companies would be at a particular disadvantage if such standards for accountability were universally applied.

The question that must be asked is whether these provisions will dissuade from managing corporations precisely those who could provide the appropriate guidance to strengthen the health and safety of the workers. If we pass legislation, will it discourage those individuals in our society who would make responsible directors and managers from in fact directing and managing those corporations? If by our legislative action we frighten those individuals, we then leave corporations in the hands of those who do not care about the safety of workers and that is a situation that we need to avoid. Given the civil liability that has attached to directors, will this increase the difficulties that many corporations find in attracting qualified and competent directors?

I think everyone here wants a safe workplace. They want viable economic units that create jobs and keep the engine of wealth moving in this country. We need to balance these concerns against some of the proposals being made here. I am not in a position yet to say whether these amendments in fact do that in an inappropriate way. On a reading of the legislation, I find much to commend it.

We do not want to create the situation where we dissuade competent people from becoming the directing minds of corporations. We want to encourage competent people who exercise sound skill and judgment to continue working through the vehicle of corporations to ensure that jobs are preserved and created in Canada.

Again, that is an issue we need to bear in mind given the difficulty that many corporations today may have in attracting directors to their boards.

In summary, I think it is important to be careful that this legislation does not open up the door to penalties for people who may not have acted with criminal intent. That, I think, is the major issue the House needs to consider. Our Constitution does not support imposing criminal penalties where there is no criminal intent. If we pass legislation that is constitutionally flawed, it does not help the families of those workers who may face a tragedy in the future. I want to hear from witnesses at the justice committee before formally proposing any amendments to the legislation.

I would like to note that the member for Kootenay--Columbia and other Canadian Alliance representatives have done a substantial amount of work in this area. They have met with representatives of the Westray victims' families and other parties around Antigonish. In fact, the member for Kootenay--Columbia will be addressing this legislation and will share some of the insight he has gained.

I want to say that the Canadian Alliance supports the intent of this legislation and we look forward to working proactively to overcome any identified legal and charter concerns that may be present in the proposed legislation.

Criminal CodeGovernment Orders

September 15th, 2003 / 1:35 p.m.
See context

Northumberland Ontario

Liberal

Paul MacKlin LiberalParliamentary Secretary to the Minister of Justice and Attorney General of Canada

Mr. Speaker,I am pleased to begin the debate on Bill C-45, an act to amend the Criminal Code concerning the criminal liability of organizations. The bill will transform the principles contained in the government's response to the 15th report of the Standing Committee on Justice and Human Rights looking into provisions in the Criminal Code. The standing committee's report was the result of hearings that were prompted by the debate on Bill C-284 sponsored by the hon. member for Churchill.

Fundamentally the bill has its origins in the tragic deaths of 26 miners in the Westray mine explosion in May 1992. I will not review in detail the lengthy and ultimately fruitless criminal proceedings that followed the investigation of the explosion. All members are aware that the company that operated the mine, and two of its executives, were charged with manslaughter. The trial judge ordered a stay of the charges because of problems with disclosure of evidence by the Crown. Although the appeal courts overturned that decision, the prosecution decided it could not go forward.

The Government of Nova Scotia appointed Justice K. Peter Richard to conduct an inquiry into the disaster. The inquiry itself was delayed by legal proceedings but when hearings got underway, the evidence disclosed, in Justice Richard's own words, “a complex mosaic of actions, omissions, mistakes, incompetence, apathy, cynicism, stupidity and neglect”. Justice Richard ultimately made 74 recommendations to enhance workplace safety. These recommendations dealt with such issues as training, ventilation, mine safety and the like.

The United Steelworkers of America, to their credit, have been the untiring champions of the families of the Westray victims. They urged Justice Richard to recommend fundamental reform of the criminal law as it affects workplace safety and the responsibility of corporate directors and officers for maintaining a safe workplace.

Justice Richard concluded that this was beyond his mandate but he did make recommendation 73:

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.

In this Parliament all members of the standing committee have given careful consideration to both the issue of the role of the criminal law in promoting workplace safety and the general rules that should govern the liability of corporations and their officers and directors.

A discussion paper setting out the issues and reviewing the evidence of other countries, which had been prepared by the justice department, was provided to the committee. The committee heard from officials of the justice department and other experts. It heard moving testimony from victims and relatives of victims of industrial accidents. The 15th report of the committee recommended “that the government table in the House legislation to deal with the criminal liability of corporations, directors and officers”.

Clearly all parties in the House felt that it was time for fundamental reform in this area. The government in its response to the report reviewed the evidence that had been heard by the committee and agreed on the need for reform. The government also concluded that there was no perfect system in other countries that Canada could simply copy. The report therefore set out the principles that would guide the drafting of a made in Canada approach to the problem of corporate crime.

However, just as reform of the criminal law was not the primary focus of Mr. Justice Richard's report, this bill is not the primary response of the Government of Canada to the Westray tragedy. The government has already acted decisively to promote workplace safety because prevention of accidents is always better than prosecutions after a tragedy.

In 2000, amendments to part II of the Canada Labour Code established a number of improvements to occupational health and safety in workplaces under federal jurisdiction. Three fundamental employee rights were established: the right to know about hazards in the workplace; the right to participate in correcting those hazards; and the right to refuse dangerous work. The role of workplace health and safety committees and of policy health and safety committees was strengthened.

Bill C-45 builds on those changes by proposing to include in the Criminal Code a new section, section 217.1, which provides that everyone who undertakes, or has the authority, to direct how another person does work or performs a task is under a legal duty to take reasonable steps to prevent bodily harm to that person or any other person arising from that work or task.

The importance of having such a duty in the Criminal Code is that if there is a breach of that duty, wanton and reckless disregard for the life or safety of people, and injury or death results from that breach, a person can be convicted of criminal negligence causing death which is punishable by up to life imprisonment, or criminal negligence causing bodily harm which is punishable by up to 10 years imprisonment.

Members will note that this duty is not specific to corporations. Many corporations already have a similar duty. The Canada Labour Code for example provides in section 124 that “every employer shall ensure that the health and safety of work of every person employed by the employer is protected”.

As well, a duty of care to workers may exist in provincial legislation or under the common law. Breach of these duties can currently lead to criminal charges where there is reckless disregard for the safety of others.

Bill C-45, if adopted, will have its greatest impact on the liability of corporations and other associations of persons for all criminal offences. The definitions of “representative” and “senior officer” and the rules for attributing criminal liability for negligence offences and other offences set out in proposed sections 22.1, 22.2 and 22.3 will modernize the approach to criminal liability of all corporations.

Members will have noted that although the standing committee held hearings on corporate criminal liability, the bill refers to “organizations” which is defined broadly to include all major participants in the economy and all associations of persons created for a common purpose, having an operational structure and holding itself out to the public as an association.

There has been a great deal of creativity shown by corporate lawyers in developing new structures, for example, limited liability partnerships and joint ventures. Quite simply we want to ensure the Criminal Code applies to every organization of persons without any artificial distinctions based on how those persons chose to structure their legal relations.

In practice of course, corporations are likely to be charged far more frequently than other forms of association because of their dominant role in Canadian society. The proposed rules for attributing criminal liability to an organization are necessarily complex because the criminal law requires proof of both the commission of a prohibited act and that the person had the necessary mental state.

Since organizations can only act through individuals, the fundamental problem with which the law has struggled is to decide whose acts are to be considered the acts of the organization and who in the organization has to have the necessary guilty mind for the organization itself to be considered as having a guilty mind.

Until now, Parliament has been content to have bodies, corporate societies and companies included as persons and to leave it to the courts to develop the tests for determining when they are criminally liable. At first, the courts were reluctant to find that a corporation could commit a crime, but case by case they have built up rules for holding corporations accountable for crimes carried out in their name and for their benefit by their employees and officers.

With respect to the first question, namely, whose acts should be considered the acts of the organization, we propose that the acts of representatives are the acts of the organization. Representative is defined broadly so that it includes not just officers and employees, but also agents and contractors. As long as they are acting within the scope of the authority given them by the organization, their actions should be the actions of the corporation.

As for whose guilty mind should be the guilty mind of the organization, the government in its response stated that it found the Supreme Court approach too narrow because of its insistence that a directing mind had to have executive decision making authority on matters of corporate policy.

Through the definition of senior officer, we propose to broaden who can be the directing mind by including, in addition to those who would already be so considered, a person who has an important role in establishing policy rather than having to have the ultimate power to make policy, and a person who is responsible for managing an important aspect of the organization's activities even if that person has no policy making authority whatsoever. The proposed change reflects the way that large modern corporations are organized.

While the courts would still have to decide in each case whether a particular person is a senior officer, I believe the proposal clearly indicates our intention that the guilty mind of a middle manager should be considered the guilty mind of the corporation itself. For example, the manager of a sector of a business such as sales, security or marketing, and the manager of a unit of the enterprise like a region, a store or a plant, could be considered senior officers by the courts.

An organization would be responsible for crimes based on negligence where the acts and omissions of its representatives, taken as a whole, are negligent and its senior officers showed a marked departure from the standard normally expected in the circumstances.

In a tragedy such as Westray, it may not be possible to find a single representative of a corporation who was criminally negligent. The deaths may have resulted from a series of actions and omissions by many representatives. Even though no single individual might be convicted of a criminal offence, it may be possible for the corporation operating the mine to be criminally liable. For example, if three employees simultaneously turned off three separate safety systems and death resulted, these employees might not be subject to criminal prosecution because they each believed that turning off one system would not endanger anyone because the other two systems would still be in operation. However, the corporation might be charged with criminal negligence.

For the court to convict the company that operated the mine, the Crown would have to show that the management fell well below the standard of care that would be expected in the circumstances. In making this determination, the court would have to consider industry practice and procedure. If other companies have a system to ensure that no more than one safety system could be turned off at a time, the court could well conclude that the accused corporation had fallen far below what was reasonably to be expected and convicted.

For all other criminal offences, we are proposing that the organization be criminally liable whenever a senior officer with intent to benefit the organization commits the prohibited act, or uses representatives lower down in the organization, or outsiders to commit the act, or fails to act on knowledge of criminal activity by its representatives.

An organization should not be able to avoid criminal liability by turning a blind eye to indications that its representatives are committing crimes.

All of these changes reflect the positions taken by the government when it tabled its response. At that time the government indicated that the Criminal Code should provide more guidance for the courts when they impose sentences on a corporation, but we made no specific proposal.

The Criminal Code contains principles of sentencing and aggravating factors for judges to consider, but mainly they are applicable to the individual. For example, it is an aggravating factor to abuse a spouse or a child in committing the offence.

We are seeking, through the proposed new section 718.21, to assist the courts in determining an appropriate sentence for an organization. Of course, jail is not an option for a corporation. Therefore, in practice the court has to decide how heavy the fine to impose.

In determining that fine the court should consider the moral blameworthiness of the organization through such factors as the profit it made and the planning involved in the offence. It should also consider the public interest. Except in unusual circumstances, a fine should not be so high that the company is bankrupted and morally blameless employees lose their jobs.

Just as the criminal record of an individual is very important in determining sentence, the court should take into account any previous criminal convictions and convictions for regulatory offences of the organization and its personnel involved in committing the offence.

Finally, rehabilitation of the offender is always important. An organization may have shown that it is determined not to commit further offences by imposing penalties on managers involved in the commission of the offence or by paying restitution to victims.

We are also proposing to encourage the courts to innovate by setting out optional conditions of probation geared to the corporate offender in the proposed new subsection 732.1(3.1). Probation is possible for corporations, but it is virtually never imposed.

We believe there may be circumstances where the court wants to ensure as best it can that the corporation will change its ways and commit no further crimes.

Canada Evidence ActRoutine Proceedings

November 1st, 2002 / 12:05 p.m.
See context

Canadian Alliance

Ken Epp Canadian Alliance Elk Island, AB

moved for leave to introduce Bill C-284, an act to amend the Canada Evidence Act.

Madam Speaker, the title of the bill hardly says what it is about, but it has to do with dates. Since we have moved into the years 2000, dates have become very confusing. For example, what does 4/2/3 mean as it pertains to a date? Is that 4 February, 2003? Is it April 2, 2003? Is it 2004, February 3? Is it 2004, 2 March? When there is a conflict or when there is a possibility of misinterpretation of dates in the Canada Evidence Act, the bill would provide that the default would be year, month, day. This is the international standard to which Canada has acceded.

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