Mr. Speaker, I rise with pleasure to participate in this debate.
I have great respect for the member for Pictou—Antigonish—Guysborough. It is imperative that I read the motion followed by recommendation 73 from the Westray report which has precipitated the member's motion.
Motion No. 79 reads:
That, in the opinion of this House, the Criminal Code or other appropriate federal statutes should be amended in accordance with Recommendation 73 of the Province of Nova Scotia's Public Inquiry into the Westray disaster, specifically with the goal of ensuring that corporate executives and directors are held properly accountable for workplace safety.
Recommendation 73 of the Westray inquiry reads:
The Government of Canada, through the Department of Justice, should institute a study—
I emphasize the word 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.
Recommendation 73 clearly calls upon the Government of Canada through the justice department to institute a study to ensure the accountability of corporate executives. I have no problem with this.
Let us take a closer look at this issue. Motion No. 79 calls for immediate amendment to the Criminal Code of Canada or other appropriate federal statutes without first studying the parameters of corporate responsibility. I say with the greatest respect for the member from Nova Scotia who I understand is very sincere in what he is trying to do that it is a bit premature. I want to get into the specifics and I offer this as a constructive criticism.
The ramifications of the criminal code changes are immense and in many cases final. My objection to the member's initiative in no way is meant to diminish what he is trying to do. We cannot diminish the extent of this tragedy and the loss of 26 lives.
We should follow the guidance of recommendation 73 before making that quantum leap to amend the criminal code.
The issue of corporate responsibility is a shifting paradigm. The composition of corporations and the roles of directors who sit on their boards are in constant evolution. I am uncertain how much empirical evidence and resources are at our disposal to adequately understand corporate responsibility, specifically the role of accountability which we assign to directors.
The law has some guidelines and statutory parameters regarding business organization. The corporate form of business organization is intended to protect shareholders from personal liability for civil debts of the corporation. Executives, directors or other officers and employees of the corporation enjoy no special immunity from either criminal or quasi-criminal liability. Such persons are legally accountable for their own personal wrongdoing and negligence. Corporations can be held criminally liable in their own right.
In the case of offences of absolute or strict liability, a corporation is subject to penal liability for unlawful acts or omissions of the corporation per se or for those employees and agents in the context of corporate duties. In the case of an actual criminal offence, corporations are liable for the acts and omissions of such persons who by reason of their relevant position or authority in the corporation may be said to constitute the “directing mind” of the corporation.
In the November 1997 report on the Westray disaster, Mr. Justice Peter Richard recommended that applicable federal and provincial laws should be reviewed and amended to ensure that corporate directors and executives are held properly accountable for workplace safety. I do not disagree on the magnitude of this disaster and the 26 lives that were lost. I do not want to diminish that, but it is important that when we make these changes we get them right.
The member's motion wants to go much further. It would ostensibly make it easier to fix criminal liability on corporations by calling for a new criminal offence. Mr. Justice Richard did not go that far. He wanted to proceed in steps. Justice Richard called for a study of corporate responsibility, recognizing the shifting and evolving nature of corporations, their composition and the role of directors.
Allow me to identify what I see as some of the real problems with this motion. Corporations would have a major problem attracting viable candidates who want to sit on a board with such criminal code penalties affixed to them as called for in Motion No. 79. I dare say no one would want the job but the implications for corporations without boards is obvious under commercial and corporate laws. Smaller or struggling companies would be at a greater disadvantage if such standards for accountability were applied to them.
I am not saying there should not be responsibility and I am not saying directors should be able to hide from their duties and social responsibilities. I do not want to see punitive and debilitating roadblocks to growth thrown in their path and consequently that of the corporation.
I for one believe that the majority of corporations serve a social purpose and are concerned with workplace safety. I say this with some credibility. I was a safety officer for a forestry company in British Columbia and I can attest that although accidents happen they were taken very seriously. I am sure they do not want to see accidents happen.
A blanket criminal code amendment would do little to foster economic growth and jobs. There must be a balance between making a profit and operating as an ethical and socially responsible enterprise. That balance can be precarious. The impacts criminal censure can have must be weighed carefully. Furthermore, I have to ask what the responsibilities and consequences would be for shop stewards on the floor. I am not suggesting by any means that we should be looking at imposing criminal sanctions on them, but they also play a very important role in workplace safety. This has to be evaluated at the same time.
I would further ask whether the member for Pictou—Antigonish—Guysborough has given any thought to the responsibilities of federal and provincial labour inspectors. Motion No. 79 could have devastating consequences for doing business in Canada. It would have a serious impact on investment and would add dramatically to operating costs and consequently the profits and the motivation to expand. Employment levels in corporations would no doubt be reduced. The less people, the less chance for accidents. Would production levels not also be reduced?
It would be unreasonable to expect each and every director of every corporation to be cognizant of every aspect of health and safety within any given corporation. It is very important to have every director involved in day to day operations.
I appreciate in the example of Westray that obviously there was a massive problem. Twenty-six lives were lost and I do not want to minimize that. If every prospective member is expected to assume this type of responsibility there would be no candidates to sit on a board.
I concur with the member in his genuine concern for the welfare of the miners and in his hopes that such a tragedy will never be repeated. However, despite the honourable intentions of this motion I fear he has not taken the full picture into account. Without question Westray was a reprehensible disaster. No one can diminish the human tragedy that descended upon that community and its people.
However, it is important to recognize that the crown currently has powers under the criminal code to charge negligent mine managers who were on site and who were responsible. Let us follow the direction contained in recommendation 73 of the Westray inquiry and review the responsibilities of directors before we move to criminal code amendments.
In short, I am saying let us not make that quantum leap. Let us do a very comprehensive study because it will have a serious impact on corporations across the country. Let us make sure what we are doing is absolutely right. There are provisions right now for the people in the day to day management positions.
I commend the member for Pictou—Antigonish—Guysborough for bringing the motion forward. It is a very important one, but we want to make sure we get it watertight and we get it right because it could have some very negative consequences on the corporate and business communities of Canada. This seems to be the direction in which the member for Erie—Lincoln was going as well.