Mr. Speaker, I am pleased to rise today to discuss the bill, an act to amend the criminal code, offences by corporations, directors and officers, I thank the member for Churchill for bringing the bill forward.
The incident that took place in Westray, Nova Scotia a number of years ago in which 26 miners were killed in an accident resulted from gross negligence on the part of managers, directors and workplace inspectors. It was a tragedy that should never have happened. Therefore, 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.
As was indicated earlier, I understand that both the leader of the New Democratic Party and the member for Pictou--Antigonish--Guysborough brought forth bills and motions in respect of this issue. I also understand that last year the Standing Committee on Justice and Human Rights unanimously passed a motion to examine this subject further and to pass legislation in keeping with the principle of these bills and motions which called for Justice Richard's recommendations to be duly considered by the House.
I fully concur that the issue of negligence on the part of corporations in providing safe working conditions for employees must be addressed in the House. I agree that it is not sufficient that we simply have provincial legislation in this area. However, I would at the same time caution members of the House against passing legislation that may be legally flawed.
While the motivation behind the bill and its predecessors are obviously well intentioned and I think strive to meet an existing need, the implications of these criminal code amendments could be immense. 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 the discussion on the bill, it must be remembered that one of the principal reasons that businesses choose to incorporate in the first place is to protect its 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 that should excuse criminal conduct. Not at all. Criminal conduct should be punished whether it is done directly by individuals or indirectly through the mechanism of a corporation. Executives, directors or other officers and employees of the corporation presently do 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.
Those are all matters that need to be considered and weighed. Some of the following matters should also be considered.
The bill would, without a doubt, create concerns among corporations be they large or small, successful or struggling. If criminal code amendments, as outlined in the bill, were applied to all corporations, they would have a negative impact on economic growth and jobs. We need to bear that in mind. However, at the same time, we need to ask the question: Is this the kind of economic growth and jobs that we want, that we jeopardize the health and safety of our workers?
It could also have a major negative impact on investment and considerably add to operating costs and consequently the profits and motivations of businesses to expand. Again, I ask: Is this a reason to put these suggestions aside? I say that is not sufficient to deny liability among those who act criminally. I think we are at a stage in our country's development where profits and motivation of business must be secondary to the security and the well-being of our workers.
If the bill were to become law, many businesses would no doubt have difficulties attracting viable candidates to sit on a board with such severe criminal code penalties. Smaller or struggling companies would be at a particular disadvantage if such standards for accountability were universally applied. I do not make those statements as a matter of conjecture. I think it is clear, given the experience of civil liability that has been attached to directors, that many corporations find it very difficult to attract qualified and competent directors.
We do not want to create the situation where we dissuade competent people from being 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 find in attracting directors to their boards.
Make no mistake about it, the provisions of the bill are harsh and severe. For example, according to subclause 467.4(1), an act or omission committed by an employee or an independent contractor, of which the management was not informed, could make a director, who was included in that management, personally liable for the offence as though the director had committed the act or the omission personally.
The provisions regarding workplace safety provide fines for up to $100,000 per day in which unsafe working conditions are shown to have existed. This provision alone could have the effect of bankrupting businesses which are found to have unsafe working conditions.
I merely state that to show that the penalties proposed here are harsh and severe but given the nature of the problem that we are trying to address and the discretion that rests with judges in imposing the penalties, I think from a constitutional point of view they can be justified. It is not, I would suggest, cruel and unusual punishment if that judicial discretion is maintained.
In summary, the legislation could open up the door to penalties for people who may not have acted with criminal intent and 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. That is the issue that we need to address. If we pass legislation that is constitutionally flawed, it does not help the families of those workers.
I suggest we look at that issue carefully and look at possible amendments to ensure that we are within constitutional parameters. Once again, the principles are sound and this matter should move forward.