Debates of Sept. 15th, 2003

Criminal Code

[Alexa McDonough, NDP, Halifax, NS]

Mr. Speaker, I thank the member for her comments in support of the legislation.

She provided an interesting historical overview. It was a bit shocking but useful to hear that recommendations for changes to the criminal law to capture this kind of situation go back as far as 60 years. It would be completely unfair for me to try to hold the current Liberal government accountable for all 60 of those years of inaction, but I have to say that it concerns me somewhat that there is a lack of urgency. There is a casualness that maybe this is something we should do something about.

If we consider that in the 10 years the government has been in office, close to 10,000 workplace deaths have taken place and there have been somewhere between six and seven million workplace accidents and injuries. It would be madness to suggest that corporate negligence or corporate irresponsibility accounted for all of those. I am not suggesting that for a moment, but it does add a sense of urgency to what we are talking about to have that historical perspective as well as the current figures.

What assurance does the member feel there is from her party, the governing party, that this bill will not die on the order paper again, as has already happened?

Also, I would ask the member to comment on the concern that has been raised again and again about a future prime minister who has seen fit to operate his ships under a company that he owned, that would evade the labour standards and evade taxation by flying flags of convenience rather than the Canadian flag. What possibility is there that this issue would be given the kind of attention and serious treatment that it requires? If the member shares any of those concerns, what commitment is she prepared to make to be sure that this is dealt with as part of the--

[The Acting Speaker (Mr. Bélair)]

The hon. member for Parkdale—High Park.

[Sarmite Bulte, Liberal, Parkdale—High Park, ON]

Mr. Speaker, I would like to thank the hon. member for her question and also for all the work she has done in this area. What her party has done to bring this issue forward is very important.

With respect to having this legislation die on the Order Paper, certainly the hon. member knows that that is up to the opposition as well. We need to work together on this. We are at second reading. We will go to committee and take a look at what can still be done to improve this bill. It will be brought back in the House and voted on. Let us work on it as soon as possible. Let us make it a priority from all parties. If we can cooperate and work together quickly and effectively on this bill, get our witnesses in front of the committee, bring it back, and have third reading, we can have this bill passed and have it go to the Senate. It is a matter of cooperation. What I have been hearing in the debate this afternoon is a general consensus that this is a good bill.

However, I did want to comment on one other thing. The hon. member brought back the issue, which I did raise in my discourse today, that it has been 60 years since it was first brought up by the courts that Parliament really needed to act here and that it was the role of Parliament to decide how to make corporations culpable and liable. The important thing is that many countries have been struggling with this concept of how to pass legislation which is proper criminal law, which includes mens rea and criminal intent, how to get something that is enforceable, and how to get something that is workable.

There is no model, as the hon. member knows, anywhere in the world that is appropriate or that we could bring in and look at. Australia just recently has struggled with legislation of this type. It too tried to implement something but found it was not workable.

We are trying to find the best way not just to make legislation for the sake of making legislation, but to make legislation that will be effective for all.

[Brian Masse, NDP, Windsor West, ON]

Mr. Speaker, I would also like to follow up with the concern that this bill will die a third death, will not get passed, and we will have thousands of Canadians who will not get due process in a very just way.

One of the concerns was that the incoming Prime Minister, the member for LaSalle--Émard, has set an example where he has decided to fly his ships and operate his business with different flags that have different labour practices and employment wages. It sets an example and I would ask for a comment on that, whether or not that is something that will be part of this mix, and will it ensure the proper political support?

We hear a lot of discussion about other issues but nothing about this one and that gives me great concern.

[Sarmite Bulte, Liberal, Parkdale—High Park, ON]

Mr. Speaker, today is the first day of the fall session and Bill C-45 is on the Order Paper. That speaks to the very fact of how important this legislation is and how important it is to move forward on this matter.

Today is our first day back. We have had debate all afternoon. We will continue to have debate and as soon as we finish that debate we will send it to committee. Again, I urge the hon. member to speak to his House leader, and other opposition members to speak to their House leaders so we can indeed have this legislation brought forward as quickly, effectively and efficiently as possible. Perhaps it could be done before our recess week in October.

[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.

[Brian Masse, NDP, Windsor West, ON]

Mr. Speaker, I would like to congratulate my colleague from the industry committee on a very good speech. He is often very articulate, passionate and well researched. In fact, this is the most relaxed I have seen him, so he must have had a good holiday.

I have two questions. I understand that this is a good bill for workers and their families, but other employers in Ontario have come to me asking for the same type of standards or practices that could be enforced when they want to do the right thing for workers by investing in health and safety. They see their competitors who undermine that by taking shortcuts and not having any enforcement, and are able to get a competitive advantage.

I wonder whether members are hearing the same type of comments in Quebec because it is something I hear. It is not just about the workers. It is about employers who want to do the right thing and their business plans are undermined by those who want to take shortcuts.

My second question is in relation to fines. Currently, the government has a practice of fines on environmental matters which are allowed as a business expense and companies are able to recover a good portion of those fines through tax deductions.

Does the member think that is a good situation or a bad situation? Personally, I do not think that is right. I think there are ethical issues and the practice must be changed. I would hate to see this type of situation develop where a fine can be tax deductible. Does the hon. member agree or disagree with that?

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

Mr. Speaker, in fact, it is interesting to speak on this bill. Perhaps our interest is due to the fact that we can make constructive contributions to improving significant legislation such as the Criminal Code and correcting past problems, so such enthusiasm is understandable.

With regard in particular to the issue concerning other employers, Quebec's practice has developed from legislation on occupational health and safety. At first, employers reacted quite strongly. But with time and given that a parity committee has been made responsible for overseeing this issue, it was realized that, often, the best way to discipline an industry was to ensure adequate management and, with regard to non-criminal workplace accidents, to rectify problems and make it an ultimately positive experience for companies.

Often, the same industry is also responsible for internal discipline, such as disciplining members who do not respect practices as much as they should. Penalties in particular, or dues paid by the employers, are representative of the entire industry. This has helped the industry to mature.

I think it is the same for the Criminal Code. I am sure that the entire mining industry has no desire to see more accidents like the one at the Westray mine. That is very bad for the employers' corporate image. Even if it were only an issue of corporate vision, employers would certainly have an interest in not allowing such situations to occur.

We shall see what they have to say to the committee, but I think they ought to applaud the proposal in front of us, which is the result of many past efforts. If ever there are more points to be considered, amendments can be proposed in committee.

To me, it seems very relevant that both employers and employees have an interest in this matter. When the bill has become law and turns into a fact of life, with cases being argued, then we will see if we have really settled the issue. Practically, if there are fewer accidents and crisis situations, an important part of the problem will have already been solved, because we will have contributed to ensuring that the people are disciplined and act responsibly. In that sense, we will have acted as good lawmakers.

[Alexa McDonough, NDP, Halifax, NS]

Mr. Speaker, I want to congratulate the hon. member of the Bloc Quebecois on his remarks and on his support for this bill.

I am sure the member is aware that with respect to the Westray inquiry the focal point of the recommendations from that inquiry was the behaviour of senior management. Yet, it is the studied view of the steelworkers who were front and centre in pushing for that inquiry in the first place, and then as witnesses in that inquiry, that the bill as it is currently worded only addresses those with direct authority over work being done in a workplace and completely fails to address what was the greatest concern of all which was that officers and directors of corporations should be held criminally responsible for the overall operation of any unsafe workplace.

I wonder if the member is aware of that studied opinion of the steelworkers who have been so instrumental in the drive for this legislation as a result of the Westray disaster and whether he shares that view, a view that he would be prepared to support in a fairly major amendment that would address these inadequacies?

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

Mr. Speaker, indeed, I think this bill can be improved. It is not unlike a stairway where we have several steps to climb. We have climbed a few already. We have reached a level where we can see what still needs to be done to improve the situation.

I would be interested in listening to witnesses and hearing their examples. If the issue is well defined, we could possibly see what amendments are likely to stem from this.

I already mentioned in my speech that currently, for crimes with intent, an organization can be held liable for acts committed by its senior executive if the latter participated in an offence or incited other employees to commit an offence, or a senior executive, knowing that an offence was about to be committed by employees, had done nothing to prevent it.

The fact remains that perhaps more thought could be given to the matter, to ensure that there is no way to avoid liability if all these conditions are not met.

The examination in committee ought to enable us to cover all potential situations. The objective of the bill is to ensure that an organization cannot avoid prosecution if it has in fact committed a reprehensible act. We certainly do not wish to draft a bill that would omit any important aspect of assigning responsibility to the organization.

If there are any amendments that need to be proposed and are worth keeping, then the Bloc Quebecois will certainly be prepared to support them. We will need to see exactly what amendments are in order.

I have a great deal of confidence in those who will be appearing as witnesses, whether representing labour or management. There may also be expert witnesses, people with meaningful experience and backgrounds, especially in the area of occupational health and safety. All of their contributions will be useful.

There may also be laws in place in countries where social legislation is further advanced than Canada's. We are well aware that, as far as occupational health and safety is concerned, and labour law as well, we still have a lot to learn from other countries. The Nordic countries, for instance, have passed some very advanced legislation.

Once all these possible proposals have been forthcoming from the various witnesses who come before the committee to share their views, if there is any amendment worth retaining, the Bloc Quebecois will certainly be there to ensure that the bill is the best it can be.

[Joe Peschisolido, Liberal, Parliamentary Secretary to the President of the Queen's Privy Council for Canada and Minister of Intergovernmental Affairs]

Mr. Speaker, let me begin by saying that Bill C-45 should be supported as it will make a great contribution to promoting safety in the workplace. As was stated earlier on, the hearings of the standing committee had their origins ultimately in the Westray tragedy, and I believe all members wish to do what they can as legislators at the federal level to eliminate as much as we possibly can, deaths and injuries on the job.

The Criminal Code is not the primary way of promoting safety. Strong laws governing the workplace, like those which this government introduced into the Canada Labour Code, vigorous inspection of farm factories, mines and other high risk work sites and training workers and supervisors in the best safety practices are the first line of defence. However the Criminal Code does represent the judgment of Parliament as to what conduct is so harmful that it must be treated with the utmost severity.

Within the code there are distinctions in the severity of the sentence possible, ranging from the most minor offences punishable only on summary conviction to the most serious punishable by life imprisonment. Causing death by criminal negligence is among those offences that are punishable by life and causing bodily harm is punishable by 10 years of imprisonment. Despite the fact that these provisions have been in the code for many years, prosecutions of corporations for death and injury in the workplace have been rare. These changes in Bill C-45 should lead to more accountability for the most serious cases of endangering workers.

Members of the House may be interested to know that outside experts in the field have come to the same conclusion. Cheryl A. Edwards, a lawyer in private practice in Toronto, wrote an article in the August 22 edition of the Lawyers Weekly . The opening paragraph of the article states:

On June 12, 2003, the prospect of both regulatory and Criminal Code prosecutions emanating from a serious workplace accident became much more real. The federal government introduced anticipated amendments to the Criminal Code in Bill C-45, which, if passed, will create positive occupational health and safety-related duties for corporations, individuals, and other parties defined as “organizations”. Bill C-45 will make it easier to convict those parties of criminal negligence for workplace safety violations.

Let us then deal with Bill C-45 as others have, but I would like to also elaborate on this point. What are the elements of Bill C-45 that will enhance the effectiveness of the Criminal Code in holding corporations accountable for safety?

First, there will be the positive duty imposed on those who undertake or have the authority to direct how another person does work to take reasonable steps to prevent bodily harm to any person arising from that work. Application of existing criminal negligence provisions would mean that those parties that fail in this duty and show wanton and reckless disregard for safety in doing so could be found criminally negligent.

Similar duties already exist in statutes and regulations governing the conduct of various businesses and even in the common law. Placing the duty, however, in the Criminal Code is an important signal that Parliament intends that everyone take their responsibility for worker safety very seriously.

The criminal negligence sections of the code already impose a legal duty on parents and spouses to provide the necessities of life and on anyone who undertakes to administer surgical or medical treatment to another to use reasonable knowledge, skill and care. It is right that the duty to protect workers and the public from foreseeable harm be placed in the Criminal Code and so treated in the same way as these other duties.

The mere fact that the legal duty is in the code may also serve to simplify some prosecutions. It can also serve as a wake-up call to those who direct work. Reckless disregard of the duty of care can lead to imprisonment for a very long time.

With respect to corporations that are charged with criminal negligence, the rules for attribution of liability set out in the proposed new section 22.2 of the Criminal Code will make it somewhat easier to establish liability of the corporation than is the case under existing common law rules.

Those rules establish a two step procedure. First, the crown would have to show that the actions of a single corporate representative or group of representatives demonstrated a lack of care that constituted a breach of the new legal duty to take reasonable steps to prevent bodily harm. Then the crown would have to show that a senior officer either acted or failed to act in a way which was in a marked departure from that which could be expected of a senior officer in the circumstances.

Both representative and senior officer are defined. Corporations will be liable for the physical acts and the omissions of the director, partner, employee, member, agent or contractor of the corporation. An important innovation of the proposed reform is that the courts will not have to seek a single person who both committed the negligent act or omission and was a directing mind of the corporation. Bill C-45 provides that conduct by two or more representatives can be added together to constitute the negligent conduct.

For instance, if we consider a death or injury in a mine, there may have been a series of errors by employees and supervisors that all contributed to the accident. If a single employee turned off three separate safety systems and miners were killed as a result of an accident that the safety systems would have prevented, the employee would probably be prosecuted for causing death by criminal negligence but the mine operator might not depending on the particular facts. Did the employee act in defiance of direct orders or did the employee act in accordance with company policy and practices?

On the other hand, if three employees each turned off one of the safety systems, none of the employees would likely be subject to criminal prosecution because each one thought there would still be two systems in place to protect the workers. Under existing rules for attributing liability, the mine operator could very well also escape prosecution because no single person was negligent. However under the proposed rules, the fact that the individual employees might escape prosecution would not be a bar to the prosecution of the corporation. After all, the corporation through its three employees turned off the three systems.

Not only is proving the act of negligence going to be easier under the reforms but finding the wanton and reckless disregard for safety that is necessary for a conviction of the corporation is also going to be easier. The fault of the corporation is found through the actions and omissions of a senior officer, which is defined to include persons who play an important role in establishing the organization's policies, and persons responsible for important aspects of an organization's activities, and in the case of a corporation includes directors, the CEO and CFO.

The existing test developed by the courts is, as people have alluded to, quite restrictive. In the leading case, the Supreme Court referred to the person having so much authority in the corporation that the person could be considered the directing mind, alter ego or soul of the corporation. While the Supreme Court recognized that a corporation could delegate enough authority to managers that the corporation would have more than one directing mind, it is clear that the court is looking for persons on the very highest rungs of the corporate ladder.

Again, in the words of Ms. Edwards in the Lawyers Weekly :

The proposals do not eliminate the “directing mind” doctrine, as it would still be necessary to prove culpability of a senior official. However, the doctrine would be altered to eliminate the requirement to show [their] direct involvement, and it would be altered to allow the actions of lesser corporate representatives to make the organization party to the offence of criminal negligence.

This clearly signals an expectation that senior management take a proactive role in health and safety matters. The conduct of senior management could very well come under unprecedented scrutiny from investigators.

It is not only Ms. Edwards who expects Bill C-45 to have a major impact. In an article in Worksite News, Norman Keith, another lawyer from Toronto specializing in occupational health and safety issues wrote:

Bill C-45 extends legal duties to a new level that will likely include foremen, lead hands, and even co-workers. The requirement “to prevent bodily harm to that person, or any other person, arising from that work or task” goes farther than any current OHS legislation in Canada. Nova Scotia requires employers to be responsible for members of the public at or near the workplace, however, Bill C-45 casts the net farther to include all persons that may be affected by the work or task.

It is certainly my hope and expectation that Ms. Edwards' prediction of “unprecedented scrutiny” and Mr. Keith's prediction of “a higher level of accountability” will come true.

In passing Bill C-35, Parliament will be responding positively to the Westray tragedy. The new rules and the positive duty combined should ensure that the Criminal Code serves to attribute liability in a way that is fair to workers and their employers when there has been death or injury at work.

[The Acting Speaker (Mr. Bélair)]

I am sorry to inform you that there was only one minute left on the clock during your speech. I inform you that you still have nine minutes to go when debate resumes on Bill C-45.

It being 6:30 p.m., the House stands adjourned until tomorrow at 10 a.m. pursuant to Standing Order 24(1).

(The House adjourned at 6.30 p.m.)