John Maloney

[Westray Mine, February 18th, 2000]

Mr. Speaker, I am pleased to speak to Motion No. 79.

The motion from the hon. member for Pictou—Antigonish—Guysborough recommends that this House express its opinion that the criminal code should be amended to address the issue of the criminal liability of corporate executives and directors. I commend the member opposite for again bringing this issue before the House. It is one which requires our serious consideration.

It is evident that this motion has its origins in a tragic explosion in the Westray mine on May 9, 1992 in which 26 miners were killed. The subsequent public inquiry set up by the Nova Scotia government clearly established that mismanagement created an unsafe working environment that was a direct cause of the disaster. Throughout the inquiry and the prosecutions that followed from the investigation into the tragedy the responsibility of Westray officers and the Westray Corporation itself emerged as important and contentious issues.

The inquiry, chaired by Mr. Justice Peter Richard, produced the four volume report “The Westray Story: A Predictable Path to Disaster”. Judge Richard's report set out 74 recommendations aimed at improving mine safety so that such incidents never happen again, so that mining operations never again, in his words, go down that path to disaster.

I would like to read into the record recommendation 73 of Mr. Justice Richard's report as it forms the basis of the motion we are debating today:

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 properly accountable for workplace safety.

I agree there is merit in examining the criminal law as it deals with the criminal responsibility of corporations. However, it is much more likely that we will need a combination of preventive, remedial and punitive measures in order to keep us from going down that path of disaster again. The solutions to the problem of corporate responsibility therefore will be found in a mix of criminal law, labour code regulation and the regulation of business activity.

Before I address the role of the criminal law in such a system, I will give an example of how preventive and remedial measures outside the criminal code can advance the objectives of workplace safety.

On October 28 last year the Minister of Labour introduced Bill C-12, a package of amendments to part II of the Canada Labour Code designed to improve workplace safety in industries under federal jurisdiction.

This legislation expands the responsibilities of both employers and employees in creating a safe work environment. It establishes three fundamental rights for employees: the right to know about hazards in the workplace; the right to participate in correcting the hazards; and the right to refuse dangerous work.

There is no point in having a right without a remedy. Therefore, Bill C-12 expands the role of workplace health and safety committees in inspecting workplaces and in investigating complaints. Similarly when an employee refuses to perform tasks that are considered dangerous, the legislation will streamline the complaint resolution process.

The Canada Labour Code also makes it an offence to contravene any of these rules and creates sanctions in the form of fines and terms of imprisonment.

We can leave the debate on Bill C-12 to another day but I urge colleagues to keep in mind that initiatives such as Bill C-12 serve many of the same objectives as the criminal law changes suggested by Judge Richard in the Westray report.

The motion before us today does not actually identify a particular amendment to the criminal code. Therefore, I would like to point out some of the factors involved in creating a criminal law sanction for corporate misconduct in the workplace. Any examination of the criminal law in this area must consider both the responsibility of a corporation itself and the liability of the people who are employed by that company.

On the first point, it should be understood that under the current law, it is already possible to charge a corporation with a crime. Section 2 of the criminal code includes companies in the definition of person and there have been instances where corporations have been charged with crimes. In fact in the Westray case, charges of manslaughter and criminal negligence causing death were laid against Curragh, Inc., the owner and operator of the mine, as well as individual employees of the company.

It is also important to note that the Supreme Court of Canada held in a 1985 case that a corporation will generally be liable for a criminal offence if a corporate director or officer commits an offence for the benefit of the corporation in the course of his or her employment.

In 1993 a subcommittee of the House Standing Committee on Justice and Solicitor General, as it was then called, issued a report on the recodification of the general part of the criminal code. This is the part that deals with fundamental components of criminal offences such as culpability and defences.

The subcommittee took the view that express rules on the liability of corporations should be added to the general part in a way that makes a sharper distinction between the company's liability and that of its employees. The subcommittee recommended as follows:

A corporation [should be] liable for conduct committed on its behalf by its directors, officers or employees acting within the scope of their authority and identifiable as persons with authority over the formulation or implementation of corporate policy, notwithstanding that no director, officer or employee may be held individually liable for the same offence.

If we want to change the current law, there are other approaches that deserve consideration.

Australian law makes it possible for a company to be charged with offences requiring intention, knowledge, recklessness or negligence. The Australian statute focuses on actions by the company's board of directors and its agents that tacitly or expressly authorize or permit the commission of a criminal offence.

I will turn briefly to the criminal liability of individual employees of a corporation as opposed to the corporation itself. As individuals the employees can be charged with any criminal offence they commit and for which they are morally responsible. Section 23 of the criminal code also creates criminal liability for anyone who is a party to an offence, which means doing or omitting to do anything for the purpose of aiding someone to commit that offence, or abetting that person in committing the offence. Section 23 also makes it an offence to counsel another person to be a party to a crime. Therefore, there is already a way of getting at individual employees whose misconduct in the course of their duties amounts to a crime.

These provisions in the criminal code are important because if the corporation has a general duty to comply with the law, individual directors and officers also have a duty to take into account interests beyond those of shareholders and beyond the balance sheet.

I understand that in the aftermath of the Westray inquiry the attorney general for Nova Scotia requested that the Minister of Justice for Canada address recommendation 73 of the Westray report and that the minister has agreed to do so. This step having been taken, I would suggest that the motion before us today does not advance the process.

Finally, criminal laws created by parliament should also recognize the role of provinces in the area of workplace safety. In this regard I note that the Westray report also recommends that the province of Nova Scotia undertake a review of its occupational health and safety legislation and take whatever steps are necessary to ensure that officers and directors of corporations doing business in the province are held properly accountable for the failure of the corporation to secure and maintain a secure workplace.

For these reasons I oppose this motion as it does not further the study of criminal law in this area.

[Petitions, February 18th, 2000]

Mr. Speaker, pursuant to Standing Order 36, I wish to present a petition which draws to the attention of the House that Canadians are horrified by child pornography and are astounded by the legal determination that possession of child pornography is not a criminal offence. It is the duty of parliament, through the enactment and enforcement of the criminal code, to protect the most vulnerable members of our society from sexual abuse.

Therefore, the petitioners pray that parliament take all measures necessary to ensure that the possession of child pornography remains a serious criminal offence and that federal police forces be directed to give priority to enforcing this law for the protection of children.

[Privacy Act, February 8th, 2000]

Madam Speaker, we have before us a motion that would lead to the establishment of a legislative committee of the House to prepare and bring in a bill to remedy what the hon. member refers to as the weaknesses of the Privacy Act. The bill would include relief or compensation for persons who suffer as a result of the improper disclosure of their private information and it would impose penalties for those who wilfully violate the provisions of the Privacy Act. Let me say at the outset that the Minister of Justice does not support this motion.

There are two laws that affect the protection of personal information held by the federal government. First, section 8 of the Canadian Charter of Rights and Freedoms states that everyone has the right to be secure against unreasonable search or seizure. This section has been interpreted to deal with privacy.

Second, the Privacy Act protects personal information collected by the federal government. The Privacy Act was brought into force in 1983 with the agreement of all parties in the House. The act provides individuals with access to their personal information held by the federal government. It further gives individuals some controls over the government's collection and use of this personal information. It also protects the individual's privacy by limiting those who may see this personal information and for what purpose it might be used.

The Privacy Act sets out the principles of fair information practices thereby requiring the government to collect only the information needed to operate its programs, to collect the information directly from the individual concerned whenever possible, to tell the individual how long it will be used, to keep the information long enough to ensure access by the individual, and to take all reasonable steps to ensure the accuracy and completeness of personal information.

It should be noted that no federal legislation is in place to protect personal information held by the private sector. In response to concerns raised by Canadians, the government recognized the pressing need for statutory reform regarding the practices of private sector organizations in relation to personal information.

In October 1998 the Minister of Industry introduced Bill C-54, the personal information protection and electronic documents act, to address these concerns. Bill C-54 was introduced in this session as Bill C-6 and was adopted by the House in October last year. When part I of Bill C-6 comes into force it will apply to organizations in the private sector and will establish their obligations for the protection of personal information. The government is very proud of Bill C-6 and of the value Bill C-6 will add to the privacy laws in Canada.

As the government continues to scrutinize closely the developments in the area of the privacy law, part of the government's ongoing work is to monitor the practices and trends, both in the public sector and in the private sector, involving the collection, use and disclosure of personal information and to consider ways that laws relating to privacy can be improved.

In his motion the hon. member for Skeena raises a number of interesting points that should be taken into account in the government's ongoing review of the Privacy Act.

We do, however, have some reservations when it comes to reviewing and amending the present privacy legislation. We feel it would be premature to strike a legislative committee to look at a reform of the Privacy Act.

This said, the government continues to carefully monitor the current laws relating to the use of personal information. Now that a framework for the protection of personal information is nearing completion with Bill C-6, improvements to federal laws can be considered on a more measured scale. The government will ensure that the interests of all stakeholders are heard, assessed and weighed.

Canadians have demonstrated to us that they value the protection of their personal information and that they appreciate the responsiveness of the government to their concerns. Government will continue to respond to the concerns and needs of all Canadians.

[Questions On The Order Paper, February 8th, 2000]

(a) The question asks about spousal benefits in federal legislation. It is difficult to define such a term as federal legislative treatment of spousal relationships includes direct economic benefits, indirect economic benefits, non-economic advantages and obligations. Listed are the major federal statutes which grant direct economic benefits. Some statutes which grant direct economic benefits to dependants may not be reflected in the list. The majority of the statutes listed set out criteria for eligibility beyond spousal status. For example, some are available only to low income couples, others to federal employees, and yet others provide for garnishment of wages and pensions in the case of court ordered support.

Employment Insurance Act, S.C. 1996, c. 23;

Merchant Navy Veteran and Civilian War-related Benefits Act,

Pension Benefits Division Act, S.C. 1992, c. 46 Sch. II;

Some federal statutes such as the Income Tax Act involve a mixture of potential benefits and obligations depending on individual circumstance. b ) Spousal benefits in federal legislation have been extended to same sex couples only in respect to employment-related pensions for federal public servants in Bill C-78, an act to establish the Public Sector Pension Investment Board, to amend the Public Service Superannuation Act, the Canadian Forces Superannuation Act, the Royal Canadian Mounted Police Superannuation Act, the Defence Services Pension Continuation Act, the Royal Canadian Mounted Police Pension Continuation Act, the Members of Parliament Retiring Allowances Act and the Canada Post Corporation Act and to make a consequential amendment to another act, which amended the following six statutes:

(c) Bill C-78 received royal assent on September 14, 1999.

Other employment-related benefits were extended to federal public service employees by the treasury board with regard to their same sex partners under employment agreements in November 1995 for bereavement leave, family related responsibility leave and relocation leave and in July 1996 for medical and dental plans.

(d) As mention in (b), the changes to the federal public service pension plans were introduced through legislation, Bill C-78. However a series of recent court and tribunal decisions have found generally that there must be equal treatment of opposite-sex common law couples and same sex couples in most instances. The government continues to believe that policy and legislative changes should be made by parliament, but that it is reasonable to seek the guidance of the courts on difficult legal issues.

The major court and tribunal decisions include: The provision of the Income Tax Act which allows employers to register pension plans was ruled contrary to the Canadian Charter of Rights and Freedoms in the Rosenberg decision, as it did not allow registation of pension plans where employers chose to offer survivor benefits to same sex partners of employees, Ontario Court of Appeal, 1998. The decision of the Federal Court, Trial Division in Moore and Akerstrom affirmed the decision of the Human Rights Tribunal that the federal government must grant the same employment benefits under collective agreements to same sex couples as those offered to common law spouses of public service employees, 1998. In May of 1999, two challenges before the Pension Appeals Board to the survivor benefit provisions of the Canada Pension Plan were conceded, Hodder and Boulais, and a similar case was conceded before the Federal Court of Appeal in September, Fisk, resulting in a payment of survivor benefits to the three individuals involved. In November 1999, the Government of Canada settled a number of cases, including White, which involved the challenge to the voluntary quit provisions of the Employment Insurance Act. There are a number of arbitral decisions and decisions under provincial jurisdiction which have also awarded benefits to same sex couples, including the recent decision of the Supreme Court of Canada in M. v H., (May 1999). There are many pending court cases in this area.

Question No. 20—

[Petitions, February 8th, 2000]

Mr. Speaker, I have the honour to present a petition pursuant to Standing Order 36 from residents of my riding echoing some of the petitions filed here this morning bringing to the attention of the House that one in five Canadian children are living in poverty and that in November 1989 parliament unanimously passed a motion to eliminate child poverty by the year 2000. In fact it has increased by 60%.

Therefore the petition calls upon parliament to use the federal budget for the year 2000 to introduce a multi-year plan to improve the well-being of Canada's children.

[Youth Criminal Justice, December 17th, 1999]

Mr. Speaker, the primary purpose of the new youth criminal justice bill is the protection of the public. We are doing this by accountability, fairness and rehabilitative measures.

Many factors go into a decision. In the new bill the government is proposing that adult sentences may be applied to children younger than 16 and 17. In this case an adult sentence may be applicable in the situation.

[Justice, December 17th, 1999]

Mr. Speaker, Mr. Kelly's section 690 application was referred to the Ontario court of appeal. In May of this year the court, in a two to one decision, responded to two questions on the reference by advising the minister that none of the new information presented to the minister would be admissible on appeal. I appreciate that the court of appeal examined the facts very carefully and presented reasoned judgment.

Further submissions have been received by Mr. Kelly's counsel and they are presently being considered by the justice minister and the department, and a decision will be made fairly and objectively in the near future.

[Holiday Message, December 17th, 1999]

Mr. Speaker, the holiday season is a time when Canadians gather to renew the cherished bonds of family and friendship; to look back on the year and indeed the century coming to a close; to look ahead with anticipation to the new year and the next millennium that beckons. Most important, it is a time to reflect on our many blessings as a people and our nation.

Let us be thankful for our prosperity, our matchless natural beauty, our rich diversity, above all, our sense that we are truly a family and that Canada is our home. No matter where we live we care about each other and work together. That is our proud history and our bright future.

May the goodwill of the season inspire us to embrace both the challenges and opportunities ahead with spirit and enthusiasm, to keep a special place in our thoughts for those of our Canadian families who are less fortunate and to reach out to them during the holidays and in the year to come.

[Parliamentarians' Code Of Conduct, December 16th, 1999]

Mr. Speaker, December 1 marked the first anniversary of the beginning of the implementation of the new firearms legislation. I would like to assure my colleague that contrary to the opinion of some here, this new program is making a real difference, a difference we can measure.

First, it is making a real difference in terms of public safety. The objective of the firearms legislation is to create a culture of safety regarding firearms in Canada and to keep guns out of the hands of those who should not have them. Looking over the record of the past year, we can plainly see that the program is doing just that.

Stricter eligibility checks on licence holders and applicants is one piece of evidence. Officials have refused 587 new applications for public safety reasons and have revoked 504 licences to individuals who no longer meet the eligibility requirements. This number is significant. It is seven times higher than the total for the past five years. It is a measurement of the success of a new system that provides more information in a timely manner to public safety authorities.

The checking system is also successful in uncovering cases of licence falsification, unauthorized sale of firearms and spousal abuse.

Second, the program is making a difference in terms of what it offers police. The program has provided police services with concrete savings. In fact, there is an annual saving of $30 million because officers no longer have to do the paperwork of accepting applications and issuing licences. This allows police more time to do policing. It certainly does not take police off the streets and it does not reduce municipal, provincial or RCMP police budgets. In fact, the federal government reimburses provinces and other administrators of the system for the work they do in the firearms program.

Then there is the fact that the registry provides vital information to police, information that is invaluable to criminal investigations. It enables police to take preventive measures when responding to emergency calls and to identify guns held illegally.

In fact, Canadians should be proud of the country's firearms legislation. This legislation will make our communities safer. It is unfortunate that the Reform Party refuses to see this fact.

[Parliamentarians' Code Of Conduct, December 16th, 1999]

Mr. Speaker, it is a pleasure to rise on behalf of the President of the Treasury Board to respond to the hon. member's question.

As the President of the Treasury Board has stated in the past, we are committed to employment equity and need to continue making progress in representation and distribution of designated group members.

We are working toward a federal public service that reflects the population it serves. The government wants to create a workplace of choice and to be supportive of employees' well-being. Recognizing diversity, career aspirations and the learning and developmental needs of employees will lead to better service for Canadians. Further proof of the government's commitment is our continuing investment in this area.

The former President of the Treasury Board established a nine member task force to develop a comprehensive action plan and recommend measures for improving the participation of visible minorities in the federal public service. This initiative will help foster the necessary momentum and commitment to create a new culture in the public service. This is proof of the government's resolve to make the public service of Canada better reflect and respond to Canada's diverse society.

During the fiscal year 1998-99, the government made continued progress in our ability to attract and recruit persons in a minority. While we have made steady progress, we recognize that we need to increase our efforts.

A fund of up to $10 million annually has been set aside for the employment equity positive measures program which has been established to address systemic barriers to recruitment, development and retention of designated group members.

The Treasury Board Secretariat, Public Service Commission and departments and agencies are working in partnership to develop strategies and initiatives to address employment equity challenges and opportunities to achieve tangible results.