Paul MacKlin

[An Act to Amend the Criminal Code (Cruelty to Animals), September 25th, 2003]

Madam Speaker, I am pleased to rise today to introduce the debate on the message from the other place insisting on further amendments to Bill C-10B, an act to amend the Criminal Code (cruelty to animals).

Let me remind the House that we have been on a long journey with this bill. Animal cruelty amendments were originally introduced in 1999 in Bill C-7, a small omnibus criminal law amendment bill.

Bill C-17 died on the Order Paper when Parliament prorogued in 2000 without having completed second reading.

In March 2001 the government introduced Bill C-15, a new and larger omnibus criminal law bill containing the animal cruelty amendments. Some revisions had been made to the amendments to clarify the scope and the intent of the measures. Subsequently, the House split Bill C-15 in 2001 and the animal cruelty amendments and other amendments became known as Bill C-15B. The House passed Bill C-15B in June 2002. It died again when Parliament prorogued that summer.

In October 2002 the bill was reintroduced as Bill C-10 and referred directly to the other place. In November the other place referred Bill C-10 to the committee on legal and constitutional affairs with an instruction to split the bill into two portions. The animal cruelty amendments became known as Bill C-10B.

Committee hearings in the other place commenced in early December 2002 and concluded on May 15, 2003. Bill C-10B then received third reading and was passed in the other place on May 29, with five amendments.

The House debated the amendments on June 6, 2003. The House accepted the amendment to the definition of animal and a small technical amendment to the French version of the bill.

It also accepted the spirit of the amendment that made express reference to the defences of legal justification, excuse and colour of right, with a modification that removed an unconstitutional reverse onus and cross-referenced the currently applicable subsection 429(2) instead of reproducing the defences because this more clearly would indicate to the courts that existing case law should continue to apply to this new regime.

However, the House rejected the other two amendments that came from the other place. One of these was an amendment that would have replaced the offence of killing an animal without lawful excuse with the offence of causing unnecessary death to an animal. The other amendment was one that would have provided an express defence for aboriginal practices that do not cause more pain than is necessary. Both amendments were rejected on the grounds that, first, they were legally unnecessary; second, they were confusing; and third, had unclear legal effect.

The House urged the other place to pass the bill in the form in which the House approved it. A message was sent to the other place to acquaint them with the position of the House.

The other place considered that message and we are now in receipt of its response. The other place is insisting on the two amendments that the House rejected, with a small revision to the aboriginal defence amendment, and would further modify the legal justification, excuse and colour of right amendment adopted by the House.

The government's motion before us today makes clear that the government does not support the amendments that the other place is insisting upon. The House rejected two of them in June and continues to oppose them. As for the proposed change to the colour of right amendment, the government opposes that as well.

These animal cruelty amendments have been before Parliament in one form or another for nearly four years. A lot of hard work and discussions have taken place over that time between the government, and various individuals and groups concerned with the legislation.

In an effort to clarify the law as much as possible, even if the clarification was not required as a matter of law, the legislation has been amended three times already since it was first introduced in 1999.

In the view of the government, the form of the bill passed by the House in June satisfies the remaining concern of the stakeholders that have followed the progress of the legislation. It constitutes a compromise that strikes the correct balance between clarifying the law as it applies to animal industries without diluting the purpose and effect of the legislation.

With the participation of the other place, this hard work and compromise has brought the bill to a form that animal welfare groups on the one side and animal industry groups on the other side can all support.

In short, it seems that no one is asking for these additional changes that the other place is insisting on. The other place may think they are crucial, but this House does not, nor do any of the organizations that represent the people who work with animals.

Let me address each of the amendments in turn. The first amendment would replace the offence of killing an animal without a lawful excuse with the new offence of causing unnecessary death to an animal.

The government is of the view that the defence of lawful excuse is a well developed and well understood defence. The courts have interpreted on many occasions that it is a flexible, broad defence that is commonly employed in the Criminal Code of Canada. It is fairly and consistently applied by courts.

More importantly, since 1953, this defence has been applicable to the offence of killing animals that are kept for lawful purpose. It has a history in the context of animal cruelty offences.

The government is convinced and satisfied that the defence of lawful excuse offers adequate and unambiguous protection for lawful purposes for killing animals. No witnesses who testified at the committee of this House or of the other place testified that this defence was unclear or unsatisfactory.

For all of these reasons the government remains convinced that maintaining the defence of lawful excuse in relation to offences for killing animals continues to be the best and most appropriate manner of safeguarding the legality of purposes for which animals are commonly killed.

Further, the government does not believe that the proposal of the other place would improve the law. In fact, it is likely that the proposal would actually give rise to confusion and uncertainty. The proposal would use the term “unnecessary” to apply to killings, but the term “unnecessary” as it has been judicially interpreted does not logically apply to the act of killing. “Unnecessary” is currently only applicable to the acts of causing pain, suffering or injury. It has two main elements: first, a lawful purpose for interacting with an animal; and second, a requirement to use reasonable and proportionate means when accomplishing this objective.

It is clear that in terms of the act of killing only the first part of the test for “unnecessary” is relevant and logically applicable. The question is, was there a lawful purpose? To ask the question about reasonable means makes no sense. It is not a qualitative assessment but rather a yes or no question about whether there was a good reason for the killing. This is why the defence of lawful excuse works and the concept of “unnecessary” does not.

It is currently an offence to kill an animal without a lawful excuse. It is also an offence to kill an animal with a lawful excuse but in a manner that causes it unnecessary pain. These are currently two distinct and separate offences.

The proposal would fold the elements of these two different offences into each other. This could lead to a reinterpretation of the well developed test of “unnecessary”. In short, this will add confusion rather than clarity to the law. For these reasons the government does not accept this amendment.

With respect to the second amendment, the amendment which would create a defence for traditional aboriginal practices, the government does recognize that a small change was made that removed an element that was overly broad. The amendment would create a defence for traditional aboriginal practices that cause no more pain than is reasonably necessary. The government agrees that this should indeed be the case and in fact already is the case. Therefore, the amendment is not necessary.

By virtue of the way the offence is defined, it is already the law that aboriginal practices, that cause no more pain than is reasonably necessary, are not currently offences. If we cause no more pain than is reasonably necessary, we are not causing unnecessary pain, which is what the offence requires. If we are not committing an offence, we do not need a defence. Nothing in Bill C-10B will change this.

The government believes that the existing law and the bill, without the new and special defence, already achieve the objective sought by the other place.

There is no need to mention aboriginal practices specifically. The law is already flexible enough to consider all situations and contexts. In addition, by adding a new and special defence for aboriginal practices when one is not necessary, this proposal could unintentionally create mischief.

It is confusing to create a defence for actions that are not a crime. The government does not believe that the law would be improved by creating a defence that is legally unnecessary and has the potential to confuse rather than clarify the interpretation of the offences.

The final proposed amendment in the message from the other place relates to the defences of legal justification, excuse and colour of right set out in subsection 429(2). The proposal would remove the phrase “to the extent that they are relevant” from the amendment that was passed by this House in June. The government believes that these words are helpful and should remain.

The defences in subsection 429(2) of the Criminal Code apply to a variety of different offences, including animal cruelty. The inclusion of the phrase “to the extent that they are relevant” is intended to signal to the courts that the existing manner of applying those defences to animal cruelty offences should not change. It makes clear that the intention is to maintain the status quo, not to alter it.

The words are clear and not capable of being misunderstood. The defences are available in any and all cases where they are relevant. The relevance of a defence to a particular case depends on the specific circumstances and the facts of that case. The phrase guarantees an accused access to these defences when they are relevant. It does not limit or otherwise take away a defence that could be raised.

There can be no possible unfairness to an accused person to be denied a defence that is not relevant. That is just common sense. For these reasons, the government does not agree with the amended amendment proposed by the other place.

The government would once again like to thank the other place for giving Bill C-10B such thorough consideration and attention, but the government believes that the time has come to pass Bill C-10B in the form this House approved in June.

This bill already safeguards humane and reasonable practices involving animals and has the support of groups representing hunters, farmers, fishers, animal researchers, and those representing the welfare of animals. There is a tremendous degree of consensus now and a strong desire on the part of these organizations and hundreds of thousands of Canadians to see the bill become law.

I urge all members of the House to vote in favour of the government's message which rejects any further amendments and requests that the other place pass Bill C-10B as quickly as possible.

[Supply, September 18th, 2003]

Madam Speaker, without receiving the details of the transaction and being able to actually analyze what is occurring, it is extraordinarily difficult for one to give an opinion on the process that is being alleged by the hon. member.

Clearly our Canadian tax laws have been designed to minimize the possibilities of individuals defeating the system. The process of treaties is really just a process that builds upon the Canadian tax law and allows its application to be part of the international community that tries to achieve equity and fairness in the taxation of Canadian taxpayers as individuals and also as corporate entities.

With regard to the rules that the hon. member talks of, I am certain that if one examines those rules, in many cases we are permitted to have certain corporate deductions within this country, but in fact when that corporation does declare its world income, it is expected to include a full and complete declaration of all its world income. In the way that we have set up our tax system it should capture all the appropriate income for taxation within this country.

[Supply, September 18th, 2003]

Madam Speaker, if the hon. member was present today and heard the minister speak to this issue, the minister clearly stated that this particular tax convention is under review and that the department continues to review tax treaties around the world on an annual basis. This is not something that goes unnoticed. As imperfections within the rules are found, there is the opportunity for the department to examine and then bring forward to the House changes that ought to be made within our tax rules.

Although today there have been suggestions that tax treaties are a means of evasion, I would suggest that they actually form the basis of a rules process where we are allowed to work within the international community.

We have seen lately with some of the other issues with our trading partners that it is so important to have rules based trading that actually makes sense and which we can rely upon. In this process I think that working with tax treaties establishes rules for inter-country exchanges, as we said for example, people who might attempt to evade taxes. A tax treaty encourages the other country to work with our country to seek out and get the information that we need in order to properly prosecute those who would evade taxes and defeat our Canadian tax system.

From a treaty point of view, I believe that they are very beneficial. I think they are positive, but yes, we must always be vigilant in order to make sure that those rules are effective.

[Supply, September 18th, 2003]

Madam Speaker, needless to say, I certainly do not support any company that would evade taxes, and clearly that is so.

I think the question that is being brought forward today is whether the tax treaties that are in place are beneficial for international trade generally and Canada's role within that.

There seems to be a mixed perspective being suggested today as to the difference between lawful avoidance and unlawful evasion. Clearly, we are trying our very best to make sure that unlawful evasion of taxes does not happen.

The corporations within this country are taxed on their world income. In that process if they are in some way carrying on business through a subsidiary within a country, as is suggested here today, what the tax treaty merely does is in effect it gives either a level of comfort in terms of tax rate or in other ways may allow for us to give credit to them for the tax paid in another jurisdiction.

Clearly there is no question that we are all out to stop those who would evade paying taxes. I think that is clear and I think every Canadian supports that.

In the overall economic scheme of things, we must work together to make sure that Canada remains a viable economic force working in the international community, with positive tax treaties.

[Supply, September 18th, 2003]

Madam Speaker, I welcome the opportunity to speak to the motion put forth by the hon. member for Joliette. While I commend the hon. member for bringing this matter to the attention of the House, I am unable to support the motion.

Following my remarks I am confident that hon. members may well share my views. In the time allotted to me today I want to focus on two issues. First, I want to set the record straight about the government's commitment to tax fairness and tax equity. Second, I want to review with hon. members why Canada has a network of tax treaties or tax conventions, as they are often called, in place.

Let me begin with the tax fairness and tax equity. Since the beginning of our mandate back in 1993, two of the government's ongoing priority areas continue to be sound fiscal management and fairness in our tax system. The government is fully aware that better economic performance for Canada tomorrow requires a more productive, innovative and sustainable economy today.

Our tax system plays an important role in creating a stronger, more productive economy.

An efficient tax structure can enhance incentives to work, save and invest. It can also support entrepreneurship and emergence and growth of small businesses.

In addition, a competitive tax system is critical in encouraging investment in Canada, which leads to greater economic growth and job creation. That is why, in the budget in 2000, the government introduced its five year $100 billion tax reduction plan, which is the largest tax cut in history.

The tax reduction plan is putting in place a tax advantage for business in Canada as a basic part of the strategy for fostering a strong and productive economy. With the tax cuts implemented to date, the average federal-provincial corporate tax rate in Canada is now below the average U.S. rate.

The 2003 budget builds on that tax reduction plan to further improve the tax system and enhance incentives to work, save and invest.

Hon. members will recall that Bill C-28, the Budget Implementation Act of 2003, received royal assent in June. That bill contained several measures that improve the tax system. We will soon be debating Bill C-48 which introduces a new tax structure for the resource sector to make it more internationally competitive, again a measure that stems from that 2003 budget.

I can assure hon. members opposite that the government remains committed to a fair and equitable tax system, one that is reasonable and compassionate and that we will continue to introduce measures as appropriate to ensure that this commitment is met.

This brings me to the topic of today's motion, that is the tax treaties or conventions. Our tax treaties our tax treaties are there to assure us of how Canadians will be taxed abroad. At the same time, these treaties assure our treaty partners of how their residents will be treated in Canada.

Canada, as we have already heard today, has over 70 tax treaties in place. This speaks volumes to the work behind the scenes on behalf of the government to set up this extensive network.

Canada's tax treaties are all designed with two general aims in mind: first, to remove barriers to cross-border trade and investment; and second, to prevent unintended tax results by encouraging co-operation between Canada's tax authorities and those in other countries.

International trade and investment decisions can be influenced by the existence and terms of a tax treaty and their importance in this regard should not be overlooked. Tax treaties do not impose tax nor do they generally restrict countries from taxing their own residents as they see fit under their domestic tax laws. Among other things, however, tax treaties set out the rules under which one country can tax the income of a resident of another country. This is particularly important for traders, investors and others with international dealings who are interested in doing business in Canada. It is only natural that they would want certainty as to the tax implications associated with their activities here and reassurances that they will be treated fairly.

The importance of eliminating tax impediments to international trade and investment has grown even more important now that the world economy has become so intertwined. It should not, therefore, come as any surprise that it can be advantageous to have tax treaties in place with other countries.

One of the most disconcerting things to a taxpayer is unrelieved double taxation, in other words, to have income taxed twice when the taxpayer lives in one country and earns income in another. Without a tax treaty, both countries could claim tax on the income without providing the taxpayer with any measure of relief for the tax paid in the other country.

To alleviate the potential for double taxation, tax treaties resort to two general methods. In some cases, the exclusive right to tax particular income is granted to the country where the taxpayer resides. In other cases, the taxing right is shared but the state where the taxpayer resides is obliged to eliminate double taxation by providing relief for the tax paid in the other country.

Put another way, tax treaties reduce the frequency with which taxpayers of one country are burdened with the requirements to file returns and pay tax in another country when they are not meaningful participants in the economic life of that country or where it would be a nuisance for them to do so.

Withholding taxes are also a common and important feature in international taxation. In Canada's case they were applied on certain income, for example, interest dividends and royalty payments that Canadian residents make to non-residents. Withholding taxes are levied on the gross amounts paid to non-residents and generally represent their final obligations with respect to Canadian income tax. Without tax treaties, Canada usually taxes this income at the rate of 25%, which is the rate set out in our domestic law or, more precisely, under the Income Tax Act.

Our tax treaties specify the maximum amount of withholding tax that can be levied by Canada and its treaty partners on certain income. These rates are almost always lower than the 25% rate provided for in the Income Tax Act.

I now want to turn to the second objective of tax treaties, namely that of preventing the unintended tax results by encouraging co-operation between Canadian tax authorities and those in other countries.

The most obvious unintended result from a tax administrator's perspective is that of tax evasion or avoidance. Like their predecessors, tax treaties are also designed to encourage co-operation between tax authorities in Canada and in the treaty countries to prevent tax evasion or avoidance.

Treaties are an important tool in protecting Canada's tax base as they allow for consultations and the exchange of information between our revenue authorities and their counterparts in these eight countries.

Because of tax treaties, tax authorities are able to deal directly with each other to solve international transfer pricing issues, to reach satisfactory solutions to concerns raised by taxpayers, to complete audits and to engage in other discussions aimed at improving tax administration.

But there are benefits. Many positive benefits ensue for taxpayers and businesses alike from tax treaties. For example, taxpayers benefit from knowing that a treaty rate of tax cannot be increased without substantial advance notice.

Investors and traders benefit from the atmosphere of certainty and stability that the mere existence of tax treaties will foster.

Our tax system works more effectively with the introduction of mechanisms to settle disputes. Our expanded tax treaty network generates more international activity which impacts favourably on the economy. Of course, assurances against unrelieved double taxation are always applauded by taxpayers.

In concluding my remarks, Canada's network of tax treaties with other countries is one of the most extensive of any country in the world. Canada's exports now account for about 40% of our annual GDP. Further, our economic wealth also depends on direct foreign investment as well as inflows of information, capital and technology.

Clearly the impact of tax treaties on the Canadian economy is significant. Without these international agreements, double taxation can adversely affect economic relationships between countries, mainly because tax treaties are directly related to international trade in goods and services and therefore impact directly on our domestic economic performance.

Let me reiterate: The passage of tax treaties results in many meaningful benefits for taxpayers, benefits that include a more simplified tax treaty system, a more stable environment for investors and traders and most important, the elimination of double taxation that might otherwise result in harmful international transactions.

Given the success of the existing tax treaty system and its contribution to creating fairness and equity in the tax system, I feel that the premise of today's motion is not relevant and I am unable to support it.

[Criminal Code, September 15th, 2003]

Mr. Speaker, just before the break we were talking about the issue of probation as it related to Bill C-45 and I would like to carry on with that thought.

Probation is possible for a corporation 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 and recognizes that a heavy fine would cripple the corporation's efforts to reform.

In those circumstances probation makes sense for the corporate offender. Accordingly, we propose that a court be able to order an organization to establish policies to reduce the likelihood of further criminal activity, to communicate those policies to employees, to name a senior officer to oversee their implementation and to report periodically to the court.

We propose as well to give the court the power to order the organization to inform the public of the offence, the sentence and remedial measures being undertaken by the organization. Not only will this allow the public to decide whether it wishes to continue to do business with the organization after the conviction, we believe it could also be a powerful deterrent. No corporation would want to risk having to take out ads in the various media to tell Canadians it has been criminally negligent or it has been committing fraud.

Finally, we are proposing that the maximum that can be imposed on a corporation for a summary conviction offence be quadrupled to $100,000 from its $25,000.

The changes that we are proposing will give Canada a regime for determining the criminal liability of organizations and for sentencing them in a manner that is appropriate for the complex business arrangements that are common today.

I am proud to present Bill C-45 to the House for its consideration.

[Criminal Code, September 15th, 2003]

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.

[Criminal Code, June 11th, 2003]

Mr. Speaker, Bill C-250 which we are debating today proposes to extend the application of the hate propaganda provisions to groups distinguished by sexual orientation.

The purpose of the hate propaganda provisions is to prohibit the public communication of hatred against an identifiable group. An identifiable group is currently defined in the Criminal Code as any group distinguished by colour, race, religion or ethnic origin.

The bill came back to the House by means of new procedures adopted to ensure that private members' bills are given appropriate attention by the committees they are referred to.

In the case of Bill C-250, the bill was examined by the Standing Committee on Justice and Human Rights. The committee held meetings and heard from different witnesses. However due to unfortunate circumstances, the committee was not able to complete its study and conduct a clause-by-clause study of the bill. As a result, Bill C-250 was deemed to have been reported without amendments.

During the committee hearings, witnesses and members alike expressed concerns that excerpts from the Bible on homosexuality would be found to be hate propaganda if the hate propaganda provisions were extended to a group distinguished by sexual orientation.

The committee also heard testimony from Department of Justice officials who advised members that it was unlikely that anything in the Bible could meet the threshold established by the jurisprudence for deciding that a statement constitutes hate propaganda. Their comments were based on the interpretation of the elements of the offence by the Supreme Court of Canada in the Keegstra decision.

The Supreme Court of Canada also stated that the statement had to be made for the conscious purpose of promoting hatred. The Supreme Court said that promoting had to involve active support or instigation to hatred. The Supreme Court said that hatred connotes emotion of an intense and extreme nature that is clearly associated with vilification and detestation. I am not aware of any part of the Bible that would meet this threshold.

More important, justice officials brought to the attention of the committee the existence of a specific defence against the charge of hate propaganda. This defence exists currently in subsection 319(3)(b) of the Criminal Code and it applies to an opinion expressed in good faith on a religious subject.

The defence provision says clearly that no person shall be convicted of an offence of promoting hatred if, in good faith, he or she expressed or attempted to establish by argument an opinion on a religious subject.

By way of example, I am certain that the Bible is a religious subject. Therefore, the existence of this defence comforts me in the belief that quoting from the Bible would fall under this defence.

I am convinced that the Bible would not be found to be hate propaganda if Bill C-250 became law.

Throughout the committee hearings it became apparent that Canadians want it to be crystal clear that it will be possible to continue quoting and teaching the Bible or other religious texts without being concerned about being accused of propagating hatred.

Motion No. 1 as drafted provides this kind of reassurance. This amendment would clarify the application of the defence to an expression of opinion based on a religious text when the opinion is expressed by a person who believes in the text. I support the intent of this amendment and hope it will help to further reassure all those who have expressed concerns.

Motion No. 2 would extend to an offence under subsection 319(1) the requirement that any attorney general consent to the prosecution of this offence. The offence under subsection 319(1) is different from the other hate propaganda offences for which the attorney general's consent is currently required.

Specifically, the offence in subsection 319(1) is that of incitation to hatred which could result in a breach of the peace. Although at first glance this would seem positive, requiring the attorney general's consent for this offence could result in delaying police intervention in circumstances where physical violence against victims is imminent.

In addition, this provision could impact on provincial and territorial attorneys general, and they have neither been consulted nor given an opportunity to consider the implications of this amendment. In order to maintain positive relations, it is essential that they be consulted and be allowed to comment on a proposal such as this. With this in mind, I cannot support Motion No. 2.

The third motion amends the definition of hate propaganda in subsection 320(8) to exclude any religious text for the purposes of seizure and forfeiture of hate material. I submit that this motion is unnecessary and could result in excluding unintended material. Section 320 allows seizure and forfeiture of texts only where “the communication of which by any person would constitute an offence under section 319”.

This means that the only texts that can be seized are texts which meet the high threshold established by the Supreme Court of Canada for hate propaganda offences and to which none of the defences, including the religious belief defence, apply. Under existing legislation, a text that expresses a bona fide religious opinion would therefore not be seized. Motion No. 3 might open the door to abuses in the interpretation of religious texts. It proposes to protect all religious texts from seizure, without a definition and without a bona fide test as exists in section 319. As a result, it would protect any writing that is claimed to be a religious text. It would not allow a distinction between bona fide religious texts and bogus religious texts. They would all be equally protected.

An amendment with such serious implications requires further examination to assess its impact, not only on hate speech based on sexual orientation but also on hate speech based on the existing criteria, that is, race, colour, religion or ethnic origin. This amendment should also be discussed with the provinces and territories because of the potential for negative impact. For these reasons, I cannot support Motion No. 3.

In conclusion, with the amendment from the member for Scarborough--Rouge River so that the necessary balance is struck between adding protections for this identifiable group and on the other hand ensuring that those who quote or teach in good faith the Bible or other religious texts are not accused of inciting hatred, I accordingly ask members to consider doing the right thing for all Canadians.

[National Maritime Day, June 10th, 2003]

Madam Speaker, I rise today to bring to the attention of hon. members, National Maritime Day, which has been proclaimed for September 3 in the city of Belleville. On behalf of the hon. member for Prince Edward—Hastings, I am pleased to bring this issue to the attention of the House.

The resolution of the city of Belleville reads, “In peace and in conflict, ships and seafarers have held a special place in our nation's history”.

This resolution goes on to speak of the historic importance of seafaring in the history of both the European settlers of our region and country and the aboriginal peoples before them.

I ask all hon. members to join me in paying tribute to the countless Canadians who have a close attachment to our seafaring past and present and congratulating the city of Belleville on commemorating these historic roots.

[Question No. 226, June 6th, 2003]

Mr. Speaker, I ask that the remaining questions be allowed to stand.