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37th PARLIAMENT, 1st SESSION

Standing Committee on Justice and Human Rights

EVIDENCE

CONTENTS

Thursday, May 2, 2002

0935

The Chair (Mr. Andy Scott (Fredericton, Lib.))

Mr. Dave Whellams (Counsel, Criminal Law Policy Section, Department of Justice)

The Chair

Mr. Dave Whellams

0940

0945

0950

0955

The Chair

Mr. Dave Whellams

The Chair

Mr. Dave Whellams

The Chair

Mr. Greg Yost (Legal Counsel, Criminal Law Policy Section, Department of Justice)

1000

1005

The Chair

Mr. Dave Whellams

The Chair

Mr. Michel Bellehumeur (Berthier—Montcalm, BQ)

The Chair

Mr. Bill Blaikie (Winnipeg—Transcona, NDP)

1010

Mr. Dave Whellams

Mr. Bill Blaikie

Mr. Dave Whellams

Mr. Greg Yost

1015

Mr. Bill Blaikie

Mr. Dave Whellams

The Chair

Mr. Paul Harold Macklin (Northumberland, Lib.)

Mr. Dave Whellams

1020

Mr. Greg Yost

The Chair

Mr. McKay

1025

Mr. Greg Yost

Mr. Dave Whellams

Mr. John McKay

Mr. Dave Whellams

1030

Mr. John McKay

Mr. Dave Whellams

The Chair

Mr. Ivan Grose (Oshawa, Lib.)

Mr. Greg Yost

Mr. Ivan Grose

Mr. Greg Yost

Mr. Ivan Grose

The Chair

Mr. Bill Blaikie

Mr. Dave Whellams

The Chair

Mr. Bill Blaikie

1035

Mr. Dave Whellams

The Chair

Mr. John Maloney (Erie--Lincoln, Lib.)

Mr. Dave Whellams

Mr. John Maloney

Mr. Dave Whellams

Mr. John Maloney

The Chair

Mr. Peter MacKay (Pictou--Antigonish--Guysborough, PC)

1040

Mr. Dave Whellams

1045

Mr. Peter MacKay

Mr. Dave Whellams

The Chair

Mr. Greg Yost

1050

The Chair

Mr. John McKay

Mr. Dave Whellams

Mr. Greg Yost

1055

The Chair

Mr. John McKay

Mr. Dave Whellams

The Chair

Mr. Peter MacKay

Mr. Dave Whellams

The Chair

Mr. Peter MacKay

1100

Mr. Dave Whellams

The Chair

Ms. Dominique Vaillancourt (Vice-President, Director of Outreach and Communication, Canadian Council for the Rights of Injured Workers)

1110

The Chair

Ms. Maria York (President, Canadian Council for the Rights of Injured Workers)

1115

The Chair

Ms. Maria York

1120

The Chair

Mr. Doug Perrault ( President, Ottawa and District Injured Workers Group)

1125

The Chair

Mr. Vern Theriault

1130

The Chair

1135

Mr. Jay Hill (Prince George—Peace River, Canadian Alliance)

Mr. Doug Perrault

Mr. Jay Hill

Mr. Doug Perrault

Mr. Jay Hill

1140

Mr. Doug Perrault

Mr. Jay Hill

The Chair

Mr. Jay Hill

Mr. Doug Perrault

The Chair

Mr. Michel Bellehumeur

Mr. Doug Perrault

Mr. Michel Bellehumeur

Ms. Dominique Vaillancourt

Mr. Michel Bellehumeur

1145

Mr. Doug Perrault

The Chair

Mr. Vern Theriault

1150

The Chair

Mr. Bill Blaikie

Mr. Doug Perrault

1155

The Chair

Mr. Peter MacKay

The Chair

Ms. Maria York

1200

The Chair

Ms. Maria York

The Chair

Mr. Peter MacKay

Mr. Vern Theriault

1205

Mr. Peter MacKay

Mr. Vern Theriault

1210

Mr. Peter MacKay

Mr. Vern Theriault

Mr. Bill Blaikie

Mr. Vern Theriault

The Chair

Mr. Paul Harold Macklin

1215

Ms. Maria York

Ms. Dominique Vaillancourt

Ms. Maria York

1220

The Chair

Mr. Doug Perrault

The Chair

Mr. Kevin Sorenson (Crowfoot, Canadian Alliance)

Mr. Vern Theriault

Mr. Kevin Sorenson

1225

Mr. Vern Theriault

Mr. Kevin Sorenson

Mr. Vern Theriault

Mr. Kevin Sorenson

Mr. Vern Theriault

Mr. Kevin Sorenson

Mr. Vern Theriault

Mr. Kevin Sorenson

Mr. Vern Theriault

The Chair

Mr. Doug Perrault

The Chair

Ms. Maria York

1230

The Chair

Mr. Ivan Grose

Mr. Vern Theriault

Mr. Ivan Grose

The Chair

Mr. Peter MacKay

The Chair

Mr. Doug Perrault

The Chair

Mr. Paul Harold Macklin

1235

The Chair

Ms. Maria York

Mr. Paul Macklin

Ms. Maria York

Mr. Vern Theriault

Mr. Macklin

Mr. Vern Theriault

Mr. Doug Perrault

The Chair

1240

Mr. Peter MacKay

The Chair

Mr. Peter MacKay

The Chair

Mr. Peter MacKay

The Chair

CANADA

Standing Committee on Justice and Human Rights

NUMBER 084

1st SESSION

37th PARLIAMENT

EVIDENCE

Thursday, May 2, 2002

[Recorded by Electronic Apparatus]

¿ (0935)

[English]

The Chair (Mr. Andy Scott (Fredericton, Lib.)): I call to order the 84th meeting of the Standing Committee and Human Rights.Today, pursuant to the order of reference of February 19, 2002, Bill C-284, an act to amend the Criminal Code, offences by corporations, directors and officers, will be the subject of our deliberations.

To help us in those deliberations, we have as witnesses, from the Department of Justice, Greg Yost, legal counsel, criminal law policy section; and Dave Whellams, counsel in the criminal law policy section.

I understand there's going to be a tag-team approach here. You have15 minutes. Is that probably going to do it?

Mr. Dave Whellams (Counsel, Criminal Law Policy Section, Department of Justice): We might run a little long, but we're going to do it in two sections, Mr. Chairman. We could pause after the first one. I'll do the first part and my colleague, Mr. Yost, will do the second, and we'll see how it goes.

The Chair: Then with that, Mr. Whellams, please proceed.

Mr. Dave Whellams: Sure. Thank you very much, Mr. Chairman.

First of all, on behalf of the department, I want to thank you for the opportunity to appear at the beginning of your deliberations in what is a very important and, I believe, complex area of the criminal law.

We've provided a discussion paper electronically and we have extra copies here. I trust that members have been provided with that discussion paper. We hope that will prove useful to you.

We've tried to cover most of what we consider the fundamental, core issues in designing laws around the area of corporate criminal liability. I understand you are undertaking a comprehensive review of the law in this area, and we think we've targeted some of the main issues. This morning, as Mr. Yost and I discuss this matter with you, we're going to try to cover the highlights of that discussion paper and identify some of the trends in the law in Canada over the last number of years, and in other countries.

As I said, the area is a complex and difficult one, partly because, as you'll see from what other countries have done, there are a number of ways to go in codifying the law in the area of corporate criminal liability. I just have a quick quote from the late Mr. Justice Estey, who was writing in what is the leading Canadian court decision, Canadian Dredge and Dock, on this subject. He said. “The position of the corporation in criminal law has been under examination by courts and lawmakers for centuries. The questions which arise are manifold and complex.” I think that is true.

I'll quickly go through some of the backdrop and background to the way the law has developed in Canada. If there's time, Mr. Yost will allude to trends in other countries.

I wanted to briefly allude to the circumstances of Westray. Certainly the Westray tragedy will be foremost in your minds as you deliberate on this matter. I'm not going to review the facts of that tragedy, but I would like to briefly mention a couple of aspects of the legal issues that arose there, just as part of the backdrop that helps in the contextualizing, if you will, of the legal issues.

Not only did the Westray inquiry result in a number of recommendations in a range of areas, but of course running almost parallel to the inquiry were the criminal charges of manslaughter and criminal negligence laid against two directors of the company and the company itself, Curragh Incorporated. The prosecution of those charges was highly controversial.

In the first trial, the trial judge ordered a stay of the manslaughter charges against the accused. He based his decision on the Crown's non-disclosure and late disclosure of relevant material. It should be noted that at that point, Curragh Incorporated had gone into receivership and was not represented at the trial, which certainly complicated the effectiveness of the prosecution.

That stay of proceedings was overturned on appeal to the Nova Scotia Court of Appeal and a new trial was ordered. The Supreme Court of Canada eventually dealt with the matter. Despite the fact that they had grave misgivings about the conduct of the Crown, they upheld the order for a new trial. However, before the trial could get underway, the Nova Scotia public prosecution service discontinued the prosecution.

As you know, public concern over the handling of the case led to the appointment of the Honourable Fred Kaufman to review the prosecution services' handling of this matter. He in turn appointed Duncan Beveridge and Patrick Duncan to review the handling of that prosecution. The reports from those two gentlemen point out that as late as February 9, 1998, the prosecution team believed there was a reasonable likelihood of conviction on both the criminal negligence and manslaughter charges if they had proceeded to trial.

One of the things that stymied that prosecution was the three expert witnesses. One of the expert witnesses changed his mind as to the cause of the explosion, and it was this reversal in the expected testimony of one of the Crown's experts that effectively raised a reasonable doubt and led to the prosecution team recommending that charges be dropped.

When Judge Richard's inquiry got to this aspect of the situation in Westray, he concluded there was no one reason that could be said to have caused the failure of that prosecution. He listed eight significant factors, which I won't go into, that led to the failure of the prosecution, but in fact none of them involved any problems with the way the Criminal Code and the common law dealt with corporations or the liability of directors.

¿ (0940)

I only point that out because, although Judge Richard indeed had important things to say about the state of the law in the area of corporate criminal liability, that prosecution itself did not in any really helpful way test out the law.

I'll just quickly jump to an aspect of Judge Richard's recommendations. You know what recommendation 73 said that recommended a full review of the state of the law. But I quote a comment towards the end of his report, where he said the “virtual evaporation of Curragh Inc., and the aborted criminal trial of Phillips and Parry”--the two directors--“have renewed concerns about the accountability of corporations and their executives.”

To quote again:

These concerns have been succinctly expressed in a supplemental brief to this Inquiry from the United Steelworkers of America, a party to the Inquiry. The union urges that I take three rather bold initiatives:

Recommend the creation of a new criminal offence “that would impose criminal liability on directors or other responsible corporate agents for failing to ensure that their corporation maintained an appropriate standard of occupational health and safety in the workplace.”

Recommend the creation of the offence of “corporate killing.”

Recommend the adding of provisions to the Occupational Health and Safety Act that would broaden the liability of directors and officers for offences under the act to “prevent such individuals from hiding behind the corporate veil when the corporations violate health and safety legislation.”

So I think Judge Richards certainly set down the markers for you and for the Department of Justice. Certainly the first two of those recommendations are foursquare within the scope, I would think, of your inquiry about what the criminal law does. The third area, in terms of liability for occupational health and safety, will also come under your scrutiny, I would expect, because what might be called regulation of regulatory offences under occupational health and safety and labour laws will have points of intersection with the criminal law.

I want to move briefly to give you a bit of backdrop for the development of law in Canada and in Commonwealth jurisdictions generally. We can face the fact that the criminal law has always had difficulties bringing corporations and other associations of individuals, such as partnerships, non-profit organizations, and even organized unions within its ambit. This is partly because of common-law traditions. The criminal law normally requires commission of the forbidden act or failure to perform the required act--in other words, the actus reus. It also requires, as a second component, an intent to commit the act, the mens rea, or the guilty mind.

A corporation, as we know, is not a physical being, even though it controls assets, etc. It is not in every respect the same as an individual person. This indeed has led to difficulties going back centuries in terms of characterizing the liability and the responsibility of corporations. Indeed, large parts of the current Criminal Code do not logically or sensibly apply to corporations. For example, a corporation itself cannot give a DNA sample. Certain areas of moral offences--sexual assault, per se--do not apply to the corporation. So the law has always struggled for the mechanism to decide the scope of liability and, really, the nature of liability of companies.

In terms of intent, this committee of course is reviewing the mental disorder provisions of the Criminal Code. It would be difficult to conceive of a corporation being found unfit to stand trial or not criminally responsible on account of mental disorder. This is part of the set of concepts and the parsing out that needs to be done in this area.

On the other hand, an area that the law has grabbed onto is the connection between the corporation's liability and the actions of its employees, directors, managers, and agents. Indeed, these are concepts within the criminal law that may help us in establishing the rules for corporate criminal liability.

Another distinction between criminal law and other types of law is that the criminal law tends to carry a greater punishment. I think one of the important areas to be addressed, among many, is the nature of sentencing, punishment, remedial orders, and remedial action. You'll see in other countries quite a range of powers in the area of sentencing and the powers of the court to order remedial action to be taken by the company that's the accused.

¿ (0945)

In fact, because of these kinds of difficulties the common law initially held that corporations could not be charged with crimes. Indeed, this position is still popular with some. Just last Thursday there was an editorial in the Financial Post entitled “Corporations Can't Be Criminals”. So the idea is alive out there.

Early law under the British tradition and the common law stated that it is essential there should be something in the nature of mens rea, and therefore in ordinary cases corporations aggregate cannot be guilty of a criminal offence. Around 1909 there was some evolution towards corporate criminal liability, but only in what would be called exceptional areas: public nuisance, criminal liability, contempt of court, certain absolute liability offences where you don't have to prove mens rea. So there was a slow evolution to finding companies liable under the criminal system.

In 1915 the House of Lords found a company liable on the basis that natural persons who commit the offence was really the directing mind. In other words, a manager or a senior employer of a corporation was found liable for a criminal offence, and there was an attribution, as long as that person was considered the directing mind, to the corporation. In the phrasing that I'm quoting, it's the “directing mind and will of the corporation, the very ego and centre of the personality of the corporation”.

Indeed, this idea, which stems from a 1915 judgment of the House of Lords, has been very influential in the Canadian law as it has evolved.

On a side note, the United States imputed criminal liability of corporations earlier than the British jurisdictions tended to do, and by the end of the 19th century several supreme courts at the state level had upheld criminal convictions against corporations for offences involving mens rea. I'll quote one of them, because I think it's a point of reference.

In 1909 the U.S. Supreme Court, dealing with a conviction in a case involving a railway violating interstate commerce laws, held, and I quote:

It is true that there are some crimes which, in their nature, cannot be committed by corporations. But there is a large class of offenses...wherein the crime consists in purposely doing the things prohibited by statute. In that class of crimes we see no good reason why corporations may not be held responsible for and charged with the knowledge and purposes of their agents, acting within the authority conferred upon them.

That's a fairly good summary of one of the key concepts of attributing liability to the corporation itself.

I'll quote a little more, because I think it's fairly eloquent:

We see no valid objection in law, and every reason in public policy, why the corporation, which profits by the transaction, and can only act through its agents and officers, shall be held punishable by fine because of the knowledge and intent of its agents....

[The law] cannot shut its eyes to the fact that the great majority of business transactions in modern times are conducted through those bodies...and to give them immunity from all punishment because of the old and exploded doctrine that a corporation cannot commit a crime would virtually take away the means of...correcting the abuses aimed at.

Briefly mentioned, I think the European jurisdictions--I won't go into all of those--have generally been reluctant over the years to apply the criminal law to corporations. There are certainly articles we can refer you to on those jurisdictions in the European tradition.

I'll skip ahead to the fact that a number of European countries--you may want to reference them--have expanded the law of corporate criminal liability. The Netherlands has it for areas of economic crime since 1976; Norway moved in the eighties to establish criminal liability for some enterprises; France, in 1994, incorporated criminal punishments in its new penal code; Finland and Denmark moved in 1995 and 1996, respectively.

To sum up the backdrop to Canadian law, and some of it is indeed in this discussion paper that we've provided, the current Criminal Code, as it now stands, includes very limited reference to criminal liability of corporations. One important factor in the code, though, is the definition of “person”, or “every one”, or indeed “owner”, in section 2 of the code, which I'll quote. The terms

include Her Majesty and public bodies, bodies corporate, societies, companies...in relation to the acts and things that they are capable of doing and owning respectively;

I would respectfully suggest that this is a very broad encompassing of who is a corporation, who is a company, but it's not entirely clear.

¿ (0950)

I think there's work to be done to analyse, first of all, and to decide to whom corporate criminal liability laws should apply, whether to unincorporated non-profit associations, partnerships, etc. And as you look at various jurisdictions, they have all struggled with the concept of the definition and the scope of corporation.

I'd also add that the code does not provide any rules for determining what are the acts and things that these enterprises are capable of doing. It's been left to the courts to decide.

I'm going to skip ahead a bit. There was a slow evolution of the law, but frankly, as I mentioned earlier, the leading case is a 1985 case in Canadian law, Canadian Dredge and Dock. It is not essentially related to the statutory law of the Criminal Code. It is related to the evolution of the common law. The facts of situation were certainly complicated, but briefly, the case involved price fixing with respect to dredging contracts. The charge was conspiracy to defraud with respect to those contracts.

The Supreme Court of Canada in that case had occasion to review the state of the law in Canada, the U.K., Australia, New Zealand, and the United States, and ultimately it held that this corporation was criminally liable. It confirmed the theory that the actions of key officers in that company were in effect the actions of the company. This is a form of identification or attribution theory, and that's tended to be in fact the common law approach in Canada.

The actor employee who physically committed the offence in this case was--and again, this phrase was used--the “ego of the corporation”, or the vital organ of the company, and virtually its directing mind. And you'll see in the limited amount of Canadian case law the concept of “directing mind”. It has been refined in further cases, which are identified in the discussion paper. Essentially, in a somewhat narrow way, it has been defined as essentially those parts of management or the direction of the company that set policy and are responsible for it. So this is where the courts are going to focus their inquiry, according to this identification theory per Dredge and Dock.

Let me amplify a bit in terms of what this doctrine requires. To obtain a conviction against a corporation, the prosecution must demonstrate that the action taken by this directing mind, first of all, was within the field of operation assigned to him, and not totally in fraud of the corporation. So, however you want to characterize it, if there is a rogue employee, a rogue director who is acting well outside the scope of his mandate, his employment contract, or the rules of the company, or the purposes of the company, there may be an excuse or a defence for the company in that area.

It also has to be established that his action was, by design or result, partly for the benefit of the company. In a way, this identification theory has been criticized for being too narrow, because only the actions of high-level managers are going to attract the liability of the company itself. It can be in fact difficult to trace the circumstances that I just described. Was this person acting within their authority? What was the actual nature of the decision-making?

So in a way it may be difficult to prove and might be considered too narrow an approach in terms of what circumstances will attach liability to the corporation. I know you'll be hearing witnesses like Professor Healy and, I hope, Professor Boisvert, who will probably comment in the same way in more detail about the identification theory.

The identification theory has been criticized for being too broad, because it automatically attributes the actions of senior managers to the company without giving sufficient weight to the efforts of the company to prevent the illegal activity.

If we have time, Mr. Yost will talk about the American situation, where they have, in a way, a tighter and tougher system. It attributes liability to the company, but on the other hand, the courts have a system of enquiring in more detail about what efforts the company made before the offence occurred, when they were charged, and indeed there is provision afterwards for taking action.

In terms of what Canada has tried to do in law reform, I think you may be aware of some of this, because the standing committee was involved. Briefly, then, the Law Reform Commission of Canada in 1986 published a report on recodifying the criminal law. The report was revised again in 1988, and there were proposals there covering 30 aspects of the criminal law, including some aspects of corporate criminal liability. I'm not going to go into that in the interests of time.

¿ (0955)

The Chair: Could you give me some idea of how much time...? It's important that we get the background, but I want to plan our discussion. We have a certain amount of time allocated, and I know members are going to want to ask questions. Just give me some idea as to how long this may be.

Mr. Dave Whellams: My component is finished in about a minute, and Mr. Yost's component might take 15 minutes. He's trying to cover some of the international stuff.

The Chair: Okay, please proceed.

Mr. Dave Whellams: I'll only touch on the highlights of the history.

A working group of officials looked at the Law Reform Commission report. Some options were developed there. They're mentioned in the discussion paper.

A subcommittee of this standing committee was formed, and it held hearings in 1992. I believe that material is already available to you. We certainly can make it available if need be. The subcommittee report was tabled in February 1993. It recommended that a corporation be liable for conduct committed by those with authority over its actions, whether or not there is an individual who could be held personally liable for that conduct. It's certainly somewhat broader than your traditional identification theory.

At that time, the Government of Canada responded to the report by tabling draft legislation that would have made the corporation liable for offences requiring intent or recklessness, where a person in authority in the corporation had the necessary state of mind. It also dealt with the negligent offences. So in fact there's another reference point if you're looking at various options.

Just turning quickly to Bill C-284, the bill that's been referred to you and the subject of which you're studying, it is quite another, different model. It is close to the Australian model. I'll just mention some of its highlights. It uses the corporate culture concept. If he has time, Mr. Yost will talk about that. That goes in one direction. Actually, in the interests of time, I won't go into detail on that. We can refer to it as we go along.

I just want to mention that Bill C-284, because it goes this corporate culture route and has other aspects, is broader than the white paper proposal from the early 1990s.

I'm going to stop there. I think it's important that we get to some of the other models in Australia, the U.K., and the U.S., because they will be points of reference.

The Chair: Thank you very much.

Mr. Yost.

Mr. Greg Yost (Legal Counsel, Criminal Law Policy Section, Department of Justice): Thank you.

I will try to cut this down as much as I can.

It has already been mentioned that it's only recently that many countries in the European Union began to change their law so that a corporation could be criminally liable. The current law in the United Kingdom, and at the state level in Australia, is close to the law, as set out in Canadian Dredge and Dock Co.

However, the United States has taken a much different approach. At the federal level, a corporation can be liable for the actions of its agents acting within the scope of their office or employment, regardless of the agent's position within the corporation. I would point out, however, that many states have adopted the provisions of the model penal code. It requires that the commission of the offence be “authorized, requested, commanded, performed or recklessly tolerated by the board of directors or by a high managerial agent”.

Some of the most interesting work in the United States has been done by the United States sentencing commission, which prepares guidelines on sentencing. The system is extremely complicated. Basically, every offence is given a point score from 1 to 43, and then fines are established. The original work didn't deal with corporations very well, because most of the guidelines called for people being sent to prison. It was only in 1991 that the commission developed a chapter in the guidelines dealing specifically with corporations. I would suspect the standing committee may want to look at that chapter.

The chapter reflects the following general principles. The court must, wherever practical, order the organization to remedy any harm caused by the offence. The fine range should be based on the seriousness of the offence and the culpability of the organization. Probation is an appropriate sentence for an organizational defendant, when needed to ensure that another sanction will be fully implemented.

The commission guideline fines start at $5,000 and go up to $72.5 million for the most serious offences. These fines are multiplied by the corporation's culpability score, based on such factors as whether there was participation in or tolerance of the offence by high-level personnel. The significance of the culpability score is that, if the offence occurred despite an effective program to prevent and detect violations of the law, and if the corporation promptly reported the violation when it became aware of it, in cases where a corporation has a culpability score of zero--that it did everything right--the prescribed fine can be multiplied by 0.05. Conversely, a corporation that was very slack could have the fine multiplied up to four times. In practice, then, the maximum fine is 80 times the minimum fine for the same offence. Obviously, there's an incentive for a corporation to have an effective program to prevent and detect violations of the law.

The commission sets out elements of such a program, including: the organization must have established compliance standards and procedures to be followed by its employees; specific high-level personnel of the organization must have been assigned overall responsibility to oversee compliance with such standards and procedures; the organization must have taken steps to communicate effectively its standards and procedures to all employees and agents; and the standards must have been consistently enforced through appropriate disciplinary mechanisms.

As I mentioned, both Australia and the United Kingdom currently have laws very close to Canada's. However, in the past decade, both of these jurisdictions have considered the criminal responsibility of corporations and have made proposals for reform, which are set out in greater detail in the discussion paper.

In Australia, the proposals for reform grew out of an attorney general's project to develop a model criminal code. The federal level has very limited criminal jurisdiction in Australia, covering such matters as treason, espionage, and offences on the high seas. The bulk of the criminal law is under state jurisdiction.

The Commonwealth adopted a new criminal code based on the model criminal code in 1995. For offences requiring intention, knowledge, or recklessness, a corporation can be found liable by proving that: the board of directors expressly or tacitly authorized the offence; a high managerial agent engaged in or authorized the offence; a corporate culture existed that encouraged or tolerated the offence; or the corporation failed to maintain a corporate culture that required compliance with the law.

A corporate culture is defined as “an attitude, policy, rule, course of conduct or practice existing within the body corporate generally or in the part of the body corporate in which the relevant activities take place.”

À (1000)

A high managerial agent is “an employee, agent or officer of the body corporate with duties of such responsibility that his or her conduct may fairly be assumed to represent the body corporate's policy.”

The new Commonwealth Criminal Code has been in force for only a few years. Perhaps because of the narrow ambit of Australian federal criminal law, we've not been able to find a case in which a corporation has been charged with a criminal offence and the new provisions interpreted by the Australian courts. However, Australian courts have dealt with this in the context of environmental offences and consumer protection legislation--matters of that kind.

In the United Kingdom, the impetus for reform was a series of disasters, including the sinking of the Herald of Free Enterprise, where 187 people died. The criminal law was unable to come to grips with the corporate wrongdoing.

In its paper on manslaughter, the Home Office summarized current British law. Before a company can be convicted of manslaughter, an individual who can be identified as the embodiment of the company itself must first be shown himself to have been guilty of manslaughter. There can often be great difficulty in identifying an individual who is the embodiment of the company and is culpable.

The British Law Commission has recommended replacing manslaughter with offences, including a new offence called “corporate killing”. The British government has accepted the recommendations in principle but is doing further consultations, and no legislation has yet been tabled in the Parliament of the United Kingdom.

The proposed corporate killing offence is based on corporate conduct falling far below what could reasonably be expected. A death is regarded as having been caused by the conduct of the corporation if the way in which its activities are managed or organized fails to ensure the health and safety of persons employed in or affected by its activities.

The corporate killing model appears to have gained some favour in Australia. Last November the government of the state of Victoria tabled a bill called “Crimes (Workplace Deaths and Serious Injuries)” which, unlike the British proposal, deals only with death or injury of workers. Corporations are responsible where their conduct involves a great falling short of the standard of care that a reasonable body corporate would exercise in the circumstances. The maximum fine for causing death is $5 million, and for causing injury $2 million. The conduct of the company as a whole must be considered, and the conduct of any number of employees, agents, or senior officers of the company may be aggregated.

Negligence may be evidenced by the failure of the company to adequately manage or supervise its employees, to engage a person reasonably capable of providing contracted services, to provide adequate systems for conveying relevant information, or to take reasonable action to remedy a dangerous situation of which a senior officer has knowledge.

The Victoria legislation reverses the current law, which requires finding an individual negligent and then attributing the state of mind of that individual to the corporation. It proposes that where a corporation has committed the offence, a senior officer who was organizationally responsible for the conduct, contributed materially to the commission of the offence, and knew that there was a substantial risk of injury or death is guilty of an offence. The senior officer faces five years' imprisonment and a fine of $180,000 where a death occurred, and two years' imprisonment and a fine of $120,000 where there was injury. This provision is perhaps similar to the directors' and officers' liability proposed in Bill C-284 for unsafe working conditions.

With that, we are now open for questions, Mr. Chairman.

À (1005)

The Chair: Thank you very much.

It's been our practice in the past that the department's been able to provide us with a table with various elements, various jurisdictions, and a grid. Perhaps it would be helpful to members if you could provide something similar.

Mr. Dave Whellams: It would be helpful to us as well, so we will undertake to do so. No, it's quite true, because there are many options and many variations among the models.

The Chair: Thank you very much.

Mr. Sorenson will have to leave shortly, so we're going to go directly to Mr. Bellehumeur for seven minutes.

[Translation]

Mr. Michel Bellehumeur (Berthier—Montcalm, BQ): I have no questions. The presentation was clear.

[English]

The Chair: I'm willing to bet that Mr. Blaikie's going to have a question.

Mr. Bill Blaikie (Winnipeg—Transcona, NDP): Well, you could have bet your house on that one. I don't have a lot of questions, but perhaps I have a comment leading to a question.

It's interesting, at the level of general theory about this, that corporations can't be treated as persons for the purposes of criminal liability, and yet of course they are treated as persons often, it seems to me, for the purpose of economic.... There seems to me to be a kind of disorder in the law, where they have all the freedom that comes with the status of persons when it comes to economics, but they have none of the responsibilities of persons when it comes to the consequences of their actions.

At any rate, it's beyond the scope of our inquiry here, but it's interesting to me that a lot of our economic theory is based on this equivalency between corporations and persons when it comes to freedom, but when it comes to responsibility, all of a sudden there's a big difference and they can't be held responsible in the same way.

Just to continue in the same vein, you were talking, I think somewhat cryptically, about the fact that we've been studying mental disorders, and this was separate question. But is it? When we consider mental disorder, we're really asking whether or not somebody is morally responsible. It may be that there's a kind of mental/moral disorder in a corporate culture that prevents it from thinking about the things it ought to be thinking about.

The thing I wanted to ask--and you alluded to it just towards the end, because I was thinking of this--is, what benefits would you see...? This inquiry arises out of the Westray mine disaster, and that's was a form of corporate killing, if you like, of employees through negligence. What advantages would you see, or have you observed in other countries, where, instead of...? I read the discussion paper, and a lot of the corporate liability you're talking about is corporate liability for everything, such as environmental damage and consumer products. Even the dredge and dock thing has to do with fraud. What advantages would you see in a more limited amendment to the Criminal Code that talks about only...? Would this make it less complex and therefore more doable if we just looked at amendments to the Criminal Code that would create criminal liability for deaths or injuries to a corporation's employees as a result of negligence?

À (1010)

Mr. Dave Whellams: Greg may want to comment. I think you've raised a number of points, but the first point is obviously corporate manslaughter. Corporate killing would be narrower than a broad liability theory applied.

I also think that you end up struggling with the same legal concepts. Corporate killing requires a “management failure”, I believe is the terminology. Well, a management failure is essentially conduct that falls below a standard. You're into the business of defining a standard there. Similarly, you have to define a standard vis-à-vis the broader theory of whether it's identification or corporate culture. You're engaged in the same legal issues of defining the standard of conduct.

You are also engaged in a process, and this is something I really didn't touch on. Whether you're talking about an identification theory being applied to a set of facts or the corporate culture, you're inviting the courts to engage into a full inquiry into the conduct of a corporation.

So I think a lot of the same legal issues would apply if you went, as we can say, to the narrow approach of a single offence of corporate killing or corporate manslaughter.

Mr. Bill Blaikie: Would it be easier?

Mr. Dave Whellams: I don't know if it would be easier. It might be easier in some ways, because we're talking about a very distinct offence, where perhaps it would be easier to grasp the concept of the connection between corporate conduct and something so terrible as the Westray disaster. But generally, I would say you're dealing with some of the same concepts.

Mr. Greg Yost: In looking at the law, the idea of aggregating a number of mistakes made in a corporation--none of which would expose the individual person to a charge of, say, causing death by criminal negligence, because it wasn't that bad--and saying, “Looking at this in total, the company failed”, in a situation like Westray I would have thought it would have been helpful to the prosecution, although not against the corporation, since it was bankrupt.

Would there have been a practical result? I don't know.

One of the criticisms of the American approach, if your agent has done it, has been that you fix criminal liability on the employer, notwithstanding the fact that you can come up with a culpability score of zero. The corporation did everything right, and one employee blew it somehow. Yet the corporation is found criminally liable and can be subject to fines. It's just trying to argue to keep the fines down.

So in terms of how that fits with regulation of safety in the workplace, it is a difficult question. You mentioned “creating a paper trail”. It certainly does encourage corporations to be ready with a defence that they did everything they were supposed to do if, unfortunately, somebody gets killed or some other criminal offence occurs.

À (1015)

Mr. Bill Blaikie: There are all kinds of situations that I'm aware of, in the railway and everywhere else, where there are all kinds of rules that everyone's supposed to follow, but there's an expectation on the part of management that you will not follow those rules if there's a train they want to get out or if there's some deadline they want to meet. You're in trouble if you don't break the rule. If you break the rule and everything's fine, then everything's fine. But if you break the rule and something happens, well, then, it's your fault as the employee rather than the company, when in fact there's a culture of expectation that the rules will only be observed when it suits efficiency, so to speak.

That would be a very hard thing to prove, it seems to me, if you had the paper trail and it's only the paper trail that you're looking at. But if you're looking at a corporate culture, that might be different.

Mr. Dave Whellams: I think you're going to hear from other witnesses including, I hope, Professor Boisvert, who wrote a recent paper a couple of years ago for the Uniform Law Conference. I don't know if that's been provided to the committee, but we'll make sure it is.

It expresses some favour toward the corporate culture. I want to get a quote from her onto the record. She said, “corporate culture refers primarily to the chain of command, the decision-making structure and the general atmosphere” within a corporation.

It would be nice to have more results from the Australian experiment and the Australian law, but as Mr. Yost says, there haven't been any real prosecutions there. But you know that the court, in order to make corporate culture work to meet that standard, is going to engage in a very intensive investigation into things like chain of command, what the rules were, and how the rules were or were not followed.

The Chair: Thank you very much.

Mr. Macklin, for seven minutes.

Mr. Paul Harold Macklin (Northumberland, Lib.): Thank you.

I guess part of what we're going to be working through here, and you may not be in a position to help us on this, is the cause and effect relationship between what we're trying to bring about through these hearings, and that is to try to achieve a means that I would believe is the best way to deter; or, to the contrary, to encourage compliance within the corporate system.

Do you have any indications from any of the research or work you have done that would indicate there may be a change in the culture, in a corporate sense, as a result of a particular way in which the laws are expressed in, for example, the United States? Is there any noticeable indication that since they have introduced their system, there has been a change in the corporate culture, the thinking process, that leads them in a direction that is more directed toward making the workplace safe? Because I think that's really what we're trying to do here. This is the goal here. It's not just to create a law; we want something that will actually function and work in an appropriate manner to preserve and protect those who work in that company's milieu.

Mr. Dave Whellams: I would certainly fully agree. We're talking about criminal law, so there's no reason we should not be focusing on all the classic elements of what sentencing is about, as articulated in the code and as applied in these situations. We are talking deterrents. We are talking about the ability to implement remedial action, and above all we are talking prevention here, I think.

You're quite right; the U.S. often does things in a big way, and in cases where there have been prosecutions of corporations under their system, we're talking some fairly large-scale impacts on both society and individual victims as well as on the corporation itself. As Mr. Yost mentioned, in the federal sentencing structure they use an elaborate grid for establishing penalties and go up to something like $72 million.

We have to ask ourselves what our objective is here. The first objective, obviously, is the classic deterrence and prevention goal of the criminal law, to send the signal out there that you should put preventive measures in place along with good corporate practice and good corporate guidelines. You'll see companies putting compliance programs in place in anticipation of the risk of problems. This is because they are huge and far-flung, and indeed their operations can be risky in terms of, say, environmental damage, etc. I don't think this is beyond the scope of your inquiry in this study you're undertaking.

Similarly, you see remedial regimes, something that really isn't evident in some of the models such as Bill C-284, which I really think should be looked at. It's a very complex area, but if you notice other schemes such as the British, the Australian, and especially the American, there is indeed an ability to order remedial action.

There is one model, which isn't entirely an American one, where they'll suspend in a way the conviction--it's more complicated than that, but that's the impact--if the company undertakes remedial action. This is because the company is running a big risk if they're facing conviction here.

You were indicating, Mr. Macklin, the fact that the law becomes a point of reference for corporations taking actions even before they face prosecution. Similarly, at the other end is the whole area of remedial action. The British take a different approach, but they have it as well. The whole area of remedial action is extremely important.

The British one is interesting because of this connection--you raised it, Mr. Blaikie--between actions that are sort of in the regulatory area and may in a way replace safety issues that are dealt with by other legislation. The remedial approach the British are proposing is that even though the criminal courts may convict and order action, they're having it implemented by non-criminal-justice-system agents--that is, by health and safety people as well.

That's maybe a long-winded way of answering your question, but I think there are two very important dimensions to achieving the objectives of the law in a sense.

Greg, did you want to add to that?

À (1020)

Mr. Greg Yost: I would just mention one of the criticisms that has been made of the probation model in the United States, that you end up with courts displacing state occupational and health authorities and federal authorities. The courts establish programs themselves without having anywhere near the supposed expertise of at least the government agencies that are in charge of these corporations normally.

One other thing I should point out is that the Americans--we talked about the range of fines--have been criticized for basically bankrupting corporations. You put people out of work, and what have you actually accomplished? Most of the injured workers are covered by workers' compensation, and therefore they cannot get any further benefits at all.

For that reason, about five years ago the sentencing guidelines in the United States were modified to state that--except if the corporation exists for a criminal purpose, one designed to do fraud--fines should take into account the viability of the corporation, its ability to continue should it pay the fine. If that didn't work, they came up with community service orders for corporations: send out the employees to do whatever you do in a community service order for a corporation that can't afford the fines.

The Chair: Thank you very much.

Mr. Hill? Mr. Bellehumeur?

Mr. John McKay.

Mr. John McKay (Scarborough East, Lib.): This bill is based on a kind of a corporate culture model. I assume the drafters had more of an array of models they could have chosen. I'm not clear from your testimony whether this is an adoption of the Australian corporate-culture model or whether it's unique unto itself. That's my first question.

The second question is, what other choices could the drafter have taken, and how would this bill look different from how it presently looks? It seems to me the drafting and the language used are directly out of the code in terms such as “management of corporations” and “knew or should have known” and concepts such as that.

It's not clear to me how the different models you referred to--U.S., U.K., Australia--would look different in language.

À (1025)

Mr. Greg Yost: There are just different drafting conventions in various countries, where different words have been used to express essentially the same thoughts.

Bill C-284 appears to have been inspired by the Australian-model criminal code, which has been adopted at the federal Commonwealth level. There is a difference, in that the Australian legislation has a definition of corporate culture. Instead of just leaving it out there for the courts to grapple with it, it talks about elements that constitute a rule, a policy, that kind of thing.

The second part of Bill C-284, of course, is the one dealing with the liability of the officers of a corporation. There's a very large difference between what is in Bill C-284, which calls on the person for criminal liability if they haven't taken all reasonable steps, and the Australian and British models, which require that there be a marked departure from the standards of a reasonable corporation. That's a very different standard to apply.

Mr. Dave Whellams: Certainly you can compare the concepts of corporate culture; there are several around. This one is close to the Australian model; indeed, it's very much the Australian model, subject to the differences Mr. Yost has mentioned, in defining what corporate culture does in the organization. Words like “directed”, “encouraged”, “tolerated” are variations on the theme within Bill C-284.

Bill C-284 does have some drafting issues. They talk about liability for every offence, but they're not quite sure what an offence is, although there is another model submitted recently by the Steelworkers, which partly solves that problem by saying “an offence is an offence under the Criminal Code”. Nonetheless, the Steelworkers' model, Bill C-284, and the Australian model have some similarities in terms, as Mr. Yost says, of codifying the concept of corporate culture.

Mr. John McKay: If the committee were attracted to this notion of grid punishments or grid fines, and if the grid concept were introduced into the Criminal Code on something such as this, is there any implication for other forms of criminality?

Mr. Dave Whellams: It would certainly be innovative in terms of what the Criminal Code does on sentencing. It would vastly expand the regime, if you will, not only for determining the fine structure, but that structure would have to be linked--at least if you followed the U.S. model--into an assessment of the degree of culpability of the corporation. So we're into somewhat innovative areas in terms of what the Criminal Code does on sentencing. I'll have to leave it to you to decide whether it's an appropriate direction to go, but it would certainly be a complex structure.

Let's make sure we don't mix this up. The U.S. does not use a corporate culture model. It uses that model.

À (1030)

Mr. John McKay: No, I know.

Mr. Dave Whellams: Other jurisdictions don't seem to have quite that complex or formal a grid approach, but they do have ways of inquiring into areas of restitution--remedial orders--in the British and Australian systems as well.

The Chair: Thank you, John.

Mr. Grose.

Mr. Ivan Grose (Oshawa, Lib.): Thank you, Mr. Chair.

A long time ago I worked for a company that had a motto on the dashboard of every vehicle, toolkit, and wall of their establishments: “No service is so urgent, no job so difficult”-- I've forgotten, it's been a long time--“that you cannot take time to perform your work safely.” This applied to workers and management. In fact it applied to everyone within the corporation.

Would this be enough to get the corporation off the hook, under the things you've studied and under our Bill C-284, if someone disobeyed the rules and caused a major disaster?

Mr. Greg Yost: By itself, no. It would be a piece of evidence in the American system certainly, which would tend to show the efforts of the corporation to instill a respect for safety amongst its employees. However, the prosecution could still bring forward evidence that these signs were on the wall, but people were winking, nudging, and ignoring them all the time.

So by itself it certainly wouldn't be enough. It would just be one of the factors in the trial.

Mr. Ivan Grose: In this particular case the company meant it. If you were caught violating one of their safety rules, that was it, you were gone, and you would have to work somewhere else.

So this, of course, they would introduce as evidence that they had done their very best.

Mr. Greg Yost: The fourth element I mentioned amongst the U.S. rules was that there had to have been effective sanctions against employees who had failed to obey the law, or, in this case, to follow safe procedures.

So, yes, again, that would be very strong evidence as to how they had treated it, just as evidence that safety violations had been ignored for years would be very strong evidence against the corporation.

Mr. Ivan Grose: But there would still be enough evidence to make at least an attempt at a case. What I'm getting at is that if that were enough evidence, everyone would have that sign on the walls inside the corporation. It would negate what we were trying to do.

But you've answered my question. Thank you.

Thank you, Mr. Chair.

The Chair: Thank you very much.

Mr. Blaikie.

Mr. Bill Blaikie: Just on that, I think the question is fair enough. But it's not just a question of trying to determine whether employees have broken some kind of rule. It's also a question of what the rules are, and what the orders have been.

In Westray, for example, it wasn't a question of employees doing something they had been ordered not to do. It was a question--if I understand it correctly--of them retooling the furnace in an entirely different way, hosing it down instead of using mist over time to let it cool. The company was trying to do this in a hurry.

So if you're an employee, and you're ordered to do this in a particular way, it's a case of the company deciding to do something in a dangerous way, because they're in a hurry, as opposed to employees breaking some kind of well-established practice.

Mr. Dave Whellams: I think the point has already been made that the corporate culture dictates that you do a full-scale inquiry into both the formal rules and what actually happened in terms of the actions of the company, etc. That's part of the answer to Mr. Grose's question, that, no, that small disclaimer does not get you off the hook. Instead, you do a full inquiry.

It's almost in the phrasing. I'm quoting the Steelworkers' case. They talk about a corporate culture that existed within the corporation that encouraged, tolerated, or led employees, etc., to believe the conduct that constituted the offence would be tolerated, encouraged, etc. This is what is behind or leads the concept of full-scale, corporate cultural inquiry.

I'll stop there.

The Chair: Thank you very much.

Did you want another one?

Mr. Bill Blaikie: Just following that up, one of the things that often happens...and here again I think it's a case of corporate culture or orders being given. What we often find in a lot of cases where employees are killed on the job is that these are young people, people who are brand new, and they don't even know.... If you ask somebody who's been there for five years to go and do something dangerous, he might tell you to get stuffed. But if you ask some kid who just got there, and he's trying to prove himself--or she, but generally it's he--he doesn't want to look like a wimp or a chicken, and it's “Yeah, okay, I'll go do it”, and the next thing you know, he's dead.

In that case, it seems to me you have a corporate culture that takes advantage of the willingness of new or younger employees.

I'm thinking of a case in a place I worked, where the guy was brand new on the job. If you're moving trains or rolling stock at Symington yard and you're a trainman or a switchman, you have to go through all kinds of training, rules, and everything else. But let's say you're in the back shop somewhere, and you just started. They need a carful of rail to go into the rail plant, and they say, “You go and get it”. If you say, “I've never done that before”, they may say, “Don't worry, you'll be fine.” The next thing you know, you're caught between two gondola cars and you're dead.

That's the kind of thing where there's corporate criminal liability for not training people properly or for asking them to do stuff they're not trained to do.

À (1035)

Mr. Dave Whellams: Of course, you've stated a fairly obvious point. There are workplace health and safety laws, and there are federal and provincial laws that deal with workplace standards and this kind of thing as well. This is a whole broad area of inquiry, the relationship between the regulatory approaches and the criminal law.

In a way, and speaking extremely generally, there's no reason why they can't coexist, but some rationalization probably has to occur in that regard. And of course, on the criminal law, you're still applying criminal law standards of culpability.

The Chair: Thank you very much.

Mr. Maloney.

Mr. John Maloney (Erie--Lincoln, Lib.): If this were a government bill, the justice minister and the Attorney General for Canada would have to certify its constitutionality. Does this legislation meet that test? If there are weaknesses, can you recommend changes that may satisfy that? Are we concerned about provincial jurisdiction?

Mr. Dave Whellams: On the first question, in terms of rights and the charter, etc., we have not done a full-scale analysis of this. There is a certain amount of literature. Articles written by Professor Healy talk about the charter defences that may be available to a corporation, a somewhat different approach, different perspective, to that of an individual. There may be charter issues related to criminal law standards, by which I mean the ability to form a specific intent.

One would expect a challenge to a corporate culture model as one model, based on whether you were attributing culpability to the corporation as a person, as the accused, in an inappropriate way. It's an accumulation of factors in some ways. It sets a standard--the section I just quoted--for encouraging conduct, etc. So there may be issues of the mens rea, and the actual intent and culpability of the corporation may be challenged under the charter. I have to say we have not done a full-scale analysis on this.

In terms of jurisdiction, that's another area, but in terms of criminal laws, the law of general application, those laws can certainly apply. That's a short answer on that question.

I don't think, frankly, the corporate culture model--not that I'm necessarily advocating it--constitutes any interference in provincial jurisdiction, because I think it's going to be structured in terms of the criminal law authority of Parliament.

Mr. John Maloney: Will you be doing an assessment of the act with a view to charter rights?

Mr. Dave Whellams: Yes, we will be. I think we have to in this case.

Mr. John Maloney: You will advise us in due course?

Mr. Dave Whellams: Indeed.

Mr. John Maloney: Thank you.

The Chair: Thank you, Mr. Maloney.

Mr. Peter MacKay.

Mr. Peter MacKay (Pictou--Antigonish--Guysborough, PC): Thank you, Mr. Chair.

Thanks to you both for your very detailed and intelligent analysis of this legislation and this issue that has, I think, plagued us for some time.

There is a bit of a combined criminal/civil liability issue here when you talk about “piercing the corporate veil”, the old law term. Yet what we find in this particular bill that might not bear the constitutional scrutiny that my colleague, Mr. Maloney, has raised, is this idea of reverse onus, wherein, for all intents and purposes, an individual or a corporation must prove that they took the due diligence steps to ensure that safety prevailed, that certain standards were met.

Can you comment on that and on whether, within this legislation, there might be ways to craft cascading levels of responsibility? When we talk about the corporation, essentially what we're talking about is not a tangible object or an individual. We're talking about assets or fines as being the penal sanctions.

When we deal with directors, managers, persons in authority who would have input, or in some cases actual decision-making powers, we're talking about jail and other types of sanctions.

Is there a way you can envision where there could be levels of accountability, levels of criminal liability, meted out in a Criminal Code amendment of this nature?

À (1040)

Mr. Dave Whellams: The second one is a tough one.

On the first one, reverse onus is always a difficult proposition, as you know. It shifts the burden somewhat inappropriately; at least, that's the prima facie approach to reverse onus.

Reverse onus here is interesting, because if you're talking about offences of strict liability, or certainly absolute liability, you are shifting the burden fairly readily to the accused in the first place. Strict liability and absolute liability are, as they say, primary offences. Primary liability would be, for example, in the corporation.

The question arises, therefore, that with this broad concept of all attributions to corporations being based on the corporate culture, are you encompassing all kinds of offences? Yes, you are, because there's no distinction made between regulatory offences, mens rea offences, or true crimes, as they call them, in strict and absolute. That's something to be looked at. I don't have a firm view on that.

In those areas, you may be okay with a reverse onus, because it's easy to shift that anyway. They are, as the word has been used, almost “automatically” liable for strict and absolute liability. With absolute liability, due diligence is not a defence anyway--a mistake, maybe. With the next level down, which is strict liability, due diligence is commonly a defence. So maybe it's okay to have the initial shifting, reverse onus, in that case.

We haven't, as I said, looked in detail at the reverse onus provision in terms of both criminal law standards and charter points, but I think it's going to have to be looked at hard.

If the government chooses to go in the direction of corporate culture, what does reverse onus mean in terms of what you're proving? I know it isn't strictly accurate to say you're proving an accumulation of factors, because it's more than that. It's the overall; as the phrasing goes, did they encourage? What was the atmosphere? What were the formal and informal edicts to employees, etc.?

So what does the shifting the onus of proof or defence mean in that context? I'm not quite sure. That would be a partial answer to your question.

Your second question, about levels of responsibility, is a difficult one. I think we would have to be somewhat innovative on that front. As we've mentioned, the American system has a sentencing grid that connects with the assessment of culpability. They embrace a concept of degrees of culpability--I think I've got that right--and therefore a very intensive level of inquiry at the conviction/sentencing stage.

Maybe, yes, it could be looked at in terms of levels of culpability. I would think you would want to connect that with not necessarily a sentencing grid but a concept of levels of punishment in terms of levels of culpability.

It is a difficult area, though. Mr. Blaikie outlined a couple of situations. One could add dozens more: environmental damage, death in the workplace, consumer fraud. Indeed, we've seen prosecutions in various countries for all of those offences. What you are actually saying about the kinds of punishments is important. Are you really talking about levels of culpability, or are you really talking about a combination of punitive and remedial sanctions?

The area of sanctions is a difficult one, and I don't necessarily think we have to go to the American one. The American one, yes, is very useful, but the grid is very much in the area of fines and their impact.

You've mentioned, and this is another area of inquiry, the liability of directors and managers, various models. All the models, indeed, provide for that, as does the criminal law right now, as individuals. When you're talking about levels of culpability, I think you're also talking about what you are trying to do vis-à-vis a manager who has acted inappropriately. It's very complex, I think.

À (1045)

Mr. Peter MacKay: It is a very complex area of law.

I guess I have a straightforward question about what you would say, as an expert in this area and having studied this, to the suggestion that the current Criminal Code provisions are sufficient; that criminal negligence, manslaughter--these types of Criminal Code charges that currently exist, that in fact were utilized in the Westray case....

What happened in Westray is perhaps not the best example. That prosecution went completely awry. It went in all kinds of directions. Tactical delays were used. The case died by paper instead of on its merits. That's editorializing, but that's my view, having worked out of the office from which this case was handled.

As for the case itself, though--and the criminal law intent here is to protect the public, and more specifically to protect people in the workplace, so again the issue arises of the sufficiency of the current Criminal Code provisions that would permit the Crown and the police to proceed--it appears to me this current legislation in its rough form broadens or expands the ability to go outside the gamut of what is currently envisioned by those type of charges, because of the intent element, because of the element of liability that doesn't seem to be found in our code now.

The Chair: Thank you, Mr. MacKay.

First Mr. Whellams, and then I'm going to go to John McKay for the last intervention.

Mr. Dave Whellams: You may want to comment, Greg.

Again, I think this is a complex area. As a starting point, you do not want to lose the ability to prosecute individuals where it is clear and can be proven that there is liability for whatever it is--criminal negligence, or a whole range of code offences. They're going to retain their validity, if I can use that expression, in that the standards have been honed over a number of years as to what the criminal negligence standard is, the manslaughter standard, etc. You will most likely retain that capacity. You're not displacing it with a law of corporate criminal liability.

As to the nature of the intent, I'm not sure I can say I've worked it through. Is the nature of intent, in the context you're talking about, the actions of directors and managers, senior management? I'm not sure you are going to get a variation on what that intent is if you're prosecuting those individuals. I'm not as familiar as Greg is with the U.S. jurisprudence on this one. I doubt they have changed the standards of mens rea, certainly, for mens rea offences.

The area of negligent offences, which is in the regulatory area, is a different matter. We're talking about serious criminal acts committed by individuals. I would guess they have not changed or altered the nature of that intent. It may be that the conclusions drawn from, for example, having a corporate criminal liability standard in place, so that they're investing the company's actions at the same time as the directing minds of that company, may bring to bear a whole set of evidence and evidentiary considerations to prove the nature of the intent.

Perhaps you have an idea of what kind of specific or special kinds of intent are entailed here. I don't know if we've seen particular context for proving mens rea offences in the States.

The Chair: Mr. Yost.

Mr. Greg Yost: They haven't got rid of mens rea in the United States for the corporations, although it seems to be somewhat attenuated when they have these culpability scores.

One of the problems they have run into down there, and I assume we would run into here, is the right to remain silent of all the senior officials, etc., because they could be implicated themselves personally in criminal liability. There is a fair amount of American jurisprudence going around that issue. I suspect there will be some coming out of Enron soon, probably, dealing with that issue as well.

This has actually come up in Canadian law, where a corporation was held to be separate from its directing mind, so that the directing mind, as the president of the corporation, could be required to give evidence, which would have normally been usable against him, except given under oath, etc.

Those problems arise in the United States as well. They still require that for individuals there must be a personal fault they themselves did that was sufficient for criminal liability, while aggregating a number of faults that were not sufficient, each one individually, for those people.

À (1050)

The Chair: John McKay, briefly.

Mr. John McKay: I have a couple of questions.

Proposed subsection 467.3(2) says “on behalf of a corporation, directly or indirectly by the act or pursuant to the order of one or more of its officers, employees or independent contractors”.

The first question is, is there any principal reason why directors have been left out of proposed subsection 467.3(2)? I don't know whether that's an omission or there's some good reason for that.

The second question has to do with independent contractors. Is there any other precedent for including independent contractors in what would be another corporation's liability, I guess, in some respect?

The third question has to do with proposed paragraph 467.3(2)(c). You said in previous testimony that there's no definition of development of a culture, unlike what the Australians have. It says “the development of a culture or common attitude”, so I don't know whether that's two different concepts and whether it requires definition so that an accused at least knows what a “common attitude” means.

The final question has to do partly with what Mr. MacKay was driving at with respect to the onus on the corporation to show. You said that would bring in a due diligence defence; by shifting the onus, that brings in a due diligence defence. What are the other implications of shifting the onus?

The Chair: Mr. Whellams.

Mr. Dave Whellams: The notion of whether the word “directors” is used or not is of course a matter of choice as to how you characterize management.

To take one example where there isn't codified law--and that's the Dredge and Dock directing mind concept--directing mind, you might say, would automatically include a director, but the courts have said you need a further level of inquiry. It's the people who are responsible for setting the standards or who had the power to set the standards, and that would probably include directors.

But when we're talking about this area, which I think is a little different in the sense that you're trying to characterize in particular.... Well, you're trying to characterize two things, the responsibility and liability of the directors as members of the corporation. You're likely to include directors along with management or whatever. So it may be a choice or it may be an oversight in that respect. If you're trying to deal with the attribution to the corporation, I would think you'd likely want to use the word “directors”, among other terms.

On independent contractors--field that one, Greg--the directing mind theory, in the common law evolution in Canada, probably does not encompass agents or independent contractors, because they are indeed not the directing mind of the corporation. They are not responsible for or in a position to direct. Their liability probably doesn't bounce back on the corporation.

Greg, do you want to add to that?

The Chair: Mr. Yost.

Mr. Greg Yost: I think I might have dropped that item in the interest of speed. One of the elements of the United States sentencing guidelines for determining a corporation's culpability is the steps it took to ensure that any agent, independent contractor, and so on, to which it delegated responsibility in an area, itself had a proper program for ensuring that the law would be respected, and so on. They approach it in that way. Clearly, if they're looking at the independent contractors, they attribute it to the main corporation as well, and then they sort of have to explain that they checked that this was a reliable company to which they could entrust a portion of their business.

À (1055)

The Chair: Thank you very much.

Mr. John McKay: Sorry, Mr. Chairman, but the other question, with respect to the definitions...?

Mr. Dave Whellams: I'm certainly not sure of the origin of the term “common attitude”. In Australian legislation, I don't think they're using the term “common attitude”. I could be wrong on that, but I think they just say corporate culture existed.

Just to comment on the phrasing in Bill C-284, “common attitude among its officers and employees that encouraged them to believe”, I'm not fond of that drafting. If we do go in that direction, I tend to prefer that corporate culture existed within the corporation that had been encouraged, that kind of thing. But I'm drawing a bit of a blank in the sense that I'm not sure why common attitude is there, juxtaposed with corporate culture.

The Chair: Thank you, John.

Peter MacKay.

Mr. Peter MacKay: Thank you, Mr. Chair.

I have a quick question, again, that relates specifically to what happened in the Westray prosecution that led to much of the legal delay and some of the machinations. It's an important element of how we get around this potential claim of double jeopardy, where there are provincial regulations also in play, occupational health and safety elements, and charges that have come under provincial legislation.

In that instance, they stayed the charges. They withdrew them. Do you have any comment or any insight as to how it should be handled?

I suspect, in many instances involving workplace safety, this is going to immediately happen. You're going to have provincial safety standard charges laid, or even federal charges, in conjunction with Criminal Code offences. The immediate claim is going to be double jeopardy. There'll be the possibility, as happened in Westray, of using it essentially as a defence and delaying tactic. In the case of Westray, it turned out to be fatal to the prosecution.

Mr. Dave Whellams: Yes. I think you're going to see double jeopardy arguments in most cases, especially if you go the corporate culture way. There's a lot more analysis to be done. It's legalistic but important.

For example, with corporate culture, you have to transcend some of the classic problems of mens rea, actus rea, etc. Professor Healy, in one of his articles--it's excellent on the subject--goes to great length in describing the intersect or non-intersect between what he calls regulatory offences and mens rea offences.

The question, without my answering it, is that with a corporate culture concept, in a way, you do find ways to transcend the problems of a traditional mens rea and actus rea analysis. It is not a question of forming the specific intent in the classic criminal law sense. The corporate culture showed an intention, through the accumulation of evidence, about conduct, standards, rules, edicts, etc.

You have a problem clarifying the nature of the offence. Are you simply not worrying that regulatory offences are one thing and mens rea offences are another?

I know it's not a full answer, Mr. MacKay. It is going to arise because there has been, first of all, a lack of testing in jurisprudence of corporate culture, if you go for that model. As to what it does to offences that are not mens rea, or, conversely, mens rea offences, you're going to have exactly that defence on double jeopardy.

I don't have the solution in hand. I agree it's an important issue.

The Chair: Ask a very short question, Peter.

Mr. Peter MacKay: I'll be quick, Mr. Chair.

I would be interested in your opinion. I suspect what is going to be needed, in many of the cases, should legislation like this make its way into the Criminal Code, is a greater coordinated effort between offices of federal and provincial regulatory agencies and prosecutors.

There isn't a magic key that is going to accompany the insertion of a Criminal Code offence. It's going to take an effort. Then you have time periods that may lapse. I suspect that type of effort is going to have to find its way into provincial regulations should the bill pass.

Á (1100)

Mr. Dave Whellams: Very briefly, Mr. Scott, I would say we, and you, have to go even further. In simple terms, you don't want to lose the capacity to develop labour laws and workplace safety laws that are effective and can be enforced. If double jeopardy analysis sorts out the problem for us as to how regulatory offences are handled, indeed, as you know, under the labour code, there are offences of a criminal nature and appropriate penalties.

The question of friction or overlap between the two is a question of legislative design, as well as a coordination of effort. You do not want to lose the regulatory regimes and the clout that's necessary to make them work.

I wish I had a more precise answer for you, but it's an area of inquiry.

The Chair: Thank you very much.

I'd like to thank the witnesses for beginning this exercise. I'm sure we'll be discussing this again, and the witnesses are excused with our gratitude.

I would like to call on the committee just before we bring in the next panel to do a bit of committee business related to the mental disorder provisions of the Criminal Code. As members may know, on April 23 we passed a motion seeking funds from the House to have a site visit to Toronto, to the court referred to by Justice Ormston. That's worked its way through the system, and it's come back to us with a suggested variation of our original motion, so I'd like to have the committee approve an amendment to the decision of April 23 that would simply change the configuration of the delegation.

Specifically, I'll read the motion I would like to entertain:

That notwithstanding the motion adopted on the 23rd of April, 2002, in relation to its statutory review of the Mental Disorder Provisions of the Criminal Code, a group comprised of five (5) government members, two (2) members of the Canadian Alliance and one (1) member each of the Bloc Québécois and Progressive Conservative Parties of the Standing Committee on Justice and Human Rights be authorized to travel to Toronto on May 21, and that the necessary staff do accompany the Committee.

Would anybody be prepared to put that forward?

Mr. McKay has moved that motion, and the committee should be aware of the fact that Mr. Blaikie very generously offered up his position to the Canadian Alliance.

(Motion agreed to)

The Chair: With that, I'm going to suspend to allow the next panel to take its place.

Á (1104)

Á (1108)

The Chair: I will call back to order the 84th meeting of the Standing Committee on Justice and Human Rights. Today we're looking at the subject matter of Bill C-284.

Our second panel of witnesses includes the Canadian Council for the Rights of Injured Workers, the Ottawa and District Injured Workers Group, and as an individual, Vern Theriault, who is here, I'm told, but just not at this moment.

In order to present on our agenda, the first group would be the Canadian Council for the Rights of Injured Workers. I hope our operation has been explained, that we try to get the opening statements around 10 minutes in length, if that's possible.

Without further ado, for the Canadian Council, Maria York and Dominique Vaillancourt. Welcome.

Ms. Dominique Vaillancourt (Vice-President, Director of Outreach and Communication, Canadian Council for the Rights of Injured Workers): Good morning. We will be speaking today on behalf of the Canadian Council for the Rights of Injured Workers. We are a new national, not-for-profit organization formed to protect workers' rights to a healthy and safe workplace and to enforce the constitutional rights of injured workers.

[Translation]

We work with other organizations to try to eliminate all avoidable deaths, disease and injury caused by irresponsible and unacceptable actions on the part of employers who, too often, put profits ahead of workers' safety and above the incommensurable value of a human life.

Á (1110)

[English]

The explosion at the Westray coal mine was a result of the mine managers' “heedless disregard for the most fundamental safety imperatives”, to quote the Westray coal mine report of public inquiry of 1996. Because of the statutory limitations and flaws of the Canadian Criminal Code, the crown prosecutor of Nova Scotia was unable to criminally sanction any of the managers whose unlawful acts resulted in the inexcusable and senseless loss of so many lives.

[Translation]

The CCRIW feels that such behaviour warrants criminal penalties for negligence and murder similar to, and not less than, those that apply at the moment to violations of the mandatory safety standards in the case of impaired driving.

[English]

Thousands of workers are killed or seriously injured at work every year. Many of these deaths or injuries are preventable, providing that our country's laws permit effective prosecution and stiff penalties for all workplace health- and safety-related corporate crimes.

[Translation]

It is high time for the government to take action on the unanimous decision of the House of Commons' justice committee and instruct the Minister of Justice to present a bill that would hold senior officers and directors of major corporations liable for workplace safety.

[English]

Canadian workers have the right to a safe workplace and they should not needlessly lose their lives or become permanently injured.

Thank you. Merci.

The Chair: Ms. York.

Ms. Maria York (President, Canadian Council for the Rights of Injured Workers): I would like to thank you for allowing us to appear in front of this committee.

I work as a volunteer for the Ottawa and District Injured Workers Group and I'm also a founder of the Canadian Council for the Rights of Injured Workers.

Three years ago, like most citizens of this country, I knew very little about workplace accidents and nothing about injured workers issues. I consider myself to be an informed citizen. I read newspapers and pay attention to the media coverage of national and international affairs.

However, workplace accidents and very serious problems and injustices faced across our country by injured workers and their families appear to be our best-kept secret, or something that the media does not like to talk about. Perhaps the stories about injured, ill, or dead workers do not sell newspapers.

Last year a hard-working citizen was killed in this city in a fully preventable workplace accident. That tragic news was not considered important enough for the front page of the Ottawa Citizen or the Ottawa Sun. What was even more disturbing was that on that same day, the Ottawa Citizen chose to place on its front page the story entitled “Freeze-dried pets”--an alternative for owners of dead pets who can't let go.

April 26 is a national day of morning to honour the thousands of citizens of our country who were killed at work. Our local and national newspapers did not bother to mention on their front pages that on April 28, we, the country, were honouring--or at least should have been--all of those workers.

I have another presentation, which was submitted in writing, called “Beyond the Limits of the Law”, and I will read it if there is a sufficient amount of time and if you will permit me.

Á (1115)

The Chair: Do you have any idea how long that would take?

Ms. Maria York: It's probably three or four minutes.

The Chair: That's fine.

Ms. Maria York: I'm not a lawyer, I'm an economist, so this is not a legal argument; it is just an argument based on what I've researched and studied.

Our council's arguments, outlined in our national campaign documents, in this presentation, and on our website are inspired and supported by the arguments of our country's professors of law and political science. I would like to begin by quoting Professor John McMullan:

Claims to equality before the law and to protection, safety and security are difficult to maintain if the state treats corporate offenders leniently and does little to protect its citizens from predatory corporations.

We are a highly developed civil society. We have the Canadian Charter of Rights and Freedoms and exemplary occupational, health, safety, and employment laws. Our children learn at school that in Canada “no one is above the law.”

Yet “my way or the highway“ is a threat faced daily by many workers in our country's workplace. This is because the employment relation between a worker and his or her private sector employer closely resembles that of a servant and a master.

Furthermore:

Many companies employing large numbers of workers tend to view their employees as impersonal entities rather than people. From the management perspective, employees become either machines or extensions of machines....

Ensuring that employees work under safe conditions siphons funds away from [a corporation's] investment and expansion.... The cheapest route [for corporations] is to replace the disabled, the injured, the sick...with new recruits....

This reasoning makes it difficult to ensure the health and safety of employees.

Federal, provincial and territorial occupational health and safety acts provide workers with the right to refuse hazardous work. However, in reality this very important right is not enforceable, because workplace harassment and intimidation by managers effectively prevent workers from enforcing their rights.

In most cases, management look upon work refusal as a serious challenge to their “rights to manage”. Unfortunately, many arbitrators have agreed, viewing work refusals as insubordination and immediate grounds for legitimate discipline or discharge.

The miners who were killed at the Westray Mine had two choices: to accept the employer's negligent and unsafe workplace practice or to lose their jobs. They chose their jobs--financial security for themselves and their families.

Far too many Canadian workers who are disabled today and those who are no longer with us were forced by their employers to make similar choices between their jobs and their lives and health, because Canadian employers have no fear of any significant or enforceable punishment for their workplace crimes.

Every day, workers endanger their health and risk their lives while transporting goods, mining, building hospitals, schools, power generators, highways and performing other jobs that sustain our government and benefit our country and its citizens. In return for their contribution to our country, they deserve our government's efforts to protect their rights. Since corporate powers determine the rules in the workplace, working citizens' rights can only be protected by the laws that are enforceable and respected or feared by our country's employers.

This is why we are asking this committee to recommend all the amendments to the Criminal Code that are required to force corporations and their officers and directors to respect the laws of our country and the rights of their workers.

My final argument is borrowed from Aristotle: “The life of action is better than the life of contemplation.” After so many years of contemplation, it is time for our government's action to amend the Criminal Code of Canada and to stop Canadian corporations from playing games with our country's laws and the lives of hard-working citizens.

Thank you.

Á (1120)

The Chair: Thank you very much.

We'll now go to the Ottawa and District Injured Workers Group, Mr. Perrault.

Mr. Doug Perrault ( President, Ottawa and District Injured Workers Group): Good morning.

First, thank you for giving us the opportunity to speak on behalf of the Ottawa and District Injured Workers Group.

We are requesting that the Honourable Martin Cauchon, Minister of Justice and Attorney General of Canada and minister with political responsibility for Quebec, bring forward legislation modelled around three previous bills: Bill C-284, Bill C-259, and Bill C-242. These bills have been commonly referred to as Westray bills in honour of the 26 miners killed at the Westray mine in Nova Scotia on May 9, 1992.

I have been president of the Ottawa and District Injured Workers Group since its incorporation in 1995. The group is a member of the Ontario Network of Injured Workers Groups and the Canadian Injured Workers Alliance. It is a non-profit, no-fee-for-service support group providing assistance and resources to injured workers and their advocates in disputes and other matters regarding claims with the Workplace Safety and Insurance Board of Ontario. This group is supported solely by volunteers and donations.

Over the past 20 years, I've worked in the safety and compensation field. I've worked as a safety representative in the construction, industrial, telecommunications, and transportation fields. I've also been a safety instructor for the Workers Health and Safety Centre since 1994.

I would like to bring it to the attention of the chair and committee members that the Government of Australia in the state of Victoria has proposed tough new legislation that adds several occupational health and safety offences to its Crimes Act. It's roughly equivalent to our federal Criminal Code. These include corporate liability for negligently causing serious injury or death, with fines up to $5 million Australian for fatalities and $2 million for serious injury. Executives and directors could face similar charges, with penalties of five years' imprisonment and fines up to $180,000 in fatality cases and up to two years' imprisonment and fines up to $120,000 for serious injury.

Why do we need to make safety non-compliance a criminal act and not a provincial offence? I have personally witnessed a case, which is in the document, where, under part II of the Canada Labour Code, a corporation was convicted in court and fined $20,000, a meagre amount when compared to the loss and grief for the preventable death of a worker. This clearly shows that the impact is not just on the individual but on other Canadians, the survivors and co-workers. The government must view the deliberate act of non-compliance with the Occupational Health and Safety Act as a violation affecting the citizens of Canada.

It is this deliberate act that shows contempt for legislation that exists federally, provincially, and territorially.

Penalties for non-compliance do include imprisonment and fines. Both Ontario and the Canada Labour Code allow for this. However, these are not severe enough. They do not carry a criminal record, the implication being that the law violated in non-compliance is not serious enough to warrant the same weight as a criminal charge.

The lawyer director of the Workers Health and Safety Legal Clinic of Ontario, Daniel Ublansky, stated in correspondence to me:

Virtually all charges related to injuries and fatalities are laid under the Occupational Health and Safety Act. This does not preclude the possibility of charging individuals under the Criminal Code. However, in order to do so, the elements of an offence under the Criminal Code would have to be proven.There are no special rules or offences relating strictly to industrial accidents. This means that, in order to convict, the Crown would have to prove intent to injure or criminal negligence. Because these are difficult to prove, such charges are rarely laid in relation to work accidents.

The Criminal Code would also give the authority and respect due those enforcing safety, our government inspectors.

Á (1125)

Adding this legislation to the Criminal Code would get direct involvement in safety from directors and officers of corporations, which is lacking today. There needs to be an incentive for buy-in. Safety decisions are left to field management, or, in larger companies, to a department that must compete internally for support and resources. Although some corporate presidents are signing off on safety policies and programs, death and injury sustained by workers are, unfortunately, not part of boardroom business. The inclusion in the Criminal Code would ensure a personal interest in safety by said directors and officers.

The other positive outcome of enacting legislation, which would make wilful violations criminal, is public awareness. Convictions would lead to widespread media attention. This would provide an opportunity for the facts of the trial to be examined, and such things as the safety record of the corporation and the nature of the incident that led to charges being made. Information about these convictions would be used by workers across Canada to make comparisons with their own workplaces, to identify and act upon unsafe conditions--thus making Canadian workplaces safer.

We ask that you consider these comments in your deliberations, and work to ensure that legislation is brought forth in a timely manner to include corporate liability in the Criminal Code.

Thank you for your time and your interest.

The Chair: Thank you, Mr. Perrault.

Mr. Theriault.

Mr. Vern Theriault (Individual Presentation): Good morning, everybody. My name is Vernon Theriault. I worked at the Westray mine. This morning I will fill you in on a few of the unsafe things I saw and experienced while working at the mine.

I found in the mine the management was a lot of the blame. I can tell you of one morning when I and the other fellow I was working with, who was actually one of the miners who died in the mine on May 9, were working on this supply truck. We were supposed to take supplies up to the southwest section of the mine. We actually couldn't get up in that part because the coal dust was so thick on the road going up to the section. It was about a foot deep. You couldn't get your vehicles up there.

That morning, Roger Parry told us to get the dozer to push us up through there. So we continued that morning carrying the supplies, with the dozer pushing us up through. While we were doing that in this section, there was a tractor coming up.

Actually, there were what they call “flaps” that they put in there. You can't go through those flaps, I guess, as I learned at the inquiry. But I'll get back to what I was talking about, pushing up the supplies.

Roger came up and he had somebody on the tractor with him, the inspector. Roger hollered down, “What are you doing down here with the dozer?” We kind of looked at him, because we'd been ordered to put the supply up there and use the dozer to push us up, because we couldn't get up to that area. Then he said, “Well, get the goddamn thing out of here.” So the guy on the dozer went back up top and we went back up to the coffee area up in the mine site.

Roger and the inspector did their final tour of the mine, and when the inspector left the mine site, Roger came back into the area and ordered us again to take the supply back up in that order and to use the dozer to push us back up.

So there we were with the mine management, the manager himself, telling us to put it up there, whereas when he was with the inspector he was telling us not to do it. But we continued that day.

And there were other times in the mine when.... This is hard.

The thing I feared about the underground at times, too, was the arches. We put arches up to keep the roof from coming down. When you put these arches up to hold the roof of the mine up, there is a distance of anywhere from three feet to maybe ten feet between the arch and the roof. So then you have to put lumber in between the arch and the roof, and to put this lumber in there, you had to get on top of the arch. There's nothing between the roof and the arches to save you if the roof comes down. So basically, we were putting ourselves in between two rocks just to squash us.

Á (1130)

After I got into the mine, after my first month there, I was getting pretty scared of this. “This ain't for me,” I thought, and tried to get my old job back. I couldn't get it. It was already gone. I had three kids and a wife to support, so I just kept on going at it. I just said to myself, “Well, things might get easier”, and I kept on going.

There was one fellow who quit and went to try to get EI, and they wouldn't give it to him because he had quit a job. This came out in the inquiry, too, but I remember that happening when I was working. They refused to give him EI, so he ended up going out west to look for work.

So here I am saying to myself, “Geez, if I quit my job, I can't get my other job. I'm going to have to stick this out and continue working, and hopefully things will get better.” Actually, from going down into the other places that were working, I didn't think it was ever going to get better, but I continued doing it. You have to look after your family and support them.

Today if I had to do it, I'd look at it differently. We lost 26 lives because of it, and there was no need of it, really. I just....

The Chair: Take your time. We have some time left.

Would you prefer to go to a round of questions from members?

Mr. Vern Theriault: Yes.

The Chair: On behalf of everybody, I'd like to say we appreciate the effort, the determination, and the help your testimony is going to give us in terms of getting our minds around this very complicated issue. So thank you.

Jay, you have seven minutes.

Á (1135)

Mr. Jay Hill (Prince George—Peace River, Canadian Alliance): Thank you, Mr. Chairman.

Mr. Theriault, I appreciate how difficult this is for someone who's experienced what you've gone through. I think we all do.

First of all, I'd state that when you look at this room full of people, I would ask that you not just consider us as politicians. I think all of us had lives in what I would call the real world outside Ottawa previous to our present occupation as politicians. From time to time many of us certainly worked in workplaces where we were concerned about the safety of ourselves and our co-workers. We do have some knowledge, but this certainly helps because the longer we're in these positions, the more we're distanced from experiences such as yours.

To Mr. Perrault, you had experience as a safety officer for quite some time, but I don't remember, sir, how long you said you were in those types of positions in a variety of workplaces.

Mr. Doug Perrault: It's been about 20 years I've been doing--

Mr. Jay Hill: You were 20 years in the role of a safety officer.

I think there's no doubt that all of us and, I think I can say, the vast majority of Canadians, whether they're employers or employees in any particular job, want to see Canadian workplaces as safe as humanly possible. We recognize that no matter how safe we try to make it, there are going to be some unfortunate accidents sometimes. It's the ones that aren't, shall I say, unfortunate that this committee is trying to deal with; it's the ones where it's wilful, deliberate, or intentional on the part of corporations and management culture, resulting in death or injury, we are concerned about.

I have never seen statistics that compare Canada that would support your argument about needing more severe penalties, if I understood the thrust of your presentation. Do you have statistics that show a comparison between Canada and other countries in relation to the number of workers injured and who lose their lives?

Mr. Doug Perrault: I don't have those with me at the moment. I can tell you that information available shows that the accident rate, we'll call it, in Ontario, for example, has gone up even though we are in 2002. The rate of accidents are going up but at the same time the perception of the public is that we're a lot safer. There's more education going on. In some places we have the young worker awareness program in the schools, and quite often it's part of the co-op programs, but the reality is, when those people get out in the real world, as we call it, quite often the safety culture isn't there.

As I say, the statistics are available and those will be part of either our submission or from the Canadian Council.

I can give you another example of how the perception isn't there. We were involved in a presentation by Safe Communities Foundation in Ottawa-- they're trying to get it started here--and the Ministry of Labour representative held up a chart showing that the lost-time statistics in Ontario had gone down over the past number of years. Unfortunately, the reason those statistics are going down is not because the accident rate is going down, it's because people are being denied acceptance by the board. The actual numbers of claimants going down is true, but the accident rate has gone up. That is documented.

Actually, there's a chart here from the Workers Compensation Board showing actual statistics of the rates going up but the acceptance for lost time going down.

Mr. Jay Hill: Would you say, then, that over your 20 years of experience as a safety officer in corporations you've worked for during that span of time, in general terms the corporations act in a more unsafe manner now than they did before?

Á (1140)

Mr. Doug Perrault: No. I would say that Canadian corporations have not substantially changed over that period of time. I have worked for a number of U.S. companies, and their culture is completely different from ours; their culture is based on fear of being charged by OSHA. Their whole culture is how to prevent getting fined by OSHA. It's not a desire to do it for the good of the workers; it's to prevent getting fined. That culture is starting to come into Canada as a result of U.S. companies setting up shop here. As far as Canadian companies go, I 'm not really aware of any noticeable difference.

Mr. Jay Hill: What's my time here?

The Chair: You have a minute.

Mr. Jay Hill: For this round just one final question, then.

Obviously, you had to deal with workers compensation regulations and things like that. Certainly, it's been my experience in my almost 50 years of life on this planet that the workers compensation rules and regulations, certainly in my home province of British Columbia, have been getting tougher on employers. For example, when they see something, they bring up a regulation.

I guess, if I understand you correctly, in your opinion, as a 20-year safety officer, you would say that's not sufficient, that those types of regulations too often are ignored. Or is that not so?

Mr. Doug Perrault: A good example is the current government in Ontario. They've brought out quite a number of new regulations, they've changed some of the occupational health and safety legislation in Ontario, and made it “stricter”, for lack of a better term.

The problem is, the enforcement doesn't go with it. It's like setting a speed limit on the highway. If you don't have any police out there to enforce it, it's not going to be adhered to. That's the problem we have with the province.

The other side of the coin is that, even with enforcement and appropriate legislation, if the penalty isn't severe enough, some people will willingly violate the law because they can pay it off.

The Chair: Thank you very much.

Monsieur Bellehumeur.

[Translation]

Mr. Michel Bellehumeur: First of all, I would like to thank you for giving us your time to help in our review of this important issue. I would also like to thank you for your testimony, which is very helpful in understanding the bill.

If we assume that we have to amend the Criminal Code in order to improve it in this area, does the bill before us, C-284, meet your expectations?

[English]

Mr. Doug Perrault: I'd say Bill C-284 is a very good starting point. I think it puts in teeth for the people who have to enforce the legislation to say not only are you going to get a fine, but you're also going to have a criminal charge that's going to carry with you forever. I think it's a good start; obviously we always need to look at other pieces of legislation that go with it, and work on improving those.

[Translation]

Mr. Michel Bellehumeur: If we were to pass Bill C-284, perhaps with some amendments to give it more teeth, would this have a positive or negative impact on provincial occupation or health and safety legislation?

Ms. Dominique Vaillancourt: Are you referring to the impact on other legislation? I think the objective of the federal bill is to improve the situation as regards worker protection. A bill of this type would mean that workers would not have to blow the whistle on unsafe workplaces. Thus, if the bill were implemented, and if a company violates the legislation, it would face some fairly severe penalties. This may have a fairly positive impact on provincial legislation. In my view, the provinces will be required to follow up on this measure, because workers will be calling for similar action. I think that ultimately, everyone will benefit.

Mr. Michel Bellehumeur: You have a great deal of experience in workplace safety, Mr. Perrault. Do you also think that this bill will have a positive impact?

Á (1145)

[English]

Mr. Doug Perrault: Yes, I agree. I should tell you that there was a bill presented in the Ontario legislature last year or the year before by one of the MPPs. I can't think of it off the top of my head right now, but it was similar to this. It was to try to bring penalties in line with what's needed to force companies to do this. I think it's something that would spread very quickly across the country.

The Chair: Thank you very much.

Vern, go ahead.

Mr. Vern Theriault: About a month before the explosion, I and another fellow were working on the boom truck, as they call it. Accidents can happen in the mine without management getting you to do the bad stuff or whatever. The guy working with me that day ended up getting hurt by an accident. You're going to have accidents in mines. But then you have management getting you doing something that ends up killing people.

This fellow ended up hurting himself by backing up the machine. He was kind of leaning over, and he hit a piece of steel. He ended up hurting himself enough that he was off duty for a while.

From that day on, until the mine blew up, I was working by myself underground. That's one thing you don't do underground. But the management didn't give me somebody else to work with on my regular shift. What I understand about mining is that you don't go in by yourself. While I was never taught that, I found out at the inquiry, I guess, that you have to have a partner with you.

We're talking about a good month working by myself, going down with the supply truck, unloading stuff in different areas. It's scary at times when you're down there, going through one place all by yourself. All you have is your little light and some lights on the machine. When you get off there, and you're unloading this steel by yourself, if that steel ever falls on you, who else is going to know? Twelve hours later somebody might come by, but that's too late. These are some things that I went through.

I asked about getting somebody else to work with me. If somebody was working overtime, I might have had somebody with me. But if nobody was working overtime, no one was scheduled to work with me.

I was off on May 5, 6, and 7. On Friday, May 8, just before the mine blew, I was told that I was going on a regular shift crew. He said he was going to have two other guys come in and guide this boom truck. So I went for almost a whole month by myself. That's basically what I'm trying to get across, that I was by myself, and management said it was all right.

On May 9, I and another fellow were there underground. I went in on overtime. We were given instructions by the management supervision to clear one area down in the mains, to take stuff out of one area and put it over somewhere else--in the scoop, they call it, underground. The scoops are geared up so that if the methane is too high, they cut out on you. I was using one scoop in the area we were in. The scoop kept on quitting on us. It did it all morning, for about an hour or two hours. So I got hold of one of the supervisors and told him that it was quitting on us. He gave me another scoop. On the scoop I had, the methane thing didn't work at all. It wasn't even working. So that gives us...to go in the area and clean it out.

While we were in that area with this scoop, the partner I was with passed out. He went down on the ground. I kind of pulled him out, and he came through. But the methane, I guess....

Á (1150)

Actually, I learned all my safety while the inquiry was going on. The mine blew up in 1992. I learned a lot about safety in 1995 while the inquiry was going on, for the next two years. Too bad the other 26 guys weren't here to get it.

But that's what happened that day. I pulled him out. He came through. Then we continued on with the stuff there. We watched ourselves for the rest of that day.

But it was May 8, that Friday, and we were kind of late getting up out of the hole that night. I went home that night just to have a rest, because I was going out the next morning, the first shift out. At 5:30 a.m. my sister-in-law called. She said “Oh, you're home, are you?” I said “Yes, I'm home. Why?” She said, “I hear the sirens going over at the mine.”

Of course, working there every day I kind of knew it was a cave-in. I told her it was probably just a cave-in and that I'd see what was going on, see who got hurt. But when I was heading over to work that morning, I didn't expect to hear--well, I didn't hear it that morning, exactly, but later on--that nobody had lived. It's an awful experience to go through.

I'll take questions, sir.

The Chair: Mr. Blaikie.

Mr. Bill Blaikie: I'll just go back to something that was raised earlier, which I found somewhat interesting.

You talked about the American corporate culture being not concern for employees but fear of OSHA, and that this is making its way into Canada. That's an interesting comment in the sense that I'm not sure how it's making its way in except through American ownership of Canadian companies. Certainly that's one of the things that's happening, for example, at CNR. Ever since the merger with Illinois Central, there are more and more American managers of the Canadian plants in Winnipeg and across the country.

It seems fair to ask the question, what happens when the American managers discover there is no OSHA to be feared at the same level that OSHA is to be feared in the American context? Because if their only motivation is the avoidance of penalties and they find that in the Canadian context there's no equivalent to be feared, we could be heading for a more unsafe environment than we have now. Perhaps this is even an explanation of why, to some degree, there might be an increase.

I don't know; I'm not making that claim, I'm just saying it's interesting to reflect on what will happen as we get more and more American management of our corporations, when we have no equivalent deterrents.

That's all the more reason, it seems to me, we should have the kinds of things we're talking about here, as well as stricter enforcement of workplace health and safety regulations.

Could you just comment on that?

The Chair: Mr. Perrault.

Mr. Doug Perrault: I can tell you of a personal experience. I worked for a company called Kinetics. They put in the plumbing, as we call it, for the high-tech field--piping for gas and chemicals.

When they came here, one of the first questions from the safety director I worked for was “How often does OSHA come by?” They had no idea there was no such thing here.

But they brought one thing with them. Over the years of dealing with OSHA, they'd developed policies and programs for almost everything. They could tell you how to open a drawer and how to use a stapler.

True, they are bringing that culture of fear of OSHA, but they're also bringing along some valuable information. I would say they were lucky that I was there and able to use that as a tool to make sure that even though we didn't have OSHA to worry about, we still complied with the legislation.

But what it boils down to is that it's left up to the safety person in the field to take it upon themselves to make sure safety is adhered to.

Á (1155)

The Chair: Thank you, Mr. Blaikie.

Peter MacKay, you have seven minutes.

Mr. Peter MacKay: Thank you, Mr. Chairman.

I want to thank all of the witnesses for being here, and for your insights, your personal and professional insights.

One comment I found very interesting, from Ms. York and Mr. Perrault, was with respect to the need to educate the public, through the media or other methods. In the tragic case of situations like Westray, it's after the fact.

I think, Mr. Perrault, you said, quite rightly, that deterrents, making an example of an individual, are perhaps more readily available through criminal sanctions. The jeopardy is higher when a person perhaps faces the real possibility of going to jail as opposed to simply having a fine, which, for a big corporation, is sometimes seen as the cost of doing business.

Ms. Maria York: It's tax-deductible.

Mr. Peter MacKay: And it's tax-deductible.

A voice: Like parking tickets for gangs.

The Chair: Ms. York.

Ms. Maria York: I want to respond to your question regarding statistics, because this is what I have been working on. Canada looks very good on the map of G-8 countries. We are not worse or better.

According to Ontario statistics, though, we must remember Ontario has 40 percent of the Canadian labour force. Whatever happens number-wise in Ontario, it actually reflects the whole country. We add the totals and use them as an average calculation.

We do not look bad at all compared with other countries. We look very bad compared with the United Kingdom, where they have the lowest ratio of accidents to the number of working population. I just began studying this interesting subject, because it appears that, in addition to our typical Canadian workplace compensation insurance and workplace safety laws, their workers also have the ability to pursue legal action against an employer for negligence in the workplace. They are protected by the workplace insurance, but they also can sue.

This can result in very heavy fines for the companies. This could possibly be the reason that explains why they have such an unusually low ratio. I think it's about one-third less, or up to one-quarter, than other countries. It is the lowest in Europe among developed countries.

There is another interesting thing I discovered when I was doing comparative studies of Canadian statistics. The chart is attached to the presentation.

The council considers that the best way to assess the workplace safety in any place is by looking at the number of fatalities and then the number of very serious injuries. Everything else, like fingers cut off or smashed fingers, can be counted as no accident because it may not be reported. But when a person becomes disabled for life as a result of an accident, it's serious.

We discounted all the numbers the Government of Ontario is using in calculating its incredible turnaround. They claim they have an absolutely unbelievable safety record, with a 30 percent decrease in the number of accidents. We discounted all of the numbers. We only used fatalities and serious injuries. When we look at this, we can see the number of injuries has increased significantly since 1996.

At the same time, they used those statistics, which we feed to the public, to lower the insurance premiums. You have a combination of the Criminal Code of Canada, that does not permit effective prosecution of crimes, and no-fault insurance. It does not really protect the employers 100 percent from any prosecution because they are insured--as they should be, because it's good for business--and that actually creates more accidents.

Again, the Government of Ontario is telling us we are the safest place to work in the world, but we are not.

Actually, when I look at the statistics from Quebec, Ontario is a much less safe place to work than Quebec. It's very interesting; if you look at the ratio, in Quebec we have 6 percent of serious...and total injuries. In Ontario, which claims a 30 percent decrease, we have 6.6 percent for 1993. In 1997, we have 5 percent in Quebec. In Ontario, with the 30 percent decrease claimed by them, we have 5.6 percent.

When you do this, you confuse the public and the workers. You create an illusion of being a very safe place when you actually may be contributing to causing accidents. We have to be very careful when we allow governments to actually mislead us by playing with the numbers, rather than presenting the numbers they way they are.

Â (1200)

The Chair: Could you just identify the graph, because the transcript won't be able to....

Ms. Maria York: This graph is attached to our presentation, “The Canadian Council for the Rights of Injured Workers: Analysis of Work-Related Deaths and Serious Disabilities in Ontario”.

It's chart 3, “Analysis of WSIB Statistics”. All the information in this graph is based on statistics from the Workplace Safety Insurance Board, but interpreted our way.

Thank you.

The Chair: A little bit of time, Peter.

Mr. Peter MacKay: I want to come back to something that Mr. Theriault said, in describing his experience at the mine. It was a very telling comment when he spoke of the fact that he learned more about safety at the inquiry, after the fact, than he had from working at the actual mine.

When we contemplate bringing in Criminal Code sanctions, it's after the fact. It's dealing with a tragedy and with somebody who has been hurt, and assigning blame.

Much of what you certainly do, Mr. Theriault, and others, is try to prevent or get to the source of a problem before Westray-type disasters occur.

Is there, in your mind, something we can include in this package of reforms to deal with intimidation on the job? All of you have mentioned in one way or another that, if an employer puts a person at risk, there is a real or implied threat that the employee either puts himself in harm's way and faces that risk, or they risk being unemployed. That seems to be very much what you were being told, Mr. Theriault, when you described the scenario of pushing a supply truck up with a dozer.

Just to get it on the record, Mr. Theriault, I want to mention the fact that you went back down into the mine after it exploded. You were given a medal and a commendation for that, isn't that correct?

Mr. Vern Theriault: Yes. It was on May 9 when, as I said, I drove down, and they said the mine blew up.

On that day--just to continue--the officer told us to sit over by the garage until they found out what was going to happen. Later on, in the next hour, we were told to go up to the fire hall. All the workers and the families were up at the fire hall that morning too.

Later on that morning they came over to see if anybody was going to volunteer on the rescue. And it's one of those things where your hand just goes up. It felt like someone put my hand up, actually, because I really didn't want to get involved in something like that. I mean, when you hear explosions...but my hand went up. I don't know who put it up, but somebody did.

The Chair: It sounds like one of our votes.

Mr. Vern Theriault: I went over to the mine site and I started the rescue as a bareface miner. I wasn't a draegerman. There was a lot of experience among the draegermen.

So I went back underground. We have two tunnels there, and it blew everything out of the mine. We had these big steel doors. They're probably about 14 to16 feet tall and about 6 to 8 feet wide. If you get a small door you can go in it, but you can open these up so you can get machinery through.

Well, right down from one to ten each door was blown right out. There was one on each side, so two doors in each tunnel were blown right off. There was nothing there afterwards.

The draegermen went down first and they put up plastic with two-by-fours to keep the air flow, and when they got down to the third crosscut, we started on number one by going in there and putting up wooden ones to the plastic. There weren't really any guarantees, so we put the plywood up. While we were doing that, we got down further in the mine. And further down in the mine was quite a sight to experience, with steel and other equipment that was blown to pieces everywhere. Well, it's not quite a sight to see, it's just....

We had a tractor down on the ten. That was brand new, used to take the men out there, and that was roasted like anything. You could see the metal was burned down. That was scary, seeing that stuff.

Â (1205)

Mr. Peter MacKay: Did you feel intimidated at any time about your job if you didn't do what you were told?

And you mentioned the safety issue. Did you feel you had enough safety training to be doing what you were doing in that mine?

Mr. Vern Theriault: No. I'll get back to the first part.

When the mine first started, I was working at a tire shop. I'd been going over there since the hole first started, right from day one, doing all the tire work for them. After the mine got going, for three years I was doing the tire work over there for them.

One day I had to go down a little ways. They weren't down too far, but they were just starting to get the holes in the ground. I went down to change a tire on the rig one day. I was down there, changing it, and I thought, “Holy shit, I don't know about this. There's water coming in down here. I don't know if I can take this.”

But time went on. I suppose once I got down further in the mine....

Actually, I went over to try to get a welding job and I couldn't get the welding job. I went in for the tests, I did the tests, and the guy told me, “Yeah, geez, you can come back later and talk to the boss.” The next day I found out that Mr. Phillips hired a buddy of his. The guy told me that management hired somebody else so he couldn't give me the job, but he asked if I was interested in mining. I said, “Well, I don't know....” He said he knew I liked making money--I used to work overtime to get extra dollars--and he said, “You won't have to work too much overtime if you get a job here. You're guaranteed 20 years of work and you'll probably get up to $60,000 a year once things get rolling.”

That just kind of went “Ding! Money.” I could look after my kids and wife, great. But I didn't know what I was going to be into later on down the road.

Getting back to the part of....

Mr. Peter MacKay: The training part.

Mr. Vern Theriault: I'm not finished on that one, I guess. What I'm trying to say is that I knew the management from doing the tire work. I saw management come down on other guys, and give them hell for not doing something. I saw a lot of the management coming down on employees. In the workforce you want management getting along with employees. Everything goes smoother that way. If you're shooting the guy down to the lowest, it's no good.

After the mine blew up, here we were doing the rescue and there was one day that I took the draeger team down to the ten. Number ten was set up as a drop-off for the draeger team. One time, Roger Parry said, “Oh, well, we'll clean this mess up, get everything out, and then we'll get back to work”, laughing and that. A manager doesn't do that stuff. You don't sit around laughing and saying that once we get this cleaned up, we'll get things going back to normal again. I mean, have a little sensitivity for the guys who got killed in the mine. You don't do that. That's the point I'm trying to make.

The other question, Peter...?

Â (1210)

Mr. Peter MacKay: Did you feel, Vern, that you had sufficient safety? You mentioned that you learned more about training later on.

Mr. Vern Theriault: The day I went over, they gave us a day of interview for the mine, to get the job. They showed us a tape of an open-pit mine. Am I going down an open-pit mine or am I going down underground? Why would they show me that? They showed me one of their other mines. I forget where it is, but it's an open-pit mine that they own.

Mr. Bill Blaikie: It was the only video they had.

Mr. Vern Theriault: I guess so; the only video.

Then you had Roger Parry come in with those little packs you carry that you can put on your face. He came in, showed it to us, and asked if we knew what it was. I'm not sure of the name of it, so I can't put it on record here. Everybody had one; it was just a small pack. He just took it out and said, “When the gas gets very high, you put that on your face; you breathe in, and then you get out of an area.” And that's it. That's all the safety training I got, and the next day I was down.

Actually, my second day on the job there was a cave-in. As I said, it was a scary event to go through, right up to May 9 and after that the rescue. It will be with me for the rest of my life. I'll never forget that event.

The Chair: Peter has appropriately pointed out your heroism and its recognition, and on behalf of the committee I would do the same.

Mr. Macklin, you have seven minutes.

Mr. Paul Harold Macklin: Thank you.

There are many questions that come to mind when I listen here today to all your interests in worker protection.

When you look at the bosses and the corporate entity--and I'll ask this of any one of you who would like to respond--what do you think is necessary to get them to buy into safety for their workers? Is it the threat of criminal problems--in other words, going to jail? Is it monetary--namely, costs and expenses? Is it a lack of education on their part that they're not very sensitive to conditions and the need to protect their workers? I'm having some difficulty here.

Mr. Perrault in particular, as it relates to globalization, do you think we have to look at possibly standardizing at least--let's say for North America--some type of sanctioning process so there will be a common sanction between American and Canadian situations for corporate liability--I guess I should say criminal liability--as it relates to their relationship with workers? Could I receive comments from any one of you, or all of you if you wish, on that point?

Â (1215)

Ms. Maria York: I'd like to respond to this question, at least partially. I think in Canada, workers have very little power. Workers, especially in fields such as construction, unskilled workers, have very little power. They are protected by the laws, but they have no ability to enforce their rights.

Suppose a boss terminates a worker's employment and he is stuck without a job because he complained. Many workers will not even know they could pursue an action against an employer. They don't have financial resources, so that's out. Basically, what you do when you have a job, as a worker, is to hold onto it, no matter what. I'm talking specifically about Ontario, because I lived in Alberta and I lived in British Columbia. My husband and I have noticed great differences between the way workers were treated in those provinces when compared with Ontario.

If the workers have no authority or no power, managers get used to it. They treat them, as I said in my presentation, like disposable equipment. In addition, Ontario has passed all kinds of new legislation that actually allows managers more control over workers. Sixty hours of work per week without overtime. They tell the workers, “It's up to you. If you don't want to work, you will not work.” A worker who is forced to work 60 hours a week can be endangering his life, because he is tired, he is exhausted, and he cannot pay attention to details. It's very dangerous. But can he refuse to work 60 hours, in realistic terms? No way. If he wants to have a paycheque on Thursday, he has to stick to and follow the rules of the game.

That's why without the proper laws, without something that managers actually fear, other than, say, action against an employer for wrongful dismissal or for harassment, or whatever, action in front of the tribunal, whatever is available, Human Rights Commission, these things will go on. There must be much more fear and not just financial.... If it's financial fear for the corporate managers, the company will cover the cost. They're not going to be stuck with it. They have to fear something more significant, that actually affects them personally, because if there is a decision regarding negligence in the workplace and if the management is aware of it and it's actually the course of action in the workplace, knowingly and deliberately set by the company because of cost-cutting measures, what is going to happen to them? If they get caught, they pay the fine, they write it off their taxes, and maybe they can even create a loss so they can carry that,

So it needs much more than just a fine. That's my opinion.

Ms. Dominique Vaillancourt: I'll just add something really quick on this. In an ideal world, I suppose, we wouldn't have to question the integrity of the corporation, in terms of not being afraid of something but doing something for their workers because they actually care for them. I agree with Maria. The right to refuse is something that is actually in the law and in the Labour Code, but a lot of workers don't know they have that right, to start with. And should they leave work or something, like Mr. Theriault was saying, then they don't get EI, even though they should. They can appeal, if they were denied EI for that, but still, a lot of people don't know. I think you have to start educating the workers and the corporations in terms of how people should be treated.

I think you also hit the nail on the head in terms of globalization, because if you have standards across North America there will not be the fear that a company will take its plans and go somewhere else where the laws aren't as stringent or as harsh as they would be in Canada, say. I think that's a big economic factor that plays into the minds of the corporate world, if you want.

So, yes, I would say that's something to maybe strive for.

Ms. Maria York: Perhaps I could add one more comment. In Canada, according to the studies I did, we have one of the best climates in the world for corporations to earn profits. Therefore, if we push them a little bit harder, they're not going to run away from Canada and set up their business somewhere else. I don't think so. They will still have a paradise. If we give them a little bit of our punishment for their crimes and maybe get them to pay a little bit more in their premiums toward compensation for the injured workers, because those injured workers become a burden to our society sooner or later, they will still stay here and do business with us.

One thing that many people don't consider important is that if the corporation is required to work a little bit harder to make profit, and you don't give them so many breaks, they may actually work harder and hire more people. It's kind of a reverse logic that applies here, because they have set goals in mind that they have to achieve one way or the other. If they have to achieve them by working harder, getting more people, and generating more goods, that's good for the country and good for the working people.

Â (1220)

The Chair: Thank you very much.

Mr. Sorenson, for seven minutes.

I'm sorry, Mr. Perrault, did you want to comment?

Mr. Doug Perrault: Just quickly.

You mentioned education of corporate directors and officers as part of the process. It would quickly happen once people became aware that now they're liable for the wilful decisions they make. The seminars would pop up very quickly around the country, saying, “Okay, this is what's going to happen to you if you do this.” If this happens, I think it would fall into place very quickly.

I mentioned in my presentation that it's not so much the fine, or the amount of the fine, it's the fact that the person now has to carry that record with him or her. They have been singled out in society as a person who has actually harmed someone else, and done it wilfully. I think that's the main penalty from the bill. It's not so much the fine or the imprisonment, but the stigma that is going to be attached to that person afterwards.

The Chair: Thank you.

Mr. Sorenson, for seven minutes.

Mr. Kevin Sorenson (Crowfoot, Canadian Alliance): Thank you. This won't take long.

I wasn't here for your testimony, and I apologize for this.

I think right now we have to be realistic somewhere. We have to be very careful. We had an atrocious or horrific accident, which you were involved with. I know it has been a long time since it happened. But we can't have these knee-jerk reactions to what's happened. Instead, we have to build legislation, or bring forward statutes that are based on sound evidence and needs, etc.

You have to be very careful, if you believe all these Canadian corporations and companies are just going to stay around if we put in something that's a little too tough on them. I'm not suggesting that's what you've been proposing here. But I can tell you, there are many companies right now who look at our tax laws and other laws and are on the verge of heading somewhere else. Obviously, our resource-rich country means that a lot of them have to stay here, because this is where the resources are.

I just want to go back to one thing that Mr. Theriault brought up. When you were talking about working underground the day before the accident happened, you mentioned a scooper or a scoop that kept cutting out on you.

In our business we have big, heavy equipment. We have what we call Murphy switches. The Murphy switch will shut down an engine if oil pressure is too low, or if water pressure is too low, or if there are different variables.

I would think that's what you were referring to, that the scoop has some type of Murphy switch, so that if the methane gas levels got too high, the engine would shut down. Is that correct?

Mr. Vern Theriault: Yes, that's correct.

Mr. Kevin Sorenson: Okay. Then after the engine wasn't running, they brought down another engine.

Â (1225)

Mr. Vern Theriault: No, actually I picked up another scoop in the area. It had a Murphy switch on it, but it was disconnected.

We knew that it was disconnected to go into areas like that, because the same area where I went in was where the fellow had passed out. Actually the methane was working on one scoop.

But we knew the other scoop was disconnected, because it had been in other areas of the mine where it shouldn't have been in.

Mr. Kevin Sorenson: Did you know that it had been disconnected?

Mr. Vern Theriault: Actually, yes.

We saw things happen all through the mine. We saw the fans blocked. I'm not sure exactly why they blocked them at the time. But we saw the fans blocked underground too--where they bring the fresh air through.

Mr. Kevin Sorenson: Then your friend passed out as well.

Mr. Vern Theriault: In that spot, where we were taking the supply of air out of, it actually didn't even have fresh air in it.

But we were told to take the stuff out. If you didn't do what you were told, it was, “There's the door, good-bye” kind of thing.

Mr. Kevin Sorenson: My concern is this. The legislation we see here mentions directors, those involved. It mentions management, it mentions directors of the company, and any of those individuals way down the chain. What happens if all of a sudden, included with this, they were to include you?

Mr. Vern Theriault: To include me for blame?

Mr. Kevin Sorenson: Well, yes, because--

Mr. Vern Theriault: Actually, they themselves tried to blame the miners. I've been blamed too, in a way, but if everybody else down the line is going to take the charge for it, I'll get the blame too.

Mr. Kevin Sorenson: But was it management that unhooked the Murphy switch, or could it have been a worker who just went over and said, “I'm getting tired of this” and unhooked--

Mr. Vern Theriault: Actually, that machine was up being serviced. I know that for a fact. It came right from up above. It was worked on, so they had it up in the shop there. If it wasn't ready to go underground, it shouldn't have gone underground. But they said to take it, so what do you do? You take it, right?

I've got one thing to put on record there, getting back to Peter's question about management intimidating you. Actually, after the mine explosion, after they called off the mine rescue, I was scared to talk about it right up to, I think, 1997-98, even after the inquiry. The information I have here today--that I told you guys--I didn't tell anybody before. You see, I was scared to even mention anything. That's how intimidated I was. At the inquiry, I gave statements, but I was scared. I was too scared to talk out.

The Chair: What of, after the fact?

Mr. Vern Theriault: After the inquiry, I realized, “Why am I holding this inside me?” Plus, it was tearing me apart even more, holding it inside, so I just let it out. Plus, what's going on now is that too many people die each year to hold something like that inside of me. I'm going to try to help to save lives, basically.

The Chair: It's almost 12:30 p.m., which is the end of our time.

Quickly, Mr. Perrault.

Mr. Doug Perrault: I'd just like to comment on something. I'm sorry I didn't catch your name.

The Chair: It's Mr. Sorenson.

Mr. Doug Perrault: What we're asking for here is not for fines and penalties for corporations that violate the law as far as health and safety goes. What we're saying is that when they do it deliberately to violate the law, and that by so doing they put people at risk, there's a big difference between violating a piece of legislation and knowingly and deliberately doing it, and that's what the intent of the bill is.

The Chair: Ms. York.

Ms. Maria York: Yes, I just wanted to quote one short statement from our website.

Unethical and illegal practices among subordinates is especially likely when members of dominant coalitions make it known that they tolerate, condone, or even expect their workers to engage in illegitimate activities to achieve organizational objective.

The question was whether we should include, then, the workers. We shouldn't, because the worker--even the superintendent on the job--is an employee, and if he gives directions to workers to perform illegal work or unsafe work, he is receiving his directions from the management, from the top. In order for him to keep his good job, because those are usually higher-paid positions, he has to do what the company tells him to do.

I know of the construction workers who were asked by the employers to perform illegal work, and they had to do it, because if they refused to do it they would be without a job. In this tight business, the construction companies work together; they have private clubs. If the worker is deemed to be a troublemaker with one company, he's doomed forever if he wants to get a better position.

Â (1230)

The Chair: Mr. Grose.

Mr. Ivan Grose: Thank you.

This is a quick question for Mr. Theriault that can be answered with a yes or no.

When you were doing tires for the mine company, did you chain the tire and the rim before you inflated the tire?

Mr. Vern Theriault: Pardon me?

Mr. Ivan Grose: You've answered the question; you don't even know what I'm talking about, which is fine. You never used a chain on the tire and the rim before you inflated the tire.

Mr. Vern Theriault: Oh, yes. We had chains we put around tires--

Mr. Ivan Grose: You did?

Mr. Vern Theriault: Yes, so the lock ring wouldn't come off.

Mr. Ivan Grose: I'm glad to hear that.

Incidentally, I can explain this OSHA thing, if you want me to. It comes from my other life. I was on the board of directors of an international trade organization for six or seven years, and in the United States we'd hear “OSHA, OSHA, OSHA, they're driving me crazy. They're putting me out of business.”

The reason for that was that in most of the United States, compensation is a private enterprise thing. You buy it like health insurance or life insurance. You buy it from a company. That company wants to keep their rates low, so they employ inspectors who will come out and look at the guy they're insuring. And if he's not doing the job properly, they'll say they're not going to insure the person any more, or they'll raise their rates sky high. There's also the fact that these private compensation people push OSHA. So OSHA, as a result, is far more effective.

Now, in this country--in Ontario, which I know about--the Ontario compensation board is a government board. It doesn't care whether workers get killed or what happens to them on the job. They only pay off when they're injured--sometimes as little as possible. But they've no interest in job safety.

We had the equivalent of OSHA in Ontario. I would see an inspector every two or three years. I ran my own shop, repaired my own trucks, mixed my own chemicals. In 30 years in the construction business, I don't think I saw more than two or three job sites closed down for flagrant violations of the health and safety rules.

So that's the difference between the two countries. We have it here; we just don't do it.

The Chair: Mr. MacKay.

Mr. Peter MacKay: That leads to a very interesting question that Mr. Grose has just raised.

I just want to say one last thing to Mr. Theriault. I think what you've demonstrated here today is the statement that Justice K. Peter Richard made about the public inquiry, that Westray was a predictable path to disaster and it could have been prevented. You've very aptly given us reason to believe that statement.

The idea that a provincially regulated safety board arguably has as much or equal liability in terms of shutting down an unsafe workplace raises the question of whether there should be some criminal liability attached in those circumstances as well. It's not enough if a mine inspector goes down and sees some of the unsafe work conditions that Mr. Theriault described, and for whatever reason, chooses not to shut that mine down.

There's an argument to be made that this individual, by turning a blind eye and completely abrogating the sole responsibility for his position and job, should also bear some criminal responsibility. I would say that logically, the mine managers and operators are turning a blind eye, if they do so, for profit reasons, to keep the mine operating, and all that flows from this. A mine inspector or a workplace inspector in some ways is in a position of trust and has a higher obligation to act.

I would invite comment on that suggestion.

The Chair: Mr. Perrault, please.

Mr. Doug Perrault: I think it goes without saying that part of their duty...they're obligated as part of their job to do exactly what you've said, and if they don't, they shouldn't be working, first of all, and they should be held criminally liable, as well.

The Chair: Thank you very much.

I'm going to Mr. Macklin. We're over time, so one more question.

Mr. Paul Harold Macklin: My concern, especially in listening to Mr. Theriault, is on whether we have a problem here that has an economic base to it, and that is, when you have a company that's on the ropes, in an area of our country where jobs are badly needed, does it not breed, in and of itself, this situation? Isn't this a product of a poor economic environment, and aren't all parties, really, in a conspiracy to try to survive? In so doing, everybody consents, in a sense, to give up certain rights. In this case, it ended with 26 people dying.

That's my commentary. I don't know whether you have any thoughts, but it seems to me there's an economic component that was clearly in Westray that I find disturbing. But I don't know whether you can approach it by saying companies in that position almost have to be stopped from going forward because you know they're likely to lead to this type of situation.

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The Chair: Ms. York.

Ms. Maria York: I don't think the problem is as severe for the corporations as it is for the workers, so we have no balance. The corporations are doing very well in this country, and I think they're just trying to maximize their profits. It's not about survival, it's about maximizing profits. If you have an opportunity in Canada that is readily available, you will use the opportunity.

One of the biggest problems is that once you start having a number of major corporations doing this, small independent businesses are forced to close down or to compete at the same level in the same way, using corrupt or illegal practices in order to keep their costs down. Not only do you have a group of corporations who would resort to illegal practices to save money, to maximize profits and not just to survive--I'm sorry, it's not about survival--but you also force the smaller ones to either quit their business or do the same thing.

This is, I think, what's happening in Ontario right now. In my opinion, based on the studies I'm doing, we have a very high level of corruption within the corporate sector, and it is forgiven by the government. When you get this climate, it just keeps on growing and growing, and the workers pay for it, not the corporations.

Mr. Paul Macklin: Hearing Mr. Theriault with Westray, I am concerned that this was an instance that isn't necessarily like those you're working on.

Ms. Maria York: Perhaps so, yes, because that was about jobs.

The Chair: I think Mr. Theriault wants to speak.

Mr. Vern Theriault: What I was going to say on that is, the thing is, we're not trying to put companies out of business. I think that's what you're getting at.

Mr. Paul Harold Macklin: Well, it's a question. Should we be looking at some point where, if a company is demonstrating that in fact it doesn't have a viable future and that its workers may be at risk, certain actions should be taken?

Mr. Vern Theriault: We're not trying to put companies out of business. The biggest thing the companies are going to have to do is get back to the education of safety first. Anytime you go for a job interview, usually when you go in there, safety is the number one thing. But if everybody from the top down doesn't know that safety's going to be first, before production, then you're not going to run that business well, because you're going to have the falls in between.

Basically, this is one of the reasons I'm on the Hill for two weeks, lobbying with the United Steelworkers. We're trying to get the point through that we're not trying to close these companies down. We just want to see this from the top to the bottom, to the employee, to make sure that everyone's educated, that they know safety's first. If we don't have injuries, it's going to be cheaper for everybody.

The Chair: Mr. Perrault.

Mr. Doug Perrault: I have a comment. One of the places I mentioned earlier where I worked was a company called Kinetics, and I can also refer to another company called Ledcor, which some of you may know.

Both of these companies got contracts because of their good safety record, their good safety program, and the way it was done through the company. I think that once the light comes on at the board office, that we're going to get contracts because we're the best at everything we do, not at just part of what we do, that'll sell it. I don't think the risk of losing business will be there; the risk will be not getting contracts because you're not good enough.

The Chair: I want to thank the panel for being here.

I suspect, Mr. Theriault, we'll see more of you in the next little while, and I look forward to it.

Peter.

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Mr. Peter MacKay: Mr. Chair, just before we adjourn, I don't want to do this in the presence of the witnesses and take up time, but I'm wondering if we can get an indication of when it would be good to revisit the motion I brought forward last week with respect to having the Commissioner of Corrections attend.

The Chair: We could entertain the motion next Tuesday so that we can schedule it.

Mr. Peter MacKay: That's fine.

The Chair: The problem we have, of course, is that because we're hearing witnesses, a quorum is four. Consequently, we have the tradition of having those kinds of numbers, and then if you or whoever can't--

Mr. Peter MacKay: Would the chair consider this as notice?

The Chair: Yes. I'll entertain the motion next Tuesday, and we'll build a new schedule.

Mr. Peter MacKay: Thank you.

The Chair: I want to thank the members.

There's a point that needs to be made, one that I think Mr. MacKay and I would be particularly aware of. It has to do with the fact that a lot of this issue deals with unequal power relationships in the context of employers and employees.

An element of that inequality is the lack of alternative opportunities for employees. When you live in regions of Canada where you have fewer opportunities as alternatives, then the power relationship is even greater--or worse, if you like. You create an environment where it's safer to work in some parts of the country than in other parts, and that is something we need to consider as a committee.

That's for you, Mr. Theriault.

With that, the meeting's adjourned.