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37th PARLIAMENT, 1st SESSION

Standing Committee on Justice and Human Rights

EVIDENCE

CONTENTS

Thursday, May 30, 2002

0935

Mr. Bob Mills, M.P. (Red Deer, Canadian Alliance)

0940

0945

0950

0955

The Chair

Mr. Cadman

Mr. Bob Mills

Mr. Chuck Cadman

Mr. Bob Mills

1000

Mr. Chuck Cadman

Mr. Bob Mills

Mr. Chuck Cadman

Mr. Bob Mills

Mr. Chuck Cadman

The Chair

Mr. Lanctôt

1005

The Chair

Mr. Bob Mills

1010

The Chair

Mr. McKay

Mr. Bob Mills

Mr. John McKay

Mr. Bob Mills

Mr. John McKay

Mr. Bob Mills

Mr. John McKay

Mr. Bob Mills

Mr. John McKay

Mr. Bob Mills

Mr. John McKay

Mr. Bob Mills

Mr. John McKay

1015

Mr. Bob Mills

Mr. John McKay

1020

Mr. Bob Mills

1025

The Chair

Mr. Sorenson

Mr. Robert Lanctôt

The Chair

Mr. Kevin Sorenson

1030

Mr. Bob Mills

The Chair

Mr. Bob Mills

The Chair

Mr. Bob Mills

The Chair

Mr. Paul Harold Macklin (Northumberland, Lib.)

Mr. Bob Mills

1035

The Chair

Mr. Robert Lanctôt

1040

The Chair

Mr. Robert Lanctôt

Mr. Bob Mills

The Chair

Mr. John Maloney (Erie—Lincoln, Lib.)

Mr. Bob Mills

1045

The Chair

Mr. Chuck Cadman

Mr. Bob Mills

The Chair

Mr. Bob Mills

The Chair

Mr. Bob Mills

The Chair

Mr. Bob Mills

1050

The Chair

Mr. Bob Mills

The Chair

Mr. Bob Mills

The Chair

Mr. Bob Mills

The Chair

Mr. Bob Mills

The Chair

Mr. Chuck Cadman

The Chair

Mr. Bob Mills

The Chair

Mr. John McKay

Mr. Bob Mills

Mr. John McKay

Mr. Bob Mills

1055

Mr. John McKay

Mr. Bob Mills

The Chair

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

Mr. Bob Mills

Mr. Peter MacKay

Mr. Bob Mills

Mr. Peter MacKay

The Chair

Mr. Kevin Sorenson

The Chair

Mr. Peter MacKay

The Chair

Mr. Peter MacKay

The Chair

Assistant Commissioner William Lenton (Federal Services, Royal Canadian Mounted Police)

1110

1115

The Chair

Mr. Gil Yaron (Director, Law and Policy, Shareholder Association for Research and Education)

1120

1125

The Chair

Mr. Kevin Sorenson

A/Commr William Lenton

1130

Mr. Kevin Sorenson

A/Commr William Lenton

Mr. Kevin Sorenson

1135

A/Commr William Lenton

The Chair

Mr. Robert Lanctôt

1140

A/Commr William Lenton

Mr. Robert Lanctôt

A\Commr William Lenton

1145

Mr. Robert Lanctôt

A\Commr William Lenton

Mr. Robert Lanctôt

The Chair

A\Commr William Lenton

The Chair

Mr. Peter MacKay

A/Commr William Lenton

1150

Mr. Peter MacKay

A/Commr William Lenton

The Chair

Mr. Paul Harold Macklin

1155

Mr. Gil Yaron

Mr. Paul Harold Macklin

Mr. Gil Yaron

Mr. Paul Harold Macklin

Mr. Gil Yaron

1200

Mr. Paul Harold Macklin

Mr. Gil Yaron

Mr. Paul Harold Macklin

The Chair

Mr. Paul Harold Macklin

Mr. Gil Yaron

The Chair

Mr. Chuck Cadman

A/Cmmr William Lenton

1205

The Chair

Mr. John Maloney

Mr. Gil Yaron

Mr. John Maloney

Mr. Gil Yaron

The Chair

Mr. Robert Lanctôt

1210

Mr. Gil Yaron

The Chair

Mr. Peter MacKay

A/Commr William Lenton

1215

Mr. Peter MacKay

The Chair

A/Commr William Lenton

The Chair

Mr. Gil Yaron

The Chair

Mr. Lee

1220

A/Commr William Lenton

Mr. Derek Lee

A/Commr William Lenton

Mr. Derek Lee

The Chair

A/Commr William Lenton

1225

The Chair

Mr. Chuck Cadman

Mr. Gil Yaron

Mr. Chuck Cadman

Mr. Gil Yaron

The Chair

Mr. Robert Lanctôt

Mr. Gil Yaron

Mr. Robert Lanctôt

Mr. Gil Yaron

Mr. Robert Lanctôt

1230

Mr. Gil Yaron

Mr. Robert Lanctôt

Mr. Gil Yaron

The Chair

Mr. Peter MacKay

A/Commr William Lenton

1235

The Chair

CANADA

Standing Committee on Justice and Human Rights

NUMBER 094

1st SESSION

37th PARLIAMENT

EVIDENCE

Thursday, May 30, 2002

[Recorded by Electronic Apparatus]

¿ (0935)

[English]

The Chair (Mr. Andy Scott (Fredericton, Lib.)): I call to order the 94th meeting of the Standing Committee on Justice and Human Rights. Today we are considering Bill C-400, an act to amend the Divorce Act in terms of limits on rights of child access by sex offenders.

Bill C-400 is a private member's bill by Mr. Mills of Red Deer. As is our custom when entertaining private members' legislation, the first witness is the sponsor.

With that, Mr. Mills, please proceed, and welcome to our committee.

Mr. Bob Mills, M.P. (Red Deer, Canadian Alliance): Thank you, Mr. Chair. It's certainly my privilege to be here, and I'm very pleased that we have gotten the bill to this point that the justice committee would consider it.

First, I want to give you a very brief background and then information on the work I've done since the House unanimously decided to send it to committee after the first hour of debate.

I should tell you my motivation for this bill. Of course, it's all around the faces of two little girls, five and six years old, who were forced by the courts to go into a prison, to go through the trauma of what that meant, to see a man they had not seen since they were one and a half years old. After seeing their faces, I felt that never again should any Canadian children have to go through something like that.

Of course, there's a lot of other background behind that. I think you're fairly familiar with Mr. Schneeberger and what he did in terms of avoiding the law for five years; the fact that he raped his 13-year-old daughter, from the age of 13 to 15, before the mother caught him; and the fact that he was convicted of using drugs not only on his own daughter but also on a patient of his. He is serving a six-year term in prison for that.

During that period he has, I guess it's fair to say, harassed the mother, and has used the children as a pawn in this process. Having checked into this, I found that this was not the only case where this sort of thing has happened.

So I think my motivation is clear. I believe this is a loophole in the Divorce Act, because a judge felt it wasn't clear enough that he could not give access in this situation, even though it might psychologically damage these children.

The children are used as pawns, as they often are in divorce cases. The mother testified against him in court, and of course this is a way to get even with her. I do not believe he really does need or want to see these children; as I say, they are pawns.

The legal system status quo is not the answer. Mr. Schneeberger got a court order, and the children, although the mother has full custody, were forced to visit him on the last Sunday of every month and forced to phone him every Monday evening. Those phone calls result in the children crying and staying awake at night. They have become psychological victims in this situation. They're under psychological treatment. And we're talking about little kids.

Of course, we never know at what point he will be able to reinstitute...or he's voluntarily not had them forced to prison again, but we never know when that might happen again.

The mother was faced with an option, obey the law or face a fine, or appeal, which she did in a Red Deer court. The court said, no, it can't be dealt with in Alberta, it must be dealt with in Saskatchewan, where the original ruling was. She has a job, she's a single mother, she's trying to make a go of it, and it's impossible for her to go to Saskatchewan and go through all the appeal process. So that's where it's at right now.

In terms of some background material, since May 7, as you know, it went into the House, we had unanimous agreement to send it to committee, and I have talked extensively with the Department of Justice, who gave me a couple of suggestions. One was that we might broaden this to include murder and so on, and yet all of the constitutional lawyers and all the legal counsel--I'm going to get to that in a minute--have said don't broaden it, narrow it. Second, there was the feeling from the justice department that we needed to give judges more direction on what is in the best interests of the child. So I am certainly not married to this wording. Anything this justice committee can do to improve the wording, I am totally in favour of and would support, and feel we should do.

¿ (0940)

My consultation process has involved the Library of Parliament, a lawyer, and legal staff, and later I'll refer to their comments. They are totally supportive of this bill and feel that it's just about a loophole that should be filled. I'll come to the written comments I've made on that.

I've talked to two lawyers in the Senate, one from either party, and I've gotten their advice as to what they think of this bill. They've indicated that total support for it would certainly be found in the Senate. They couldn't guarantee anything, but they were very supportive.

Members of Parliament from all parties have approached me, they have sent me e-mails, I have talked to them, and I have talked to the House leaders; again, everyone supports this bill in principle and feels it's something that should happen.

I have talked to lawyers, including four professors from across Canada with constitutional law backgrounds, and have received a number of pieces of legal advice I'm going to refer to in a minute. I've talked to Canadians. I've been on over forty talk shows and have yet to have anyone phone in and say they don't agree that this loophole should be filled.

Certainly, I see this as a totally non-partisan issue. I would love the justice department to simply send it back to the House to get unanimous approval so that the department could incorporate it. That, then, would be the end of the matter. That would be my hope for this bill: change the wording, amend it, but let's not let little girls ever have to go through that--or little boys, for that matter.

There were some concerns raised in the legal discussions I had. First, could this be subject to constitutional challenge? I should say that many Canadians expressed the feeling that Parliament, not the courts, should make the law, and that certainly would be a summary of what I heard.

The legal opinion was that it should be the best interests of the child. I looked at the Constitution. I'm not a lawyer, but it says, in the very first part, that the Canadian Charter of Rights and Freedoms “guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.”

A lot of the lawyers zeroed in on that and said that in this situation their opinion was that this would be a demonstrably justified reason to take away the right of that pedophile parent. We're not talking about prisoners, we're talking about pedophiles, pedophiles who have been convicted, and about not forcing custodial visits. Now, if a custodial parent agrees that it's good for the children to visit, hey, this law doesn't cover that.

So with respect to the Constitution, I was given the feeling from most of these that there wouldn't be any major challenges. Most of the legal opinion I got was that it would be very rare that a convicted pedophile would in fact be able to challenge this, and if they did, we would have the charter to protect us from that.

I'm trying to put this into my language, not into the legal jargon, which I must admit I had some difficulty understanding. Preventing accessibility to children, they believed, would be justifiable under these conditions--that is, the violation of these children.

If challenged under the charter, it must pass the Oaks test. I learned something else about law--namely, what the Oaks test was. They believe that under this Oaks test it would pass that test, and that if in fact it did go to the Supreme Court, this law would be upheld.

¿ (0945)

I have detailed comments from some lawyers. I didn't include those in my package. I was intending to read a full-page comment on that, and if someone wants me to read that, I certainly can do it.

Another lawyer, Queen's University law professor Nicholas Bala, said he would be glad to come to this committee and go through this. He has reviewed it in depth. He said that, number one, it must be in the best interests of the child. Number two, he suggested that we might add that the prisoner must show it is in the best interests of the child. This would offset most, if not all, challenges. In other words, if the convicted pedophile had to appear before a judge and say why it's in the best interests of the children to visit him, that would probably offset any challenges that would ever appear. That was different from anything anybody else suggested, so I put that forward as a comment.

Most felt that this was the best amendment for the Divorce Act, and should not be in the Criminal Code. They agreed, then, that the Divorce Act was the place to make the amendment.

I emphasize here that it is simply an amendment; it's not writing a new law. I think that's important, too, for all the detail that this involved.

Some suggest that we should consider preventing access to children by a pedophile whether they are in or out of prison. This law only goes so far as in prison, but one legal expert suggests this should imply even when they get out. I don't know what that opens up in terms of federal-provincial and so on, but that was a suggestion.

Basically, in the case of the Schneeberger-Dillman case, this might be of concern to you. In 2001 an application for parole was made. It was denied. He was told that he could not have another parole hearing until 2003. However, this week he reapplied for a parole hearing and he was granted a parole hearing in July, based on the fact that he has now found the Lord. A number of individuals were able to convince...in Saskatoon that he should in fact have this appeal granted.

That's why I am concerned, of course. And you will have recognized that this person who put someone else's blood in his arm so as to avoid the DNA testing by the RCMP is a manipulative person. I am concerned about the safety of Lisa Dillman. I am concerned about the safety of those two young girls when this person is released. He has been threatening, he has been using all kinds of legal things to harass this single mother. So I'm extremely concerned about that. That's why I latched onto this suggestion, this access in or out of jail for a pedophile. I don't think we want to touch that, but I will put that forward.

Most agreed that the law should not be broadened to other crimes. If anything, they felt it should be restricted to when the person has in fact been a pedophile and it just involves children. They felt that we could tighten the wording a little to perhaps make it even more restrictive. Unlike what the Department of Justice said, they were suggesting tightening it.

I guess the person who spoke the most about that was Mr. Elman, a dean of law at the University of Windsor. He made it rather clear in the summary. Professor Elman believes the law should have a more focused objective--namely, related directly to sexual predation against children. He went on to develop that idea a little more, based on the Dillman case.

I have included as well a summary of some of the legal opinion I have sought. I draw your attention to Professor Gerald Gall, University of Alberta, Faculty of Law, and his comments. He was just granted the title of Officer of the Order of Canada.

I have legal opinions from Professor Bruce Elman at the University of Windsor, and Professor Nicholas Bala at the Faculty of Law, Queen's University, both of whom I've referred to; from Professor Eugene Dais at the University of Calgary law school; and from Alison Dewer, a practising family lawyer here in Ottawa who was most helpful in going through this.

Then I would refer you to the bottom of the summary and the comments from the parliamentary library research staff on reviewing this bill.

¿ (0950)

I've talked to over 30 lawyers right across the country to get their opinions. My conclusions are that we should worry less about charter challenges and more about the protection of the rights of children. That should be number one; it shouldn't be worrying about potential charter challenges. I'm not married to the wording; I just want the results. So whatever wording you decide on, you're not going to get very much objection from me, as long as we accomplish the results we want.

I hope the justice committee and the minister--and I've talked to the minister and his parliamentary secretary--will embrace this amendment to the Divorce Act and act quickly. I can't think of anything worse than having this lost through prorogation and having to begin again.

This will be good for Parliament, good for parliamentarians, to show that we can act quickly and clearly to fill this loophole, so it can never happen again anywhere in Canada; so no one else will ever have to see, in the faces of two young children, what I had to see on May 27 last year, when those little girls were forced through those prison gates to see someone who had raped their sister, and who they didn't want to see. As we got within ten feet of this man, the psychologist called it off and said, “The girls are suffering too much. I don't care what a judge said, they are not going to carry out this visit”, and we left the prison. But the damage was done. It should never happen again. I believe I will fight forever in belief of that.

So I appreciate the opportunity to be here. I hope we can expedite this as quickly as possible. I'd be more than happy to answer any questions about any part of what I've said or what I might do.

Thank you, Mr. Chairman.

¿ (0955)

The Chair: Thank you very much, Mr. Mills.

I'll go first to Mr. Cadman for seven minutes.

Mr. Chuck Cadman (Surrey North, Canadian Alliance): Thank you, Mr. Chair.

I just want to thank Mr. Mills for appearing here and bringing this forward. I commend him for this initiative. As one of my colleagues in caucus, I appreciate his concern and passion for this issue. I certainly understand and know what he went through at the time, dealing with the whole incident itself.

You said that the justice department wanted to broaden it, and you mentioned murder and other things. Did they give you any specific reasons why they felt it should be broadened? I'd be concerned, because the broader you make it the more open you make it for questioning and challenges. I was just wondering if they actually gave you any specific reasons.

Mr. Bob Mills: They didn't give me reasons why that would be, except that was an indication they gave me. As well, the secretary of state mentioned that when I talked to him about it. And I don't know why.... All of the legal opinion I've had has been to narrow it, if anything, but keep it on pedophiles, keep it on sex offences, and keep it on children. The broader you make it the more chance of a challenge.

I don't believe taking away the rights of the murderer, which had no relation to these two children, is the same as a pedophile sex offence committed against a family member. To me that's totally different, and that's not what I wanted to get at. Again, it might be part of the rehabilitation process for those prisoners. I believe having him see these young girls is a danger to these young girls. It's a totally different ball game.

So I didn't get my reasons. That's a question the justice department should explain.

Mr. Chuck Cadman: I know you received a lot of legal opinion to support your initiative. Did you get any psychiatric opinion as to the impact on these children, or on any child? Obviously we're dealing with a specific incident here, but what would be the psychological impact on a child?

Mr. Bob Mills: The people I talked to on that one were the teachers of the two girls. I asked about their reaction when they came back to school after that May 27 incident. One girl was in first grade. The teacher indicated that these girls were extremely troubled and very changed from that experience.

I talked with the psychologist who attended the prison with us. Lisa, the two girls, the deputy warden, a psychologist, and I went in that Sunday afternoon. The psychologist was overwhelmed by the response of these two girls, and in fact left the case after that. She also left the case because Schneeberger put in a complaint to her boss that she had overstepped her position. So a new psychologist was assigned as a result of his not liking her decision, which again indicates something about this man. He's a convicted pedophile.

Those are the only two people I've talked to on that level, a teacher and a psychologist.

À (1000)

Mr. Chuck Cadman: Finally, have you been able to ascertain or have you any indication of how many people, if this legislation were to become law, would actually be impacted? How many times do we see, in a given year or a given period of time, this situation cropping up?

Mr. Bob Mills: All I could find out was that usually judges refuse access to the children in a situation like this, when they're in jail. I believe the number of cases would be very small. The judge, in this case, and the judge in Red Deer, said the law wasn't clear enough to cause them not to allow this access to continue. That's obviously why I chose this route in response, to say, well, if it's not clear enough, let's make it clear enough, and give the judges clear guidance on this--without tying their hands totally. I don't believe we should do that.

I believe it's very rare, but there have been other cases. Each lawyer told me of other cases where it had happened. They weren't quite so young, but these were cases where 10-year-olds, 12-year-olds had said, no, I don't want to see him or her. And the judge then lived with that. I guess this judge felt that children of five and six--they were younger than that, with the youngest actually being 18 months--were too young to get an opinion from.

Mr. Chuck Cadman: Have you spoken with the provincial authorities? Because this will impact on them to a certain extent, on their rulings. How do they feel about it?

Mr. Bob Mills: During the process there was nothing but support from the Alberta side. I talked with Mr. Axworthy, the Minister of Justice from Saskatchewan, directly. He also indicated 100% support for this. He felt it was necessary, and he just wished it had been in place before they had gone to court the first time.

Mr. Chuck Cadman: Thank you, Mr. Mills.

Thank you, Mr. Chairman.

The Chair: Thank you very much.

Mr. Lanctôt, seven minutes.

[Translation]

Mr. Robert Lanctôt (Châteauguay, BQ): Thank you, Mr. Chairman.

Mr. Mills, this is clearly a very, very important bill. I practiced law in this area for a long time.

The last question that was asked--and I raise it again--would create very different sets of rules for people governed under the Divorce Act, i.e., people who were married, and for unmarried people. You will be creating a huge difference and a sharp distinction between the children of a marriage and those of a common law relationship between the parents.

In Quebec, all of that was done away with a long time ago. We consider what is truly in the best interest of the child above all, not only because of international conventions, but also because of our own laws.

Perhaps it is premature, not to discuss it, but to make the proposal you are making. Obviously, in principle, we have to look at this kind of matter and protect children. However, to do so separately... It has to be done together with the provinces and Quebec because we must not distinguish between the children of a marriage and other children.

Personally, and I will tell you straight off, there are definitely things, in theory, that have to be improved in your bill. I will come back to that; I hope we will have time. However, that in itself is very, very important. If we just do this here, if it is not done jointly, taking into account the opinions and even “What Quebec and the other provinces think of it” in your documents, the Bloc Québécois will not be able to support the bill as is. That clearly has to be done as far as we are concerned.

There is another thing, too. It has always been the case, in Quebec at least, not only because of the Charter--and that would probable also give rise to future challenges--that the interest of the child is always paramount. The cases you are trying to deal with must be exceptional. Having had many files of this kind, I can say that the children would very, very rarely see the parent. If there is any contact at all, it is under supervision. Judges can make whatever orders they want and can even rule out visitation, not based on the legislation, but of course on the file before them. In many cases, the children already have no contact with the parent. Especially when you are talking about pedophiles or the sexual victims of the father or the pedophile. I do not know of a single case where the judge allowed visitation.

There are circumstances that require psychological protection for the child. But there are also cases where, because of this, that or the other thing, it is not cut and dried, not black or white. That is why the issue of psychological or psychiatric assessments is important.

Some children should never see their attacker, whereas others... It also depends how old the child is. That has not been covered. To prevent a 17-year-old from seeing a parent, who perhaps just once got carried away with drugs at a wild party and did something, when the child has perhaps loved that father for 17 years, would be very dangerous, not only because it could be challenged under the Charter, but also for the child. The bill does not make those distinctions.

Your case is extremely sad. You know two people who have been psychologically harmed. I do not know whether it was well argued in court; I do not know the case. Nor do I know the experts who were there. Were they good experts? I don't know. This is all based on one case. I find it dangerous to enact such sweeping legislation. It could create a monster. It could be harmful to other children, although it could perhaps be helpful in this case. As I said, I am not familiar with the file, all I am saying to the committee, is be very, very careful.

Those are the comments I wanted to make.

À (1005)

[English]

The Chair: A response, Mr. Mills.

Mr. Bob Mills: First of all, of course, when I think of custodial parent, I'm not thinking of husband and wife. I am thinking of the broader definition of a family. If they are in a common-law situation, I still consider them parents of children, so there was no intention to not deal with parent, and if that can be clarified, of course we should.

I contacted Alberta and Saskatchewan because the court case was in Saskatchewan. This lady and man are now in Alberta and that's why I contacted them. I agree with you fully that of course provincial interest must be there, but because this was the Divorce Act, which is federal, and because it was in a federal prison, I dealt with it as a federal issue.

I'm not married to the wording, as I said. If that wording can be clarified so it does take care of any provincial contradictions, then we certainly could do that.

In terms of this being an exceptional case, in my opinion there should be no opportunity for this ever to happen again. Even if there's just one more case in Canadian history, it shouldn't happen in any province. The fact that two judges did say the law wasn't clear enough was enough incentive for me to say, okay, then, let's clarify it. Let's put in an amendment that will clarify that, so that maybe you can say that it's the pedophile who has sexually assaulted his own family. Maybe you really want to restrict it.The point is, you have to not let that happen again.

I'm also saying that if both parents agree it's in the best interests of the children, then it happens. This law does not kick in unless the custodial parent says no, or the children say no. That's when it cuts in. It doesn't cut in every time. It only cuts in when there is a dispute, and then it's guidance to the judge to look at the best interests of the children.

I think that's what all of us want here. That's what all parties want. That's what all Canadians want. If we don't act on this now, if we get too embroiled in constitutional discussions and in provincial-federal relations, I believe we will lose this opportunity. I don't think it's going to help any of us as parliamentarians to show that we got embroiled in a legal discussion and didn't deal with the situation. I think that hurts us all as politicians. I'm concerned about that. I think you are, too. This very institution has suffered some blows. This is not one we need regarding this type of offence.

À (1010)

The Chair: Mr. McKay.

Mr. John McKay (Scarborough East, Lib.): Thank you, Mr. Chair.

Thank you, Mr. Mills, for bringing this to the committee. I have some feeling for private members' business, and for it to have come all the way here, I offer you my congratulations. That's quite an accomplishment and probably a reflection on the visceral reaction many members feel to the actual situation that prompts presentation of this bill.

In law, they have a saying that “bad facts make bad law”. When you look at the quick summary of the facts, you wonder how a judge could arrive at reasoning such as that. First of all, I know you made reference to some legal opinions here. I wonder whether you could table with the committee those legal opinions, along with the judgment itself and the appeals.

Mr. Bob Mills: Can I just interrupt for a second? I'm under the understanding that the Saskatchewan judgment was not made public and was not in writing.

Mr. John McKay: So it's an oral judgment.

Mr. Bob Mills: Yes, that's what I was told by Mr. Axworthy.

Mr. John McKay: All right.

Mr. Bob Mills: The Red Deer one, I believe, though, is...and his basically was to say, “Go back to Saskatchewan.”

Mr. John McKay: Was there an appeal of the original decision?

Mr. Bob Mills: An appeal was begun, and basically, $20,000 later, Ms. Dillman has suspended that. She just couldn't go to Saskatchewan for the three weeks it would take, with the extra dollars that it would incur. My understanding is that it may continue, but at this point it was at least temporarily suspended.

Mr. John McKay: So our situation at this point is that the original oral judgment stands.

Mr. Bob Mills: Yes, it stands, and on the last Sunday of any month he could reinstitute that visitation.

Mr. John McKay: The decision has been appealed, but for financial--

Mr. Bob Mills: It was appealed in Alberta and referred back to Saskatchewan.

Mr. John McKay: Why is there a crossover in jurisdiction?

À (1015)

Mr. Bob Mills: It was said that, because the original judgment was made in Saskatchewan, it couldn't be heard in Alberta. I've had a number of lawyers question that judgment too, but again, I'm not a lawyer, so I didn't want to follow up that one.

Mr. John McKay: It sounds a bit like a witch's brew here of various--

Mr. Bob Mills: For this lady, it's just a nightmare.

Mr. John McKay: Oh, yes.

At one point in my life, I thought I was God's gift to family law, but neither God nor anybody else thought so, so I got out of it.

Mr. Chuck Cadman: So you went into Parliament instead.

Mr. John McKay: Yes, I went into politics instead. God's judgment is still out on that one.

Mr. Bob Mills: Well, so did I, and that's why I want to change things.

Mr. John McKay: Our factual situation here is pretty muddy, to put it delicately, so if you could at least table the legal opinions, that would be good.

Mr. Bob Mills: Yes, I'll try to get them.

Mr. John McKay: I appreciate your desire not to get too hung up, shall we say, on whether this is charter-proof and all that sort of stuff, and the ebb and flow between Parliament and the judiciary, but that's a reality of this committee, as are federal-provincial relations. Mr. Lanctôt rightly points out the anomaly that if we did amend this Divorce Act, you could actually have a restriction on a divorced parent when there would not be a similar restriction on a parent who has never been married in the first place. It's a strange anomaly; nevertheless, it's readily envisionable.

The general test that is applied is whether it's demonstrably necessary, whether it's demonstrably effective, whether it's proportionate to the harm and there's no alternative. We have problems with “demonstrably necessary”, as Mr. Cadman referred to. Are there other situations that simply cry out for redress? We're being asked to take a step in law based upon a muddy set of facts, which, on public understanding of the facts, just seem to be outrageous. But we haven't heard the other side. If you have any evidence of other cases that would be parallel, I think that would be helpful to us.

The other issue I wanted to question had to do with the bill itself, and that was the issue of imprisonment. Again, I wonder whether you've thought about whether it's restricted to imprisonment. You have situations where a person is on parole, and what's the argument for restricting access for a person in prison versus a person on parole? Then there are other kinds of sentences that are non-custodial sentences. I'd just like to hear your thoughts on whether that should be a concept expanded into areas of parole as well.

Then I look at the clause here, which says, “under any of the following provisions of the Criminal Code, whether or not the child was the victim”. Maybe it has to do with my corrupted lawyer's mind, but take incest; on the face of it, why would you ever want a child to have contact with someone who was convicted of incest? Reasonably, you could sketch a scenario where a person was serving a sentence for incest that only came to light 10 or 15 years after the person had left the family. The man is humiliated, he is imprisoned. Up to then he'd had a fairly normal family life. The spouse is outraged, and she certainly doesn't want to have her daughters or sons visiting their dad in jail. And that leads to other social issues.

This tracks me back to Professor Bala's opinion and whether his approach might in fact be the preferable approach.

À (1020)

I would suggest it would be preferable to have a presumption in the listed circumstances that it's not in the best interests of the child, and then he reverses the onus so that Dad, if you will, has to prove that it is in the best interests to keep a relationship with the children.

Those are my quick reactions to this very egregious set of facts--any clarification on the facts you provide, any tabling of opinion you provide, any expansion of the notion or contraction of the notion of imprisonment, and looking at whether you are going over the edge when you expand it, whether or not the child was the victim, whether you need that whole section, because it is an expansion of the animus for the bill in the first place.

I offer those comments to you.

Mr. Bob Mills: Sure. Let me just try to hit on most of those. Again, I'm here to take your advice and hopefully let you run with it to get it to say the right things to accomplish the right things.

First of all, when I got the Bala approach, I thought about whether that was reasonable, and to me, it was. A convicted pedophile has to prove why it's in the best interests of the children. Fair enough. It sounds as if that would be very difficult to do. From my discussion with the psychologist and with some of the other lawyers and so on, that would work. He or she would very likely never get access to those children. That would then help the judge to make that decision. So I can certainly go along with that.

As far as the child being the victim and how broad that should be, the reason all of those categories were in there again came from legal advice as I was drawing up the bill--that is, in fact make it sex offences only, but you should include these sex offences. Now, I can see the situation where, as an 18-year-old, there was some sex offence, but we're now dealing with a 35-year-old who has led a clean life since then. That could be reason why a judge would say, hey, he or she has been a good parent since then.

Again, that is not what I'm talking about. I'm talking about where children are going to be damaged, where a custodial parent says “This just won't work”, and possibly, if we go the other way, where the convicted pedophile can demonstrate no reason why he should have access to those kids. Now, put all that together and I think you've solved the problem; it's not going to happen.

The reason I didn't include outside of prison was that you get into more provincial issues then, I would hope, but you also would hope that a parole board is not going to release somebody who is going to in fact be a danger to those children. And yet, that said, in this case I'm not convinced. The very fact that the parole board changed their mind from last year to this year really makes me doubtful that they in fact.... I mean, the reasons they're giving for doing that, I just can't accept. So maybe I shouldn't trust the parole system so much.

With regard to other cases, everybody I've talked to has suggested that there are some. I was given the name of someone in Montreal who had gone through this. I heard about other similar cases in Ontario. I didn't follow up on all that detail again because of time constraints and the fact that I'm not a lawyer. I must admit, I needed translation most of the time in discussing this with lawyers. I had to say, “Come on, guys, dumb this down so that I can understand it and deal with it.” Of course, the further we got into this, the more complex it got.

But I do believe there are other cases. If we did some research in this area, I do believe we would find these other similar cases. If that's the case, then that's a reason to have this amendment.

In terms of the whole concept of non-married parents, obviously we should fix that. I want this to apply to parents and I don't particularly care whether they're common law, married, or whatever. If they're parents, they're parents. We most definitely should clarify that. I have no intention of ruling out or getting into the argument about that. That's not what I want or where I think it would be healthy to go.

À (1025)

I will attempt to get the legal opinion from Red Deer. I believe that's in writing. I think I can give you that, but all it's going to say is “Go back to Saskatchewan”, in summary. I have tried, and I believe Mr. Axworthy sent me a note saying that this in fact was an oral.... I don't know whether it has to be in writing or not, but I assume it is just oral. So I may not be able to get you that.

Certainly I can give you all of the material I have. Most of the people I talked to were very interested in it. They liked it, and they'd be more than happy to appear to talk about it and talk about the amendments and so on, in certainly legal jargon.

The Chair: I'm going to go to Mr. Sorenson. I have a question, but we have time.

Mr. Sorenson.

Mr. Kevin Sorenson (Crowfoot, Canadian Alliance): Thank you, Mr. Chairman, and I want to thank Mr. Mills.

[Translation]

Mr. Robert Lanctôt: Point of clarification, Mr. Chairman. There is apparently no written judgment, but in Quebec, everything is recorded, and you can get the recording and have it transcribed. I don't know if it is the same where you are, but you can listen to the recording of the judgment, if it was from the bench. To make a long story short, it is possible to get hold of the judgment.

[English]

The Chair: Thank you.

Mr. Sorenson, three minutes.

Mr. Kevin Sorenson: I don't have a specific question for Mr. Mills, but I want to thank him for coming. I think when you read the testimony and the speeches given by all members when this was presented in the House, you can see it is a very emotional bill, and it seems to be common sense.

Back in 1997 a subcommittee was struck, and they came out with a report, For the Sake of the Children. I commend even the Prime Minister for mentioning in the throne speech specifically how we have to be sure that children are not only properly cared for but also protected in this society. As we open newspapers on a daily basis we see horrific examples of where children are put at risk, and here we have a case where this individual, this parent, had been sexually assaulting or raping a step-daughter for five years.

The way I understand it, reading this, perhaps that little girl was eight or nine years old when he started to rape her over a five-year period of time. She was 13 when it ended up coming before...so obviously it's a very clear indication that this individual was placing these children at risk.

As a parent trying to instill some type of concern on the child's part--how you protect the child, how you protect your little girl or little boy--obviously, Lisa Dillman was doing her parental responsibility. And I think it's time our courts sat back and said, listen, we have to be able to draw some common sense from this and apply some type of rationale or some type of realism to what the law is.

I just want to applaud you for bringing this forward. I think there'll be no problem. If I did have a question, it would be regarding what Mr. McKay said about some of the extra charges that would come to a person, whether or not the individual was in prison. If it isn't a pedophilia charge, there's still provision here that if it is some type of sexual assault, the mother can keep her child away.

Those things would probably be looked at by people with better legal minds than mine, and I still think common sense must prevail.

So I applaud you for bringing this bill to the House.

À (1030)

Mr. Bob Mills: My only comment there would be simply that when you look at it, the fact that these two young girls, now six and seven, in effect are going to be, or could be, forced to go back through this on any last Sunday of any month, and when you consider this person's record as to what he has already done to one of the daughters, you have to understand how this mother can't understand the justice system and how most Canadians, on the end of the telephone, can't understand this either.

That's where our job then comes in, to make sure this cannot happen again. I did talk to the former justice minister about this. Ms. McLellan assured me there would be changes to the Divorce Act that would fix this, and she didn't get to that.

I talked very briefly to Mr. Cauchon, and he seemed much more desirous of fixing the situation as he understood it. So I felt that the reception was much better, and certainly talking to Mr. Macklin, I felt, as well, that it was a much better reception and a time for the justice department to really look at this to make sure this kind of thing just can't happen again. Even if, as I say, it's one case, let's not let even one case happen.

The Chair: Just for clarification, Mr. Mills, earlier, I think actually in your opening comments, you referred to conversations that you'd had with the Minister of Justice, and then you referred to the secretary of state.

Mr. Bob Mills: I'm sorry, I meant the parliamentary secretary.

The Chair: You were referring to the parliamentary secretary--just for purposes of the transcript.

Mr. Bob Mills: Well, I just gave him a promotion.

The Chair: If it were only that easy.

Mr. Bob Mills: Yes.

The Chair: Mr. Macklin, for three minutes.

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

Needless to say, yes, Mr. Mills, there is a great deal of sympathy. I feel it as a parent and also as a concerned citizen and parliamentarian about this sort of activity, and the way it has been brought forward with Lisa's case is obviously something that hits home very directly.

One of the concerns I have, though--and I'd like to get your comments on it, and I know I addressed it in my speech in the House on that day--is the limitation on the offences we have here, and that some of these offences actually could be very broad and may not have any direct effect on that child. How do we differentiate, or should we differentiate, between a sexual-based offence and any child visiting a parent who's incarcerated in a prison?

I'd like to see if we could start to get a little more focused on precisely what we're trying to deal with. Is it only, then, when a child is the victim? Is it only when a child's immediate family is the victim? Where do we start to get a focus--and I'll use that term, “focus”--on limiting the way in which this would act?

Let's look at it in its broadest context and say that, for instance, everyone who's incarcerated shouldn't have their child required to go and visit them, because that's a very intimidating institution, unless the spouse who has custody consents. There's a general principle.

Now, if we start to limit that principle, draw it back, and we have good reason to draw it back, I want see what basis you really believe we should draw it back to, without looking at these specific charges. In other words, let's see if we can get a real sense of focus on this.

Mr. Bob Mills: First of all, I believe it could well be healthy and part of the rehabilitation process of a prisoner for him to see his children. To include anything other than sex offences would, first of all, be wrong. It opens up too much space and controversy and could really broaden it too much.

Should it be just for sex offences against the family? That would really restrict it down. Maybe that's what we want to do. My thinking, however, is that if you are a convicted pedophile and you have sexually assaulted a child, not necessarily your own, it isn't too broad. That's my feeling. Remember, if the custodial parent or the children agree that a visitation is okay, then it should go ahead. This doesn't restrict that. This only restricts it--and I believe it only should restrict it--when the custodial parent or the children believe it is not in the best interests of the children.

The best interests of the children should be what the judge considers as the number one priority for restricting this access. The constitutional lawyers, the professors of law, and the family lawyers I talked to--I've listed some of them for you, and there are more--all believe that as well. They indicated that the best interests of the child is number one, and that will not draw you very many, if any, charter challenges.

Then we went further with the professor, who said, why don't you do the reverse and make it so the convicted pedophile has to convince the judge that in fact it's in the best interests of the kids? Now, that's reversing it, and I don't believe a pedophile would be able to convince a judge that it would be in the best interests of a five-, six-, seven-, or eight-year-old--or any child--to visit a pedophile in a prison situation.

That should clarify it in terms of why and how I would restrict it. I think being more restricted is better than being broad, and I don't really believe we should deal with murder and other offences. That would really muddy the waters and get us into all kinds of challenges and areas we don't want to get into.

À (1035)

The Chair: Thank you very much.

Mr. Lanctôt.

[Translation]

Mr. Robert Lanctôt: Thank you, Mr. Chairman.

You did understand earlier the distinction between people who are married and those who are not, but what you are not understanding now is that I do not want this legislation to deal with what is to be done in Quebec or in the other provinces, far from it. Don't even think about adding something of the sort to your bill, because I will definitely vote against your bill. What I mean is that there have to be meetings between departments from both levels of government, federal and provincial, for them to agree that there are to be no distinctions among children.

In other words, a long time ago, people spoke of legitimate and illegitimate children; that was many years ago. That kind of distinction should no longer be made. There should no longer be any distinction between children of a common law relationship and children of a marriage. But I am not telling you to change your divorce bill and to impose that on Quebec, far from it. I tell you, that is not at all what I said to you earlier. I just wanted to make that clear.

As for visitation, if there is to be visitation, and there surely will be, albeit infrequently in cases like the one you refer to, clearly there are places set up for such visits where there is an access right. There are also special areas, even in the prisons, where a meeting can be requested, so that a young child does not see his or her father behind bars or in a cell. There are places for that. There are in Quebec, anyway. There probably are elsewhere too. So we have to be careful. We have to avoid falling into... When you say, Mr. McCallum, that this has to apply to all inmates, let's not go overboard: inmates have rights too. The purpose of your bill, to come back to that, is that there is a principle that needs to be taken into account, that of the best interests of the child. The courts already take that into account. As for the specific case you refer to, I am not familiar with the file, but I find it surprising, based on what you have told us, that that was the decision. But what we hear from you is that they did not appeal, they did not follow through for lack of money. Once again, it is about a lack of resources. There is a problem, but is it actually a problem with the current legislation?

I tell you, in Quebec, and surely elsewhere, when you are talking about problems of incest, of pedophilia, and the person wants to see the children... You are talking about a presumption or reversal of the burden of proof, but it is not an automatic right. Judges consider the circumstances and lawyers prove each circumstance. Every case is different. And if it is not in the child's best interest, the judge or court will not allow that child to see his or her father in prison if the father is a pedophile or incest offender.

A judgment has been rendered, but we are not privy to it. I do not want your case to lead us to make generalizations for all cases. Every case is different, that is what I mean. Be careful of this kind of case, which is perhaps heart-rending in this instance. The judgment may be completely off-base; I don't know. But not everything has even been done to see whether this judgment could be quashed on appeal or by the Supreme Court, if necessary. It has not gone that far. So we are taking a trial decision where a couple of strange judgments may have been given without our knowing the facts. It is fine to talk about the purpose of your bill; we need to protect children. But how? Without the opinions of psychiatrists, psychologists, social workers, inmates...

À (1040)

[English]

The Chair: Monsieur Lanctôt, put the question; we have a long list.

[Translation]

Mr. Robert Lanctôt: I want to hear his comments on my comments.

[English]

Mr. Bob Mills: Just briefly, as I mentioned, I don't want to get into the provincial-federal areas and so on.

You know, I was told the visit had to occur in the prison because this gentleman was too dangerous to take out to a hotel or somewhere outside of the prison. It's pretty scary what you have to go through when you go into a prison, with the security and the guards. I assume you have children. Five- and six-year-old children are very impressionable people. Certainly, it was a strange feeling for me to hear the clanging doors. Yes, there was a special area, but it was still a pretty scary situation.

I wouldn't be here if two judges hadn't said that the law wasn't clear enough and that therefore this visit had to be carried out. I wouldn't be here if I hadn't heard two judges say that something was wrong with the law, that it wasn't clear enough. That's the motivation. They said, “You have to fix it”. And how do you fix it? Well, we're elected as lawmakers, so here I am.

The Chair: Mr. Maloney.

Mr. John Maloney (Erie—Lincoln, Lib.): I have a couple of questions on the deeming provision. Would it apply to existing access orders? What happens when the period of incarceration ends? What happens when an individual is placed on parole? And is there a conflict between the deeming provision and what could be in the best interests of the child, especially if you have a somewhat uncooperative custodial spouse?

Mr. Bob Mills: Again, that was a question I went through earlier. It was raised by several of the law professors I contacted, who said that maybe this should go further and include the pedophiles out on parole. I personally felt that this was broadening it much further than I intended to go, and again I don't know the implications legally of all of that. That wouldn't be something I could even comment on.

I am, in this case, concerned for the very safety of the mother and of the two children. I hope we're not going to read about these two young girls--and I say that in all sincerity and concern. I'm worried.

I can't imagine that access would be granted, because she has full custodial rights whether he's in or out of prison. But, obviously, last July, when the parole board ruled that he would not become eligible for parole until 2003, I thought that's what that meant. But he is now coming up before the parole board in July again because of a group who believe this guy has found the Lord and therefore is okay now. To me that's a stupid reason--I'll use that very blunt word here--for granting a parole hearing.

So I'm worried about it, I really am.

À (1045)

The Chair: Thank you very much.

Mr. Cadman.

Mr. Chuck Cadman: Thank you, Mr. Chair.

Mr. Mills, you said you've done a number of talk shows and spoken to many people and have received no opposition at all. I could certainly appreciate that.

I just want to know if you've spoken with any of the prisoners' rights advocacy groups or any folks like that. Have you spoken with them yourself ? Have there been any opposing views expressed by them, and if so, what are they?

Mr. Bob Mills: I've talked to the John Howard and Elizabeth Fry societies. Their concern was that the rights of any prisoner would be restricted. When I pointed out to them that this was about pedophiles, sex offenders, they indicated they had no problem with it at all, because this should never happen. They were in support.

In fact, a member of the John Howard Society was at the prison that day as part of the group protesting the visit. Remember, we found out this visit was going to occur at 6 o'clock at night on a Saturday, when he invoked his legal right, and there were hundreds of people at that prison the next morning. This was simply an expression of public outrage at what was happening.

So the public is very engaged in this case, but there are other cases, and there should never be any others. That's why I'm doing this. It's not going to help Lisa Dillman and her girls; that's already history. We are doing it because of the potential for the next judge to stand up and say that the law is not clear enough, and the MPs blew it by not making it clear enough. Parliament didn't tell the courts how this should be dealt with.

Our challenge, then, is to put this into a wording that would give them better direction--not sole direction, not tell them everything, but give them the best interests of the child.

The Chair: If no one objects, I have a couple of questions I'd like to ask, and any objection from Mr. McKay won't be noticed.

Mr. Bob Mills: That's how our committee works, too; Charles does it all the time.

Some hon. members: Oh, oh!

The Chair: Mr. Mills, you have expressed that, to the best of your judgment, most of the time the judges are finding otherwise.

Mr. Bob Mills: Yes.

The Chair: You did recognize that this is a significant exception.

Mr. Bob Mills: Yes.

The Chair: If there were offences that people were doing time under, other than these, then that suggests to me that judges right now are saying no to the rest of those offences. If you list these offences, will you change the behaviour of those judges who are currently saying no to other offences by making this specific reference to a list? Do we not signal to the judges, as Parliament, that this is what we think they should be making that decision on? I'd be fearful that there would be unintended consequences. The judges might read this to mean these are the only offences where we are of that view.

Mr. Bob Mills: It seems to me, though, that we're talking about just the person who's convicted of a sex offence.

The Chair: But if you list a specific offence, it has a tendency to suggest that other offences should not be treated in this fashion. You're telling me now--

Mr. Bob Mills: But “the best interests of the child” is what has to be in there. If you put “the best interests of the child”, maybe it is in the best interests of the child to visit that parent who's a murderer. But I don't think it would ever clarify it for that judge. On a sex offence, there are no exceptions. That's the point I want to get across.

À (1050)

The Chair: I think members understand the issue, though.

Mr. Bob Mills: I see your point.

The Chair: When you make a list, you have a tendency to suggest that you think those--

Mr. Bob Mills: Maybe we shouldn't have a list. Call it “sex offences”.

The Chair: I think I heard you say earlier that you would be open to a reverse onus appeal process.

Mr. Bob Mills: Yes. That was one lawyer's suggestion. I haven't thought of it, to be quite honest.

The Chair: In the context of provincial consultations, I think I also heard you say you'd be open to that.

Mr. Bob Mills: Oh, definitely. At the two provincial consultations I underwent with ministers, they said they were for that. I think I could talk to all the ministers and get that kind of a statement. I really believe that.

The Chair: The only other thing is that I'm going to ask staff--I just want to do it on the record--to try to figure out what procedural options are available to us at this time of year, at this point in the process. You referred to the fact that you didn't want us to get caught up in things that are beyond our control. I want it to be on the record that there are some consultations that probably need to be done. You're open to an appeal process that would require changing in law. I just want it understood that the idea that this could be done quickly and the idea of the other things you've suggested you're open to aren't necessarily absolutely compatible. It may take a little bit of time to get it right, and you'll have to accept the fact that we may have to make some changes.

I think Mr. Cadman is next.

Mr. Chuck Cadman: This is just a comment on the question you had, Mr. Chair. Would it be reasonable to list the offences and then add at the bottom “or any other offence that the court deems appropriate” or that type of wording? I just throw that out there.

The Chair: I think that's what draft people would attend to. I just wanted to get the concept on the record.

Mr. Bob Mills: I'm totally in favour of you drafting it and working on the details. I really appreciate getting it here. I really believe it is in our best interests, as parliamentarians, to get this thing done, to have Justice accept it, to do it and move on. I think we all benefit from that. I'd like your committee to take credit for it. That's just fine with me.

The Chair: Mr. McKay.

Mr. John McKay: I want to pick up on your comment about two judges saying this isn't clear enough. Our researcher, Mr. Rosen, has given me a copy of the Divorce Act, and section 9 says:

In making an order under this section, the court shall not take into consideration the past conduct of any person unless the conduct is relevant to the ability of that person to act as a parent of a child.

It “shall not take into consideration the past conduct”: that's one point. The second point has to do with maximum contact:

In making an order under this section, the court shall give effect to the principle that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child and, for that purpose, shall take into consideration the willingness of the person for whom custody is sought to facilitate such contact.

That's pretty broad.

Mr. Bob Mills: That's what the judges said.

Mr. John McKay: I don't see, with a fair-minded reading of the facts, how any judge could fail to take into consideration those facts. I'm perplexed as to the comment that it's not clear enough. A judge has very significant discretion under the Divorce Act. I'm hard-pressed to see where there's a failure in law here. I can see a failure in the process, or I can see a failure in factual interpretation, but I don't understand how that law is not clear enough.

Mr. Bob Mills: I wish you were right, because then I obviously wouldn't have had to put a year's work into this, I wouldn't be here, and we wouldn't have had to experience May 27 last year. But a judge obviously said that it wasn't clear enough because it didn't talk about sex offences. This is simply an amendment. Everything you read stays. This is an amendment that makes it very clear that sex offences are in fact something unique.

À (1055)

Mr. John McKay: But there's nothing to prohibit a judge today from taking into consideration that this person is a convicted pedophile who has molested one of the children of the marriage.

Mr. Bob Mills: I know that, but the point is, it happened and it went through two judges. If it can happen once, it can happen again. That is why it has to be clarified, in my opinion.

The Chair: Thank you, Mr. McKay.

We'll go to Peter MacKay.

Mr. Peter MacKay (Pictou—Antigonish—Guysborough, PC): It's fair to say, Mr. Mills, that this is meant in many ways to be directive for judges. It's there to clearly enunciate that these are the types of offences a judge should always have in mind when making these types of orders. It's something we have seen in other areas of the Criminal Code and other areas of the Family Court Act, where the behaviour of individuals is to be highlighted when it could have a detrimental impact on the child. Is that fair to say?

Mr. Bob Mills: Yes, it's about the best interests of the child, over and over and over again. Obviously, in the case of a pedophile, where the custodial parent or children do not want to visit, a judge should have clear guidance. Hopefully, this is what this amendment would give them.

Mr. Peter MacKay: Just so we're very clear--because someone asked me about this issue, and I think I gave the right response--this in no way implies that the children in question, that is, the children of the marriage, have to be the victims of any of these offences or of any inappropriate sexual touching.

Mr. Bob Mills: In the way it's written, no. We have discussed that. Maybe you want to restrict it more. I'm quite prepared to accept amendments. I just want something that will stop this from ever happening again. That's the straight, upfront answer.

Mr. Peter MacKay: Certainly.

Thank you, and thank you for your effort.

The Chair: Thank you, Mr. Mills.

I will relieve you of your obligation to remain here, but before I suspend to allow our next series of witnesses to come to the table, I am going to take advantage of the fact that we have quorum. The reason is that we passed a motion, as put by Mr. Sorenson, to call the officials from the Solicitor General's department, including the Commissioner of Corrections, the Parole Board, and so on, and we in good faith went about organizing that meeting. As it turns out, the meeting we organized is actually in competition with the committee that is looking at the non-medical use of drugs and a site visit to New York.

It doesn't change the content of the motion, because it was only to call, but it does say that it is to be before the House rises, and we may not be able to reorganize it. So I would need the committee to give me permission to do that, if it's your desire.

It was Mr. Sorenson's motion. It was Mr. Sorenson's request to postpone, even if that meant that we went into the fall.

Does anyone have an objection?

Mr. Kevin Sorenson: Well, no, because we're travelling, and I know Ms. Fry, Mr. Lee, and I would all like to be able to be here.

The Chair: I'm certain there'll be no objection at the ministry.

Mr. MacKay, on another matter.

Mr. Peter MacKay: I'm just inquiring of the chair and the clerk about when we would revisit or finalize the decision on the Hearn motion I put forward. There was going to be some material, and I understand that material has been received.

The Chair: We've received that material, and we have scheduled to examine it next Thursday in committee. I apologize, but it has not been distributed to the committee yet.

Mr. Peter MacKay: And we'll deal with the motion at that time?

The Chair: We'll deal with it at that point. If you recall, what we would do upon receipt and review was left undecided, so I leave it to the mover to consider what you may wish to do at that time--upon reflection, I presume.

If there's no objection, then, we'll be rescheduling.

We're going to suspend to allow our next set of witnesses to find their way to the table.

Á (1100)

Á (1108)

Assistant Commissioner William Lenton (Federal Services, Royal Canadian Mounted Police): Thank you very much, Mr. Chair. I'd like to thank you first of all for the opportunity to appear here this morning.

My name is Bill Lenton, and I am the assistant commissioner of federal services for the RCMP. With me today is Superintendent Dave Jeggo, the director of our economic crime program at a national level attached here to the Ottawa headquarters.

It is currently our understanding that the bill that was to be the object of discussion has been withdrawn, and the issues have been referred more for a question of study and discussion. Therefore, our appearance today is more to participate and contribute to the public policy discussion around the topic. That's the understanding we have.

There has been some excellent background material in the form of a discussion paper prepared and presented by the Department of Justice. This document appropriately articulates the larger policy issues that need to be discussed. I believe the paper summarizes the goal of these discussions and pending debate on page 19, on the copy I have at least, where it states: “Numerous other federal and provincial acts establish offences of this nature in particular regulatory domains.”

The question at hand is whether a general provision covering directors' liability should be inserted in the Criminal Code or, conversely, whether the law should delineate situations where only certain managers are liable. In a general sense, however, the basic question to be answered is what is the best way to ensure justice is served.

First I'd like to clarify for the committee the difference between what we traditionally call the economic crime program or the commercial crime program of the RCMP and the subject matter of the discussion.

Previous testimony infers there is a pool of resources that police corporate crime. This is true only in the context of financial and business-oriented criminal activity, and the resources for the RCMP are reflected in our economic crime program.

From an investigator perspective, the economic crime program consists of 319 federal investigators distributed across 34 locations with some in each province. In addition, the program has a complement of 73 provincially funded investigators and also some support staff to make a total complement of approximately 450 personnel with an operating budget in the order of $50 million on an annual basis.

The RCMP has an obligation to respond to economic crime where the interests of the Government of Canada and Canadians are at stake. Because of its national and international presence, its role in the preservation of national interests, its ability to coordinate the gathering and dissemination of criminal intelligence, and the fact that stakeholders have expressed a collective need for its involvement, the RCMP is the most logical law enforcement agency to conduct certain types of investigations.

I in no way want to infer that the RCMP is the only law enforcement group involved in the area of economic crime. There is a significant contribution made by the Sûreté du Québec, by the OPP--the Ontario Provincial Police--as well as by the other local municipal policing departments, particularly the larger ones where they have an establishment large enough to dedicate specific areas.

Within our program, we cover areas of commercial fraud, securities fraud, telemarketing fraud--this is an example where we have a “phonebusters” national call centre, which is a joint project operated with the OPP but has a national impact--items of identity theft, currency counterfeiting, payment card counterfeiting, and fraudulent use of credit cards. You'll note that there was a significant case that was just investigated by the Sûreté du Québec, which was made public this week. So we by no means have the corner on the market, but we do have a significant role.

We deal also in areas of corruption and breach of trust, with frauds related to federal statutes and programs focusing on fraud related to employment insurance, tax avoidance, criminal bankruptcy, and corruption or theft cases where the Government of Canada is the victim.

This economic crime program is the cornerstone of the RCMP's corporate policing role.

Á (1110)

In the context of the term “corporate crime”, as it is being discussed in at least our understanding before the committee, there is a mixture of Labour Code and worker safety issues that are covered primarily in a regulatory scheme. Where warranted, however, on a case-by-case basis, the RCMP will be asked to investigate whether or not criminal wrongdoing is alleged or indicated.

For the most part, this is part of our provincial policing mandate, and resources will be allocated according to need and according to the provincial policing service agreement. That particular agreement allows us to bring resources from other jurisdictions, as necessary, according to a certain scheme.

An example of where we've done that recently is Swissair, post-September 11, when we had to reallocate resources to deal with the particular issues surfacing there. Another example in British Columbia currently is the serial murder crime scene that we're exploring, where we bring in the amount of expertise and the types of investigators needed to face the task at hand.

In this area, of course, because it is at a provincial level, other police departments are involved, particularly in Ontario and Quebec, and at the municipal level. It depends on the magnitude of the alleged offence as to who would get involved. It's very much an area of police force of primary jurisdiction.

I'd like now to turn my comments to the police role and the investigative role of the police. First of all, the police must function within the rule of law. There are no exceptions. Our commissioner has made it very clear before this, and, of course, it's a standing rule that we have to deal within the rule of law. That's the RCMP and other police forces. It requires that the police must know the law and know the collection of tools available for us to use in the investigative capacity.

We then examine the facts, we apply the tools available to us to collect the evidence, our goal being to collect sufficient facts and present those facts in a format wherein they will be recognized and accepted as evidence by the court. In consultation with the crown prosecutor we evaluate whether the allegations are substantiated or not. Where substantiated, with the assistance of the crown prosecutor, we present the case to the court and the facts that we have, and the court determines which will be accepted as evidence. Ultimately, the court makes a determination of guilt or not and determines the sanction that is appropriate, if there is to be a sanction.

With respect to legislative issues, the police role is to provide advice on whether the requisite tools are available to apply the law as anticipated by the legislators. If there's a change in law, we have to look at it from a practical basis to see whether or not the tools are available for us to do our job, what we're expected to do, and whether or not they are anticipated in law.

We provide advice and views on significant issues and challenges, perhaps, that are unforeseen by the drafters. And that typically turns around issues of practical application. We would also identify any particular resource needs that may flow from new legislation or a change in legislation and identify those to the legislators or to the process, at least.

The models presented in the Department of Justice discussion offer worthy options for consideration and surface questions that will need to be examined. For example, there are likely to be charter issues in any scheme that anticipates criminal jeopardy or sanction based on anything but the most direct links between the acts and the harm caused.

That terminates my opening comments, Mr. Chair. I'm available for comments, as is Superintendent Jeggo, as required by the committee.

Á (1115)

The Chair: Thank you very much.

Monsieur Yaron.

Mr. Gil Yaron (Director, Law and Policy, Shareholder Association for Research and Education): Good morning. On behalf of the Shareholder Association for Research and Education, I would like to thank the committee for the opportunity to appear at these hearings. Bill C-284 addresses, in part, a long-neglected need for greater accountability within the corporate sector.

I am Gil Yaron. I am the director of law and policy for the Shareholder Association for Research and Education, and a practising lawyer in British Columbia as well.

The Shareholder Association for Research and Education is a national, non-profit organization, originating within the labour movement, that works with institutional investors to promote socially, economically, and environmentally responsible investment practices. Our organization represents affiliated investors, with total assets exceeding $1.5 billion--in particular, the pension funds of Canadian workers.

The principal concern of pension funds and welfare plans is to make investment decisions that meet the needs of workers and their families throughout their working life, and retirement. Meeting this responsibility means avoiding investment risks that decrease investment returns and shareholder value, such as investments in companies that have high costs associated with occupational injuries and environmental liabilities.

This committee has heard submissions on the legal and public policy issues supporting Bill C-284, as well as associated procedural and jurisdictional issues.

SHARE endorses the corporate culture standard articulated in the bill, the standard of strict liability, and mechanisms for addressing the liability of parent corporations for the actions of their subsidiaries. Ultimately, it is necessary that legal regimes be able to transcend the legal fiction of corporate personhood, in order to ascribe liability to corporate personnel, and corporations, for harm caused to individuals and the environment through wilful acts or negligence.

In the time available today, we would like to present several economic arguments supporting the introduction of corporate criminal liability, specifically the adverse impacts of such behaviour on the welfare of workers through their pension plans and welfare funds. In so doing, we seek to respond to questions posed earlier by Mr. Macklin and other committee members about how to address situations, such as Westray, where the company operated in a depressed economic region--with management taking shortcuts, and workers remaining silent about unsafe working conditions for fear of losing their jobs.

At the heart of our submission is the fact that workers and their families are not only physically and emotionally affected by tragedies such as Westray, but also economically impacted by the negative consequences that illegal corporate behaviour has on their welfare funds and pension plans.

Our two points are simply these: first, that illegal corporate behaviour diminishes shareholder value; and second, that the market only operates effectively within a strong regulatory environment that promotes transparency and accountability and levies meaningful punishment for illegal corporate behaviour. I'd like to just spend a couple of moments addressing both of those points.

First, the literature over the past 25 years demonstrates a strong correlation between corporate social performance and corporate financial performance. Specifically, studies demonstrate that illegal corporate behaviour has an adverse impact on shareholder value. Corporations that fail to comply with regulatory standards incur additional costs, through fines; expenditures to remedy violations; losses due to injury-related lawsuits; production delays; and other liabilities that are passed on to shareholders.

In the case of health and safety violations, in particular, one American study demonstrated an “immediate and pronounced decline” of the value of firms on the date of announcement of a health and safety violation, and during the three-day period surrounding it. I'll mention another quote from that study: “OHSA (Occupational Safety and Health Administration) citations are clearly regarded as unfavourable news by the markets, and OSHA appears to have sufficient enforcement power to affect the value of the firm.”

The historical data on Curragh Inc., the owner of the Westray Mine, is entirely consistent with these findings. Curragh was a publicly traded corporation on the Toronto, Montreal, and New York stock exchanges. On the next business day following the disaster, the company's share price dropped by almost one-third, one of the largest drops in the company's history. In my submissions, I have attached a couple of charts that provide you with a graphic indication of that change. Once the materials are translated, I hope those charts will be made available to committee members.

Á (1120)

In addition to the negative effects of illegal corporate behaviour on investor returns, such activity also adversely impacts the social benefits to workers. Worker injuries and fatalities result in increased benefit and pension payments to workers and their beneficiaries, ultimately resulting in increased premiums and contributions by the employer.

In the case of multi-employer arrangements, the “free rider” phenomenon arises where the costs arising from negligent acts of one employer are borne by the others over the long term.

HRDC indicates that in 1997 there were 12.3 million employees in Canada. Of that number, there were 818 fatalities, with almost 400,000 injuries resulting in time lost from work.

In the Westray disaster, Justice Richards' report stated that the total actuarial value of payments to workers and their families, as estimated by the Workers' Compensation Board of Nova Scotia, totalled somewhere between $13.3 million and $15 million.

These studies and empirical evidence demonstrate the negative impact illegal corporate behaviour has on shareholder value. It doesn't make sense for corporations to cut corners, even under depressed circumstances such as Westray's, because it has long-term negative impacts on financial performance.

My second point is that the market requires a strong regulatory framework to be effective at deterring illegal corporate behaviour. Despite these incentives I've just outlined, the continuous increase in occupational injuries and fatalities demonstrates that the market alone cannot ensure responsible health and safety and environmental practices by corporations. Why?

First, the market will only respond when the penalties for non-compliance and the likelihood of getting caught are significant. Second, the market is reactive. Share value plummets once the wrong has been committed, not before. Third, some corporate actors are bent on following a harmful course of action regardless of the cost to the company. Criminal sanctions are required to deter the specific corporate actor in such cases. Four, market reaction and media exposure are not sufficient to deter repeat violations. Studies have determined that despite negative market reaction to acts of illegal corporate behaviour, companies that violate the law and cause harm will likely be repeat offenders.

The development of a corporate culture where all those involved share responsibility for the acts of the corporation requires a broad range of regulatory tools, including corporate criminal liability that stigmatizes the responsible individuals and the corporation, effective whistle-blower protection, strong criminal and regulatory enforcement, and elimination of tax loopholes allowing corporations to write off fines.

In addition to these points, corporate accountability and effective deterrents require full disclosure by corporations of their financial, social, and environmental practices. Disclosure of information such as policies and compliance records will ensure that investors and the public are informed and can take proactive steps to address concerns.

The Securities Exchange Commission in the United States is currently considering such requirements, and SHARE urges the committee to support greater disclosure by corporations of their social and environmental practices.

Corporate disclosure is simple to achieve in this country. All publicly traded corporations must already disclose their financial documents on SEDAR, a central web-based service established by the Canadian Securities Administrators. Our recommendation is to have corporations post their health and safety and environmental compliance records on SEDAR.

In addition, we urge committee members to press the government to adopt the substance of an earlier private member's bill, Bill C-394, to have all pension plans and mutual funds disclose the extent to which they consider social and environmental criteria when making investment decisions. This requirement has been adopted in England, Australia, and four EU countries, and is being considered by another five EU member nations.

The consequence of this requirement is that the beneficiaries can be sure that social issues are being considered when investments are made on their behalf. Institutional investors, in turn, will put pressure on corporations to make sure they are in compliance with these criteria.

Thank you very much.

Á (1125)

The Chair: Thank you.

Mr. Sorenson, you have seven minutes.

Mr. Kevin Sorenson: Thank you, Mr. Chair.

Again, we want to thank you for coming.

Over the past month we have looked at Bill C-284, and for me it has been an education.

Before coming to Ottawa, we knew about the Westray disaster. When we started this exercise, I thought we were just going to be in for a lot of corporate bashing. It's an example of where a terrible atrocity took place.

I have a couple of questions. To what degree was the RCMP involved in that investigation? How many police were dedicated to that specific investigation in Nova Scotia?

Mr. Lenton, you mentioned economic crime. How many RCMP officers are involved in that specific type of crime? Was the figure of 319 for all of Canada?

A/Commr William Lenton: That's correct. The total economic crime program, which is primarily focused on the areas I set out-- fraud-, financial-, and market-related offences--involves about 450. That's the RCMP contingent. Those in the provincial contingent are RCMP officers, but they're paid under the provincial policing agreement to look after the provincial responsibilities. Many areas of fraud come under the Criminal Code and are within provincial jurisdiction. The RCMP economic crime program focuses on the federal part of that, and it is primarily driven by fraud-related offences.

When it comes to the corporate crimes that are, I believe, anticipated by Bill C-284, you would be more inclined to go toward the breach by corporate officers of a duty to the employees and that sort of thing. That would tend to fall under our provincial policing mandate. It would be investigated under the existing Criminal Code by those investigators or as a complementary team to some regulatory investigators who don't have enough powers and tools to seek the information needed.

With regard to Westray, I don't have the specific numbers, but typically the number of investigators assigned would vary over time. A small group would go in the first instance to try to get a perception of what the problem is and to understand the dynamics of the situation and what types of deviants from the norm are present. They would assess what is needed and would put forward an operational plan in order to take this on.

First of all, they have to establish whether we have jurisdiction and if there is enough there to merit use of the criminal investigative tool box to resolve the issue. Then they would say, we need this many technical experts. Those experts may all be RCMP, or they may be from other federal or provincial government departments that have the expertise necessary to give us the information we need. We would then bring in a fairly large contingent to move the investigation forward. As the investigation becomes more focused, it tends to have a lesser number of persons in order to wrap it up and present the case.

You have to keep in mind that the criminal investigative process is not always rendered more effective by throwing in more resources. A lot of this stuff has to proceed in a progressive way. You can't do step four with investigators until you've done steps one, two, and three. That's why you tend to have a varying number of resources dedicated over the course of any investigation of that nature, and Westray would be no different.

Á (1130)

Mr. Kevin Sorenson: Most of the RCMP's involvement would be investigation after the fact; for example, after the disaster in Westray. Are there cases where the RCMP is brought in on complaints of unsafe conditions in the workplace? Would it have ever happened in the case of Westray, for example? I know there are provincial agencies that are called in.

A/Commr William Lenton: I can't think of any cases where we have been, but that doesn't mean that we're not. We are available, as in any process, for a complainant. It could be someone from the union side. Any person who has knowledge could call us in and say, look, this is wrong, this is inappropriate.

Then, of course, as I say, you put a small group together when you receive the complaint to evaluate if there is something happening there whereby we can claim jurisdiction, or acquire jurisdiction, to use the criminal toolbox. Frequently, in the area of economic crime and commercial crime, it's more a matter of civil regulatory process, or a civil matter as opposed to a criminal matter.

At the present time, I just don't have any cases I could cite to you where we have been brought in to evaluate. It's not impossible, that's what I'm saying; it's not impossible.

Mr. Kevin Sorenson: Okay.

When you look at the history of the RCMP, and you look at resourcing down through the years, not just the last few years--we tend to look at the time since 1993, but even before that--we see where commercial crime divisions, if there were such, or resources for that, have had maybe the hardest cuts. As we have prioritized, even in the past year, with September 11, the fraud ends...they take a certain type of investigator, a certain type of investigation. I'm thinking back to a book I read probably a year or so ago, I think called The Last Guardians by Paul Palango. He talks a lot in there about the RCMP during the time of Commissioner Inkster, where, when there were cuts, it seemed like this was the specific area that got the majority of them.

This may be off from the point of Bill C-284, but how effective are we? We're seeing private security firms popping up all across this country. We're seeing retired RCMP officers being hired by these. We're seeing people leaving CSIS and going to these. How effective are you, as a force, in commercial and economic crime?

Á (1135)

A/Commr William Lenton: Certainly, I don't think there is any secret that we could use more resources in that area. Equally, there is no secret that there is a finite pool of resources that are going to be made available to the policing community.

We have a system of prioritization, and we are intelligence-led--I'm certain you've heard those terms--and we try to deal with the issues that are going to have the largest impact. Typically, we look at files where there's an organized crime involvement, because we feel that's an area where you have to have the tools, the capabilities, and the time that we can put into that type of file. But when you put a lot of time into that file, there are other things that happen.

My personal perspective is that there's a grey zone, and it's an increasing zone that we are increasingly having difficulty addressing. The grey zone, if I could take a moment to explain it, is that at one end of the spectrum you have a series of offences that are based in economic and commercial crime that are regulatory in nature, and there's a system set up, and there are people set up to investigate and deal with them. They are content to deal with that; that's what their mandate is, that's what their role is.

There's a series of memorandums of understanding between the RCMP and various departments that say that when it goes beyond a certain point, when it becomes more difficult, when you start to need things like undercover operations, or wiretap tools to be used, or a more difficult type of investigation, they will refer that to the RCMP. Then we take the lead role, often working in partnership with the source department, and move forward with it.

What's happening in a time of restructuring, and in a time of limiting resources, is that the RCMP tends to be looking at one end of the spectrum, at the highest priorities, and the most complex and difficult files. The regulatory bodies are looking at their end of the spectrum, but the RCMP is pushing back, saying, really, we don't have enough resources to do this right now. The other group are saying, well, these are really beyond what we want to do, and they are falling into somewhat of a void. That's where you see these other groups coming in to try to pick up and to try to deal with the issue.

So there is a funding issue. Of the funds the RCMP has received, and we have received significant injections of funds, a lot of those funds have been required just to sustain our systems required to conduct investigations. You need significant investment in the infrastructure and the technology required just to be able to investigate at the level we're required to investigate at. A lot of the funding is prescribed. It's given for a specific purpose, and we're not free, then, to necessarily take it out of that pool and put it over here and do something else. We have to apply the resources to where the Treasury Board has directed they will go.

We would welcome an opportunity, at some point in time, in spite of the fact that we have received significant funding, to plead that case again, and draw more funding towards the economic crime area.

The Chair: Thank you very much.

Monsieur Lanctôt.

[Translation]

Mr. Robert Lanctôt: Thank you, Mr. Chairman.

My questions are mainly for the RCMP.

You say that it is mostly after the fact that you are called when there is a problem having to do with crimes involving corporate directors' criminal liability. Do you have any figures to give us?

Everything we have heard so far is either black or white. A number of unions, including the Steelworkers, demand that we amend the Criminal Code. However, several lawyers tell us that the Criminal Code already provides everything we need to deal with criminal negligence or whatever.

How many investigations are done? Are there really any successes? The lawyers tell us there are no problems. But surely there is a problem; otherwise we would not have had Westray. There has been other evidence that has revealed quite dramatic facts. So disasters do occur.

There is a lot of talk about the shortage of resources for enforcement of the Quebec occupational health and safety legislation. That creates a huge problem. If you had the finding you needed, does the Criminal Code provide everything you need to investigate complaints? In your opinion, does that seem to be the case? I am told you never receive complaints from unions or employers, but if people were truly made aware of that option, would it just be a problem of resources or does the Criminal Code need amendment?

Á (1140)

A/Commr William Lenton: You are right, we are more or less reactive when it comes to the type of crimes we're talking about here today. When a complaint is received, we can investigate. In the Westray case, if you recall, criminal complaints were made. The criminal cases were unsuccessful for reasons other than just the legislation.

Obviously, if the legislation were clearer, it would be easier for us to determine that we had criminal jurisdiction to investigate more quickly. If the legislation provided for that, then we would identify all of the resources we needed to be able to do the additional tasks incumbent on us. To date, to my knowledge, it has not been the role of the police to investigate inside corporations to determine how certain things are done. If we are there and we are asked to go there, we will go there and investigate. That applies to the RCMP because of its provincial contract. It may also apply to the Sûreté du Québec or the Ontario Provincial Police or to another force. But before the police can act, they need to have jurisdiction. I believe there is jurisdiction to investigate under the Criminal Code as it currently stands. It is a matter of receiving a complaint and investigating.

Does simply having jurisdiction to investigate make the investigation itself simple? No, far from it. In my opinion, the main problem is how to convict and possibly imprison those responsible in a scenario where it is not easy to connect an individual's actions with the impact of those actions. When several people are sitting around a company's board of directors' table and they make a decision, is one more responsible than the others? Where do you draw the line between employee, team leader on the factory floor and company executives?

Our approach, given our current tool kit, is to proceed on a case-by-case basis. We look at what is done and how things are done in the company. We consider whether there is a way to find individual liability. We don't just work on this in isolation; we consult with experts in the field and crown prosecutors who will ultimately have to argue the case. We eventually decide whether there is enough evidence to warrant criminal prosecution.

Mr. Robert Lanctôt: Do you have the figures? How many times have crown prosecutors found that they had enough evidence under the current code? How many of these investigations can you do? Of the investigations you do, how many cases lead to charges because the crown is satisfied there is enough evidence?

A\Commr William Lenton: If you are talking about complaints by company employees under the Labour Code, like in the Westray case, I do not have exact figures. I seriously doubt they are high, because most of these things, especially when they are done on the prevention side, are done by those who have the mandate to deal with that. So it is rare. Usually, when a company is found to have behaved inappropriately or to have failed to act, it is up to the regulators to advise the company. In most cases, the companies mend their ways. That is why we do not have resources specially earmarked specifically for this sort of investigation.

Á (1145)

Mr. Robert Lanctôt: Because there are not many.

A\Commr William Lenton: Because there are not many investigations and because we are rarely called upon to do this kind of investigation, i.e., a criminal investigation in this type of case.

Mr. Robert Lanctôt: In your experience, is that because of the lack of clarity in the code? The code already makes provision for criminal negligence, after all. So you do not invoke criminal negligence.

Is that because of the lack of complaints or the lack of resources?

[English]

The Chair: Thank you, Monsieur Lanctôt.

Monsieur Lenton.

[Translation]

A\Commr William Lenton: They go hand-in-hand. If we do not get complaints, we are not going to put many resources into investigating, given that there are lots of complaints for which we do not have adequate resources to investigate. To date, at least, this is an area where Canadian society has left it up to regulators to control these things. Yes, there is a way for us or for another police force to become involved, if necessary, but to my knowledge, it does not happen very often.

[English]

The Chair: Thank you.

Peter MacKay.

Mr. Peter MacKay: Thank you, Mr. Chair, and I want to thank the witnesses for their testimony and for being here.

I guess one of the first questions that comes to mind is in the context of these tragedies, these instances--Swissair was mentioned, and the serial murders that have occurred in British Columbia, and I think of the mining disaster in the territories, and of course Westray, the subject of this bill--the resource issue has been mentioned time and time again. Flowing from that, I would submit, there is a problem in terms of the delay on occasion. There's a natural delay when a disaster occurs, and the first response is obviously to try to render assistance to survivors and victims.

In the Westray case, that was partly true in terms of the preservation of evidence and the later decision to flood the mine.

You've read the bill. My question to you is, looking at this legislation from the police perspective--and I fully understand your role in being here is not to draft legislation for us--do you feel the police would have been able to lay charges in a more timely fashion? Because there was a significant delay in terms of the collection of evidence and the actual decision to lay charges after consulting with the Crown.

Do you believe this bill, at least on the face of it, the concept of the bill to be more clear--to use Mr. Lanctôt's word--in essentially fingering corporate responsibility, would have assisted the police in that initial stage of laying the charge based on reasonable and probable grounds?

A/Commr William Lenton: Certainly where the law is clear, you can more quickly achieve the determination of whether there is or there isn't sufficient proof to substantiate the allegations. However, it's not the text of the law that necessarily determines the complexity of the investigations required to prove it. There are obviously some drafting concerns and there are several issues, charter issues and what not.

But even if the text of the law were modified, you would still have the issues of access to documentation, how to get it and where it might be, and who the directing minds are. I don't know the details. I was not an investigator on Westray and I do not know the finer details.

But when trying to identify the directing minds of a corporation, one runs into issues such as whether there are any offshore implications; has there been any direction from others; did the direction come from afar; are decisions really being made in another jurisdiction. So there's a whole series of things you have to go through. You have to go through the company records and, particularly in a case like this, establish what the company has done along the lines of due diligence to avoid the disaster.

And really it becomes a question of how blatant it is. As far as establishing who did it, a murder can be very simple; if you arrive at a scene where there's been a murder and you have a body and a person with a smoking gun in his or her hand for which you get a ballistic match from the bullet, then you can be pretty sure what happened there. But the investigation might be more complex as to why the murder happened and what defences there are. The police have to investigate not only the obvious but also what is not so obvious. Our role is to try to bring to the courts the clearest picture of what happened. That's where I say the investigation becomes complex, because the rules of evidence come into play.

And it doesn't matter if the text of the law is very clear; the rules of evidence still have to be respected, the rules of disclosure have to be respected. All of those things can complicate and prolong the investigation and make it more difficult than what it would perhaps appear to be on the face of it, just based on the text of the law per se.

Á (1150)

Mr. Peter MacKay: I agree with that, and I thank you for that very detailed answer. Many of those factors contributed. And you've mentioned that you're not intimately familiar with the Westray case. I worked in the crown office from which the case was prosecuted, and all of those factors were at play. Their ability to locate the chain of command through the documentation and the difficulties with disclosure at the trial stage were immense.

Again, though, I come back to this issue of streamlining the law in such a way that the culpability aspect of it.... And those evidentiary issues are undeniable in this case, but the basic threshold that has to be met for the police to lay the charges is that we use language that is specific in including the operating mind, the directors, the managers, those who were in a position to make those authoritative decisions, be they acts of omission or co-omission. That to me appears to be one of the focal points of this committee, the inclusion of that type of language.

Whether it's the bill in its present form, do you feel that by including this type of specific direction as to where those charges should be laid and who is to be encompassed by acts of criminal negligence in the large sense, when you have a disaster like a Westray or potentially like a Swissair...? Because it seems that the longer the investigation takes, and the delay in meeting that initial threshold of charge, sometimes are the poison pills that result in the ability later to produce the evidence and get over all of those evidentiary hurdles and preserve the evidence.

So do you feel that the simplicity in the first instance, of the charge itself, would assist in that eventual complete process along that chain?

A/Commr William Lenton: Certainly, if there's a specific text of law that covers the issue we're investigating, it makes it much easier. You don't have to try to convince people that you're taking criminal negligence and explain what it means, and then you have to get into all the types of imputing liability on that. It's very direct; it's there and it's specific.

And assuming the text can be crafted in a way that would withstand a charter challenge, then I would have to say, yes, it's much easier. The police would like to have tools that are more straightforward--and not only the police. I think, more importantly, if the legislation is clear to the directors of the company, they know what accountability they're going to have and they will, again, act accordingly.

And it goes beyond directors of companies. It goes to issues of the decisions made by people who are appointed to boards. Decisions are made by boards and sometimes the people who are on them aren't necessarily knowledgeable to the degree that they maybe should be if they're going to be held accountable for the decisions of the board.

So any clarity would be helpful in that way. Certainly from a police perspective, if this is the way the government wishes to express its policy on the issue, then we will comment on a specific text and then move forward with it.

The Chair: Thank you very much.

Mr. Macklin.

Mr. Paul Harold Macklin: Mr. Yaron, I would like to have a discussion concerning your concept of the way in which a corporate directorate should function. You seem to advocate, clearly, that there is a great deal of benefit in a corporate structure that abides by all the rules and so forth.

You alluded to some comments I made about Westray. I'd like to hear how you believe what you're advocating us to consider in fact would not have led to that disaster. Could you give us how you would see your suggestions having a positive effect rather than the negative effect that occurred at Westray?

Á (1155)

Mr. Gil Yaron: I don't have intimate knowledge of the actual decisions that were made by the directors in that instance, but clearly, if they had taken into consideration the potential liabilities that were associated with such an accident occurring in the first place, and taken steps to ensure that their workers were properly trained and the mine was cleaned and in a safe condition for people to work in, then that kind of incident wouldn't have occurred. And from our perspective, the company would have been in a better situation after May 9, 1992, as a result, financially speaking. They would not necessarily have suffered the downturn they did.

Mr. Paul Harold Macklin: Based on the fact that this was really a situation where, in fact, economics was the issue of the day, it was very much on everyone's mind, and yet they never chose a safe course, as a result of economics. And yet you were advocating, I thought, that economics would be the driver that would lead to positive results within corporations, and this wouldn't happen. In this particular case, economics was the driver, but it never led to a positive result.

Mr. Gil Yaron: It goes hand in hand, though, with a regulatory environment that places constraints on the market so you have penalties that basically incorporate those externalities and make it financially imprudent for a board or management to take a certain course of action. In that case, and in many cases today, I would argue, there isn't that kind of adverse economic consequence if you violate the law, if you violate regulations. So companies don't incorporate those externalities into their bottom line. If they did, I would submit that there would have been a different course of action taken in that instance.

Companies are starting to do that in the case of global warming. You might be aware of issues like sweatshop labour. Companies are trying to deal with these issues and they realize there are financial impacts from consumer backlash, boycotts, lawsuits, other kinds of economic consequences, if they don't follow those types of actions. In the case of Westray, that didn't happen, it's true.

Mr. Paul Harold Macklin: Let's take this a little further, because we're looking at a broad base here. We're looking at a law that would apply to a broad range of corporations, not only public, but also private. Many private corporations still endanger people's lives through the failure to abide by proper occupational and safety regulations.

How do you see that happening in, let's say, Jim's Lawn Care, which is an incorporated body? He has a lot of employees, but fails to necessarily abide by the occupational health and safety rules. How do you see your economic argument affecting him? He has no shareholders other than himself, and if he chooses not to pursue that course, for whatever reason, how do you see your argument working there?

Mr. Gil Yaron: Well, it's certainly more complicated in the case of private corporations, but I think the same economic principles apply. It's just that instead of shareholders, they're dealing with consumers. I would cite an example of restaurants.

In a number of incidents safety inspectors who went into restaurants found kitchens to be in a terrible state. There were numerous health and safety violations. As a result, people didn't go to those restaurants and those businesses suffered.

The latter half of my presentation focused on disclosure. When you shed light on these situations in advance through disclosure of compliance records and other kinds of materials, then that allows shareholders and consumers to make decisions, and consequently it requires that companies take those types of things into account.

Â (1200)

Mr. Paul Harold Macklin: What do you think we should be doing in terms of the law we're looking at, or the principles of the law we're looking at, to create something that would avoid, for lack of a better concept, this corporate culture that disregards occupational health and safety issues?

Mr. Gil Yaron: I think, for instance, this corporate criminal liability standard is--

Mr. Paul Harold Macklin: But are we talking now about a standard of corporate culture or a standard of the directors? Sometimes this gets murky. I think we're trying to make, to some extent, some distinction between them, although you tie them together in our current identification model because you're looking at the mind--the corporate mind--that designated the person or persons who actually set the course of that particular conduct within the corporation.

But if you tried to break them out and looked at it as a corporate culture, as a separate concept, as opposed to the present identification model...?

The Chair: Thank you, Mr. Macklin.

Mr. Gil Yaron: I'm sorry, what is the question that falls from that?

Mr. Paul Harold Macklin: The question is, from your perspective can you give us some guidance on how, or whether, you believe we should be using a corporate-culture means of addressing a particular criminal charge--in other words, one that would be based on an overall concept: the way a company operated, as opposed to simply dealing with the directing mind that is within it, and always having to find a directing mind?

Sometimes it appears that trying to find a directing mind isn't the easiest thing in the world, yet you know there's something wrong in the way the corporation is functioning, and it is criminal in the general population's mind.

Mr. Gil Yaron: I do believe the corporate culture standard--this notion of the “enterprise as a whole” responsibility of the corporation for the acts of its agents, its representatives--is an important standard to impose in the context of criminal corporate liability.

I think we are talking in that particular instance about very egregious forms of wrongdoing. In that case, I think it's imperative that we have the ability to assign liability to the entity as a whole, because what that does is engender a culture of accountability within the institution. It makes individuals responsible for the actions of others, and the institution as a whole responsible, and over time will lead to creating more responsibility within the whole institution.

I think if you try to limit it to finding the directing mind, not only do you have evidentiary problems but you basically allow individuals to pass off responsibility to others and absolve themselves essentially of their participation in the company's affairs.

The Chair: Thank you very much.

Mr. Cadman, you have three minutes.

Mr. Chuck Cadman: Thank you, Mr. Chair.

I'd like to direct my question to Assistant Commissioner Lenton. Previously you mentioned disclosure. This may stray a little bit from the subject we're dealing with, or it may not, but how significant a hurdle is it for the police when we come within our rules of disclosure to defence?

I've certainly heard police and Crown complain, in drug cases, in one instance I'm aware of, about the 2 million printed pages and 34,000 cassette tapes of wiretaps that were demanded, and how it significantly impacts on the ability to prosecute. We've heard the same thing on the child pornography issue, when it comes to the processing of the images.

So I just wonder, in the area of commercial crime, how significant a hurdle does it become when you run up against those kinds of disclosure rules?

A/Cmmr William Lenton: Disclosure is a significant issue in every investigation we undertake, in the major investigations and in investigations that are of the nature of economic crime investigations. Basically it's to the point where we have to assign disclosure people right at the beginning or very near the beginning of the investigation. We're exploring models, particularly with the federal prosecution service, as to how to meet that challenge in an ongoing way, and right from the beginning.

There are two things with disclosure that are really fundamental to the concept. Number one is the magnitude and the volume of disclosure after an investigation has run for two or three years and there have been part VI wiretap and there have been undercover operations. So there's the whole aspect of the volume of disclosure. There's a question of making sure disclosure is full and complete and at the same time protects the privileges that have to be protected. I'm talking of informants and investigative techniques that are not appropriate for disclosure in that context. That is an issue that has to be dealt with.

The other matter is a question of its being timely, in that if the accused persons are arrested and in custody, if they have a bail hearing, it will be within eight days of their arrest. At least a good portion of your disclosure has to be prepared by that time. You sometimes can get some extensions on that, but really, very quickly after the investigation has been completed you have to be prepared to move forward and get on with it.

That can be a significant challenge if your disclosure package is going to be significant and you haven't anticipated that, leading up. We don't always control when the investigation terminates. We can plan when it terminates, but there might be an intervening factor that comes along, and all of a sudden you find yourself in the position that you've had to terminate a longer-term project prematurely, and then you're right up against the disclosure.

So it is a significant issue. It's taking an increasing toll of resources and it significantly has changed the way we actually approach investigations, because now everything investigators do during the investigation will ultimately be in the hands of the defence. So they have to do it properly, and it has to be properly documented and written in a fashion that's clear.

Mr. Chuck Cadman: Thank you. And thank you, Mr. Chair.

Â (1205)

The Chair: Thank you.

Mr. Maloney, you have three minutes.

Mr. John Maloney: Mr. Yaron, one of the themes in your presentation is that it makes good business sense to have a good health and safety program in place and therefore not have the injuries that might result. In your experience at shareholders' meetings and annual meetings, are there reports on the workmen's compensation claims made that year in comparison with the previous year, or reports on the number of lost days and accidents? Or is it, “All I really care about is the bottom line”--i.e., how much money was made?

Mr. Gil Yaron: Historically you're correct, there hasn't been attention given to those types of issues. However, in recent years there are social responsibility statements that have been issued. The banks are now required to do it; public accountability statements are issued on an annual basis now by all the major banks. A number of corporations, especially those within the resource sector, have started to put out essentially annual reports that survey their social and environmental practices over the year.

Those are not statutorily required, and they vary in their degree of disclosure. Nevertheless, companies are realizing that shareholders are concerned about these issues and that they represent long-term liability issues for the companies.

Mr. John Maloney: But you're an advocate for shareholders.

Mr. Gil Yaron: That's right.

Mr. John Maloney: Does the association in fact impress upon the corporations that this may be the direction they should be going?

Mr. Gil Yaron: Absolutely, yes.

Mr. John Maloney: Thank you, Mr. Chair.

The Chair: Thank you.

Mr. Lanctôt.

[Translation]

Mr. Robert Lanctôt: Thank you, Mr. Chairman.

Mr. Yaron, you say you are in favour of this bill in principle. We see that the bill goes beyond and extends the doctrine of identification, either through the corporate culture doctrine or through the principle of vicarious liability. It aims to broaden the concept of the directing mind.

When you say you are in favour of the bill, do you feel it is specific enough to provide for the evidence needed for the investigations to identify the guilty parties?

By promoting the corporate culture doctrine over that of identification, does that not create a problem? Gathering the evidence would be tantamount to less likelihood of finding the directors guilty.

Â (1210)

[English]

Mr. Gil Yaron: First of all, I'd like to begin just by saying that we are in favour of the principles and the standards that are imposed in the bill but not necessarily of the exact wording of the bill as it stands. I think there are ways in which it can actually be improved, both by expanding on it and by improving the clarity.

My reading of the bill leads me to believe that there can be the corporate culture standard of liability and also the identification of individuals who are directly responsible, holding them liable as well. Please correct me if I'm mistaken in that regard. I think one doesn't exclude the other.

That said--and I probably should defer to my colleagues here--I don't see the corporate culture standard as imposing any greater evidentiary burden than the current directing mind standard. I think the ways in which corporate culture are identified in the bill...there are three or four things, like policies....

I'm sorry, I don't have the bill in front of me to refer to. But there are certain elements that define what constitutes having created that corporate culture, and those seem to me to be quite clear and easy to prove, or they are certainly as easy to prove as the current directing mind standard is.

The Chair: Thank you very much.

Mr. MacKay.

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

I'll just follow on the same lines. When we're talking about changing the Criminal Code, we're talking about after-the-fact accountability, and much of what I expect we all, yourselves included, would want to achieve here is some element of prevention and deterrence.

To both Mr. Yaron and the assistant commissioner, do you see that impact coming about, having a clear line in the sand that applies to directors and managers that would clearly enunciate this element of deterrence? I'm interested in both your responses.

This is obviously not going to occur overnight, and with the police perspective I suspect that in the first instance it might result in more investigations. But over time, hopefully, as that attitude shifted and the new awareness came about, this change in corporate culture, this change in attitude, would crystallize. Do you agree that this is the potential desired effect that would come from this type of Criminal Code amendment?

A/Commr William Lenton: I'll start then. Thank you for that question, because that's one issue I failed to cover in earlier comments.

Moving to a proactive approach, the issue that comes from a policing perspective has to do with access. Do we want a scenario where the police can walk in off the street on any given day, walk through the plant and make an assessment as to whether the plant is running the way it should be?

You get into issues of privacy. How do you give the police access to the boardroom to find out whether the board is making the proper decisions in discussions, considering all facets of it, and still respect the privacy and freedom from undue search and seizure and all those types of things that are present in the charter?

When you're talking about being proactive, it's complicated. I believe that's why to date the majority of those issues have been covered with respect to regulatory provisions and they're linked to the licence--if I can use that term--to operate as a corporation and to do something, whatever their expertise is. Their ability to continue to do that, their continued viability, is linked to their ability to hold the licence. And the licence is linked to their ability to be subjected to whatever is deemed the appropriate level of scrutiny by persons who know what they're doing.

So somewhere between having the police officer walk into the shop just because they feel like walking into the shop and having absolutely no control over what goes on behind the doors, that's the play we're in.

Â (1215)

Mr. Peter MacKay: On that point, are there occasions you're aware of, or is it a practice, that inspectors within that regulatory framework who have the ability to be more interventionist and proactive in that regard have a linkage with the police? Are there occasions when inspectors would come and say they believe a dangerous workplace exists, that they've tried to exercise their authority but it isn't working, where there is a dangerous situation present and there would be a calling in of the police force to ensure the workplace safety provisions are being respected?

I don't get the sense that this is the case currently.

The Chair: Commissioner Lenton.

A/Commr William Lenton: I would agree with you that's probably not the case, or at least not the norm. However, it is not impossible for that to happen.

What we would do in a case like that is work with the regulator to try to find out the dynamics of the discussion. We would evaluate whether we had grounds to conduct an investigation, and frequently that turns to whether we have the grounds or the ability to collect sufficient grounds to obtain a search warrant.

That's where perhaps legislation that was more precise would give us an easier way to draft a search warrant to give us access, while respecting the privacy rights that would be put in place. But it would give us access to what we need to investigate the specific offence. The more clarity in the offence, the easier it is for us to meet the parameters required to link the activity to the offence, which will trigger our ability to use our criminal law investigative powers to resolve or further explore the issue.

The Chair: I think Mr. Yaron wants to comment, and then Mr. Lee.

Mr. Gil Yaron: Just briefly on your first question, Mr. MacKay, our experience as investors is that in other countries where these types of standards or requirements are imposed on companies, there has been a definite response and shift in culture within the institution, to the benefit, I would argue, of shareholders, at least. I'm thinking in particular of the U.K., where they introduced requirements that pension funds disclose the extent to which they consider the social and environmental practices of corporations in which they invest. It has created a chain of reactions, with pension funds putting pressure on the companies in which they invest to start laying out their social and environmental policies more clearly, companies in turn doing that, and this kind of ongoing monitoring of those practices and how they're impacting on shareholder values.

I think over the long term you do see results in this context. Whether this particular corporate criminal liability provision would have the same effect, I think we'll have to wait and see, because it has only just been introduced in so many other countries.

The Chair: Thank you very much.

Mr. Lee.

Mr. Derek Lee (Scarborough—Rouge River, Lib.): Thank you.

I'm directing my comments here to the Royal Canadian Mounted Police. As I read the bill, it would essentially turn police into workplace safety inspectors. Because of the wording of this draft bill--or the way it is structured now--if there were to be a complaint of an unsafe workplace condition, the police would have to go in and check it out. So wherever the union, a citizen, or anyone believed there was an unsafe working condition, they would call the police and say, “I think we have an offence here.” The police would then have to go and check out unshielded buzz saws or whatever. We're not just talking about mining situations, but the whole gambit of workplace safety. So this is a huge policy change, if something like this were to be adopted.

Turn the page back to criminal negligence, which is the vehicle now used.... I realize that the police avoid commenting on legislative policy, but in terms of what happened at Westray, is your commercial crime unit aware of dysfunctional elements in the current regime, where, if there were to be alleged criminal negligence, the RCMP would have a structural problem getting evidence inside the boardroom, or on the shop floor? Have you any comment on this? I'm referring to the existing law as opposed to the newly proposed one.

Â (1220)

A/Commr William Lenton: As I said earlier, it's a question we evaluate on a case-by-case scenario. In other words, what are the facts as they are known or presented to us, and what has been done by other persons, either regulatory agencies or whatever? Then we would need to have sufficient indicators to allow us to unleash, if you wish, the criminal-investigative process.

Now, it depends on what we wanted to do. If we see the next step as going down and talking to the people at the plant, we can go down, knock on the door, be invited in, and talk to them. On the other hand, if what we need to do to be effective is to close down the plant and do searches, this would require a search warrant. It requires a different perspective.

And this is totally hypothetical, but if we had the evidence and the grounds to support a fact pattern that would require us to do some other kinds of investigative techniques--to find out exactly what is happening prior to a tragedy happening--we would evaluate this.

The current law is there. It's available. We can do it. We are not frequently tasked in that context. It's not an area where on a frequent basis we tend to be called in to act. Would a new law change this? Yes, it would. Would we want, as an organization with our current resource base, to be drawn into checking the buzz saw to see if the shield was on, and the rest of it? That's not something we would probably want to do, or to get involved in lightly. We do have a significant level of training for our police officers. It costs us a lot to put a police officer on the road. So we would like to make sure they're focused on the most serious levels of criminality.

If there are other ways for society to deal with the issue, then these should be used first. If that were to be a proposition, then, as I mentioned earlier in terms of new legislation, one of the things we do is try to identify the resource implications of that, if that were the natural flow from some kind of new legislation.

Mr. Derek Lee: Are either of you aware of an investigation, by your unit, of criminal negligence causing bodily harm or death?

A/Commr William Lenton: That's currently ongoing? I personally am not aware of any. I don't know if Superintendent Jeggo is.

Mr. Derek Lee: I mean, if the law is so dysfunctional that we never have to deal with it, really, we may have a policy problem. But if you can tell us, yes, we've done a few investigations where, for example, in the shoe factory the boot nails were flying all over the place, which took out some poor guy's eye, and we investigated it....

Tell us whether, in the current law, criminal negligence causing bodily harm has some real existence in the workplace. Have you investigated, or are you aware of investigations of that nature?

The Chair: Thank you, Mr. Lee.

A/Commr William Lenton: There is one I can mention. My colleague indicates one file, the tainted blood inquiry, where criminal negligence is at the heart of it, although it's not your typical thing. And that's not a question of corporate responsibility; it becomes a question of board responsibility. In terms of the people who were making decisions at some point in time, were they or were they not acting appropriately? That's the type of investigation we would do on that.

So it is possible. Is it easy? No, it's not easy, and of course you have to respect all the other parameters.

Â (1225)

The Chair: Thank you very much.

Mr. Cadman.

Mr. Chuck Cadman: Mr. Chair, I'd like to direct a question to Mr. Yaron.

Forgive me if you've touched on this, because I wasn't always able to hear everything being said. We've heard some testimony, and some people have advocated that directors who are convicted of an offence...and let's not talk just about serious stuff, like what we're talking about at Westray. We're running the gamut of offences here that we could be looking at.

Some people have said that a director convicted of an offence should not be able to ever hold another directorship or sit on the board of directors of a company. I'm just wondering if you support that. If so, how does that square with the other side, when we've seen situations where, when an employee has been convicted of an offence against a company, such as theft, it has actually been ordered that they be reinstated into their position? Are we looking at some kind of a double standard here? I'm wondering how you feel about that.

Mr. Gil Yaron: If I can take just directors on their own, I think the principle of a director holding a position after they have been found criminally liable for some action involving their responsibilities as a director should be grounds for them not to hold any other directorships as long as they are serving the penalty for which they've been charged.

Mr. Chuck Cadman: Fair enough.

Mr. Gil Yaron: And that's not ad infinitum, but certainly for that period of time at least.

I'd just point to the Enron situation, where shareholders have been very vociferous about making sure that Enron directors are not serving on the boards of other corporations in which they invest. They have launched very strong campaigns to get those directors off other boards.

Mr. Chuck Cadman: I don't disagree with that. I just want to make sure that we're not dealing with somebody being barred for life from ever sitting as a director again.

Mr. Gil Yaron: No, the principle that once someone does their time, they've done their time, and then they're allowed to be reinstated into the community, makes good sense to me.

In terms of the double standard with employees, directors are in a fiduciary relationship. They have a very strong responsibility. They have extra responsibilities to the entire corporation--the shareholders, the community at large--and I don't necessarily think they should be looked at in the same way as employees, but at this stage I wouldn't be willing to comment on whether or not there was a double standard there. Certainly directors have a very high standard to uphold--much higher, I would argue, than employees have.

Mr. Chuck Cadman: Thank you.

The Chair: Thank you, Mr. Cadman.

Mr. Lanctôt.

[Translation]

Mr. Robert Lanctôt: Thank you, Mr. Chairman. I just have a quick question.

If that is the case, then shouldn't unions also come under that principle, if they themselves create criminal liability? We cannot have a double standard.

[English]

Mr. Gil Yaron: When you say unions, are you speaking union executives or the union as an institution or...?

[Translation]

Mr. Robert Lanctôt: Obviously if the union is part of the board of directors, it goes without saying. If the union proposes a plan and the directors adopt it or if it makes such serious errors that it could be considered to be criminal liability, could the union also be held liable?

[English]

Mr. Gil Yaron: If the union representative is acting as a director of the company; that's what I understand. I just want to be clear, because I'm getting--

[Translation]

Mr. Robert Lanctôt: I am not saying as an agent, but when the union makes a proposal. I will give you an example. You do not have a company where the union is part of the board of directors. But take the case of a smaller company that is in financial difficulty. The union proposes certain things. The board of directors has no experts to check on what is going on. It accepts the union's proposal and applies it. Something serious happens: a crime or an explosion. Is it just the directors who adopted the plan submitted to them by the union who are liable, or could the union also be held liable?

Â (1230)

[English]

Mr. Gil Yaron: I don't see how the union could be liable for making the proposal, although those members of the union who are represented on the board of directors certainly would hold equal responsibility as all others who are on the board.

If the union gave bad advice, just as any agent--an accountant, an actuary, or anybody--who gave bad advice, there would be recourse against them individually.

[Translation]

Mr. Robert Lanctôt: Currently, we are told that neither the RCMP nor other police forces receive complaints. But I wonder whether they too could be part of this new bill. Is the purpose of the bill to protect employees and workers? If so, we know that problems may come from inspectors, but in that case, if confidentiality is not respected and complaints are not made to the RCMP or other police forces, could there be a problem? Is the purpose of this bill to protect employers or to protect employees and workers? Do you understand?

[English]

Mr. Gil Yaron: Yes, I understand.

Clearly, it's to protect employees, one would think--or one would hope. However, from a policy perspective, it's those who are making the decision who are responsible. I don't think those who are providing advice can be painted with the same brush as those who are actually making the decision. That's the distinction for me.

The Chair: Mr. MacKay, a short question.

Mr. Peter MacKay: With respect to warrants, keeping in mind the problems that exist with disclosure and the preparation that goes into warrants, just as a general question, in expanding this envelope of accountability, what problems do you see from a police investigative perspective in gaining those warrants through justices of the peace and judges? Is there going to have to be some sort of accompanying direction or amendment to the Criminal Code?

It seems that we're opening a window for the police to go very far afield in looking for evidence, if we are to hold corporations, directors and managers accountable, because much of what you're then searching for is references to workplace safety, and I suspect it will all come down to knowledge. That will be the key requisite element in making that link.

I just wonder, from the police perspective, what problems you anticipate were that to be the case, were we to give the police that ability to charge.

A/Commr William Lenton: To lay a charge; a warrant is a different part of the process. First of all, with a warrant, of course, you have to have reasonable and probable grounds. That's one of the tenets. You have to be able to indicate to the satisfaction of the issuing authority that there will be evidence in a specific, identified location that will provide evidence of an offence, and then you have to be able to say what offence you're seeking the evidence for.

Where you'll perhaps get into some problems in crafting your warrant is that, to the degree there's ambiguity in the law, what do certain terms of the law mean, and therefore how clearly can you articulate the offence? How clearly can you articulate what you're looking for as being part of the offence? Will it expand the reach of what police would be able to seek? And it's not a question of what we're able to seek; it's what we would be required to seek.

If we are going to hold someone accountable, based on a scheme as articulated ultimately in the law, then we have to look at it--and it goes back to the fundamentals of necessary elements, which we would develop perhaps by sitting down with a crown prosecutor if it's an area we're not totally familiar with--and say that if you're going to prove this offence, these are the necessary elements you're going to have to bring. So then you start out on your quest and your investigation to establish those, and it will take us where it will take us.

Â (1235)

The Chair: Thank you very much to the panel and to committee members.

The meeting is adjourned.