JUST Committee Meeting

37th PARLIAMENT, 1st SESSION

Standing Committee on Justice and Human Rights

EVIDENCE

CONTENTS

Wednesday, May 8, 2002

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1535

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

Mr. Lawrence McBrearty (National Director, United Steelworkers of America)

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1540

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1545

The Chair

Mr. Lawrence McBrearty

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1550

The Chair

Mr. Toews

Mr. Lawrence McBrearty

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1555

Mr. Vic Toews

Mr. Lawrence McBrearty

Mr. Vic Toews

Mr. Lawrence McBrearty

Mr. Vic Toews

Mr. Andrew King (Department Leader, Health, Safety and Environment, United Steelworkers of America)

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1600

The Chair

Mr. Vic Toews

The Chair

Mr. Lanctôt

Mr. Lawrence McBrearty

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1605

The Chair

Mr. Andrew King

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1610

The Chair

Mr. Bill Blaikie (Winnipeg--Transcona, NDP)

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1615

Mr. Andrew King

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1620

The Chair

Mr. Paul Harold Macklin (Northumberland, Lib.)

Mr. Lawrence McBrearty

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1625

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1630

Mr. Paul Harold Macklin

Mr. Lawrence McBrearty

The Chair

Mr. Vic Toews

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1635

Mr. Andrew King

Mr. Vic Toews

Mr. Andrew King

Mr. Vic Toews

Mr. Andrew King

Mr. Vic Toews

Mr. Andrew King

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1640

Mr. Vic Toews

The Chair

Mr. Ivan Grose (Oshawa, Lib.)

The Chair

Mr. Lawrence McBrearty

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1645

Mr. Ivan Grose

Mr. Lawrence McBrearty

The Chair

Mr. Robert Lanctôt

Mr. Andrew King

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1650

The Chair

The Chair

Mr. Sorenson

»

1700

The Chair

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

Mr. Kevin Sorenson

»

1705

The Chair

Mr. Paul Harold Macklin

The Chair

Mr. Paul Harold Macklin

The Chair

Mr. Paul Harold Macklin

The Chair

Mr. Paul Harold Macklin

The Chair

Mr. Paul Harold Macklin

The Chair

Mr. Robert Lanctôt

»

1710

The Chair

Mr. Vic Toews

The Chair

Mr. John Maloney

The Chair

Mr. Ivan Grose

The Chair

»

1715

Mr. Cadman

The Chair

Mr. John McKay (Scarborough East, Lib.)

The Chair

Mr. Chuck Cadman

The Chair

Mr. John McKay

The Chair

»

1720

Mr. John McKay

The Chair

Mr. Vic Toews

The Chair

Mr. Vic Toews

The Chair

Mr. Paul Harold Macklin

The Chair

Mr. Paul Harold Macklin

The Chair

Mr. Chuck Cadman

The Chair

Mr. Vic Toews

The Chair

Mr. Vic Toews

»

1725

The Chair

Mr. Vic Toews

The Chair

Mr. John McKay

The Chair

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CANADA

Standing Committee on Justice and Human Rights

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NUMBER 086

l

1st SESSION

l

37th PARLIAMENT

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EVIDENCE

Wednesday, May 8, 2002

[Recorded by Electronic Apparatus]

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[English]

    The Chair (Mr. Andy Scott (Fredericton, Lib.)): I call to order the 86th meeting of the Standing Committee on Justice and Human Rights. Today, pursuant to the order of reference of February 19, 2002, we're discussing the subject matter of Bill C-284, an act to amend the Criminal Code (offences by corporations, directors and officers.)

    We have as witnesses today from the United Steelworkers of America Lawrence McBrearty, national director, and Andrew King, department leader, health, safety, and environment. I thank you both very much. I know you've both been here before. Generally, we have ten minutes by way of presentation, but under the circumstances, I suspect we'll have some latitude. Please present.

    Mr. Lawrence McBrearty (National Director, United Steelworkers of America): As the chair mentioned, my name is Lawrence McBrearty. I'm the national director of the United Steelworkers in Canada, and we represent approximately 180,000 members across Canada in virtually every sector of the economy. Our union is 60 years old this year and has been active in health and safety to protect our members' lives from the beginning.

    This is my second appearance before the standing committee on the issue of corporate criminal accountability. We have prepared a comprehensive brief that identifies our concerns and the directions in which we believe legislation should go. The justice department has already presented a discussion paper on the legal issue. I will touch on some of the highlights from our brief. I have with me, as mentioned, Andy King from our national health, safety, and environment department, who assisted in the preparation of our brief. Andy spent eight years practising criminal law before joining the Steelworkers staff in 1989.

    I was the union's district director responsible for organizing the Westray coal mine. The union had commenced an organizing drive at the request of the miners there. There was no doubt that safety was their main concern. The day the mine exploded our union immediately seized the organizing drive and came to the support of the workers, their families, and the community. We sent additional representatives to assist the workers from other parts of Canada and elsewhere. We immediately demanded a public inquiry into the circumstances of the disaster. At the request of the surviving workers, we were certified as Steelworkers local union 9332, even though there was no membership and even though we knew there would never be a collective agreement to be bargained for. On the local union's behalf, we took part in the public inquiry, including proceedings before the Supreme Court, to enable the inquiry to continue. Our union has also assisted the former employees with severance, compensation, and tax issues.

    I had personal experience as a local union president dealing with a tragic workplace death back in 1971, the death of a 17-year-old boy. He was crushed to death in the rod mill at a mine site. The circumstances of the death led to a coroner's inquest--this was in the province of Quebec--and the coroner's inquest led to a criminal charge being recommended, but it was never acted upon.

    In the period from 1992 to the present 133 of our member steelworkers in Canada have died at work. We know this number does not include occupational diseases, like cancer.

    I also have with me here today--and some could not attend, because they have appointments with MPs elsewhere on the Hill--our steelworker activists, who have given up their time to be here and to meet with members of Parliament on the issue of the amendment of the Criminal Code. We also have with us this week, and especially today, two widows of the Ottawa transit murder, as I would call it, whose husbands were shot at their workplace, Mrs. Davidson and Mrs. Lemay, who I understand will be doing a presentation tomorrow.

    Our brief covers a number of issues. There's a lot of focus on the five basic principles we believe can and should be accomplished by these amendments. First, I want to say that the steelworkers' union endorses the motion and private member's bill that have been previously supported by this committee and by the House of Commons. We observe and support the non-partisan approach that has been adopted and the all-party support for recommendation 73 from the Westray inquiry.

    The steelworkers' union is not wedded to any specific language that the amendments might take. However, there are five basic principles that any Criminal Code amendments adopted by this House must incorporate in order to be faithful to recommendation 73 and to the memory of the 26 men who died at work ten years ago. Let us not forget, there are 15 bodies that will never be recovered. The five basic principles are as follows.

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    First, officers and directors of corporations have a duty to protect their employees' lives at work. This duty must be enshrined in the Criminal Code of Canada.

    Second, officers and directors may be held criminally liable for acts or failure to act because of wilful blindness and criminal negligence when they fail to carry out their duties and serious injury or illness results for their employees.

    Third, corporations may be held criminally liable when their management operates the company in a fashion that ignores or is wilfully blind to the health and safety of their employees and death or serious injury or illness results for the employees.

    Fourth, officers and directors and the corporation may be prosecuted and convicted of separate offences arising out of the same circumstances.

    Finally, principles one to four can be achieved without violating the principles of the charter, the constitutional division of powers, or the Criminal Code. With the last principle, we have investigated matters further and, as part of the brief, prepared a revised draft bill with the assistance of senior criminal counsel. You can speak to that later and to the evidence we found that supports our contention that Criminal Code amendments will improve prevention.

    To summarize, corporate officers, directors, and corporations need to be held accountable according to their responsibility. In this sense, we are asking for nothing more than to make corporations and their officers and directors accountable, as every other person in Canada is. I heard someone say that if we impose criminal liabilities on the directors and officers, we won't be able to get good people to sit on boards of corporations in Canada. People who say that obviously do not believe they have such responsibility today, and this is a very serious concern for all of us. These kinds of liabilities are already in place in other countries, and we never heard that it would be strange for a Canadian to refuse to sit on a U.S. or European board because they do have or will have soon similar responsibilities.

    The people who say these things obviously do not speak for the majority of directors, officers, or even shareholders in Canada. A recent poll conducted by the Canadian Democracy and Corporate Accountability Commission and referred to in our brief shows that 74% of shareholders polled agree that corporations should have greater social responsibility.

    The other question has been, why do we need criminal laws changed now? Is corporate behaviour worse now than before? We agree with Judge Richard, the problem is not just the behaviour of corporations. Most provincial governments--our experience is that this applies to all provincial governments, not just Nova Scotia--have embarked on a program of deregulation in health and safety. Compliance is left to management to decide and enforcement is weak. Employers learn quickly in a competitive climate where they can cut the corners for short-term advantages. The employees are often kept in the dark or swept along by the directions they receive.

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    The Criminal Code changes are needed to provide basic protection for all of us, regardless of where we live or even of the economic conditions around us, so that the lives of women and men at work will not wilfully or recklessly be put at risk.

    I would also like to bring you up to date with the results of a polling we have done. This polling was about the 10th anniversary of Westray and before our activities on the Hill this week. In fact, we received the results yesterday. Already 75% of those polled would advise their MPs to support Criminal Code amendments to improve corporate liability, and 73% said this should be a priority of this government. That about sums it up, when we have these percentages. We know what the problem is and the various ways in which the Criminal Code could address it. Similar legislation is in place or will be soon in most developed countries. We know most people in Canada support the amendments and want government to make it a priority. Even directors, officers, and shareholders believe corporations have to take more responsibility.

    Our Prime Minister says we need to have the best skilled work force in the world, and we do agree with that. How do we encourage this if we cannot provide everyone at work with the very basic protection of our criminal law? My goal, however, is not to see many more people go to jail. I want to know that at every board meeting of senior executives there is an agenda item of health and safety and environment and everyone at the meeting is taking it personally. Let us be sure we never have another Westray.

    Thank you.

    The Chair: Thank you very much.

    I turn to Mr. Toews for seven minutes.

    Mr. Lawrence McBrearty: I would just add that appended to the brief we presented are a few documents to inform the members of the committee that we in our union once a year have what we call a young worker awareness campaign. We go into schools all across the country and start informing and educating young workers and young kids how they should treat and how they should face health and safety awareness, what they should do when they become workers in the workplaces, and how they can protect their lives, their health, and their safety. We've been doing that for quite a few years now, and we wanted this to be part of the brief, to tell you that what we're doing is not strictly with regard to criminal law, but also wider in the programs we have all across the country.

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    The Chair: Thank you very much.

    Mr. Toews, for seven minutes.

    Mr. Vic Toews (Provencher, Canadian Alliance): Thank you, Mr. Chair.

    I want to commend the witnesses for their presentation and for their educational efforts in respect of workplace safety and health. It certainly fits with the mandate of occupational health and safety legislation, workplace safety and health legislation, right across Canada. It's important to see the unions actively involved in that. I think it shows good corporate responsibility on their part.

    I've indicated previously in meetings with your colleagues that the Canadian Alliance is generally supportive of the principles of the act, and indeed encouraged the matter's coming forward to the committee for closer examination. There are a number of matters that need to be examined in order to ensure that we have the best bill possible. In my speech in the House I identified my main concern over the issue of criminal intent that will be required before there can be a conviction of a corporation, officer, director, board of directors, or even a board member. I'm glad to hear you clarify that. There was some confusion in my mind as a result of the meeting I had at about 1:30 with some of your colleagues. I'm glad to see you're not excusing board members simply because they're board members. If they are board members, they're held to a certain level of accountability. The issue is, what level of accountability?

    I'm glad you took this matter to criminal lawyers, who, one hopes, understand constitutional law as well, to take a look at this very important issue. I think we'd be doing the workers of this country a real disservice if we passed legislation that didn't meet the requirements of our underlying constitutional obligations. I think that is very important, and I think your assistance in that respect will be of use to me and my colleagues in their determinations.

    One issue that was raised in a prior hearing is that of union responsibility where there is evidence of involvement in decision-making that results in a workplace death or injury. I don't even suggest that unions are in the same category as management, as it's management that manages the workplace, but in Manitoba, for example, the Workplace Safety and Health Act encourages joint decision-making between unions and corporate employers. Perhaps this is premature, I don't know if you've had that discussion, but what about the responsibility of unions who fail to meet certain safety and health standards? I'm speculating here and surmising, because we have to look at the potential. What if a union cooperates with an employer to circumvent necessary regulatory or other standards? Would you hold the union officials who participate in that decision-making process in a substantive way--I'm not talking about peripheral involvement--to the same level of accountability as corporate directors or officers? I think that's an issue where we need to have some input from you.

    Mr. Lawrence McBrearty: The answer would be, no, but I would want to explain. We do have across Canada, whether it be in our union or other unions, what is sometimes called co-management of the workplace. We also have in different provinces, either in legislation or in our collective agreements, joint health and safety and environment committees, and they make recommendations. They're not part of the decision-making or the implementation. Their recommendation goes to higher management. Most often, the top management or the directors or the executives decide the cost of that investment. The final decision-making does not belong to the joint health and safety and environment committee, they're there to put in recommendations.

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    Mr. Vic Toews: On that point, then, if an officer of the corporation makes a recommendation not followed by the corporation, you wouldn't see that officer being liable under this new criminal legislation.

    Mr. Lawrence McBrearty: I'll let Andy go into the legal aspects, but in my view, this question of the amendments and the legal aspects of negligence or whatever would, in every case, have to be based on evidence.

    Mr. Vic Toews: So if there were evidence that even if the recommendation wasn't followed, the union simply went along with it, didn't go the workplace safety and health officer in the province to file a complaint, were just silent and moved along, should the union or union officials not be liable?

    Mr. Lawrence McBrearty: Under our proposal for the act, I would say, no, because we are not considered executives or board members of any corporation.

    Mr. Vic Toews: I understand that, but should they be considered part of the management process? Unions, and rightly so, hold a very important role in the workplace. The power of a union official to make a recommendation and then to bring in government officials is a necessary power, an important power. If a union official falls down in that respect and doesn't.... I'm not suggesting your union would do that, or indeed any union, I'm just surmising. What if it did happen? Should they be responsible in that type of situation, where they had the capacity to make the complaint known to the authorities and didn't?

    Mr. Andrew King (Department Leader, Health, Safety and Environment, United Steelworkers of America): You're sort of moving from whether they should be held responsible, where you started from. You made a point right at the beginning that we very much agree with, which is that here we're talking about criminal liability, that people do have responsibilities for occupational health and safety that are addressed in other ways appropriate for those things. So I'm going to take it that your question is not the general question, how should unions be held responsible for health and safety in the general provincial sense, for which there are a number of things, but more specifically in the criminal sense.

    All we can do is go by the experience we've had to date. That experience is that the authority of unions, either by legislation or by collective agreement, in 99.9% of the cases is consultative, that a decision not to do something or to do something is a management decision. So the union as an organization doesn't engage that. If a piece of information goes to an individual who happens to be a member of the union and as a result--though whenever you start talking about failure to act, we get into difficulties as well--they do something, there's bound to be an individual liability for what they do. The question is, in an organization that is primarily volunteer at the local union level, how do you extrapolate that there's some sort of corporate or organizational liability? You can't, because that's not the nature of the union. It just doesn't work that way in the workplace, nor does it work that way nationally and internationally. It gives recommendations, it gives advice. If it's in a collective agreement, of course, and if what you're talking about is something you had a duty under the legislation or the collective agreement to carry out, there are already provisions available in the Labour Relations Act that enable a member to deal with it.

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    The Chair: Mr. Toews, I allowed a lot of latitude. It's been nine and a half minutes.

    Mr. Vic Toews: Thank you very much, Mr. Chair. It's a very interesting topic.

    The Chair: It is. I'm interested myself, but I want to make sure everyone else has a chance.

    Monsieur Lanctôt, seven minutes.

[Translation]

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

    Continuing along the same lines as my Alliance colleague, this amendment to the Criminal Code pertains to directors, corporations and officers.

    If our goal is to ensure that workers are truly protected in the absence of a collective agreement or a union, we must look to officers and corporations to do that, and I think we need to proceed properly. However, when national or local unions have the power to make recommendations, or when a joint committee... Since we are talking about criminal offences, we're not just talking about recommendations, but about intentions as well. Most likely there are instances where a union, assuming it is not controlled by the company, can make recommendations, but that's about as far as it goes.

    You're a legal person. Your job is to protect people and that's a good thing. You do your job well, and I hope you will continue doing a good job. To garner acceptance for this kind of bill, would it not be simpler to include yourself in the process to demonstrate your good faith and to demonstrate to companies, officers and directors that they should also follow your lead? I think if you were to do so, it would be far easier for you to convince management and all directors.

    I'll get right to my question because if your answer is lengthy, I'd like to be able to put my second question. I haven't read your brief, but I am meeting with your officials at 5:30 p.m. I'm a little concerned, because I don't want to invoke the Criminal Code. I don't want to do something indirectly that I couldn't do by directly invoking the Criminal Code. In other words, given all the talk of deregulation in the provinces, I don't want us to overstep provincial laws and jurisdictions.

    Quebec has occupational health and safety legislation on the books, as well as other pieces of legislation, including one on mining development. As you know, there are many such pieces of legislation.

    These are two issues of concern to me. You state in Principle 5 that the principles of the Charter and the constitutional division of powers must not be violated. That statement reassures me, but if you can reinforce this principle for me at this time, I will feel even more reassured.

    Thank you.

    Mr. Lawrence McBrearty: In response to your first question, let me start by saying that the decision-making aspect must be considered. When we talk about a corporation's officers, we're talking about the people who make decisions and who hold power.

    I was elected head of my union for the Canadian section. I do not have this kind of authority under our Canadian laws and the Criminal Code, or under the bylaws of our board of directors. I do not have the authority to enter a business and order a halt to certain operations because I consider them to be dangerous. I don't have that kind of decision-making authority or that status. I do not sit on the board of directors of corporations.

    Just as a side bar, in some cases, union officials do sit on corporate boards of directors. These officials would be responsible to the same extent as any other board member. In other words, if provision is made in the collective agreement to give union officials one or two seats on the board of directors of Noranda, I know full well that these officials would have the same decision-making authority, the same responsibilities and the same powers as the other board members and that they must meet the same criteria as other board members, whether these are contained in legislation, in the Criminal Code or elsewhere. If I fail to do my job properly, I will be penalized and bear the consequences. We agree entirely with that process.

    However, when I do not serve on a board of directors, I have no decision-making authority and I have no way of voting or of impressing upon the board the need to change work methods or conditions. As a union representative, the only powers I have during the term of the collective agreement are of a consultative nature. I can also serve on joint, or jointly administered committees. I do not have any decision-making authority per se. I merely have the power to make recommendations.

    In the case of joint management committees like the ones we have in Quebec, union representatives have no decision-making authority. However, they can affect the way work is done so that consumers' needs are met. They have no investment authority or powers to evaluate investments or a corporation's profits. Boards don't have such topics as health, safety or working conditions on their agenda. Instead, they discuss, investments, profits and productivity.

    I like your question. In some cases, when a union has responsibilities and decision-making authority that is equal to those of a company director or executive, then I agree, the level of responsibility must be the same. We're not asking not to be held accountable. Far from it. However, at the shop level, where we see some cooperation between supervisors, our members or our local union representatives, I don't think responsibilities and decision-making authority are one and the same thing.

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[English]

    The Chair: Merci beaucoup.

    Mr. King, did you want to speak?

    Mr. Andrew King: What I wanted to do is bring people back to the draft bill, because I think there you will see the precision in the language and why the focal point is on the Criminal Code, why this is not a provincial regulation. It's not an attempt to create new health and safety offences, it is an attempt to show that corporate leadership and corporations should be subject to the same kinds of rules as you would be as an individual, as I would be as an individual, or as the leader of a local union would be as an individual.

    We're saying that corporations are different because corporations are different. You don't have a section at the beginning of the Criminal Code that says unions are individuals for the purposes of the Criminal Code. You do have a section that says the corporations are. I'm not talking about the Corporations Act, I'm not talking about anything else, but in the Criminal Code, the way they understand, for intent purposes, how a corporation runs and the responsibility of corporate leadership, there is absolutely no relationship to how corporations run and the role of senior leadership. So not surprisingly, as the review of the law done by the Department of Justice shows you very clearly, you have this directing mine stuff, you have all these other things that don't work.

    So the amendments we're looking for are those that make clear that when you hold corporations or corporate leadership accountable, you do so in accordance with what they do, commensurate with their responsibilities. We're not talking about creating a new offence so much as understanding that when senior corporate leaders make decisions regarding production etc., there are health and safety consequences.

    We're not just saying that as a theoretical position. In the brief, on page 21, we have reviewed the research about occupational health and safety. Though I'm sure it doesn't surprise you to know it has always been a principle in health and safety that you had to have strong commitment from senior management to make it work in a workplace--that's axiomatic--it has now been studied and shown. We've alluded to the studies. I'm not going to go into detail. Harry Shannon is a professor at McMaster here in Canada. He's using the strictest, most conservative methods, and his conclusions are on page 22:

Regardless of the type of study, the finding that such commitment is important, that is to say senior management commitment, is consistently supported by study after study. It can perhaps be seen as the sine qua non for safety.

He goes on to talk about this.

    But of course. the question you really want me to answer is, how do we have them achieve this commitment? That's really what this bill is about. If you finish reading that section, the only research we've got that includes interviews with corporate executives and managers themselves is some research done in Australia. What they concluded there is found on page 23:

Managers can be motivated by a belief in their obligation to obey the law...and real concern for the welfare (or at least lack of harm to) workers.

The writer believes government intervention is the best way to focus management attention, and he goes on to say at the very end of that section, “personal liability was by far the most motivating factor to attend to for these people.” This is in the context of their job as managers, not as anything else.

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    So the heart of what we're asking is to keep the criminal law, as we're talking about a criminal mental element, but at least have it reflect how the mental element works within a corporation. Separately, it has to be clearly imposed on directors and senior managers what their duties are with health and safety. We do exactly that in our brief, because we want to keep it separate. We don't want this to be used every time there's a problem in the workplace. We want this when the behaviour of the corporate leadership is outrageous. If you want to know what it looks like, there's chapter and verse in the two volumes of Westray. That's what the heart of this is about.

    Should there be someday a question about union liability, you could look into that in greater detail, but at the end of the day, you will find that the influence in the workplace is completely different, and we don't have the evidence to support the connection. We do with leadership.

    The Chair: Thank you.

    We will go to Mr. Blaikie.

    Mr. Bill Blaikie (Winnipeg--Transcona, NDP): Thank you, Mr. Chairman, and thanks to our guests this afternoon for putting the case so well.

    Mr. Chairman, I think it would be regrettable if somehow we got off on this path of discussion of what the liability of unions is with respect to accidents in the workplace. I'm sure people in the trade union movement would be glad to accept responsibility once they were granted the same amount of power over the workplace as management, but that's clearly not the case in the law or in the way corporations are run. I think this is something of a blind alley we're going up, and it would also be regrettable if we allowed jurisdictional fetishes to get in the way of what is clearly the object of our process here and was the object of the process once before, when we were seized with this in the Standing Committee on Justice and the House, which is to have a Criminal Code amendment.

    The Criminal Code is a federal matter, and therefore we are quite within our jurisdictional rights, if you like, to consider what kind of amendments we want to the Criminal Code. I want to agree very much with Mr. McBrearty that the main point here is not so much to be able to punish corporations after the next tragedy as to prevent the next tragedy by inculcating in the leadership of corporations a sense of liability that, hopefully, will be a discipline on them, both morally and legally, that will keep them from making the kinds of decisions that lead to those kinds of tragedies.

    Perhaps Mr. King has been following the hearings here, but I think he may have generally had an opportunity to look at the government position paper on corporate criminal liability, the discussion paper of the Department of Justice. I wonder if you want to comment on what you found to be the most promising conceptual way of looking at this. The paper talks about vicarious liability, about corporate manslaughter. It cites examples in other countries of corporate manslaughter, the corporate killing concept in the United Kingdom, the corporate culture concept used in Australia. I wonder if you could say exactly how the bill you have in mind is appropriately described in light of these options that were laid before the committee by the Department of Justice.

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    Mr. Andrew King: With our revised bill draft, which starts on page 13 in the English, I think what you will see is that we borrowed a bit from both, trying to maintain very much an approach that is consistent with the Canadian Criminal Code. The Code has a long history, there are certain ways things have been done in the Code over the years, and we want to stay consistent.

    The basic problem with the American approach is that it is ultimately based on the principle of vicarious liability, which does get you into the situation people have talked about here today: things could be going on that people don't know anything about in the corporation, that, in fact, aren't even authorized by the corporation. In some jurisdictions in the U.S. that's still sufficient to warrant a conviction for the corporation. That, I think, would run into a considerable number of charter challenges, as well as not accomplishing the purpose.

    If you look carefully at the Australian legislation, particularly the national legislation, I think what they're trying to do there is much closer to what we're trying to achieve. Corporate culture is a phrase you hear all the time, at least in our organization, because every corporation we deal with has a different culture, so we know of it as a term that describes how the company works. We also know you can read management books or you can read health and safety books, because we have all sorts of technical manuals on management safety systems. They can tell you what the proper processes are within a corporation to do things, how things work and how they don't. So we believe there's sufficient knowledge about corporations to go with a corporate culture approach, provided it is clear enough to identify that you're talking about how the corporation works, which we believe the Australians do, and you'll see it appears in the revised bill draft in our material as well. What is different in our approach is that we don't use it to quite the same extent as the Australians do. The advice we were given by senior counsel was to try to be really clear about what the expectations were, what the fault element was, so that we don't lose the connection between the criminal law and the behaviour. So on the general principle of corporation liability, given the debate, that's the direction we've gone, with a bit of clarification to be consistent with the Criminal Code.

    On the question of the liability of officers in corporations, we've done something a little different uniquely within the Criminal Code. Since it's consistent with the way the Criminal Code works, it is more likely to give clear direction to judges, crown attorneys, police officers, and all the other people, including the people who could be prosecuted, clear direction as to what this is about: it's a criminal negligence situation, it's a failure to perform a duty, and the duty is clearly described--here it is. If you fall below that, in the judgment of the attorney general or as appropriate, you may be charged.

    So it's a bit of both, with a realization that there are two things implicit in whatever this committee recommends ultimately. One is that it be consistent with the Code. The other is that once it does get adopted, the attorneys general will have to think how they interpret it. And I hope what we'll get is what we got when it became clear that ignoring spousal assault was unacceptable. Not only did you consider looking at some laws here, but every attorney general in the country had to rethink matters and put forward a process whereby that would properly work. So now, 20 years from then, there have been major advances. I would say those are the two pieces.

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    The Chair: Thank you very much. Thank you, Bill.

    Mr. Macklin.

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

    It is indeed a pleasure to hear from you today, and to also hear from your representatives on the Hill. They're doing a fine job in getting around to see us.

    I'd like to go back to Westray, because I think Westray, in some respects, gives us an example not only of a disaster, but of a situation that was created and led to this disaster. Some people have suggested that had the rules already in place been followed, we wouldn't have had this disaster.

    A comment you made at the beginning of the statement today was that you don't want to have corporate directors worried about going to jail, if I interpret that correctly, or at least not considering corporate posts because they're worried about the potential of going to jail. We look at Westray as being what I would call an economically depressed situation, where the mine was struggling and had to exist on subsidy support and other means. The workers were desperate to work, because they had nowhere else to work, according to testimony we've heard today, and they wanted to support their families. At the end of the day, they were going to collectively try to survive in this milieu. We're suggesting that jail is not something one should worry about, yet the economics of Westray were such that had someone gone out and said, this has to be shut down, and they were going to be fined appropriately, as an alternative method of punishment, it would have also put them out of business and would have collapsed the economic process.

    Given these facts, could you tell me what your model would have done or how it would have changed the situation, so I can see how, by changing the law, we would have avoided the Westray disaster, and yet worked to the benefit of all those trying to keep the mine going, whether it be the corporate structure or the workers themselves?

    Mr. Lawrence McBrearty: I understand the matter of the depressed situation. Westray was one, but there were probably others where there were not inquiries. Westray probably was the trigger to convince us that we had to really advance on this, because it was an extremely long inquiry. It caused our union to start trying to convince our members of Parliament and Canadians that we have to advance. We did our research on what's going on around the world in other countries with regard to criminal responsibilities. Then we started polling, and we started doing a lot of research with outside help, professors in universities, Statistics Canada, wherever we could find some good, concrete information, and we tried to funnel this down to Canada.

    We found 882 fatal deaths in the workplace. We have it down by provinces. Provinces have their health and safety legislation, we understand that, but there were 882 deaths in 2000. In 1993 it was 758, in 1997 it was 833. Statistics Canada, at least about two weeks ago, were up close to 800 again for 2001, but they are not finished putting all their numbers together.

    I don't think many people will like my answer, but I come from a mine. I'm the guy who brought out that boy from a rod mill, where his body was in a basket. The ambulance hadn't left the property yet, and the rod mill was back in production. I've seen bodies just taken out of the mine and production resume full blast inside 15 minutes. I understand the question of profits, I understand the question of investments, I understand the question of depression areas. My home town is closing right now the Noranda mine I worked at in Murdochville, where there was a 1957 strike of seven months that was also based on working conditions. But I ask myself the same question you do. That was my life, that's where I learned it, in the mine. We cannot put in jeopardy the lives of human beings for the sake of profit, for keeping the mine open, by saying we are in a depression area. If we did that, even in these days, as a union man or as an individual, I don't think I could sleep at night, because that is exactly what comes to our bargaining tables every day of the week.

º  (1625)  

    I understand all your questions. You're members of Parliament, you have to answer to a lot of people. We're not the only ones who are lobbying on the Hill. We know that. There are chambers of commerce, insurance companies, mining associations, you name it. We understand all that. I know we have different views. We understand that too. We're ready to deal with that. But we have a lot of corporations that are ready to sit with us and agree with what you're saying, and it's how to get there.

    Westray was a business in a depression area, people needed to work, to help their families living. I'm sorry, but my only answer is that to save one life, I would close the mine, if I had the decision to make.

º  (1630)  

    Mr. Paul Harold Macklin: My question is, how would your law, as you're advancing it, have avoided Westray if it had been in place at the time? I'm really trying to drive at the issue.

    Mr. Lawrence McBrearty: Andy can cover the legal aspect, because I'm not a lawyer and I never want to be. What we believe strongly is that having a piece of legislation like this will bring to the daily board meeting agendas of the corporations the item of health and safety in the workplace. I sit on boards. I do presentations to boards of directors of different companies across the country and elsewhere. They do not have on their agenda the safety of the working people. I understand that too. It's the productivity, the investment, and the profits--we have to answer, as a board, to our shareholders. We understand all that structure, but we feel that having this would be a promotion of prevention.

    When the Westray decision came out from Judge Richard, mining associations in Quebec and other provinces, and even Canada, hired consultants to say, how do we protect ourselves now from liability from such a decision? I have the answer. They were open with me, and I got a copy. It tells me that when people are trying to protect themselves from liability, it is because they know already that they don't have liability. They told me this. But what hurt the most are the questions of image and costs.

    To answer your question, I think, if we have this, it will be a very hard tool of prevention. This is where our responsibility will come in as a union, to remind the corporations every day we meet them that they do have that responsibility of prevention, because of the liability and the accountability you have in a piece of legislation that is called the Criminal Code.

    The Chair: We're running seven minutes, which has somehow turned into eleven here.

    Mr. Toews.

    Mr. Vic Toews: Thank you.

    I think all the members of Parliament recognize that economic activity and profits must be secondary to human safety and workplace conditions. You, as witnesses, are trying to assist us in finding the right balance in ensuring that human safety is, in fact, our primary concern in passing legislation. Unfortunately, because I'm a lawyer, I do get into some of the technical things, but I have to ask these questions. I think, in order to be able to justify this, not just to myself or my colleagues here, but to the rest of my caucus, there are some questions I have to ask.

    I like the approach you set out at page 16, the duties of officers and directors of corporations. I think it's a good working start. I say working start because there is an issue that causes me some trouble with the technical language. Because Mr. King has the expertise, I want to rely on that expertise, that technical ability. I don't have the hordes of lawyers the Liberals on the other side have to assist them.

    A Voice: Yes, but you're worth ten of them.

    Mr. Vic Toews: That was an off the cuff comment. I'll stay on the wording here.

    In the draft subsection 216.1(1) at page 16 it says:

Every one who is an officer or director of a corporation is under a legal duty to take reasonable steps to ensure that working conditions that are likely to cause death or bodily harm do not exist in any location in which employees of the corporation are performing work on behalf of the corporation.

I emphasize the phrase “any location”. I've been reading this quickly, so I might have missed something and am not maybe doing justice to what has been done here, but if we go to page 13, on draft subsection 467.3(1), it says:

“management of a corporation” in respect of an act or omission means all or any of...

and there it specifically says, inter alia,

control of the part of the activity of the corporation in respect of which the act or omission occurs

So there's a specific recognition in this part that officers or directors should only be liable for those parts they're responsible for themselves, and yet in the wording for the direct offence with the directors or officers, it doesn't matter where the offence takes place. That would cause me some concern, because it does exactly what I think the drafters of these provisions are trying to avoid, and that is simply by trying to impose vicarious liability. That's my concern here. Maybe we could get an explanation of that.

º  (1635)  

    Mr. Andrew King: The first provisions you cite are in relation to section 216, which deals only with officers and directors of corporations, as it says at the beginning. The duty alluded to is defined under subsection 2, so that we know that we're talking about a duty that is consistent with their position as an officer or director of the corporation. So this has to do with the consideration whether to charge them individually. That would be on the basis of failure in a specific duty.

    When you go to draft section 467.3, that concerns offences of corporations. There we're talking about management of corporation, which is a little bit broader, but we're also talking about the operation of the corporation and corporate liability. So within the context of the corporation, to find the corporation liable, this is where, I think, there's more specification about putting together the individuals.

    As I said earlier to Mr. Blaikie, there is a little bit of American and Canadian, a bit of aggregation. I would say it's not vicarious liability. In fact, we have been criticized for being narrow and keeping it down to scope of authority.

    Mr. Vic Toews: But to get back to subsection 216.1(1), technically, under that interpretation, it creates liability on the part of an officer or director of the corporation, regardless of the location in which the employees of the corporation are working. So if we have an officer of a corporation in Winnipeg, the working conditions relate to an issue in Sarnia, and that officer, as a part of his or her responsibilities, has nothing to do with the Sarnia operation, would this not impose criminal liability on the officer in Winnipeg?

    Mr. Andrew King: No, unless it was part of that officer's responsibility directly. You go on to see paragraphs 219.1(2)(a), (b), and (c). What we're saying is, if, as a director in Winnipeg, you are director of the entire corporation, and that includes the subsidiary in Sarnia, according to the way that corporation is designed, and you have some role in the hierarchy to say something about health and safety that would apply to Sarnia and everywhere else, that's your duty as a director, because you have to make sure of these policies. You don't necessarily have to make sure the Sarnia policies are right, but at your level, you have to make sure you were doing what was appropriate.

    Mr. Vic Toews: Are these the only duties, then? It seems to me that when you use the word “includes”, you're saying it's not exclusive, but could include other duties.

    Mr. Andrew King: It's not unusual for the Criminal Code, as you know, to do that. Fraud, for example, isn't even defined in the Criminal Code.

    Mr. Vic Toews: No, that's right, but I'm just wondering--

    Mr. Andrew King: We have a huge experience, and you would have to draw evidence. There is enough evidence in health and safety management practice that you would be able to identify the appropriate processes and procedures at that level and whether they were being carried out. So I see your question as an evidentiary one, because I don't think, as this is defined, there is an attempt to broaden liability. The term I use is commensurate with responsibility, because that's narrower, as opposed to according to the responsibility.

º  (1640)  

    Mr. Vic Toews: Yes, I have your point. I don't want to belabour it, because all I'm concerned about is that we connect criminal responsibility with criminal intent, and I just want to make sure we don't overstep that. That's my comment.

    The Chair: Mr. Toews, you're a multitude of lawyers all by yourself.

    Mr. Grose.

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

    I'm a little disappointed in your not wanting unions to take any responsibility in this. Before I became smart enough to run my own company, I worked for a very large company where health and safety were the primary concern. They said it paid in the end. That was their philosophy, but I know of companies where, if a worker feels he's doing something that's unsafe, he goes to his union steward, and the steward passes it on. He should pass it on, but if he doesn't and nothing happens, if the employee's told to go back to his work, that union steward would have no responsibility, even though it was in the agreement that it was his duty to report that. I think he has an equal responsibility with the plant management or even the director of the company.

    The Chair: Mr. McBrearty.

    Mr. Lawrence McBrearty: Most of our collective agreements, where we are certified, or most of the statements in principle in the plant sites say that health and safety are the concern of everyone. That's good management. I agree with you, there are some companies where safety is first. Where it works, it works. In other places it doesn't.

    We do have responsibilities under the terms of the collective agreement or whatever labour code there is, either federal or provincial. Our responsibilities are determined there in the collective agreement. My understanding--and lawyers around the table can correct me if I'm wrong, and usually I am--is that here in the Criminal Code the power of a director or an officer of a company is a lot greater than that of any shop steward, site manager, site president, first-line supervisor, or second-line supervisor.

    Mind you, when there are fatal deaths at the plant site now, generally, the first ones called onto the site are either the provincial police or the RCMP, to investigate whether there is this criminal intent or whatever.

    If the union or the individual has the same authority or responsibility as management, I don't disagree that we have the same liability. But to take your example, if a worker finds a place on site, he can report it to his health and safety person, shop steward, or whoever. Under no collective agreement I know of or any provincial legislation can a shop steward close the operation or that specific on-site place down. The worker only, under legislation, can make the request. If the shop steward doesn't report it, it falls under the collective agreement. If the shop steward does report it and goes higher and higher in the management, as in the case of Westray, where there was a blindness or a recklessness, then we think the Criminal Code aspect should fall in.

    I want to be understood. I can't talk for all unions, but in my union we don't want to run away or hide. If we do have a responsibility and we don't fulfil our responsibility, let me tell you, our members know what to do. But we're not trying to hide behind this. In fact, we want to help in this. We want to try to find a solution. Maybe I should say what I was going to say at the end. You people are going to see us on the Hill for the next 20 years unless we find a solution.

º  (1645)  

    Mr. Ivan Grose: I was intrigued by your comparing the power of the shop steward to that of the plant manager. I don't think you've ever seen a CAW shop steward in action. Believe me, some days the plant manager doesn't have much influence.

    Mr. Lawrence McBrearty: If you want to get into those discussions, we do the same thing, but I don't want to talk about that here.

    The Chair: I assumed that Mr. Grose was going to speak to the likelihood of his being here in 20 years, but we'll leave that alone.

    Mr. Lanctôt, last intervention.

[Translation]

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

    Continuing on, because I'd like to come full circle on this, I understand very clearly most of what you said. However, if the board of directors follows a union recommendation that proves to be unsound, or if the union fails to make a wise recommendation, then you're telling me that the union cannot be prosecuted as a body corporate. The union, which operates in close proximity to its members, may do nothing or make a poor recommendation that the board of directors implements. Why not include every eventuality at this time? When will we come back to a bill such as this? In my opinion, we have a duty to protect all workers. If, as you said, it's possible to shut down a mine or a plant before a worker dies, then why not consider all of these possibilities now? It's not that we absolutely want unions to be held accountable, not by any means, but if we tell the corporate managers and directors who testify before our committee that unions are to be fully excluded, we'll certainly hear both sides of the story. However, if we propose some compromises and arrive with a suggestion like this - and there are certainly others - it would demonstrate your good faith without putting you in a difficult position. Your job is to protect your workers.

[English]

    Mr. Andrew King: The further you get into the notion of union liability in these cases, the deeper you get into the problem that was previously raised, which is criminal intent. There is a demonstrable link in the evidence we've quoted between senior management commitment and reduced lost time claims. And it's axiomatic that if senior management doesn't have a commitment to workplace health and safety, nobody else will, for obvious reasons. There's no evidence that shows the reverse. We have evidence that unions can and do enhance safety in workplaces, because they provide a venue, but we don't have the opposite. All the things Lawrence has told you and we've talked about in regard to the role of union representatives don't bring them into the same level of responsibility that we are clearly able to define in a corporate sense. That's one point I would make.

    The second point, a key question ever since the legislation came down creating health and safety representatives, explicitly crafted so there is no liability, is that when you get down to the level of the people who are doing health and safety work, whether it be an inspector or the people in the workplace, particularly in the workplace, many of them are volunteers. They're there to help identify problems. If we start imposing too much liability at that end, where they have no real power to make a difference, we're not going to have people who are willing to do it.

    So it's a combination of the two. Particularly as something you want the Criminal Code to address, there is no evidence that unions have that negative effect and need to be addressed in the way corporations and corporate leaders do. Second, we may drive off a lot of the people who are willing, on both the management and labour sides, to be the eyes and ears of the system on the ground, because they're afraid that if they miss something, they could be prosecuted.

    I think what we've got is a regulatory system that handles the relations, by and large, at the shop floor level, and by that I mean the occupational health and safety rules. I think they function better in some provinces than in others. I don't need to go into much detail there. What we're talking about is a stage above that, and in answer to Mr. Macklin's question earlier as to what difference it would have made, the big problem is that you get halfway through volume one and you discover that all the up-front economic decisions that were made were wrong. One person said--I think it may have been Richard--Westray was like a bomb waiting to be lit before the workers even got there. Because of how they chose to mine, they ignored all sorts of things. So there is that piece. If your question is whether things would have been different today if the Criminal Code offence had been in place and people knew about it, I think the answer is, yes. Then Gerald Phillips and Roger Parry and Clifford Frame wouldn't have been running around saying, we don't have to pay attention to this, because they would have known the Criminal Code would apply to them. As the evidence on page 23 says, managers told the researcher that the fear of personal liability was by far the most important motivating factor to attend to.

    We just think you need to make sure that is in accordance with their duties, not trying to make them directly responsible, but in the corporate environment, with the safety management system etc.

º  (1650)  

    The Chair: I thank the witnesses. It's been a very informative afternoon, and the witnesses have helped us as we inch along through this very complex matter. Thank you very much Mr. McBrearty and Mr. King.

    I'm going to just take two minutes for the witnesses to find their way out, and then we'll be taking a motion from Mr. Sorenson.

º  (1653)  

---

º  (1656)  

    The Chair: I call back to order Standing Committee on Justice and Human Rights meeting No. 86.

    I believe Mr. Sorenson would like to speak to us for a bit.

    Mr. Kevin Sorenson (Crowfoot, Canadian Alliance): Thank you, Mr. Chairman, and I want to thank you for taking this motion and putting it forward for the consideration of the committee here today.

    This motion has come out of going over a report that's a couple of years old. More than two years ago the Subcommittee on the Corrections and Conditional Release Act, part of the justice committee, held meetings here in Ottawa, and they travelled throughout Canada. I know Mr. Grose was on that committee, Mr. MacKay, Mr. Myers, who currently serve on our justice committee. I know also that the committee visited many different correctional facilities, sat in on parole board hearings, and had dealings with those individuals on the National Parole Board.

    In May of 2000 the subcommittee brought forward their report and tabled it, and they called it “A Work in Progress: The Corrections and Conditional Release Act”. In October of 2000 the Solicitor General took the report and responded, and he said this:

It is a welcome addition to the information, research and knowledge currently available regarding corrections and the Conditional Release Act.

Then Mr. MacAulay went on to say:

The committee's review has emphasized that the corrections and conditional release systems can be further improved in some areas.

    The Solicitor General recognized that the report was a comprehensive study of testimonials by offenders, police officers, victims of crime, members of the bar, offender assisting agencies, crown attorneys, academics, and countless others. He indicated that out of the 53 recommendations the committee brought forward the government should accept 46. I think we should note that the government has never backed away from those 46 recommendations. In fact, in the last throne speech they reiterated that we needed to ensure that our communities remain safe. My concern, however, is that to date none of the committee's recommendations has in fact been implemented, and the Solicitor General has failed to meet his commitment of implementing these recommendations.

    So this motion that has been presented and is before you today simply requests that the Solicitor General, the Commissioner of Corrections Services Canada, Lucie McClung, the correctional investigator, and the parole board appear before this committee to provide a status report on what, if any, recommendations have been implemented and to defend the inaction on those recommendations that have yet to be implemented.

    There are two reasons I am concerned, two reasons I bring this motion before you. The first one, obviously, is to do with the government's commitment to the protection of our communities, the protection of society, the goal they mentioned in the throne speech. But maybe even more importantly, I'm concerned that the government, the Solicitor General, and his department are effectively dismissing the hard work of that committee a number of years ago. I think we can look at past history and say there have been many reports, many committees struck, many times where recommendations have been brought forward, perhaps accepted, and then just never implemented.

    What are some of those recommendations? There are 53 of them, 46 of which the Solicitor General said he would implement. Recommendation 1 was a very simple one, “that section 101 of the Corrections and Conditional Release Act be amended so that the paramountcy of the protection of society is established as the stand-alone basic principle applicable to the Corrections Services of Canada and the National Parole Board.”

»  (1700)  

    Recommendation 11 is “that the Corrections and Conditional Release Act be amended to require Corrections Services Canada to review all cases eligible for statutory release in order to determine whether they should be referred to the National Parole Board for a detention review.” I want those individuals here to say whether or not this is happening. We're dealing today with many different instances. Mr. MacKay brought forward yesterday an instance where someone who was out on statutory release was savagely beaten with a claw hammer. I think the committee worked a good compromise there, we all worked together, we showed that we can study a report, but this is a much more comprehensive review of the Conditional Release Act in light of the many different crimes that are being perpetrated by individuals who are out on early release programs.

    Recommendation 13 is another one I just wanted to quickly bring out: “that the Corrections and Conditional Release Act be amended to ensure that the accelerated parole review procedure is not available to offenders incarcerated for offences listed in schedule 2 of the act, regardless of whether there's been a judicial determination of parole eligibility.”

    Mr. Chair, these are not recommendations put forward by our party or by the opposition or by only the government party, but recommendations put together by, from what I understand, a committee that worked well together, a committee that got the ear of the government: the Solicitor General said, although we cannot accept the 53 recommendations, there are 46 we need to implement. Mr. Chair, I am unable to find where these recommendations have been accepted. I've talked to many different individuals who served on the committee, to research staff, to the parliamentary library, to others, and there's really no record. So this is basically about accountability and seeking an update on the status of that committee's work.

    The Chair: Thank you, Mr. Sorenson.

    Mr. Maloney.

    Mr. John Maloney (Erie--Lincoln, Lib.): Thank you, Mr. Chair.

    I thank Mr. Sorenson for his comments, but something that must be biting everyone here is why these concerns weren't brought forward a couple of weeks ago, when we had all these people before us on the estimates. They're busy people, we're busy people, we have an agenda that's going to take us some time, and you had your forum, you had your opportunity. The question you have would have been ideal when we looked at the estimates. Why didn't you do it then?

    Mr. Kevin Sorenson: At that meeting the time was very limited. We had the individuals, but we were discussing the estimates, and this is much more comprehensive.

    I think we need to study, first of all, how many of these recommendations have been accepted, and then ask those in the appropriate places, whether it's Corrections or the parole board or wherever, why the other ones aren't being implemented. With the Commissioner of the RCMP, Mr. Zaccardelli, with Lucie McClung, the Commissioner of Correctional Services Canada, with the National Parole Board, and with our Solicitor General, I remember we started late, and we had a very limited amount of time to deal with the estimates. I appreciate that they were here, and I think our committee could appreciate their being here to answer the concerns that arise from this motion. It's a motion put forward just to find out where we are on this. Are we sitting around board tables like this just to pass the time of day, or are our committees that are travelling at a high cost throughout this country being listened to, are their recommendations being implemented?

»  (1705)  

    The Chair: Mr. Macklin.

    Mr. Paul Harold Macklin: Thank you very much.

    It's a very valid point by Mr. Maloney. I don't think that every time we turn around, we should be inviting the minister to this committee when we have an issue. I can certainly see inviting the officials, I can certainly see demanding a status report and having them here before us, but I think that if every second week we're going to be asking the minister to come, that's a bit much.

    As for what has happened to date, I understand that there have been a number of initiatives by the minister. I'm also aware that the minister is preparing to fully implement the spirit of these recommendations. I don't think I would have any problem in having a status report brought forward, and I don't think I'd have a problem in bringing forward the officials to explain where we're at, but based on my understanding that the minister is preparing to bring forward the implementation, I would think it's an inappropriate time, given that he was just here for estimates. As we all know, the estimate process really is a general question and answer period, it's not just about the dollars and cents issues, and there was an opportunity.

    So I would respectfully submit that if we amended the motion to delete the Solicitor General and put a date in by which they had to bring forward this status report, and I would suggest June, before the House breaks, we'd have a chance to have officials and their status report here, and we can find out where exactly we are in this.

    The Chair: So, do I take it--

    Mr. Paul Harold Macklin: I would be prepared to move a motion that we delete the words “the Solicitor General” from the motion and insert after the word “Committee” in the sixth line “by June 2002”.

    The Chair: There's a difference between “by June 2002” and “by the end of this session”.

    Mr. Paul Harold Macklin: My assumption is that it would have to be while we're sitting.

    The Chair: So you're saying before the end of May. Is that what you're saying?

    Mr. Paul Harold Macklin: My understanding is, by June.

    The Chair: What does that mean? I'm not sure. In June?

    Mr. Paul Harold Macklin: Before the House rises for the summer break.

    The Chair: Okay.

    So we've had an amendment that would simply eliminate the request to have the Solicitor General appear, and we've specifically said we want this to happen before the House rises.

    Now we have Mr. Lanctôt, Mr. Toews, and Mr. Maloney.

    Mr. Lanctôt.

[Translation]

    Mr. Robert Lanctôt: I have a suggestion that might please the Canadian Alliance. I'd like us to set a date. I don't see why we couldn't agree on the end of May as a target date. We can't really take about an adjournment date, because rumours are flying. We don't know when the House will rise. It could be on the 7th, on the 14th or on the 3rd. Who knows? Therefore, I think the end of May would be a reasonable timeline.

»  (1710)  

[English]

    The Chair: The chair interprets this as an outside date, and would attempt to get this as soon as possible. I understand we're trying to set a deadline for this exercise, which doesn't let me off easily.

    Mr. Toews.

    Mr. Vic Toews: What specifically concerns me is that we respect the integrity of the committee system. As my colleague Mr. Sorenson pointed out, this wasn't an opposition report, this was a report of the committee. I believe Mr. Grose concurred in that report, and I'm sure he, as a participant in that committee, is interested in knowing what the status of this matter is.

    I can support the suggested amendment to delete the words “the Solicitor General” from the motion and to include words at the end of the motion that would say “before the House rises in June 2002”, something to that effect. I do, however, want to leave the door open, as we did yesterday, to the possibility that the minister may be called if the report is not satisfactory. I won't put a date on the appearance of the minister, but I think we do need to have that door left open, so as not to compromise the integrity of the committee system, in case the officials come here, for example, and say, we'd like to do it, but the minister can't seem to get focused on this issue--I'm not suggesting that would be the case, but just in case.

    The Chair: He'd be pretty focused at that point.

    Mr. Maloney.

    Mr. John Maloney: I don't take issue with the points being raised by Mr. Sorenson, but I'm not entirely convinced about the urgency. I thought we had a proposed agenda that took us through the balance of the year. Do we have a full agenda? Is there something there that's going to be bumped, or are we going to schedule extra meetings? I don't want to be criticized for not getting to something we had said or suggested we might get to.

    The Chair: Thank you for allowing me the opportunity. As soon as this is over, we're going to be doing a little bit of business.

    Essentially, we have a full agenda, but as you know, we've tried to avoid Tuesday afternoons, because of House leaders' meetings. Ultimately, if we have to make alterations to some of those things, I think we can get it in without bumping anything, because we do have some spaces in the weekly agenda and we'll accommodate. For instance, we don't normally sit on Thursday afternoon, but tomorrow afternoon we're sitting to accommodate Mr. Cauchon and his estimates. Those are the kinds of accommodations we'd have to make.

    Mr. Grose.

    Mr. Ivan Grose: I'll keep my comment short. You know I make short comments.

    Mr. Sorenson, you referred to very expensive trips across the country. You obviously weren't on that trip. It wasn't very expensive.

    To be quite frank with you, I want to know what's going on too. I think we can all agree, with that one omission, at least we're starting to dig. I want to know what happened to it and why it didn't happen, so let's start there, and then we'll go to wherever the guilty party is.

    The Chair: Okay. We'll vote on the amendment first, which basically eliminates the Solicitor General from the request for the time being.

»  (1715)  

    Mr. Chuck Cadman (Surrey North, Canadian Alliance): Do you want to rephrase that?

    The Chair: I've had some experience of eliminating solicitors general. It's not pleasant.

    So the request is not made of the Solicitor General, and we are going to do this before the House rises in June.

    (Amendment agreed to)

    (Motion as amended agreed to)

    The Chair: I want to put it on the record that this in no way prejudices the committee's interest in having the minister appear following that exercise. That would be a decision for the committee to make subsequent to that exercise.

    Before we lose our good crowd here today, I have some items of business to attend to. I don't think it's necessary to go in camera. We'll plough on.

    First, we've had a request from one of the officials who appeared on the mental disorders issue to accompany us to Toronto when we do the mental disorder court visit. Does anyone have any objection to having someone from the Department of--

    Mr. John McKay (Scarborough East, Lib.): Who is it?

    The Chair: Greg Yost from the Department of Justice wants to participate in that exercise.

    Mr. Chuck Cadman: As long as he pays his own way.

    The Chair: So I take it there's no problem. The committee can't pay for it anyway. They can't even pay for me. No, I'm teasing. So Mr. Yost will be coming.

    There are votes in the House on that Tuesday, and there's also the swearing-in of some new members of Parliament. So the clerk, appropriately, has asked me to put that to everybody, without any speculation as to who might be more interested than others. We may wish, of course, to renegotiate the date with Justice Ormston, or we can proceed. Understand that the House leaders have concurred with this request for funds, so the House leaders are aware that we're doing this. My recommendation to the committee, if no one objects, would be that we proceed unless the agreement among House leaders breaks down, which we won't be able to control anyway. Does anyone object? Okay, we'll proceed with May 21.

    We originally intended to begin studying the report on mental disorders by the end of May. I would ask for the opportunity to push that back into June, only because we're having difficulty with the rather onerous expectations we have of the research staff. I just didn't want it left hanging that we were doing something different from what we intended. We're probably going to have to buy two or three more weeks, if nobody objects, for our draft report.

    Here's what I'd like to propose, if there is no objection. We probably will not be able to do a comprehensive response this spring, and it's not a function of the committee, it's a function of all the work everybody is called upon to do. If we want that, we'll probably have to do it into the fall. However, I think what we could do--and I suggest this may be a reasonable way to do it--is file a report in June on the basis of the recommendations. I understand that the staff believes we can probably get that done. We could file a report in June that would compel the government to respond to those recommendations, but it would not be the kind of comprehensive report we would do if we planned to do it by the end of October. We all know there's a possibility we could prorogue over the summer or in the early fall, and I'd like to have something on the record, done by the committee, even if it's not the comprehensive exercise we would like. However, if we come back in the fall, we've not prorogued, and the committee still exists, we could fill it out. It doesn't prejudice the opportunity that would be available to us in the fall.

    Mr. McKay.

    Mr. John McKay: Is this in the nature of an interim report?

    The Chair: We would call it an interim report, but we have to include in the report that we want the government to respond, and vote to do so. That way, if there's no additional work done, the government is on the hook for a response. If we come back in the fall and have the opportunity, we can fill it out and come up with the final report, freeing the government from the obligation.

    Mr. McKay.

»  (1720)  

    Mr. John McKay: So it appears there's no downside to your proposal.

    The Chair: I don't think so. If there were one, with all these brilliant people here, we would figure it out.

    Mr. Toews.

    Mr. Vic Toews: I don't see any objection to that proposal. I think it's reasonable. At the moment I can't see a downside.

    The Chair: We've had a number of suggestions for additional witnesses we would want to hear on the subject matter of Bill C-284. Because we would be pushing back the report, that will give us some space. We want to hear the response to the motion just passed. That will take up some of that space. A response to MacKay from yesterday is another sitting. I would also perhaps invite some of the witnesses who have been referred to with the subject matter of Bill C-284, what we're doing on Westray.

    I don't see any objection, so we have that.

    We've now been sent a new bill, Bob Mills' Bill C-400. I think it was sent with some urgency. Do I take it that we would want to deal with it with that same urgency?

    Mr. Toews.

    Mr. Vic Toews: We see that as an urgent matter, and given the very generous support for it on the Liberal side of the House, and I think by all opposition parties, I think we should move ahead on it.

    The Chair: Okay. We take that recommendation.

    Mr. Macklin.

    Mr. Paul Harold Macklin: I'd only give one caution, that we might want to make sure we have canvassed all necessary witnesses on this and not try to rush that through. The germ of a good idea is there, and we have to try to nurture it through, but I think it may take more work than we think.

    The Chair: Clearly, we're going to hear witnesses, and that's part of the process, but we would begin it with dispatch.

    Mr. Paul Harold Macklin: To begin is fine.

    The Chair: Finally, Mr. MacKay's motion would have the committee receive the two pages. Do we want to simply receive it, or do we want to call an official from the department to come with it to answer questions? There are limitations on what officials would be able to answer, but there may be technical questions--why does it read like this, like that?

    Mr. Cadman.

    Mr. Chuck Cadman: I think we would want to look at it first, rather than just have an official show up with it. That would be my preference.

    The Chair: So as a committee, we'll look at it ourselves first, and then decide.

    Mr. Toews.

    Mr. Vic Toews: One other issue that seems to be slipping onto the back burner is that of conditional sentences. We have an obligation as a committee to look at that entire issue. I'm just wondering whether we can generally have the benefit of your thoughts on that, Mr. Chair.

    The Chair: I very much appreciate your invitation.

    We've probably had four or five meetings since I've been in the chair on the question of the work plan. We generally concurred when we made those decisions, and this is probably an appropriate time to rethink the matter. The options are simple. We could open up the file before the end of June. I suspect we could find one meeting and bring in officials and begin that. I would also, on the other side of the argument, say, how many files do we want, how many different items do we want the committee to be seized with at once? We would have mental disorders, Westray, the review in respect of CCRA--we don't know where that's going, frankly; that could open up a whole bunch of stuff--and Bill C-400.

    Mr. Vic Toews: Was there a specific commitment made by the former Minister of Justice as to a particular timeframe? If there was a particular commitment, I think there is some urgency. If there wasn't, I wouldn't mind simply having the file open in order to receive reports from departmental officials. That would give us a chance to examine this without taxing the committee's limited time.

»  (1725)  

    The Chair: The minister is to some extent off the hook, by virtue of the fact that she wrote to us asking us to do it, and we met a number of times with the request and said, yes, we wish to do it, but we have to do something else first. The last time was when we decided to do mental disorders, because it was a statutory review. So this is another occasion in the long series of opportunities, and Mr. Toews suggests that we may wish to have, let's say before the end of June, one day on conditional sentencing to begin a process.

    Mr. Vic Toews: Even just to receive a report, without questioning any witnesses. I just want to know if there's been any thought given to this issue by the department. Certainly, the minister expressed concern that we look into the matter, and I'm sure she wouldn't have expressed that concern without getting assistance from her department.

    The Chair: Mr. McKay.

    Mr. John McKay: I appreciate Mr. Toews' concerns, but you've got four or five items on the agenda, and opening something up just to close it up over the course of the summer is an exercise in futility, to my mind. So I'd be happy to open it up when we get back, prorogued or otherwise, and deal with it at that point.

    The Chair: I think an argument could also be made, Mr. Toews, that if we open it up now, we'll have to be reminded in the fall in any case.

    I'm not adjourning. We are going in camera.

    [Editor's Note: Proceedings continue in camera]