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[Recorded by Electronic Apparatus]

Tuesday, June 6, 2000

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The Chair (Mr. Andy Scott (Fredericton, Lib.)): I'd like to call the meeting of the Standing Committee on Justice and Human Rights to order.

Today we will be considering recommendation 73 of the Province of Nova Scotia's public inquiry into the Westray disaster.

My helpful support staff have been up here trying to decide whether we should offer the witness an expense claim. It's an interesting change of circumstance, but we have Peter MacKay, the MP for Pictou—Antigonish—Guysborough, who will be speaking to his motion.

I would also welcome our visitors, who we'll be talking a little bit about later. I'll be seeking an opportunity perhaps for others to appear before the committee. We had not arranged this in advance, so I'll be seeking consent. But for the first part of the day it's Mr. MacKay.

Mr. Peter MacKay (Pictou—Antigonish—Guysborough, PC): Thank you very much, Mr. Chair and colleagues, and those who are in attendance.

I'm very appreciative of the opportunity to speak to this motion, which did receive consent in the House of Commons, and it has arrived here through the usual procedural path.

The private member's motion itself reads: that in the opinion of the House, the Criminal Code or other appropriate federal statutes should be amended in accordance with recommendation 73 of the Province of Nova Scotia's public inquiry into the Westray disaster, specifically with the goal of ensuring that corporate executives and directors are held properly accountable for workplace safety.

To the committee I must provide a short background, but a very important and poignant one. This report, which came out of the Province of Nova Scotia and was drafted by Mr. Justice Peter Richard, was the result of a very tragic and violent explosion that took place at the Westray colliery coal mine in Plymouth, Nova Scotia, on May 9, 1992.

This incident, this tragedy, killed 26 men and was something that in very stark terms drew attention to the issue of workplace safety, not only in the province of Nova Scotia, but around the country.

There were many Nova Scotians who acted in a very heroic fashion. Draggermen from the island of Cape Breton and local individuals such as Vernon Theriault, who was decorated for his bravery, took part in the rescue effort to assist those 26 men who were thought initially to be trapped underground, but tragically their lives were taken.

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The motion that is before the committee, I would suggest, is a very broad one. It is drawn from the recommendations that came from Mr. Justice Richard's report and speaks specifically of changes not only to the Criminal Code of Canada, but I would suggest to any federal statutes that impact on workplace safety. So it is very much, I would suggest to all assembled, a bread-and-butter, life-and-death, human compassion type of initiative that we have before us.

Many people in Nova Scotia are still very much affected and very much, still to this day, dealing with the aftermath of this tragedy in Plymouth. Some of those individuals are here today, Mr. Chair, and as you indicated at the outset, I will be seeking unanimous consent near the end of my presentation to have two of those individuals come forward and speak to this motion, and I will move that motion at the appropriate time.

To delve into the gist of the motion itself, it speaks very much to the issue of prevention, and by way of background, again, I would like to dwell for a moment and chronicle some of the happenings in the aftermath of the explosion on May 9.

There was an obvious immediate rescue effort, and the mine itself was closed, never to reopen. After charges were laid under the Nova Scotia Labour Standards Code, those initial charges were set aside with an end to lay criminal charges. And that happened; I don't have the exact date, but criminal charges of manslaughter and criminal negligence causing death were in fact laid in the Nova Scotia courts.

To speak to that for a moment, those charges proceeded through the court, through the various stages of preliminary inquiry, on through the Supreme Court of Nova Scotia, the appeals court, and all the way to the Supreme Court of Canada. There were a number of procedural delays and wrangling that took place that very much aggravated, I would suggest, and exacerbated the situation, as to getting down to the actual root causes and bringing about some form of accountability and closure for all involved. And there were some very hard lessons I think learned as a result of the aftermath of the proceedings.

On the civil side of things, there were attempts made at lawsuits, and there were also efforts put in place immediately by the Province of Nova Scotia and the premier at the time, Donald Cameron, to have a public inquiry, the results of which I have referred to. “The Westray Story: A Predictable Path to Disaster” was tabled by Mr. Justice Richard in 1997. I have copies of that report, and I will in fact undertake to ensure that all members of the committee receive copies of this very comprehensive and, I would also add, very disturbing chronicle of what took place in the Westray case. It summarizes essentially the history leading up to the opening of the mine, and it speaks very much in a foreboding way as to how this terrible loss of life and this impact could have been avoided.

Essentially, to summarize, Mr. Justice Richard's findings indicate that there was sufficient blame to be shared by all; that is, the politicians who were involved in the initial procurement and arranging of financing both at the federal and provincial level. It speaks of the mismanagement of the mine operators, and in particular it speaks of the preventability from the safety inspection side of things in the Province of Nova Scotia and how there were clear indications that there were problems with respect to dust, some degree of fall-ins, and a general shoddy atmosphere of workmanship with respect to adhering to safety standards within the mine itself.

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This was, again historically, one of the richest seams of coal, the Wimpey seam, in North America. Along with that label of being the most prosperous and richest seam of coal came the label that it was the most gaseous, that is, the most potentially explosive because of the methane that is released during the coaling and the colliery coal recovery.

I cannot speak to the technical aspects of mining procedure, although I will add on a personal note that I was in that mine as a summer student working for Satellite Construction. I had been down in the mine—and like yourself, Mr. Chair, I have had the occasion to tour mines in Atlantic Canada.

It's a very personal project for many to see that this issue is addressed and addressed in a significant fashion. It has been a long, arduous road for those who were involved in bringing this issue forward. I know my colleagues in the New Democratic Party have also, because of their maritime roots and because of their commitment to workers and to workplace safety, undertaken similar efforts.

I would suggest that this is a non-partisan issue and one that deals with very fundamental human interest aspects. It is one that I would encourage all members of the committee to look very closely at. I was very encouraged to see that at the end of the day it received the support of the House of Commons, and through simple timing it has arrived here at our doorstep, I think at a very important juncture.

We have an opportunity to react to this report, and the motion I have brought before you is drawn directly from Mr. Justice Richard's report. It is not meant to be nuanced or in any way limited in scope. It includes, I would suggest, a very similar intent to a motion that is also before the House of Commons, although it has not, as I understand it, officially been drawn—and I stand to be corrected. But Bill C-259 focuses in specifically on amendments to the Criminal Code of Canada that would create in essence a new standard to be applied with respect to corporations, directors, and officers, and focuses on acts and omissions that would be of a criminal nature when loss of life or threats to life and limb arise in the workplace.

This motion, I would suggest, encompasses very much that same intent under the Criminal Code, although it is not limited only to the Criminal Code, and the wording was taken specifically from recommendation 73.

It is not, obviously—it goes without saying—limited to mining operations. I would suggest that it has to do with any workplace. It has to do with fish plants; it has to do with lumber mills. It has to do with any place in which men and women, and children in some instances, are exposed to dangerous situations. It is a genuine attempt to raise the standard of accountability for those who are responsible for not only just overseeing what is taking place in the workplace, but also who have set the operation up, who are responsible, I suppose, at the high end of the financing and make decisions that may in a boardroom seem very sterile, but those decisions can have very direct and sometimes tragic implications if they involve cutting corners or if they involve in any way, through acts or omissions, permitting a dangerous situation to exist.

This is where—and I have to step back a moment and return to the point in the prosecution of the case—if I can put it this way, things broke down. I know I have colleagues here who have equal or more experience in the law, but in terms of the mens rea and the actus reus, it is sometimes very difficult for directors and managers to be drawn in. The civil standard there is something called “the corporate veil”, which doesn't necessarily exist in the criminal aspect, but it is this direct tie-in of accountability and responsibility that is extremely tough to present to a court of law and draw that nexus.

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This attempt, both by the motion and, I would suggest, by the bill as well, is to bring about a new standard that would permit, in a criminal sense.... If we get into the broader implications under the Canada Labour Code, this is an attempt to bring about a higher threshold of accountability that would perhaps, I suggest, initially shake the foundations of how some corporations operate. But once more I would say to you that this is also an attempt to bring about this direct accountability to workers who are, in many instances, in grave danger because of decisions that are sometimes even unknown to them but very much impact on their day-to-day safety and their day-to-day labours in the fields, in the factories, and in their workplace generally.

That is a bit of the background. There are certainly broad implications, I would suggest. This motion, in the fashion in which it is before you, is drafted in such a way that it allows us to go where we have to go, which once more, I think, is very much in the spirit of what Justice Richard has been telling us.

I must add that other provinces have responded and have indicated and, I would suggest, requested that the federal government act on these recommendations. It has been over three years now since this report was completed. It was a very intensive and very comprehensive review that took place. They heard from hundreds of witnesses who urged Mr. Justice Richard to bring forward a report that was going to be indicative of the grave implications of not reacting.

The Westray mine explosion was simply a catalyst to a situation that has been ongoing in the country, I would suggest, for a number of years. It is sad and extremely troubling that it takes such a massive tragedy as this to focus public attention and political attention on the issue.

I recall, and I'm sure my colleagues will as well, that there have been other such tragedies since, including other mine explosions, including ships going down. In fact, in close proximity to the Westray mine explosion there was a ship that went down off the coast of Nova Scotia in Yarmouth, where there were actually more lives lost. They went out into a storm against the advice of those who should have known better, and once more we saw massive loss of human life because of knowledge that existed and wasn't shared or advice that wasn't followed.

I spoke to miners that had been down in this mine. Many of them, for economic reasons, went about their daily duty and didn't report things they saw. It's not popular to talk about the responsibility that fell on the miners; it's sometimes a very contentious issue. Many of those miners felt, I think, that they couldn't afford to complain. There was very much an atmosphere of fear and loathing that was prevalent.

As for the inspectors themselves, I think to this day it must haunt them knowing that this perhaps—and according to this report—was a very preventable disaster. The mine managers and directors will have to live with this, but we don't, Mr. Chairman.

This is an opportunity, I would suggest. We can do something very substantial and very honourable in the memory of not just those who lost their lives at Westray but for workers across the country. I would suggest that this is the time to do that.

It is also interesting to note that the statistics that were published in the The Globe and Mail today clearly point out that Canadians favour our government and our Parliament reacting favourably to changes in the workplace atmosphere. I think those statistics once again show that perhaps the public sentiment is ahead of our daily machinations here in Parliament and sometimes of our own introspective partisan circus that we are involved in.

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We should heed the public in this regard. I would suggest that if we can embark on a study that will bring forward perhaps some of the same witnesses who appeared before the Westray inquiry.... I think we should be prepared to hear from people across the country on this particular motion and to focus our efforts on what we can do.

One of the suggestions—and I think it has moved the yardsticks forward—is to adopt or at the very least, perhaps, incorporate into this motion Bill C-259, because the draft section of the Criminal Code that appears in that bill does a lot of the work for us, I think. A lot of the legwork has already been done in creating a new Criminal Code section.

The indication that I made at the outset was that we should hear from some of the persons who are closest to this disaster. There's one individual in particular, who I want to tell you was in that mine the day before, just hours before the explosion, and was scheduled to go back that night. He was very instrumental in the recovery operation as a bare-faced miner working with draggermen. His name is Vernon Theriault. He had been employed at the mine for approximately seven months. He's a welder by trade and is currently employed at Trenton Works in Nova Scotia.

With him is Howard Sim, who is the vice-president of the Nova Scotia Federation of Labour, also a welder, for 23 years at Trenton Works in Trenton, Nova Scotia.

Both of these gentlemen are here in Ottawa as part of an effort to raise public awareness for workplace safety, a very noble cause indeed.

I think that for a change there is a real opportunity before us that we can seize. I'm very hopeful that we can do that through a cooperative effort, through this motion, through the bill that is also in the gristmill, if I can put it that way, and may make its way through the procedural workplace.

Mr. Chairman, I would be more than pleased to take questions on the specifics of the motion, but I would also like to reserve the time to have these gentlemen join me at the table and make a brief presentation, if they may. I would seek unanimous consent for that at this time.

The Chair: Mr. Mancini.

Mr. Peter Mancini (Sydney—Victoria, NDP): Thank you, Mr. Chairman.

I would be prepared to second that motion, but I would ask for a friendly amendment to it. With the Steelworkers here today is Mr. David Doorey, who has done a tremendous amount of background material. He's a lawyer with the United Steelworkers of America. There are also a couple of members of the executive of the Steelworkers here. I don't expect Mr. MacKay would have a problem if they were to join as witnesses as well.

So we wouldn't limit the number of witnesses that could come forward to the two mentioned, but we could broaden it somewhat, because I think they do have some technical information that they can share with the committee.

The Chair: The way I'd like to proceed—again, with unanimous consent, and given both Mr. MacKay's suggestions and Mr. Mancini's suggestions—is that as soon as we're finished questioning Mr. MacKay, we would ask the other witnesses to come forward and essentially give testimony in the usual manner.

I'd like to establish this now so that we would then govern our questions and our time accordingly. Is there any objection to the suggestions that have been made by Mr. MacKay and Mr. Mancini? A couple of members on the government side had also come forward, so I don't anticipate that there's any objection.

That being the case, when Mr. MacKay is finished, we'll ask the others to come to the table. Now we'll proceed with questions for Mr. MacKay in terms of his motion.

Would everybody keep in mind the fact that as soon as he's finished we'll be hearing from others on a similar subject? Therefore, govern yourselves accordingly.

Mr. Peter MacKay: Mr. Chair, can I just ask, generally speaking, what our parameters for time are? I have to speak in the House at noon.

The Chair: Historically, the committee goes until 12:30, but—

Mr. Peter MacKay: Yes, that clock, I know, is not—

The Chair: That clock is not.... According to my watch, it's 25 minutes to 11. We generally finish at 12:30. Okay?

Mr. Peter MacKay: Sure.

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The Chair: Mr. Abbott.

Mr. Jim Abbott (Kootenay—Columbia, Canadian Alliance): Taking a look at the Westray story, I'm reading from the executive summary, the fourth section, page 52:

    First, the requirements of the regulations should not be unreasonably onerous. If this golden rule is overlooked, mine management will go through the motions of observance but without the attention to the substance of the regulations.

I think recommendation 59 speaks to the issue of management not just having to adhere to regulations, but having to adhere to the spirit of the regulations, which again speaks in favour of your motion.

On page 50 of the same report, recommendation 55 says:

    The unacceptable performance of Claude White and Albert McLean in the conduct of their duties as mine-safety inspectors and regulators, coupled with their demeanour at the Inquiry hearings, must surely have destroyed any confidence the people of Nova Scotia might have had in the department's safety inspectorate. Accordingly, both White and McLean should be removed from any function relating to safety inspection or regulation.

Recommendation 56 says:

    The lassitude that paralysed the inspectorate and rendered it ineffectual in dealing with Westray seems deep-seated and pervasive. Therefore, an independent professional safety consultant should evaluate the inspectorate and its personnel.

The question you touched on, and I'd like to underscore, is I don't understand the decisions that were made following this terrible disaster. I would like to know who made the decisions to allow the flooding of the mine, which led to the direct destruction of evidence.

I spoke with Kenton Thiesdale, the leader of the victims' families. I had two meeting with him and some of the victims. It still is, to my mind, a criminal question as to how the evidence was destroyed by this flooding. I would like to know why and who made that decision. This goes beyond this motion, but there are still so many questions related to this.

The other one I want to note is recommendation 74, which follows recommendation 73 and says:

    The province of Nova Scotia should review its occupational health and safety legislation and take whatever steps necessary to ensure that officers and directors of corporations doing business in this province are held properly accountable for the failure of the corporation to secure and maintain a safe workplace.

I think that speaks to the issue that I would want to see this committee or an appropriate committee of the House of Commons go forward with the inquiry that is asked for, prior to bringing forward the criminal legislation. As part of that, I would want to see Nova Scotia contribute to that. Obviously, they have made that recommendation in this.

It says at the beginning of this fourth volume in IX: at Westray displayed a certain disdain for safety and appeared to regard safety-conscious workers as the wimps in the organization.

There are some questions I have—and again, I am in favour of this coming forward; I want that to be unequivocal. But some of the questions we have to address include: How would this relate in terms of the size of a company—5 people, 500 people, 5,000 people—to the manager supervisor or the director executive, and what happens if there is a crossover between the two?

There are many of these questions we would need to be very precise about, but at the end of the day I'm speaking in favour of us doing something, of getting some wheels under this thing. I can only summarize this case in the way it is summarized in the inquiry, but this is a story of incompetence, mismanagement, bureaucratic bungling, deceit, ruthlessness, cover-up, apathy, expediency, and cynical indifference. This is absolutely one of the most egregious cases of workplace malfeasance that has ever occurred in the history of Canada.

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So I'm speaking fully in favour of the motion to bring this forward and initiate a study to create the most appropriate legislation.

Mr. Peter MacKay: Thank you for that, Mr. Abbott. You have summarized, to a large degree, the spirit of what Justice Richard has said; that in essence, this could have been prevented and there was this sharing of blame.

I just want to refer quickly to the report. He summarized four points about the Westray operation itself and how they were operating.

He said:

    [It] defied the fundamental rules and principles of safe mining practice.... ... ...rejected industry standards, provincial regulations, codes of safe practice, and common sense in [its operational practice].... ... ...failed to adopt and effectively promote a safety ethic underground. ...through its actions and attitudes, [conveyed the message that] Westray was to produce coal at the expense of worker safety.

So sometimes it's intangible what takes place in the workplace. It's this spirit you refer to that they're going to ignore very fundamental safety practices. Sometimes, in fairness to those who are involved, complaints are being made and reports are being done, but they're being ignored.

That's why I believe some of the focus of this study, if we embark on it, has to be about bringing in this whole chain of command, with safeguards involving the ability of workers who are on the floor, in the mine, or on a ship, to have a reporting mechanism that sometimes might even bypass their bosses. If they have to go to a provincial safety manager...there has to be some recourse, some place where they can go and be protected. There are reprisals, obviously, when complaints are made at times.

I'm encouraged to hear your words of support. I know there were some in your party and other parties who spoke against this motion initially. But I think as we flesh this out and give it greater focus, I'm as open as I can be to going where we have to go to incorporate, amend, or bring in any ideas from any parties at any level, as to how we can move this issue forward.

Training is another aspect that's sometimes overlooked. We must ensure that individuals who are in dangerous situations, whether it be operating machinery or working in an environment generally, have sufficient knowledge of what they're expected to do. I'm fearful that on many occasions persons are thrown in the breach, without the proper understanding of what's expected of them. They're simply told they're going to have on-the-job training. When that involves being in jeopardy of losing life and limb, that's just simply not acceptable in Canada's modern workplace.


The Chair: Madame Guay.

Ms. Monique Guay (Laurentides, BQ): Peter, you know that the Bloc Québecois supported your motion on all accounts. We are very, very sensitive to what happened at Westray. In Quebec, we also had a deadly accident at a gold mine in Balmoral, Abitibi. There were eight deaths. So for sure, we have to do something if we want to improve the situation and the safety of the people who work in the mines. You can count on our support.

On the other hand, we also have to take into account that the responsibilities of employers for health and safety in the workplace is the jurisdiction of provinces. It is therefore important that the study ensures that the Criminal Code provisions complement the provisions relating to security and health in the workplace in the each provincial legislation, so it can really work in all provinces in Canada.

Lastly, in the House, we went through the third reading of Bill C-12, which is a complete revision of part II of the Canada Labour Code relating to health and security in the workplace. In this piece of legislation, it said, among other things, that in large companies with more than 30 employees, new committees will be struck. Those committees will ensure that the acts of Parliament pertaining to health and security in the workplace are enforced. We did not have that before, but it is now mandatory. I don't know if it's going to be very effective, but anyway, we had to make some improvements.

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The Bloc Québecois also suggested a few amendments to increase the penalties for employers at fault when there are incidents or accidents in the workplace in their businesses.

I don't know where the Conservative Party stands on this. There was no representative from that party on the committee that dealt with health and security. Peter, I would like you to give us your view on the issue of health and security in the workplace and on Bill C-12.


Mr. Peter MacKay: Without having an in-depth knowledge of Bill C-12, it's difficult for me to tie the two together. I do agree with your earlier statement, Madame Guay, that there has to be very much a balanced approach.

I would not want to see, nor do I suspect anybody at this committee would want to encourage, something that would shackle businesses and put them into a position where they would not be able to be competitive or perform their tasks. However, when I speak of balance, to put it in very blunt terms, we are looking for a chain of command that will bring in managers, and in particular on some occasions directors, who are controlling the financing and making business decisions aimed at one level that sometimes ignores very fundamental principles of safety.

Business decisions have to be made and businesses have to turn a profit. This is not to put unwieldy, unconscionable regulations or red tape into place. But it seems to me we're talking about very fundamental issues of human life. When it's down to that level, the balance has to be tipped toward protecting people in the workplace, as opposed to simply making a profit.

Obviously, the financial implications have to be part of the equation. But in this modern civilized country of ours, our record is really not the best when it comes to workplace safety. It's chronicled in this specific case and it's chronicled around the country in other instances. I suspect a lot of the tragedy resulted because of financial decisions, as opposed to concentrating on ensuring that people were going to be safe when they showed up for work in the morning.

I'm encouraged by your words of support, and I think your position and suggestions and your party's input will be very helpful in that regard. We have to be mindful of companies that are in a very competitive time, as they always are. They have to be productive and ensure that their products and their businesses are operating at a competitive level, but they also have to ensure that people are not being killed on the job.

It's the government's responsibility to intervene when there's evidence—and there's ample evidence—that it's happening. We should hear more about the actual statistics. I'm sure members of the New Democratic Party are armed with those statistics. Every day, three people in this country are killed or injured on the job.

It reminds me of when we were studying the drunk driving legislation. We heard just stark, startling statistics that people were dying out there. In the context of the Criminal Code, we are usually examining matters. When it comes down to that level of human life and limb, that's where we have to step back and sometimes intervene and be a little more vigilant and diligent in shackling directors and corporate executives and ensuring that they're aware of the implications.

The Chair: Thank you very much.

Mr. Mancini.

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Mr. Peter Mancini: Thank you, Mr. Chairman. In this round I will be giving my time to the member for Halifax, Ms. McDonough.

Ms. Alexa McDonough (Halifax, NDP): Thank you very much, Mr. Chairman.

I think it's appropriate for us to acknowledge that today what we're doing is acting on the urgent pleas of the survivors and widows of the Westray miners killed, the co-workers of the Westray miners, and their family members, to engage in work that will ensure that there will never be repetition of a Westray.

I know some people's reaction to that is to say “Well, you can't bring the miners back”, or “Is this just driven by revenge?” As someone who had the horrifying experience of meeting with the Westray families within 72 hours of the Westray disaster, I have to say that this has never been the emotion that has driven the families to demand justice here.

I will never forget, as long as I live, the very specific pleadings of two young widows, young women with, between them, five children below the age of ten: “Please work with us to ensure that we can say to our children that their fathers did not lose their lives in vain.”

I think it's very important that we're considering this issue today, and I want to commend Peter MacKay for his initiatives. As he knows all too well, you can't live in a community where this kind of disaster has occurred without caring, without some sense of responsibility to make sure there's never a repetition.

One of the things I want to say briefly and then ask for your comments on, Peter, is that I think often there is a confusion in people's minds about whether what we're talking about here is building in hopelessly onerous, complicated, and costly procedures around health and safety regimes that will make it impossible for people to do their work or for corporations to function. I think it's very important that we use the opportunity of this discussion and others to make it clear that this is not what this motion is about. That's not what Bill C-259 is about. It's about doing what we do in this country—that is, dealing with criminal conduct through criminal law. That's how we deal with criminal conduct.

If there's one thing that was absolutely clear immediately following the Westray disaster, and then fully, exhaustively documented in the Westray report, it was that criminally irresponsible conduct took place on the part of that company at the most senior level and at the mine management level.

Peter, I wonder if you could just comment on that, because I think there is confusion. What we're talking about is holding people to account for criminal behaviour. That's what we do in other segments of life, and that's what we're talking about doing here.

Perhaps I could make one very small correction, just to have in front of us the magnitude of the problem. You're quite right in referring to three workers a day, but it's actually three workers a day who are killed in this country; 10,000 are injured on the job in the course of a year. So that's more than 30 people a day who are injured on the job.

We know we have health and safety regulatory regimes everywhere in the country, but clearly it has not prevented the kind of criminal conduct that went on in the case of Westray.

Could you comment on that?

Mr. Peter MacKay: I'd be glad to, and I thank you for that correction and your comments.

You're certainly right to say that it affects everybody who lives in the community. I drove by that mine the day it blew up. I live a mile from the entrance to the Westray mine. They've since brought down the silos, but they certainly haven't in many ways dealt with the grief and the ongoing pain that's there.

Focusing on your question, it's very much an attitude that exists with respect to liability, and often in the context of a Criminal Code prosecution it's acts of omission that become the intangible factor, difficult to prove—that is to say, somebody didn't do something that resulted in something as tragic as Westray. They ignored the warning signs. They ignored their ethical obligations to act in a positive way to prevent. That is where it sometimes....

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It's very onerous to try to attach criminal liability to something a person didn't do, and I think we have to be very careful when we start assigning such a weighty degree of liability for acts of omission.

Again, this is where it becomes complicated to prove, in the criminal sense, that the person had knowledge, but you have to look at the entire corporate structure to show where their responsibilities are, when that knowledge came to them, and what that knowledge was comprised of when you're attaching this type of weighty criminal responsibility. The bill your party has brought forward I think quite effectively does that.

Now, there may very well be a need to fine-tune it, and I understand from talking to Mr. Mancini that you're amenable to that, but the implications for not doing as you have outlined are very grave and very serious. If we do not act in the spirit of trying to increase the threshold, we won't change the attitude. The attitude, at this point, in many instances is very smug and arrogant. It is something that is extremely disturbing when we see what can happen when corporate executives step back and say “That's not our problem. We're in the business of making money, and we're in the boardroom, in the sterile world of the Toronto Stock Exchange.”

When you get down into a mine or on the deck of a ship or in a workplace—and I'm not going to start citing examples, because we all know them—where somebody is in real danger daily.... Then there's this fear of losing your job, which is always there. That's another intangible factor, this fear that if you report, if you kick up a fuss, you're going to lose your job.

And we know, Ms. McDonough, in areas like Atlantic Canada, what it means to lose your job. It means you lose your home, and you lose your roots when you have to go somewhere else.

So it's a holistic problem, and that's why this motion, I would suggest, shouldn't be limited just to changing the Criminal Code. I think that's a big part of it. Having the Damocles sword of the Criminal Code hanging over a corporate executive's neck is helpful, but it's not the be-all and end-all to improving workplace safety. Still, it certainly puts the force of law and the tentacles of government at least in a position where they can change the attitude. So it's as much about raising awareness and changing attitudes...that we embark on this exercise.

The Chair: Thank you very much, both of you.

Madam Carroll.

Ms. Aileen Carroll (Barrie—Simcoe—Bradford, Lib.): Thank you, Mr. Chair.

Thank you, Mr. MacKay, for your insights this morning.

I can remember, as a very small child, the sound of crunching gravel under the wheels of my father's car in the middle of the night. I remember how bizarre that seemed to me, to hear his car leaving. His car was leaving because he'd had a telephone call from Springhill. He was a civil engineer with a construction company, and they were building a building in Springhill. Many of his men were housed nearby. Out of a sense of great alarm, more immediately for his own men, he left that night.

That's a memory that's particularly acute. When all of that began at Westray, that memory was very clear in my mind. So I'm listening very carefully, obviously, with a past that makes me very tied in to the recommendations.

And I was appalled to hear of man sitting on his horse farm in Ontario while we had a process going on in Nova Scotia.

With all of that as my baggage, I have great sympathy, obviously, for what you have done and for what Ms. McDonough is attempting to do. But I do have some questions.

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Mr. Justice Richard's recommendation in section 73 reads that this government:

    ...through the Department of Justice, should institute a study of the accountability of corporate executives and directors for the wrongful or negligent acts of the corporation and should introduce in...Parliament...such are necessary to ensure that corporate executives and directors are held properly accountable....

As I read on the order of reference, your recommendation is to make amendments to the appropriate statutes to accomplish what the judge has recommended. I note, of course, that this was after consideration by the Standing Committee on Justice and Human Rights.

My concern here is that a good job be done. I recognize, without question, the need to make changes and to ensure that this type of dilemma never occurs again. And it's not just in mining situations, although to my memory that's the situation we are most acutely aware of right now. It's always, from my view as a public policy-maker, very important that we enact the very best legislation we can enact. So I do hearken well to the judge's advice of a study, and I note that you have asked it to come here.

I am concerned that the private member's bill from Ms. McDonough, who has joined us at the table, might perhaps be—and I'd ask you to respond to this—a little premature given what the judge has recommended and given what you have brought to this committee. I would like you to comment on that.

Second, we do have directors' liability. It exists. But I am assuming it is insufficient at this time. I look forward to your insights as to why it is.

Mr. Peter MacKay: Thank you very much for your words and for your comments. I'll address some of the issues you've brought forward.

I have had the opportunity to review Bill C-259 with respect to criminal liability. I wouldn't say it's necessarily premature, because I have to respond that it wouldn't be necessary for Bill C-259 and it wouldn't be necessary for this motion to even be here, with the greatest respect, if the government had acted in a more “timely fashion”, to use the justice minister's words.

One of the real motivating factors for me, and I think it should be for all of us, is that time is going by. When we hear statistics like three people a day, the more time we don't act, the more jeopardy, the more loss of life, the more tragedy. So I don't think anything is premature if it's moving toward a greater degree of corporate accountability.

This bill, I think like most bills, government or private member, is perhaps imperfect in the sense that it hasn't had the trials and the templates applied yet by our justice department. That's not to say the justice department always comes out with perfect legislation, either. There are always constitutional implications whenever we get into it. But because of the complex nature of criminal liability, when it includes, as we were talking about earlier, acts of omission and how to bring in this issue of knowledge, which is probably the most onerous type of evidence there is—it's based on human consciousness and human frailties and evidence that is very hard to present in a court of law—then....

But I don't think this bill is by any means fatally flawed. I do think it may take some nuancing and fine-tuning.

With respect to the criminal sanctions proposed, I'm sure the simple knowledge of the corporation or an executive that there is now a specific section of the Criminal Code that will attach....

My recollection of the prosecution of the case—I was working in the same office—was that one of the greatest difficulties the prosecutors had, aside from all of the procedural roadblocks they ran up against and the delays and the onerous evidentiary burden, was the fact that they were unable to grasp some of the very subtle pieces of evidence that existed, and there was no way to present to the court the knowledge that executives and directors, and in some cases the mine managers themselves, had. It was just so large.

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Going back to Mr. Abbott's comment about whether this should apply equally to a company of 500 as to a company of 5,000, yes, I think it should. There has to be a level standard right across the board.

Turning back to your question, whether or not we should in some instance amend provincial.... Well, we can't amend provincial legislation, but again, turning back to the attitude that exists, what we have to do is put in place sanctions or put in place some higher degree of liability for those who are engaged in the day-to-day practice of management and business decisions.

You know, financial implications are but one part of the equation. What we want to do is include, after a study of the issue, some teeth, some repercussions for those who go outside normal safety practices.

Ms. Aileen Carroll: I appreciate that. I agree with that. There's no question in my mind that Westray must never happen again. It's just that I'm trying to say that although we can quote statistics of how many people die a day, it would be difficult to say if a person died of their own negligence or because of someone else's negligence. Most important here is to come up with a resolution in law that is well done, well researched, and appropriate.

That's all. I just want to make sure we don't have a knee-jerk reaction so that this is not the best public policy we can do. I was glad to hear you use the word “study”.

Thank you, Mr. Chair.

Mr. Peter MacKay: I agree with that sentiment entirely, but I have to reiterate, it's seven years after the fact with Westray, and it's three years after the fact with respect to this report.

You know, ideologies and business ethics and attitudes do take time to change. And there will be a lag time. I suggest that even after we put legislation in place there will be a period of time in which the business community will have to adapt and respond.

Again, it's about demonstrating the importance and the seriousness of workplace safety, and letting the country, all our citizens, including our corporate citizens, know that there is a price to pay. There are reprisals and repercussions for ignoring workplace safety. That's all. I don't think we have to focus in on any one specific way of doing that. There's the Criminal Code, labour standards, coordinating things with the provinces, education—all of it.

Thank you.

The Chair: Thank you very much.

We'll go into a second round. I have a couple of names. In doing so, I would remind members that we do have other witnesses we would like to hear.

I don't see anyone on the Alliance side.

Monsieur Saada.


Mr. Jacques Saada (Brossard—La Prairie, Lib.): We are talking about Westray here today, but it goes far beyond. It is much larger than that.

My first question has to do with acting consistently when we consider that. By that I mean how can we, for instance, as was done recently—and I think Ms. McDonough mentioned this a moment ago—, work on tightening the Criminal Code to ensure that every type of negligence resulting in a crime is penalized and exclude from that type of criminal considerations something as fundamental as work conditions and security and health in the workplace?

How can we, as a country, go on fighting for more decent human conditions for Haitians workers in the Dominican Republic, for instance, or for the children who work in Pakistan or in the shops where they make sport items and, at the same time, not want to do at least the same thing at home to ensure a minimum of safety for our own workers? It's a matter of consistency. We have to be consistent.

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Some allude to the fact that, and wrongfully so, I think, presumed guilt is tricky. I think there is a difference between having a provision in the Criminal Code that holds people liable of their acts and what is called in English due process. There is a difference between liability and guilt. Those two things will be established separately. So I am not happy with the argument that inserting this in the code would constitute a prejudice.

I have not yet heard arguments that go against such an initiative as the one you are proposing and as Ms. McDonough is proposing. Obviously, I would like to hear those arguments so that we can bring about the most appropriate amendments, but there is a difference to be made between the enforcement and the principle.

On the principle, I think that we do not have any choice if we want to be consistent with ourselves. We must have provisions that enable us to hold those who are in charge of the employees' safety liable, but also send clearly the message that such liability goes with actions to be taken at a very local, very regional level, for all companies. It cannot be perceived—


It cannot be a motherhood statement. It has to be something with teeth that acts as a deterrent at the same time as a remedy.

In that regard, my understanding is that this bill, Bill C-259, has not been drawn yet. Is that correct?

It hasn't been drawn.

What I would like to say, simply, is if the bill is not drawn, in the normal process, I think we should really look into that as a government as well.

I appreciate your sentence, Peter. We often use the word “non-partisan” to make sure we remain partisan. But in this case, I think you are very right. I think this issue doesn't pertain to one particular party. It belongs to Canadian society, and I think we should address it.

I didn't have much in the way of a question for you at this point, but I wanted to make sure I had a chance to explain why I supported this motion in the House.

Mr. Peter MacKay: Thank you very much, Mr. Saada. I'm very encouraged to hear you say that, because having been around this table with you, I know you do have a very large social conscience for issues like this.

I agree with your sentiment that this has to be something that will bring about a degree of accountability, and it doesn't necessarily have to come just from the Criminal Code.

I was just reviewing again the current sections of the code with respect to murder and manslaughter. I guess we all know that is the most heinous act that one can commit, taking another person's life. Whether you do so by direct intervention with a gun or a knife, or you run over somebody with a car, or you knowingly put them in a situation or you create a situation through your own negligence that results in the same thing, the loss of life, there has to be something, to use your words, that has teeth, that makes a person stop and think about what they've done.

This bill that's also in the works talks about fines, but it also talks about incarceration. We are limited in this country as to what we can do by legislation to get that message through.

So I don't disagree with you when you say it may not be just through the Criminal Code. It may be amendments to the current sections with respect to negligence and simply making an amendment rather than creating an entire new offence. That may be more complex and may create, at this point, more problems than it solves.

So I'm not married to the idea of simply creating a new criminal offence. I think if we're going to delve into this exercise, we should look at the current sections and see if there's a way we can amend the negligence and murder-manslaughter provisions of our code. But I'm very encouraged by your sentiment that this is something we should do.

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As a final point, on your “non-partisan” comment, I'm quite confident when I say that everyone around this table would gladly turn this over to the Department of Justice to pick up and run with, and if your government is prepared to do that, away with you. Great. We'll back you 100%. You won't see any opposition coming from the Conservative Party. The others can speak for themselves.

The Chair: Thank you, Mr. Saada and Mr. MacKay.

Mr. Mancini.

Mr. Peter Mancini: To pick up on your last comment and the two questions that preceded it, I think we need to be clear on this, because recommendation 73, as has been quoted by Ms. Carroll, says the Department of Justice should institute a study of the accountability of corporate executives.

I don't know if you're aware that the Law Reform Commission of Canada in 1976 recommended changes to the Criminal Code. Springhill was brought up. I won't say how long ago that was, since Ms. Carroll remembers it. It's a number of years since Westray.

When your motion talks about recommendation 73, I am presuming, in light of what Mr. Saada has said, that we are not talking about more study. I am assuming that what we are suggesting is that the private member's bill that has been introduced, coupled with your motion, would clearly indicate to the Minister of Justice that the response we are desirous of is that legislation come forward for this committee to examine, the way we do with other bills, amending the Criminal Code accordingly.

There is a precedent for that. Mr. Cadman, who is at the table, introduced a private member's bill that eventually was brought forward as part of Bill C-3, the Youth Criminal Justice Act.

So I would assume that with your motion, as much as it makes reference to section 73, you would agree with me that the time for study is past. There is Bill C-259 before the House, not drawn yet, but the drafting is there, and there is your motion. Surely now, in light of what Mr. Saada said, the appropriate response is that before there is an election, legislation be forwarded to this committee for examination in the normal course of events, whereby we could then fine-tune the legislation and bring it to the House for passage. Am I right?

Mr. Peter MacKay: You're absolutely right, Mr. Mancini, and in recommendation 73 that I've incorporated in 79, the reading is that in the opinion of the House, the Criminal Code or other appropriate federal statutes should be amended—“should be”, as in busy bees. We should be doing this now.

The study has been done. There are other documents that support it. There is certainly ample evidence of reasons for doing it, and public sentiment. There seems to be a very non-partisan attitude around this table and around this issue. It's time to put it into the machinery of government and simply make it happen, and I'm here simply trying to be a conduit for that.

This motion and your bill were done in genuine effort to get the wheels in motion, and I think that's happening. I get the sense it is happening. It's like a heavy coal cart, once it does start to roll. I think we have great ability to do that through statute. Through statute we can change attitude, and through attitude we can change the safety in the workplace.

The Chair: Thank you, Mr. Mancini.

One quick question.

Ms. Alexa McDonough: Because Peter MacKay has raised the question, does the New Democratic Party have anything to say on the question of ownership, sponsorship or whatever, let me make it absolutely clear on behalf of the New Democratic Party and all of those who have been working so hard—the Westray families, the steelworkers' union, the labour movement—that we have not one ounce of hesitation about saying that if the government wants to take that holus-bolus and move it forward, that is exactly what we're after.

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I think, Peter, we've worked very hard together on this to ensure that it's a non-partisan issue. I would just add that I can't think of anything that would better rebuild a bit of confidence in Parliament's ability to do its job than for us to come to an agreement at this committee today and to say let's move this through.

It has been discouraging, frankly, that it's not only eight years since the Westray disaster; it's 24 years since the Law Reform Commission recommended the exact same course of action. I think if we could achieve that on behalf of the people of Canada, particularly the workers of Canada....

Let me just throw in one other thing. I think Pat Martin, as the labour critic of the NDP caucus, is horrified that Peter and I have both under-represented the number of workplace accidents that are happening, literally by hundreds of thousands. The statistics are really very alarming.

I think if we could hear from the other witnesses to help build the momentum and come to a cross-partisan agreement to move this forward, we would all go away from this session feeling very good about it.

The Chair: Mr. Maloney.

Mr. John Maloney (Erie—Lincoln, Lib.): Welcome, Peter. Certainly Alexa's bill would send a message to corporate boardrooms across the country.

You talk about situations that arise in the day-to-day operation of the mines. From a practical perspective, these individuals in boardrooms in Halifax, Montreal, Toronto, and Vancouver are far removed. Are they so far removed from the day-to-day operations that they would be insulated so that there may be a message, but the practicality of prosecution, of holding them liable, would fail?

Mr. Peter MacKay: That's a very good question and it's one that is purely legal and evidentiary. What it comes down to, in my mind, is that the nexus and the onus would be on a prosecutor.

First and foremost, you would know that obviously there has to be sufficient evidence to lay a charge in the first instance. It would not have to be beyond a reasonable doubt, but there would have to be a preponderance of evidence to suggest that there was knowledge that was overlooked or ignored. There would have to be proof that decisions were made that contributed to an unsafe work environment. It is a very high threshold for the police to get over to even justify the laying of a charge in the first instance, let alone proof beyond a reasonable doubt in a court of law.

I suggest that there are instances. I think Westray is perhaps the most glaring example of cases where it did exist, where there was that thin line of knowledge that went to the very top and wasn't acted upon.

It's not enough to say that there are very few cases that could ever be successfully prosecuted. My suggestion is that we have to have a mechanism in place that exemplifies.... For general and specific deterrence, there has to be a mechanism—in this case, the Criminal Code—that would allow, when the evidence was there, for a prosecution to occur. But we have to be extremely careful when we start casting that net. I know—and you're right to point it out—that there are sometimes directors who never go to meetings, who never have input into decisions that are made in a company.

I'm glad you raised this, because in my mind, there is one troubling aspect of this current bill in this form, and that is the reverse onus. It's on the person to basically prove that they didn't have the knowledge. I don't necessarily buy into that. I think that is a little bit questionable. I know Mr. Mancini is smiling, as an old defence lawyer would. At the same time, with that reverse onus, I think he would agree that his clients would have a very difficult time trying to exonerate themselves. They're presumed guilty unless they can prove themselves otherwise. If I can say so, with the greatest respect, I think that is one aspect of this bill that's problematic.

Again, your question is an important one. I think that has to be a subject of greater study. We should hear from constitutional experts. We should hear from individuals in the corporate world. I've never had the distinction to be in one of those boardrooms, but I know sometimes that information isn't there.

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

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I'm going to seize the opportunity to acknowledge the degree of consensus that exists around this and put it on the record.

Mr. Peter MacKay: It's very encouraging.

The Chair: I think we've raised the bar. We may have created a race to the top, and I hope we have. When people were speaking of this, there were heads nodding around the table, on all sides of the table. The challenge is put that we know there is a draw. We know that because there is a draw there are certain risks associated with a lottery process.

I think it's fair to say that the government has an opportunity to react to what Ms. McDonough suggested in terms of a cross-partisan support for this. I like the Canadian expression of bipartisanship. I think an occasion to do ourselves proud as parliamentarians is to recognize the consensus on this subject that exists in the room among members of five political parties. I also think it would give credit to the audience. Credit should go where it belongs in terms of all of those who have advanced this issue. Perhaps it's my maritimeness that is not letting me lose the occasion to nail this thing down as far as we've brought it today.

I think there's a message for everybody in this. I'm sure the transcripts will be read in the Department of Justice. Because the transcripts cannot reflect the large number of government members who are nodding, let it be established that large numbers of government members are nodding.

Mr. Mancini.

Mr. Peter Mancini: Mr. Chairman, I appreciate what you're saying and I do think there is a sense of consensus. In light of that and in light of Mr. MacKay's comments, I think we might want to formalize that a bit more by way of a motion. I would be prepared to move that the minister and the department bring forward legislation in accordance with Mr. MacKay's motion 79 and Ms. McDonough's Bill C-259 for consideration by the committee. I would be prepared to move that if there's a seconder.

The Chair: The first thing we would have to do is ask Mr. MacKay to cease to be a witness and be a member to give us quorum. If there are no other questions for Mr. MacKay....

Mr. Peter MacKay: Before I do, I would like to just revisit the issue of having two individuals come forward and make a very brief presentation in keeping with this motion.

The Chair: I believe it was a friendly amendment that received unanimous consent for five. I have five names. We'll do that immediately following. Again, I see some momentum here. You talked about a coal cart. Well, let's keep going.

Mr. Peter MacKay: I appreciate that and I appreciate your comments, Mr. Chair. I think this is a mother's milk issue. Rather than building more monuments to tragedies, I think the best monument we could build would be legislative change that will help remedy this situation.

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

As Mr. MacKay returns to his place, we have a motion. Just the presentation of the motion will require unanimous consent because we did not have notice.

Mr. Jim Abbott: Can I hear the motion again?

The Chair: Mr. Abbott has asked for Mr. Mancini to repeat the motion, but I understand we still don't have unanimous consent to receive the motion. In order to ask for unanimous consent, I would ask that the motion be repeated.

Mr. Peter Mancini: Mr. Chairman, I would move that the minister and the Department of Justice bring forward proposed legislation in accordance with Mr. MacKay's motion 79 and Ms. McDonough's Bill C-259 for consideration by the justice committee.

The Chair: Before I ask for consent, I would also, just by way of process.... I think I know the spirit. We may even wish to report as a committee on Mr. MacKay's motion and include the reference to Ms. McDonough's bill and make it a report of this committee to the House specifically, on the basis of today's consensus. I don't make that as a suggestion other than one that you would accept on the basis of the political momentum it would reflect.

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Mr. Abbott, and then Mr. MacKay.

Mr. Jim Abbott: Before we get to the question of unanimous consent, the linkage of Bill C-259, which has not been approved by the House to this point.... I'm just wondering if procedurally we're out of sync. In other words, if the motion were to proceed on the motion that has already cleared the House, I would feel quite comfortable in the Canadian Alliance giving unanimous consent. I'm just wondering if procedurally the linkage of Bill C-259 creates a problem.

The Chair: Thank you, Mr. Abbott.

Now I'm going to hear from Mr. MacKay. I don't want to ask for consent until we know what we're asking for.

Mr. MacKay.

Mr. Peter MacKay: Yes, Mr. Chair, I'm fully in support of the motion and the amendment as proposed, because I do believe that given all of what has been said and what has transpired here, having now a procedural mechanism to achieve what we all want to achieve would, I think, entail taking this a step further, hearing from some witnesses, getting the Department of Justice involved, and drafting, whether it be in some form similar to Bill C-259 or, as I hoped we would encompass in a larger sense, in a study of other federal statutes, which was envisioned by recommendation 73 from Mr. Justice Richard's report.

In the normal course, what I heard you suggest was that we report back based only on what has transpired thus far. I would like to see us go to the next step, which is, I think, the mechanism that Mr. Mancini is trying to receive unanimous support for. I would speak very much in support of Mr. Mancini and Mr. Abbott in their attempt.

Mr. Peter Mancini: I understand, Mr. Chairman, that if I change the wording to read, in accordance with motion 79, “and the principles underlying Bill C-259”, that solves the kind of technical problem we may have.

The Chair: Okay.

Madam Carroll.

Ms. Aileen Carroll: I think Mr. Mancini has corrected the dilemma, but not being a procedural expert.... I think it's because Ms. McDonough's bill procedurally doesn't yet exist, so when making reference to....

I do not diminish a bill that I have signed, but it might need to be focused on the principles she wishes to espouse and incorporate them without the framework of a bill.

Mr. Peter Mancini: So I'm prepared to change the wording of the motion, Mr. Chairman.

The Chair: Okay. One more intervention, from Mr. Maloney, and then we're going to seek consent to hear the motion.

Mr. Maloney.

Mr. John Maloney: My concern with adding Bill C-259 to your motion, Mr. Mancini, is that I haven't had an opportunity to review Bill C-259 in detail and I would be reluctant to sign a blank cheque without having done so.

Mr. MacKay has pointed out what he feels are shortcomings within that. We are agreeing to the principle of that. Therefore, there is the problem. I certainly agree in principle with what we're talking about in M-79, and perhaps even with Alexa's bill, but I haven't had the opportunity, so I'm not about to sign a blank cheque, as I indicated.

The Chair: I think we want everybody today, so let me just seek a little bit more.... I think we're really now discussing the definition of “principle”—

An hon. member: Yes.

The Chair: —in terms of the fact that there are provisions in the bill that we may not, as matters of substance, support.

I think we'll have to let the record demonstrate Mr. Maloney's reservations in his interpretation of “principle”.

The principle that Mr. MacKay's motion has presented is consistent with the bill that Madam McDonough proposed. We do not necessarily, at this moment, subscribe to the content of her bill; that isn't the point. What it attempts to do, as is Mr. MacKay's motion...we can support it.

Can I put it that way, for the record, so that everybody is comfortable with what it is we're about to do?

Madam Carroll.

Ms. Aileen Carroll: I agree with you completely, Mr. Chair, and I think that does....

I should assuage Mr. Maloney. For instance, Mr. MacKay mentioned reverse onus, and that's something we have to look at. I have some concerns about that, but that didn't prevent me from signing the bill because I want the bill and what it's trying to do to get forward, with the attitude that we'll fix it later. And of course those were my opening remarks: we want the very best legislation we can get. That's why we come to Ottawa. If we need to move a small vehicle into a larger venue, so be it, so that we produce what we want: the best bill.

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The Chair: Procedurally, I would bring to Mr. Mancini's attention the fact that we cannot demand or call on the minister. All we can do is recommend. So the language of this committee is that we would recommend, as long as you can live with that.

Mr. Peter Mancini: I can live with that.

The Chair: Okay.

Do I have unanimous consent to receive the motion? I do.

Could you repeat the motion, Mr. Mancini?

Mr. Peter Mancini: Yes, Mr. Chairman. I would move that we recommend—

The Chair: The committee recommend....

Mr. Peter Mancini: —the committee recommend that the minister bring forward legislation in accordance with motion 79 and the principles underlying Bill C-259 for consideration by the justice committee.

Mr. Jacques Saada: Can you repeat it slowly, please?

Mr. Peter Mancini: Yes, okay. I would move that the committee recommend to the minister and the department that they bring forward legislation in accordance with motion 79 and in accordance with the principles underlying Bill C-259 for consideration by the Standing Committee on Justice.

The Chair: You heard the motion? I call the vote.

(Motion agreed to)

The Chair: That's carried unanimously.

Voices: Hear, hear!

The Chair: Mrs. McDonough will appreciate the comment, “shades of the heritage committee”.

I would also give considerable credit to the audience. The presence of the audience, as has been brought to our attention by Mr. MacKay and members on all sides, has heightened our desire to do the right thing.

With that, there's one question before people get away. This is my understanding, but I may be wrong, and the clerk tells me I may be wrong in my interpretation. Is it the intention of the committee that this is to be reported to the House as a report of this committee?

Some hon. members: Yes.

The Chair: Okay. That was my understanding.

The clerk tells me I need a motion to report.

Mr. Jacques Saada: So moved.

Mr. Jim Abbott: Seconded.

The Chair: I call the vote.

(Motion agreed to)

The Chair: Thank you very much.

Ms. Aileen Carroll: Mr. Chair, is it the will of the committee that we have an official government response?

The Chair: It's a requirement.

Ms. Aileen Carroll: No, not necessarily. Do we wish it?

The Chair: You see, it happens so infrequently.

Voices: Oh, oh!

The Chair: I am told we need now a motion and a definition as per the government's response.

Ms. Aileen Carroll: I'd like to make that motion, but I may need the assistance of the clerk to do it correctly.

I move then that we have the response of the government to the—

The Clerk of the Committee: It's 150 days.

Ms. Aileen Carroll: It's 150 days? Can't we shorten that up?

The Clerk: No, it's in the Standing Orders.

Ms. Aileen Carroll: All right. Then I move that we request the government to respond to this committee within the requisite period of 150 days.


The Chair: Just a moment.

Ms. Monique Guay: As quickly as possible.


The Clerk: We can ask, but....

The Chair: Essentially we can ask the government to do this as quickly as possible, with an understanding that according to the Standing Orders, they're required to do it in 150 days.

The Clerk: That's right.

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The Chair: I'm assured that we have all our “t”s and “i”s done. So with that, I call the question on that motion.

(Motion agreed to)

The Chair: Let the record show we still have Mr. Abbott for quorum.

Now, as we received unanimous consent earlier, we will hear....

Is there a point of order?


Mr. Jacques Saada: Yes, it's quite straightforward. Normally, when we discuss a motion so that it can be carried, we have it in both official languages. Here, we only started from an English version. I would like those who want it to get the French version quickly so that we are sure we are all talking about the same thing and we can correct whatever has to be corrected before we report to the House.


The Chair: Yes. It's important to note that because we have simultaneous translation, we can receive an oral motion, and it's deemed to be in both official languages because of translation. We cannot receive a written notice in one language only.

Now, I have five names, and correct me if I'm wrong—Vernon Theriault, Howard Sim, David Doorey, Dennis Deveau, and Lawrence McBrearty—who all have expressed an interest in appearing. So would those five witnesses, if I have them right, please come forward?

Mr. Howard Sim (General Vice-President Representing Steel, Nova Scotia Federation of Labour): Good morning, Mr. Chair and ladies and gentlemen. I'd like to start this off, seeing as I have less to say.

My name is Howard Sim. I am from Pictou County. I drive by the Westray Mine every day on my way to work and every night on the way home. I still have two good friends who are underground there. To me, this has been going on long enough. It has been eight years, three years since Justice Richard's report. I like what happened here today. I'd like to see the government of the day move ahead with this and do something with it.

I'd like to straighten out a couple of facts. For the last three years, I've been going to the high schools in Pictou County, talking about health and safety to people who are graduating from school. In 1998, 58 young people between the ages of 18 and 24 died in Canada on the job. There were 60,000 reports of accidents involving young people between those ages in 1998 alone. It's time we make some changes here to make somebody accountable for what's going on in the workplace.

It's nice to see everybody here today working and moving ahead to get something going. I don't have a whole lot to say. My colleague here worked in the mine. He'll have more to say than I do. I'd just like to say I'm here on behalf of the Steelworkers, representing over 200,000 members from coast to coast.

Thank you very much.

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

Mr. Lawrence McBrearty (National Director for Canada, United Steelworkers of America in Canada): Good morning. My name is Lawrence McBrearty. I'm the national director for the United Steelworkers of America.


I want to wish you a good day.


First of all, I would like to congratulate the committee on their efforts to come to a consensus this morning. I understood it the way I understand labour movements, but I hope this is going to come to an end. I don't know all the political procedures it has to take before it gets into a formal debate, but I want to congratulate you on that.

I have a very emotional presentation to make this morning. I do come from the mining industry. I worked in a mine. I worked for Noranda Mines in Murdochville. Some of you probably remember the 1957 strike. I was very young, and I was president of my local union. I had to carry out of a rod mill—for those who know what a rod mill is, and I won't take the time to explain it—the body of a 17-year-old friend of mine who, I'll have to use the words, got killed.

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The coroner's inquest in the early 1960s determined a criminal responsibility towards the first-line supervision and also towards the company as a corporation. You can imagine that the community and the family of that young person, 17 years old, who had just got married to a young girl, 16 years old, who was pregnant, wanted us, the union, to make every effort we could so that prosecution would go ahead.

We were refused prosecution for the reason that corporations were covered under workmen's compensation, and that was considered an insurance carrier of any liabilities the company would have to face. Secondly, the Minister of Justice at the time, Jérôme Choquette—and you can imagine the events that were going on in Quebec in the early 1970s—mentioned to us there was not enough evidence to prosecute.

I want to put that aside, because I've got that emotion out of me now, but I want to take some time to give you some facts. I hear people saying, “We have to study”, and I understand the purpose of the questions and the reasons for the questions, but I would like to make very clear that the facts are now there, not only in Westray. If we only go back to 1981, the rate of corporate deaths, killings—call them what you want—was four times higher than the rate of Criminal Code deaths in Canada. So the facts are there.

We have accidents that should be incidents instead of accidents. Deaths have happened in the workplace that should not have happened, for many reasons. But we have to also take into consideration that if I am an employee of company A and an accident occurs and there's a death, and I am the co-worker of the person who lost his life, I will be under investigation by the justice, by the police, which is normal. Deaths should be investigated. I will be under investigation to see if I had any relations or voluntary views related to that death, and if it is considered that I did, I will be penalized and I will pay the price.

There's a big difference between responsibility and accountability. People have to be accountable. If I drink and drive and I hit a person with my car and that person loses their life, I did not voluntarily kill that person, but I violated the law, and I'm going to have a price to pay for that, and I will pay and our justice system will see that I pay.

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In the case of Westray, everybody who knows Westray will define who was responsible. There are some who had more responsibility than others, starting with the premier of the province at the time, the mine inspectors, the corporation executives, the managers. There were 26 lives there, and there are still 11 bodies buried underground. One of our members received the Order of Canada for his courage during all that tragedy, trying to get the bodies out.

I don't think we need any more studies. If you need facts, my name is Lawrence McBrearty. I'm the national director for the union. I have a lot of friends in the labour movement, and I have a lot of friends in corporations also. We'll bring you all the facts you need.

Before coming here, I just finished attending and chairing a book launch by a professor from St. Thomas University in Fredericton, New Brunswick, on a case study of the corporate crime. It's The Westray Chronicles. The book is $25.

I'll ask you all a question. If you promise me to read the book, I'll buy it. I'll have it delivered to you by the 12 lobbyists, steelworkers, we have on the Hill for two weeks. But you have to promise to read it. If you don't read it, I'll have somebody read it to you, because I know you're very busy. But I think the facts are there in this specific case.

We have criminal lawyers across the country who looked into Westray, and looked into other cases also.

I want to mention another issue. I don't know much about politics. I'm only elected by the workers. But people say the minute you take a pencil to vote, you're in politics, so I guess I'm in politics. Nevertheless I can understand the pressure all of you in Parliament will receive from us, from my union, our members, and I understand that you'll also receive pressure and lobbying groups from corporations.

I guess that's the name of the game in politics. But one thing is sure. This is a human issue, and this is about political will. This is about doing the right thing for the country, for the society, and the ones who are going to follow.

When I walked in this morning—I think it was here, anyway—somebody was mentioning that we can't bring those people back. We can't bring them back, but we're goddamn well not going to forget them, and a lot of other people aren't either.

I think you must have read that a poll was conducted in the last few weeks where 85% of Canadians questioned will recommend and ask that their MPs support the amendments to the Criminal Code. We can give you a copy of the study.

In closing, I want to say that there are other countries.... If we're talking in the society in which we're living, which is an industrialized society, of a globalization of trade, free trade, commerce, exchange, human rights, human rights violations, women's issues, and child labour, I think we have to look a little bit at what's going on elsewhere.

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I think you all know there's an involuntary manslaughter commission report 237 that has been introduced in the U.K. in the House of Parliament, and we have a copy of that here. There will be legislation passed in the U.K. for involuntary manslaughter.

Australia already has legislation, the Criminal Code Act from 1995.

I could be mistaken on the numbers, but I have the number and names of states in the U.S. that have such an amendment. You've probably read or heard that not too long ago in the United States there was a corporate representative who was sentenced to 17 years in jail and a fine of $5.9 million.

In that aspect, in Canada, in our Criminal Code, I think we're far away from quite a few industrialized countries that we deal with.

In closing, I would congratulate you and ask that you talk to your counterparts, talk to your friends, the one sitting beside you in the House, to please do everything in your power—because you have the power—to have these amendments come up in this session before the House closes. We cannot afford as human beings, as people who want to move ahead in the country, to face another tragedy such as Westray and any other effects in the workplace. If there is any support and any effort our union can bring to you, we will be pleased to do so.

The Chair: Mr. Theriault.

Mr. Vernon Theriault (Steelworker): My name is Vernon Theriault. I've been a steelworker for 19 years. I worked at Trenton Works for 19 years, but in that time I worked at Westray. Work wasn't steady back in the late 1980s to the 1990s, so I ended up going to work elsewhere.

I worked at Westray for seven months, and in those seven months I saw a lot of mistakes with regard to health and safety. I can sit here all day telling you of the mistakes, but I'll go to one mistake I saw, with the Department of Labour in there one day, with Roger Parry.

We were up in the south main. We were going up the hill. I drove a boom truck and took supplies into the face. One day I couldn't get up, so he ordered the dozer—we have a dozer underground—to come down and push me up. This time when the dozer was pushing me to get up to that spot, Roger was going around with the Department of Labour. I'm not sure which fellow was on the tractor, but he pulled up beside us and hollered to us, “What in the blank are you doing down here with that Machinery? Get out. You're not supposed to be in that area.”

So we went out with the machinery, and we went back up to the launch area we had up top. A few hours later he came in, and we saw him there. He said, “Get back down there and get those supplies up there; they need them.” So we had to go back down—after the Department of Labour had left.

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I'm saying I didn't see any health and safety there. I was there seven months, and I never even had a health and safety meeting. I wasn't trained. I didn't know anything about coal mining when I started there. I was a welder by trade. I worked at tire shops. We all look for jobs to make more money, but we also look to be trained.

After the mine blew up—I'm going way ahead here now—I learned more in the inquiry than I did when I worked for seven months at the mine. I couldn't believe it. If I had known what I found out in those days by going to the inquiry, I wouldn't have been in that mine, I'll tell you that.

May 8 I was on my last day off. I went in on the overtime shift on May 8. That was a Friday. I got off Friday night. While I was down in the mine on Friday...I can tell you a few things I experienced in the mine on Friday. There was methane gas. Another fellow and I were working down in the mains. The machine we were using was a scoop they called the big eight-foot bucket. It kept quitting on us, so the supervisor told us to grab the other scoop, which didn't have the machine that killed them off so they wouldn't be running—because if the methane gas is so high, it shuts them off.

The guy I was working with kind of went down, because the gas was high in that spot. I picked him up and we went out to the fresh air for a bit. We kept on working there because I didn't know anything about safety in the mine. I didn't know about the gases. I don't know what to say on that one. I wasn't trained.

It's up to your employer or workplace to train you on health and safety, I would say. When you go for a job, that's usually the top thing on the list.

We'll go back to May 8. I went home Friday night and went to bed. I got a call at 5:28 a.m. from my sister-in-law. I answered the phone and she said, “Vern, you're home.” I said, “Yes, why?” She said, “Oh, there are ambulances and sirens going off at the mine.” She just lives across from the mine. I said, “We had cave-ins in the last few weeks. Probably somebody got buried. It's a cave-in.” So I just told her, “I'll find out when I go in this morning.” On May 9, I was to go back to my regular day shift. I said, “I'll check it out when I go in.”

I went back to bed and got up at 7 a.m. I got something to eat, got washed up, got ready for work, grabbed my lunch can. I drove down to Blue Acres by the gas station, just across from the mine, and there were cops there. One said, “Where are you going?” I said, “I'm going to work.” He said, “You didn't hear? The mine blew up at 5:30.” I didn't know what to say. I just felt something go from my head right down to my feet, like wow. He said, “Well, you guys can go over to the garage there. The day shift are ordered to go over to the garage, and we'll see what happens from there.”

I went in for overtime on May 8, and on May 9, my regular day shift back, the mine blew up before I got there. Instead of going back into the mine to work, I ended up going on rescue squad. It was a terrible thing to go through. We had five days of going down that mine on the rescue. It was a terrible experience to go through. I live with it day in and day out. I'll probably live with it until I go and sit underground myself in my box.

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The biggest reason why I'm up on the Hill for these two weeks is to help force the bill for employers to be accountable to their employees.

I had three young children eight years ago. Now one fellow is in the workforce and another one is going to be in the workforce. I'd just like to see safety for my children. Probably everybody here who has children or some type of family would like to see safety in the workforce. But for my children—I'm saying my children here, but I mean everybody in the world—it would be nice to see a nice workforce; nobody has to get killed. People go to war to get killed.

I could go on here all day, but that's what I've got to say.

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


Mr. Deveau or Mr. Doorey.


Mr. Dennis Deveau (Staff Representative, United Steelworkers of America in Canada): First of all, I want to thank everyone. I've been here on the Hill for two weeks with some of my fellow colleagues, going around and taking the opportunity to speak to many of you and your colleagues.

It's very good to see some commonality among everyone today. Everyone's looking at this together and not fighting over this particular part or that particular part. It's very encouraging, because some of the MPs have said a lot of times you have a problem on the Hill kind of getting together on some things. If we've helped that at all by coming to talk to you, we'll definitely come again. Thank you.

The Chair: Mr. Doorey.

Mr. David Doorey (Lawyer, National Office, United Steelworkers of America in Canada): My name is David Doorey. I'm a lawyer working with the United Steelworkers. I've been involved in this process for some time now, in terms of looking at recommendation 73 and trying to see what exactly it is about the criminal law, as it stands today, that allows corporations such as Westray Industries and the officers of that corporation to escape such a situation as occurred at Westray, when all the findings are that it could have been prevented.

I'm not going to speak very long, as an introduction. I'm here basically to do my best to address some of the questions I've heard, just sitting here in the back row—questions in terms of what the bill says. I'll leave it at that and answer any questions anyone may want to address to me on that issue.

Thank you.

The Chair: Thank you very much. Thank you all for your testimony.

I will go first to Mr. Cadman.

Mr. Chuck Cadman: Thank you, Mr. Chair. I really have no questions. I just want to go on record as thanking the witnesses for taking the time to come and talk to us, specifically Mr. Theriault. I think I can understand how tough this is for him. Again, thanks very much.

The Chair: Madame Guay.


Ms. Monique Guay: It's not really a question I have, Mr. Chair. I would like to thank the witnesses for being here today. We are very sensitive to their plea. And my party is meeting tomorrow with the United Steelworkers. Several MPs will be at there and I think that we will have a chance to talk then. Thanks for coming.

I think that the work we have done today, as members of all parties, is quite exceptional. I never saw that in a committee. It's the first time I see as wide and as non-partisan a consensus, I really mean non-partisan. So I hope that this will move ahead.

But one thing is quite important for me. To be quite honest, I must say that we will not be able to pass anything in the House at this session. We only have one and a half or two weeks left for the business of the House. We have to follow a parliamentary process. We must work with the system, which is not always effective, I confess, but that is how it works.

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Besides, I think that we can move this issue forward quickly if we all work on it. If we all want to do it, whether it be on the government side or the opposition side, we can pass something rapidly.


The Chair: Thank you very much, Madame Guay. I don't think there's any need for a response.

Let me just say that I've instructed the clerk to have the report ready to be reported in the House tomorrow.

Mr. Mancini.

Mr. Peter Mancini: Mr. Chair, I'll pass to Ms. McDonough on this question.

Ms. Alexa McDonough: Mr. Chair, let me also thank all five of the witness who have come before the committee today.

I think we all would be even more pleased if we were able to say that eight years of strenuous work by many of the people who have appeared before us today as witnesses have now culminated in the kind of change that people have been working together to try to achieve. We know that's not the case, but I want to say that today is a very important milestone and perhaps the most promising sign that the Westray families, the surviving miners, and the steelworkers have received in that long struggle.

One of the things that probably is recognized by everyone around this table but not necessarily understood by all Canadians is the relationship between the United Steelworkers and the Westray miners and their families. I think that needs to be said for the record.

When people hear of the horrors of what went on underground at Westray, they need to understand that one of the reasons those horrifying conditions were permitted to exist is that the miners were not organized. They were not represented by a union. They therefore were not in a position to exercise the rights of workers in relation to health and safety: the right to know, the right to participate in decisions affecting their health and safety, the right to refuse unsafe work. Strenuous measures were used by Curragh Resources in management to discourage and in fact to punish people for any attempts to try to organize.

It's an extraordinary story of political action at its best and the labour movement at its finest. At the time of the Westray disaster on May 8, 1992, the workers were not organized, but they had in fact begun to organize and had cast a vote to be represented by the United Steelworkers of America. That vote had not yet been counted.

In some situations, you might have seen a union or another organization under similar circumstances walk away. That was the end of the Westray Mine. The chapter might have been closed. But instead, the United Steelworkers from that day forward assumed the responsibilities of representing those miners, I guess you'd have to say posthumously, and worked to respect the wishes of the Westray families, worked to act on their urgent pleas.

They played a major role in fighting for a proper, full public inquiry to be held in the first instance. They made a very important contribution to that inquiry, which was acknowledged by Justice Richard in the Westray inquiry report. They have continued to this very day to advance the issues, intensifying their political action work here on the Hill in the last couple of weeks.

I just want to take the opportunity to make sure that this chapter is understood and that proper tribute is paid to the extraordinary partnership that developed between the United Steelworkers of America, the Westray families, and the surviving miners, and to congratulate them on the fact that we have reached this milestone. I think we all look forward to celebrating the day that we actually have enforceable legislation in place as it relates to criminal liability for criminal conduct.

The Chair: Mr. Mancini.

Mr. Peter Mancini: Thank you, Mr. Chairman. I'm going to be very brief.

Given the interest that members have shown in the committee and some of the questions that have been raised, legitimate questions.... This is going to be one lawyer complimenting another, but Mr. Doorey has prepared an excellent research paper, a background research paper for the United Steelworkers of America on this very issue, comparing legislation in Australia and in other countries. I would ask if he would make that available to the committee members. It would be my hope that as we move forward, this would form a backdrop for some of our deliberations. I have a copy of it, but I would ask if he would make that available to the committee members.

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Mr. David Doorey: I will do that. I brought some copies, but I'll make more.

Mr. Peter Mancini: Thank you.

The Chair: Thank you very much.

Mr. MacKay.

Mr. Peter MacKay: I want to thank all of our guests who are here with us. In particular I want to thank Vernon Theriault. I know he has to bring this into his mind every day. It's an extremely difficult thing that he lives with. I also note that he has on his chest the medal of bravery that he received for his efforts to rescue miners trapped underground as a result of the explosion.

I would just echo some of the sentiments that have been expressed. I think we have reached a very pivotal point. It is because of the efforts of a lot of people, yourselves included in that number, and it is my genuine hope and belief that we can now go to the next step. We can take this committee and use it as a vehicle to achieve some of the legislative change that is required to address all of the problems that result from negligence and malfeasance in the workplace. My sincere thanks to all of you.

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

Mr. Saada.


Mr. Jacques Saada: I would first like to make some clarification, if I may, to Ms. Guay's intent. You say that this is the first time a committee is able to get such a large consensus.

Ms. Monique Guay: I said it was the first time I saw that.

Mr. Jacques Saada: I understand. I am sorry.

Ms. Monique Guay: It's my personal perception.

Mr. Jacques Saada: But I wanted to tell you—and I think it's important that people know—that often, when we agree, people don't hear about because the media don't mention it.

Not very long ago—and Mr. Mancini was part of the process, as was Mr. Cadman—, we discussed a bill on the protection of children and vulnerable people against former sexual offenders, and we managed to have a consensus to promote a bill that was very quickly passed, precisely because there was a consensus. So this is not a first. This is may be the most stimulating thing that can happen around this table. Our committee generally works very well.

I wanted to tell Mr. Theriault that


one of the things that I personally, as a member of Parliament, find most difficult to do is to make sure I don't lose sight of what's going on in real life. Here it's so easy to be lost in an ivory tower. Once in a while we have people like you come to see us, and I think it's essential. I will not reiterate all the compliments you've received; I simply want you to know that I share them.

There is one thing I'm worried about. At the beginning of my remarks a moment ago, I alluded to the fact that this transcends Westray. It goes much further than Westray; it's a matter of the concept of society in which we live. A law cannot be retroactive. It would be very difficult to make a law retroactive. In fact, what we're talking about here is the Westray experience being the foundation for something for the future and not for the past.

I felt I had to say that. I think it's a matter of integrity. I don't want to create the illusion that we're going to be able to deal with Westray's responsibilities around this table. This is not the commission or the inquiry. I just want to make sure we are all on the same wavelength here. I don't want to be misinterpreted on this.


I have one last short word for Mr. McBrearty. When we talk about studying, I agree with you if we say that there is no more need to study further the necessity of passing an act on this issue. But what still has to be studied, is the best way to do it. I think it's quite clear. There is a process for that. You know that when a private member's bill or government bill come for second reading, it is automatically sent to the standing committee in charge of that matter.

It is therefore obvious that the bill, whether it be Bill C-259 or a government bill, will be sent to this committee for discussion. We will hear from experts. We will hear from people who will come to tell us what works and what does not work in what the bill says. This is what we mean when we talk about a study. We do not mean the fundamental principle of the necessity to pass an act to ensure that a situation like Westray does not happen again. So what we have to study now, is the best way to do that.

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Mr. Clerk, I take it that the paper by Mr. Doorey that was mentioned is only in English.

The Clerk: I haven't seen it.

Mr. Jacques Saada: Anyway, if it's in English only, I take it that


we will have a translation of it before it goes out to all members so that we can all address it from the same basis.

Mr. David Doorey: We'll get it translated.

Mr. Lawrence McBrearty: Our translators will send you English copies and French copies.

Mr. Jacques Saada: That's super. I'm not dogmatic on that. I just simply want to make sure—

Mr. Lawrence McBrearty: You need it in Spanish, we'll get it in Spanish. We'll get all the languages you want.

Mr. Jacques Saada: No, no—I just simply wish that we could all address it together, okay?

The Chair: Thank you very much.

Mr. Maloney.

Mr. John Maloney: Mr. Doorey, in any industrial operation there are different hierarchies of management, from maybe a ship boss or a lead hand, to foreman or supervisor, to a mine manager or a plant manager.

Mr. MacKay's M-79 targeted directors and executives of corporations. Ms. McDonough's legislation targets the same individuals as well as those having control of day-to-day operations of the industry.

Would the net encompass all of those individuals in the hierarchy? Or where would we draw the line? In your opinion, is Bill C-259 wide enough or is it too wide? What about people like the provincial inspectors who perhaps turned a blind eye as well? I don't believe they would be caught by this statute. Should we be looking at something different?

Mr. David Doorey: I think to answer that you need to understand how the criminal law test works as it stands now; it's rather complicated. I understand that I don't have time to do that now, and I won't try to.

To answer your question, the way the bill works is that it looks at the corporation first, in a sense. It looks at the corporation and says, “Is there a corporate failure here that could have prevented this?” First it attempts to find whether the corporation itself is guilty of an offence. It then goes on to say that if the corporation is guilty, then we have to look at the directors and officers and ask whether they could have prevented it. That's the second part.

But you're right in that the proposed bill does cast the net wider in terms of who can be the actor or the person who admitted to the act, as the case may be. I say “wider”. It does that because the present criminal law as developed by the courts says that the only way a corporation can be found guilty of a criminal offence is if a single, high-ranking person—in law, they could say “the directing mind” of the corporation—did the act or ordered the act done.

So the difficulty, the reason why corporations are never convicted under the current law, is that it's hardly ever the case, especially in a larger corporation, that a sole individual, high in the ranking, makes every decision and makes every order. They delegate.

So what the bill does is say, okay, for a criminal offence we need two things: we need an act and we need fault or intent, an actus reus and a mens rea, to use legal terms. The bill says, let's move away from the focus on the current law, which is the level in the corporate structure of the person who does the acting, because that doesn't get us anywhere. Let's look instead at the act that's done and then really concentrate on whether the corporation could have prevented it through different structures.

So what this bill does is it casts a wide net on the act. It basically sets up a test of vicarious liability, to use legal terminology. It says that for the purposes of that first component of the offence—the act—we're going to throw that net wide. We're going to say that any person who is acting on behalf of the corporation is caught.

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So if you're acting on behalf of the corporation, it's deemed to be the act of the corporation, but that's only the first step. The real test, which I submit will still be a very difficult test for the prosecutor to meet, but it'll be possible, whereas under the current law it's basically impossible.... I think my paper will explain that and I won't get into it.

So it casts a wider net on who the actor is in order to prove the actus reus part of the crime, but then we move to the more difficult part of proving the crime against a corporation. That is the mens rea part default. In that sense, we're no longer looking at just the intent of the individual employee, for instance, who may not have followed the health and safety practices. What we're saying is that we want to know why that person didn't follow it. If it's just a person off on their own violating all the policies and they've been told otherwise, then the corporation will succeed in their defence. We won't be going after the corporation.

What the bill is trying to do here is to prevent the Westrays of the world...where there's a corporate culture throughout the whole corporation that says, to lower-level persons, don't enforce that health and safety rule because it's going to cost us money and we're going to have to shut down the mine for a few days. So that employee, who is the one who actually doesn't act, for instance, by shutting the mine down, that person.... Under the current test, if a lower-level manager doesn't act, doesn't enforce the health and safety rule, that individual might be responsible but the corporation won't be, because that person is not the directing mind. The corporation is off the hook in that situation.

So what has been said by commentators all over the world is that the current test, which is known as the “identification test”.... It's the test developed in England, so it applies throughout the Commonwealth. That's why you see England having a royal commission saying, “We have to change this.” Australia has already changed it. Our Law Reform Commission has changed it.

The reason it doesn't work is that all a corporation has to do is delegate authority over health and safety to a few people and the corporation will, in most cases, never be found guilty, because there will no longer be one individual who knew of all the facts and did or didn't act.

In terms of your question about whether it goes too far or not far enough, I think it takes an understanding of the bill to.... I believe not everyone in the room has read the bill. When you read the bill, you see that the only individuals this new bill is going after here in terms of liability are directors and officers. It's not creating any new offence for someone of a lower ranking than that. It allows someone of a lower ranking to perform the act or the omission, as the case may be, but then it's the corporate policy and it's the directors and officers who can control that policy and create an environment that encourages lower-level people to come forward and say, “I am going to enforce that act because if we don't, we're in big trouble here”.

So it's the corporation first. The liability for the directors and officers, the way the bill is set up, only comes into play if the corporation itself has already been found guilty.

If you read the bill, you see that it says where “a corporation” has been found guilty of an offence, then the director or officer may also be guilty, but then it sets out, in essence, a defence for them, for the directors and officers. It says they're guilty if they actually authorized it themselves. That's the current law. If a director actually says, “don't enforce that law”, we can get to those people today, but that hardly ever happens.

The second part of the bill goes beyond the director or officer actually ordering the lower-level people not to enforce the law or to break the law. It says “ought to have known”: “Did you know or ought you to have known, Director, that there's a whole lot of stuff going on in this workplace?”—as in Westray, for instance. “Everyone's ignoring the health and safety rules because there's a culture there of produce, produce, we can't shut down the mine, we have jobs to produce. The government's given us money so we'll hire people, and they require so many tonnes per year.” Lower-level people are afraid to speak up. There's a culture.

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So the act says if you're a director or officer and you knew there was such a culture, or you knew that laws weren't being enforced, or you ought to have known and you did nothing, then you can be responsible too.

Then the bill goes on to say, when we're deciding whether a particular officer or director knew or ought to have known, we have to put it in context. I think this addresses some of the concerns I heard around the table today. There's a defence, right? It says when you're deciding whether an officer or director ought to have known that these systemic problems were going on in the corporation, you have to look at that particular director's experience, qualifications, and duties. So that's a defence for a director, who's off in Vancouver and doesn't know anything at all about mining.

There'll be legal arguments about what that means, whether they ought to have known something, or what duties they were assigned, but the bill deals with it there. It's not automatic that as soon as the corporation is guilty, an officer goes to jail. It's not going to work that way. It's still going to be difficult.

This bill is not going to lock up directors and officers from across the country. It's still going to be rare. We're dealing here with the Westrays of the world, where there's a systemic problem that's allowing these things to happen, and no one's taken any action to stop it.

That was a little bit longer than I intended to be.

The Chair: Thank you very much. It's a new record.

Is there a small short question on this side? I have one tiny question over here, I'm told.

Ms. Carolyn Bennett (St. Paul's, Lib.): This is a supplementary to that. I think a lot of us have sat on boards where we felt the CEO gave us the information they wanted us to have, in order to make the decision they wanted us to make. I think there's a lot of work being done in the voluntary sector to clean that up.

Is there such a thing as mandatory reporting of health and safety reports to boards? Sometimes you only get the committee reports that somebody asks for. Would that have helped in this situation? If there were mandatory reporting of health and safety committees to boards of directors every six months, would that help protect workers in a situation like this?

I'm worried that the boards still aren't really being given the information they need, unless they're actually out there on the shop floor, which I also believe board members should ask to do. But if they don't, do you think we should be asking for such a thing as that?

Mr. Lawrence McBrearty: I can probably answer one, but I can't answer the legal side of it. My friend here will do that.

I deal with quite a few companies, as you can imagine, and health and safety reports do not go to boards. I could even add that negotiations on conflicts and strikes don't even go to boards. Sometimes that's why we have long conflicts. We try to get to the boards, when we end up in the company shareholder meetings on a yearly basis. We did that in quite a few cases.

In real life, if I go back 10 years, companies on a local basis were saying, “Health and safety is our business, because we want to get involved in health and safety”. Now it's everybody's business. We understand now why corporations were telling us, “Okay, it's everybody's business. Do you want to do this, Mr. Union? You go ahead and do it, but you're going to be caught with the liabilities.”

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The problem we face—and it was mentioned by other speakers here today—is that in a situation like this, and Westray is not the only situation, there's a cost to implement health protection or safety protection against accidents. There's a cost to defining an accident that could become an incident rather than an accident. There's a cost to everything today; we all know that.

The productivity aspect equals profits, which we don't have anything against. If you make profits, you're going to give us some of them. There's also a huge cost to the health of the working people, in both the environment of the workplace and the environment outside the workplace in the communities, that falls into the production costs. That affects my productivity, my competition, etc., so maybe I'll decide to move to Mexico.

Health and safety issues, in real life, don't end up going to the boards. They sometimes don't even end up with the president of the company or the CEO. The majority of the time they never do. We're lucky if they end up with the manager on the plant site.

Ms. Carolyn Bennett: Does the union ever circulate a letter to all the board members? If I were sitting on a board and I got a letter from the union saying we were really worried about the health and safety of the workers in this place, as a board member I would


be mindful of it, don't you think?


Mr. Lawrence McBrearty: We'll do that.

Ms. Carolyn Bennett: Okay, thank you.

Mr. David Doorey: I would like to make one quick legal response. I think you posed a hypothetical question: would it help? The answer is yes, obviously, it would help, if the board of directors were given all of the facts.

First of all, that's dealt with in the bill, in that one of the ways fault can be attributed to the corporation under the proposed bill is where the management of the company—that's defined as the people who are given responsibility for making the decisions—have failed to provide procedures and policies whereby the facts would come to their notice. So it would help if we legislated that.

I suggest the bill will have that effect, and this is really the intent here, isn't it? The corporations and the boards of directors will have to sit down and look at this bill and say, “Okay, we have to make sure we don't have systemic problems”. One of the ways to do that is to make sure members of the board of directors are getting the facts properly, and not the facts the mine manager might be hiding to protect their own job. So they will have to put in a system.

Ms. Carolyn Bennett: If they're criminally responsible, they had better know.

Mr. David Doorey: That's right. The goal of the bill is to make sure someone who has the authority and control over the workplace puts in policies and systems, so that information is transferred.

The Chair: Thank you very much for that tiny three-part question, and thank you all very much.

Mr. Lawrence McBrearty: Could I just add two short bits of information? We have set up all across the country, related to every province, a committee that's called MITAC, which is the Mining Industry Training and Adjustment Council. Through talks under the Yellowknife mining initiative with the major mining companies across the country, our union has set up this committee to do training and adjustment programs, in case of downsizing. But right now we are focused on training. We've received quite a bit of funding from HRDC.

The other main aspect I want to talk about is we're going to establish in Nova Scotia on the Westray site what we would like to call a workers' occupational health and safety training centre for the mining industry. We're going to need some political help around that. But we're not hung up on the question of the mining industry—we can have it for everybody. It would be in recognition that we do not want to forget what happened there, and we don't want it to happen again.

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We're trying to get some help from the Province of Nova Scotia on that. The MPs from that province have been working hard with us on that, but we haven't been able to establish that yet. In your deliberations, or when you're having internal discussions between MPs and Parliament, please don't forget the aspect of training. Attached to the aspect of training is also the aspect of adjustments.

Thank you very much for receiving us.

The Chair: Thank you very much. I would urge members, particularly the witnesses now before us, to not let up, notwithstanding what we saw earlier today. I do think it represents a genuine consensus of this committee. Ultimately we're only partially there, so persist. All the members of the committee know what I mean.

Tomorrow I intend to report on behalf of the committee.


    It is moved—That the committee recommend to the Minister of Justice and the Department of Justice that they bring forward legislation in accordance with motion 79 passed by the House on March 21st, 2000 and with the principles underlying Bill C-259 for consideration by the Standing Committee on Justice and Human Rights.

The meeting is adjourned.