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37th PARLIAMENT, 1st SESSION

Standing Committee on Justice and Human Rights

EVIDENCE

CONTENTS

Tuesday, May 7, 2002

0935

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

Mr. Allen Martin (Westray Families Group)

0940

0945

The Chair

Mr. Allen Martin

The Chair

Mr. Allen Martin

The Chair

Mr. Robert Lanctôt (Châteauguay, BQ)

0950

Mr. Lanctôt

Mr. Allen Martin

Mr. Robert Lanctôt

Mr. Allen Martin

0955

The Chair

Mrs. Bev Desjarlais (Churchill, NDP)

1000

The Chair

Mr. Allen Martin

The Chair

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

1005

Mr. Allen Martin

Mr. Peter MacKay

Mr. Allen Martin

1010

Mr. Peter MacKay

Mr. Allen Martin

The Chair

Mr. Paul Harold Macklin (Northumberland, Lib.)

Mr. Allen Martin

1015

Mr. Paul Harold Macklin

Mr. Allen Martin

Mr. Paul Harold Macklin

Mr. Allen Martin

Mr. Paul Harold Macklin

Mr. Allen Martin

Mr. Paul Harold Macklin

Mr. Allen Martin

The Chair

Mr. Vic Toews

1020

Mr. Allen Martin

1025

Mr. Vic Toews

The Chair

Mrs. Bev Desjarlais

Mr. Allen Martin

Mrs. Bev Desjarlais

Mr. Allen Martin

Mrs. Bev Desjarlais

The Chair

Mr. Peter MacKay

1030

Mr. Allen Martin

The Chair

Mr. Allen Martin

The Chair

Mr. Peter MacKay

1035

1040

The Chair

Mr. Derek Lee (Scarborough--Rouge River, Lib.)

The Chair

Mr. Paul Harold Macklin

1045

The Chair

Mr. Vic Toews

The Chair

1050

The Chair

Mr. Robert Lanctôt

The Chair

Mrs. Bev Desjarlais

The Chair

Mr. Peter MacKay

1055

The Chair

Mr. Alan Tonks (York South--Weston, Lib.)

The Chair

Mr. Peter MacKay

Mr. Vic Toews

The Chair

Mr. Vic Toews

Mr. John McKay (Scarborough East, Lib.)

Mr. Vic Toews

Mr. John McKay

Mr. Vic Toews

The Chair

Mr. Vic Toews

The Chair

Mr. Vic Toews

The Chair

Mr. John McKay

Mr. Vic Toews

The Chair

Mr. Peter MacKay

The Chair

1100

Mr. Derek Lee

The Chair

Mr. Chuck Cadman

The Chair

Mr. Derek Lee

The Chair

Mr. Peter MacKay

Mr. Derek Lee

The Chair

Mr. John McKay

The Chair

Mr. Vic Toews

The Chair

Mr. Peter MacKay

Mr. John McKay

Mr. Peter MacKay

Mr. Derek Lee

Mr. Peter MacKay

Mr. Derek Lee

Mr. Peter MacKay

Mr. Derek Lee

The Chair

Mr. David Miezenger (Representative, Ottawa and District Labour Council)

1110

The Chair

Mr. Duff Conacher (Chairperson, Corporate Responsibility Coalition)

1115

1120

1125

The Chair

Mr. Vic Toews

Mr. Duff Conacher

1130

Mr. Vic Toews

Mr. Duff Conacher

Mr. Vic Toews

Mr. Duff Conacher

Mr. Vic Toews

Mr. David Miezenger

Mr. Vic Toews

The Chair

Mr. Robert Lanctôt

Mr. David Miezenger

1135

Mr. Robert Lanctôt

Mr. David Miezenger

The Chair

Mr. Duff Conacher

1140

The Chair

Mrs. Bev Desjarlais

1145

Mr. David Miezenger

Mrs. Bev Desjarlais

Mr. David Miezenger

The Chair

Mr. Duff Conacher

The Chair

Mr. Peter MacKay

1150

Mr. Duff Conacher

Mr. Peter MacKay

Mr. Duff Conacher

Mr. Peter MacKay

Mr. Duff Conacher

Mr. Peter MacKay

1155

Mr. Duff Conacher

The Chair

Mr. John McKay

Mr. Duff Conacher

1200

Mr. John McKay

Mr. Duff Conacher

Mr. John McKay

Mr. Duff Conacher

Mr. John McKay

Mr. Duff Conacher

The Chair

Mr. Vic Toews

1205

The Chair

Mr. Duff Conacher

Mr. Vic Toews

Mr. Duff Conacher

Mr. David Miezenger

1210

The Chair

Mr. Paul Harold Macklin

Mr. Duff Conacher

1215

The Chair

Mr. Robert Lanctôt

Mr. Duff Conacher

1220

The Chair

Mr. Paul Harold Macklin

Mr. Duff Conacher

Mr. Paul Harold Macklin

Mr. Duff Conacher

1225

The Chair

Mrs. Bev Desjarlais

Mr. David Miezenger

1230

The Chair

Mr. Duff Conacher

The Chair

CANADA

Standing Committee on Justice and Human Rights

NUMBER 085

1st SESSION

37th PARLIAMENT

EVIDENCE

Tuesday, May 7, 2002

[Recorded by Electronic Apparatus]

¿ (0935)

[English]

The Chair (Mr. Andy Scott (Fredericton, Lib.)): I call to order the 85th meeting of the Standing Committee on Justice and Human Rights. Pursuant to the order of reference of February 19, we are looking at the subject matter of Bill C-284, an act to amend the Criminal Code (offences by corporations, directors and officers).

I welcome Bev to our meeting; we are aware of the high level of your interest.

This gives me the opportunity also to speak to the order of reference directly, so there's no misunderstanding. There has been a lot of reference to the bill itself, and as members should be reminded, by unanimous consent, it was ordered that the bill not be now read a second time, that the order be discharged and the bill withdrawn, but the subject matter thereof be referred to the Standing Committee on Justice and Human Rights. This may, in fact, give us greater latitude, given the fact that we're not looking at a specific piece of legislation.

As our witness this morning we have Allen Martin from the Westray families group. Please proceed, Mr. Martin.

Mr. Allen Martin (Westray Families Group): Thank you.

As I understand it, this bill is intended to protect the health and safety of our nation's workforce. I don't see how that can be wrong. It's intended to punish criminal intent and criminal activities. I can't see how that's wrong. The committee, I have no doubt, has all the statistics of workplace injuries and deaths. Those statistics are staggering. As I understand it, 17,000 people between the ages of 15 and 18 are injured each year in the workplace. That's not acceptable. Westray is a glaring example that the laws we have in place are woefully inadequate. I'm sure you have that report. We need the political will to do the right thing and get the job done.

On May 9, 1992, at precisely 5:18 a.m., my brother Glenn and 25 of his co-workers were killed in the Westray explosion. It need never have happened. It was allowed to happen. Unless anyone here has suffered through a similar experience, there's no way you can know what it's like for those left behind. I can remember my wife and I coming home from the trial in Pictou, and we had to stop on the side of the road and hug each other, cry, just to get it out of our system, so that we could go home to our kids. I remember cards and letters that were sent to us from all over the world. I remember one in particular. A seven-year-old from British Columbia, I believe it was, had a hand-drawn picture in crayon that showed an explosion and body parts, and underneath it said, “I'm sorry your husband got blown up.” At first glance, it seemed kind of gruesome, but when we thought about the sincerity of that schoolchild, it was heart-rending.

As months passed after the explosion, we expected justice. We were promised justice by everyone. That never happened. The reason it didn't happen is that there was no fear. Westray mine managers did as they pleased, because they knew the legislation, they knew they were not going to be prosecuted, they knew they could get away with it. There was a time, especially after the charges were dropped, that I could have broken some laws myself. I thought about it seriously. I thought about punishing those who did this to me and my family. The only thing that stopped me was that I knew I would be held accountable, and I couldn't stand the thought of being taken away from my family, losing everything I worked for, future plans.

¿ (0940)

I still can't understand why that fear is not present with corporations and companies. You need a stick, you need something. A fine is no good. A fine is a tax break. There has to be jail time involved. Justice Richard, in his final report, said the inspector had failed. He said the mine managers failed, and the mine blew up. The fact is, everybody failed them. All the safety features, all the protections, provincially, federally, failed them. Don't you people fail them too, please.

Both my children are just now entering the workforce. One of them is getting married at the end of this month. I don't want to get another early morning phone call.

I'm sorry.

¿ (0945)

The Chair: Mr. Martin, we all appreciate how difficult this is. We admire your courage. Take your time. You needn't apologize to any of us.

Mr. Allen Martin: I remember that morning when I came home. I had to go to my parents' home and tell them the mine blew up. I can remember my dad telling my mom, and the first thing she did was throw up.

Justice, to members of the Westray Families Group, is like a myth. You read about it, you hear about it. Some people claim it exists, but we haven't seen any of it. We need legislation with teeth, without loopholes. Everybody else is accountable, why aren't corporations and companies?

I think that's all.

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

Mr. Toews.

Mr. Vic Toews (Provencher, Canadian Alliance): Thank you very much for coming here today, Mr. Martin, and sharing your experience with this committee. Sometimes we committee members, when we consider laws, don't have the first-hand knowledge and experiences of people who are affected by our laws. I come from a riding with a mine in the north, but not the same kind of mine, and certainly not the same kinds of experiences. So I think it's helpful for all of us when we hear from Canadians who have direct knowledge of the circumstances.

I don't think I have any questions to ask you. I know you can appreciate that this committee has to do things in accordance with certain principles. I'm sure the members of your group want to make sure the laws we pass are effective and just, and that means justice even for people who are accused of a crime. I don't think I've heard anything in your statements here today to suggest that you're seeking some kind of vengeance that doesn't recognize certain principles we have in our Canadian legal system. I think, though, hearing from the victim in that sense is important in having us make sure we balance the interests of victims and the legal principles we have to take into consideration.

So I want to thank you for your testimony. You've certainly given us something to remember.

Mr. Allen Martin: I understand what you're saying, I appreciate that I don't realize all the complexities, but I know when I see justice, and I haven't seen it.

The Chair: Mr. Lanctôt.

[Translation]

Mr. Robert Lanctôt (Châteauguay, BQ): I find it interesting, Mr. Martin, to see that we are beginning with your testimony. I had a look at the file. I was only familiar with what had been stated publicly about the events at the Westray mines. I would like you to tell me exactly what you yourself experienced, and not what we read in the papers. It is obvious that this issue is quite complex.

As a lawyer, I examined the principles of the request and I see that they are very broad. This goes well beyond the responsibility of corporations, managers, shareholders or administrators. It can even affect the national labour movement. I don't know what direction this discussion will take. It is extremely complicated. I hope the matter will be examined thoroughly.

I feel that we should take a very close look at the present or possible new provisions to be included in the Criminal Code. We must also take care to avoid encroaching on laws such as those in Quebec, particularly the legislation relating to occupational health and safety. There are laws that already exist, and we must not do indirectly what cannot be done directly by amending provisions of the Criminal Code to include aspects that are possibly already regulated by Quebec, or other provincial legislation.

This issue is therefore quite important and an extensive examination will have to be undertaken. You have already set out the appropriate guideposts. The victims' families must speak out about their experiences, as was said earlier, and the laws apply to all Canadians and Quebeckers. We must establish the parameters and the best way to start is by listening to that type of testimony.

Unfortunately, I was not here last week. I know the study began then. I will take part in all of the discussions and I will hear all of the witnesses.

Thank you for your presentation. Since we are just beginning this examination, I will wait until I have heard more before asking any questions.

¿ (0950)

I'm not sure if other members feel the same way, but since your family was directly affected, I would like you to tell us about what happened at Westray. You are under no obligation to do so, of course, but I would like to have that information.

[English]

Mr. Allen Martin: Particularly the first day, or any points? Specifically, what do you want me to talk about?

[Translation]

Mr. Robert Lanctôt: We have an idea of what happened because we have heard about it. This type of thing has gone on for some time. It is known that mines are dangerous places. I did not attend the trial, nor have I read the judgment. So I am not familiar with what happened. That is why I would like to hear, not necessarily the entire history of Westray... It seems to me that there must have been something that became more serious over time. There must have been inspectors who visited the scene. What happened? I don't want to put the mine owners on trial, but some facts must have been established. I would like to hear those facts, I would like know what happened from that point on.

[English]

Mr. Allen Martin: The Westray mine was the third development, I believe, around 1990. The Minister of Industry at the time pushed hard for it, our MP, Mr. MacKay, pushed for it. Everyone who worked at the mine was guaranteed a state-of-the-art operation. They were guaranteed 15 years work. Many of the workers came from all over Canada, a lot of them from out west, Newfoundland, pretty well all over, and some from Britain. It was billed, as I say, as state-of-the-art modern mining equipment.

They built it on a seam that was notorious all over the world. At one time at least it was the largest coal seam in the world, and it's almost the most dangerous coal seam in the world, because of methane gas. They knew that when they were applying for the licences, they knew that when they built it. They gave assurances that with modern technology, all that could be overcome. My understanding is that there was over $100 million invested in Westray of provincial and federal money. There was never a forensic audit done to find out where that money went. It's not in the mine.

The ventilation system was inadequate. It was bought off the scrap heap in Britain. A lot of the equipment was used equipment. There were sniffers, as they called them, on the machines that would tell them when the methane level was high, so they could shut down the machinery and get out. The workers were ordered to dismantle those sniffers and keep working. There were rock falls constantly.

They couldn't even get the basics right. At the time it was illegal to have 12-hour shifts at a coalmine, but they did. The batteries they had for the helmets, so they could see underground, only lasted 8 hours, but they worked for 12. The lights would go out, they couldn't see, there'd be accidents. There'd be complaints. They'd say, if you don't like it, go home; there are other people who want to work here. These were people with mortgages, families. Some people were uprooted and moved.

They couldn't even get the peg board system correct. You were supposed to hang your peg on a board when you'd go into the mine, so they'd know who was there. On that morning when the mine blew up they had to call each individual family: was your husband working last night? That's how most of them found out.

There were inspectors for the mine. I don't know kind of a schedule they had, but they were in and out of it. There are reports of coal dust so thick it was over your boots. They used to tape their pant legs so coal dust wouldn't get into their boots. Coal dust and methane are vicious in a coalmine. That's as basic as it gets in a coalmine. You clean up coal dust and your ventilation system takes out the methane gas so you can work. Neither one of those was ever done. I don't think they even had stone dust on site. They used, I believe, lime dust or something to smother the coal dust, so that if there was an explosion, it wouldn't rise and help fuel the explosion. That's basic procedure in any coalmine, and it was never done.

¿ (0955)

The Chair: Thank you, Mr. Martin.

I'm will go now to Bev Desjarlais.

Mrs. Bev Desjarlais (Churchill, NDP): Thank you, Mr. Chair. I want to thank you for your words at the beginning of the meeting. Obviously, I feel very passionately about the issue we're discussing, for a variety of reasons, none more than the Westray tragedy itself.

I've had the opportunity of living in a mining community pretty much all my adult life. Over the years I've witnessed the results of numerous accidents. An accident is an accident, and I think, for the most part, we can accept that we learn from the accidents and we make changes so they don't continue to happen. After hearing about Westray, and certainly after reading Justice Richard's report, we realize this was no accident. As a comment for my colleague from the Bloc, if ever there were required reading for a committee, it should be the Westray report. I don't think you can fully understand just how badly all aspects of our system failed them.

But we're charged to deal with what's before us today. I do want to acknowledge the comments of the chair that we're not dealing with Bill C-284, we're dealing with the fact that we do not have in place in Canada laws that will hold accountable those who were responsible. From my perspective, it wasn't even indirect responsibility. It was so bad at Westray that you can't be left without any thought that the managers and the owners had knowledge of what was happening.

We've come to acknowledge in sexual harassment cases over time that in order to deal with those kinds of problems, if workplaces totally ignore them, there's an onus on managers, on owners, and on directors to ensure proper policy is put in place. If they don't do that, they should feel the consequences. The Government of Canada, I think, realized at some point that after a company went bankrupt or something happened, if they wanted to get their employee deductions, an effort had to be made to hold corporate directors and owners responsible for payment to some of those funds. There needs to be a change of thought, a change of attitude on how we proceed with our legislation, to ensure that in these types of instances, those managers, owners, and directors can be held accountable.

You're getting a bit of a commentary, because I don't think I could ask you a whole lot of questions here today.

If we have such an absolute objection from industry in different sectors to a bill such as this, as I said last week, methinks they protest too much. What are they worried about? You would have to be so blatantly negligent to fall into this category that you shouldn't even be able to stand up and look anyone in the face. That's what we're dealing with. We're not dealing with corporations or individuals who are honest and caring, which I believe the majority of our companies and corporations in this country are. I wouldn't expect that they would ever fall into this legislation. Those that do I believe are criminals and must be held accountable. Just as most Canadians are decent, honest citizens and will never be charged for a criminal offence, it's the same with most corporations. But those that aren't need to pay truly for the lives of those they've harmed.

À (1000)

There are a number of instances, Mr. Chair, over time that would fall into questionable accountability and the way we deal with things. There was a situation with thallium exposure, I believe, in a B.C. operation. I have a news release where the company was blaming human error for not warning workers about toxic metal. That was from August 2001, and just recently a report came out where they admitted they knew all along, they knew the levels were up--but too bad. So numerous workers had their lives exposed to a toxic material, and the company knew. Years ago we expected this kind of attitude, not in 2002. It just is not acceptable. If we accomplish anything as members of Parliament, we need to look at a legislative process that will hold those corporations and those directors accountable.

No question, in the situation at Westray there were numerous faults, but among those faults was one we directly are responsible for here as members of Parliament, and that is ensuring that there is legislation on the books, so that if managers and corporations and directors are responsible, they should be charged.

Thank you, Mr. Chair.

The Chair: Thank you, Ms. Desjarlais.

Would you like to comment, Mr. Martin?

Mr. Allen Martin: I want to thank you for helping with this legislation. You're correct, the Westray report should be required reading for anybody in the position you people are in. It's so blatant it's beyond criminal. For someone like me, who was brought up to believe that if you abided by the laws of God and man, you would be looked after, what a let down, what a let down. Where do you turn? When you people can't do anything, where do we go?

The Chair: Thank you, Mr. Martin.

Mr. MacKay.

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

I want to thank you, Mr. Martin, for being here. I know it's very difficult. This hits you right in the heart and right where you live. I live in the community as well, and I know the impact it had very directly on the families, but also on the entire community for weeks, months, years afterwards. Westray sent a cold shiver down everyone's spine. As much as the circumstances leading up to the explosion of that mine at Plymouth were almost like a conspiracy, what happened in the aftermath, I think, further embittered and troubled the families, with respect to the prosecution, and even the inquiry itself, as to who was compelled and who was not compelled and who voluntarily came and gave their testimony. More could have been heard. Unfortunately, we're not going to hear from Mr. Justice Richard at this committee, but his report is certainly available to all of us, and I expect, as a result of your urging and Ms. Desjarlais', all members will be provided with that report.

I wanted to ask you directly about your experience with the prosecution. As much as we wish we could bring your brother back, all 26 indeed, what we have to deal with now is how we ensure, as you said in your opening, that the loopholes in the law don't permit individuals or corporations to completely escape accountability and justice. Can you tell us a little bit about what you saw happen at the trial itself and, from a family member's perspective, how you were treated and how you were involved in the prosecution in the town of Pictou?

À (1005)

Mr. Allen Martin: We were involved, I believe, at every stage of the prosecution. We were consulted and asked our opinions. We were told what was going to happen, what could happen, that type of thing.

As to the trial itself, I simply couldn't believe it, the pettiness, the attention to the smallest details: is this an original copy or a photocopy? That may all be legally relevant, and it probably is, but to me, as a victim in a way, it had no bearing on the outcome.

When the prosecution dropped all charges, when it decided not to go back to court, the reason was that there was conflicting evidence on where the explosion originated. What the hell difference does it make? It was allowed to build up to that point. All the conditions, right from 1990, or probably before, up until 1992, every single step of the way, every aspect of it was wrong. Politicians decided to forego the advice of their bureaucrats, of their deputy ministers. Westray was given concessions. They overrode laws. The Coal Mines Regulation Act was not adhered to. The mining plan they were required to put forth was never followed. Every single aspect of Westray was ignored. And when it came down to prosecuting them, the whole issue was decided on where the explosion originated. What's that got to do with law?

Is there anything else specifically?

Mr. Peter MacKay: No. I just wanted to get on record your perception of what happened with the trial itself. As I recall it--and I'm not giving testimony--much of the trouble the prosecution ran into was proving intent, and I guess this went to the issue of where the explosion was, but the other big hurdle they had to get over was their lack of resources. When they began the prosecution, it was assigned to two prosecutors, and they had very little assistance, very little ability to prepare themselves for what turned out to be an enormous and incredibly complicated case.

Mr. Allen Martin: My understanding is that when it was first given to the prosecutors, that was indeed the case. I understood that the prosecutors quit the case because they weren't being provided with the resources necessary. But when we went to trial, it was my understanding that the resources were adequate at that time. Whether they were or they weren't, I don't know, but that was my understanding.

It's been said more than once that the case collapsed under its own weight. There are literally tonnes of material on Westray. Some say it just could never be, because it's impossible to sift through it all and to come to a conclusion. But a person like me can't understand all that. All you have to do is read the report of the inquiry. Everybody knows what happened, everybody knows who was responsible. It just boggles my mind that someone can't be held accountable for it.

À (1010)

Mr. Peter MacKay: Mr. Martin, from a layperson's perspective, but that of one who sat through the trial and through the inquiry itself, is it your opinion that we should be trying to streamline the law in that regard to allow for a more direct level of accountability, if you will, for corporations and individuals who, in essence, set up a scenario that resulted in your brother's death?

Mr. Allen Martin: Most definitely, yes. I don't know if that's what lawyers do, but they make things so complicated. They went through the trial, there was a stay of proceedings, they were ordered back to trial. It never went back to trial, but after that there was the inquiry. After a few months of testimony, the inquiry came up with everything. Why couldn't a trial do that? The inquiry was simpler. I understand that the mandate is different, I understand that the process is different, but the simple way got the job done, the complicated way didn't.

The Chair: Thank you.

Mr. Macklin.

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

Thank you very much, Mr. Martin. This certainly brings home to us how disastrous the situation was, and in some respects, it's very difficult for us to put ourselves in the position you've lived through and capture the essence of what went wrong and what you saw going wrong within this particular situation.

We are being asked to look at this from the point of view of a corporate criminal liability. So I can capture some understanding of what went on, the province normally covers health and safety issues within the mine, as I understand it. Could you tell me, if you have the knowledge, what you believe went wrong with the provincial system? Have there been any attempts at this point to amend the provincial system to make it a safer place to work? I know mining is now diminished greatly, but have there been steps taken to fill the void from a provincial point of view, or are there things we ought to be looking at that might fall within provincial jurisdiction?

Mr. Allen Martin: I agree that something has to be done there too. As I said earlier, the Department of Natural Resources was responsible for the mining plan, which they had to submit to the province, which had to be okayed, which had to be checked periodically. It was checked, it wasn't being followed, and nothing was ever done. The Department of Labour has provincial jurisdiction. The labour inspectors were in and out of the mine constantly. They wrote up statements, they wanted them to clean up coal dust, any machinery in the mine had to have spark arrestors--on and on and on. Those were written up, and nothing was ever done about them.

It was never proven at the inquiry or at the trial that there was political intervention, but there very obviously was. What happened couldn't have happened without meddling from politicians. It was impossible. There are checks and balances, the Coal Mine Regulations Act and the Occupational Health and Safety Act. If all the laws in place at the time had been adhered to, there never would have been an explosion. If there have been a union in at the time, there never would have been an explosion, because the employees wouldn't have been open to intimidation.

There were miners who did go public with what they knew about Westray. One person in particular, Carl Guptill, went to the mine examiner and told him everything he knew. He told Carl, that's exactly what we needed, somebody to speak up; now we can get something done. Carl went back to work, and he was fired. The mine inspector told the manager he was being ratted on, and the man was fired. That's the kind of thing that happened at Westray.

À (1015)

Mr. Paul Harold Macklin: So from that perspective, has there been anything done to protect those who would blow the whistle, tell the story as they see it?

Mr. Allen Martin: My understanding is, that the new Occupational Health and Safety Act has some protection for whistle-blowers, but in reality, they find a way around that. If you blow the whistle this week, you won't be fired, but six or eight months down the road you will.

Mr. Paul Harold Macklin: In listening to your testimony, I get an impression, as from some other evidence we've already heard in this hearing process, that in fact, there were a great many laws available, there were a great many protections available, but the failure was not necessarily in the creation of the laws, but rather in the enforcement process of those laws. Is that a fair statement?

Mr. Allen Martin: That is a fair statement, but you also have to realize that those laws were in place and they weren't enough, so we need more at another level, your federal level.

Mr. Paul Harold Macklin: We can pass all the laws we want, but at the end of the day, unless there's someone willing and ready to take proper action to see through the enforcement process, we're nowhere. Your comment was that maybe it was political interference that, in effect, breached that degree of trust between the legal system and the protection of the individuals involved. Is that what you saw?

Mr. Allen Martin: That's my impression, and that is part of it, but how do you police them?

Mr. Paul Harold Macklin: Well, I guess that's part of the question we're going to be looking at through this process, trying to see what is wrong within our current corporate liability and whether or not we can advance the cause and make it a more responsible system. We try our best, I think, to keep it outside the political element and make it as independent as possible.

Mr. Allen Martin: The managers and directors of Westray got away with what they did because they knew they could get away with it. Companies and corporations know they can bypass acts and regulations and laws. That's the problem.

The Chair: Thank you, Mr. Martin.

Mr. Toews.

Mr. Vic Toews: This is a very important discussion we've entered into. Some of Mr. Macklin's comments are helpful and instructive. What crossed my mind as I sat here listening to some of the exchange was that perhaps we have the wrong kinds of laws to address this kind of situation. The criminal justice system was designed in a much simpler time, was not designed to deal with complex issues. As our society has become more and more complex, it has put strains on not only our justice system, but also our ability to prosecute certain crimes.

If we look at the development of tribunals in Canada, and in the western world generally, why did they develop labour boards, why did they develop workplace safety and health boards? Because the courts and the justice system didn't meet certain needs. So we had to set up these tribunals that were more effective in addressing much more complex social and legal problems. Perhaps a different tribunal should be responsible for these types of prosecutions. I'm just thinking out loud. As you pointed out, an inquiry is very different. An inquiry doesn't determine criminal intent or responsibility. As soon as one begins, in our justice system, to explore the issue of determining criminal intent, it triggers all kinds of constitutional and charter issues and procedural issues. If we adopt a different procedure, we lose our ability to impose criminal sanctions.

Let me give you an example. Many years ago I was a prosecutor, but I used to do child welfare work as well on the side. It was amazing, they gave young prosecutors the responsibility for cases that took children away from their parents. As you got more senior, you got to deal with financial matters. Human beings always seemed to be lower on the scale. Often you see that more junior people are assigned the most significant social work, while the financial and monetary work goes to more experienced lawyers. But in the course of these child welfare hearings, I was always amazed at how easy, legally speaking, it was to take children away from parents. That was because in the course of these hearings the parent who was accused of the abuse and so on was required to take the stand and explain what they did or did not do. In some cases that wasn't fair. You'd deal with an uneducated person, a woman in most cases, with alcohol problems. It wasn't fair, and yet that was the system. We could take children away quite easily, but if you tried to pin criminal responsibility on that same woman, there were all types of criminal safeguards.

So with the Westray situation, we have the inquiry, a much simpler process: put the executives on the stand, they give their testimony, there is no right against self-incrimination. But that evidence can't then be used in the criminal proceeding. You move to the criminal proceeding, and you have to prove the case by the kinds of complex things you pointed out. Where did this fire start? What was the cause of the fire? What was the sequence of events? It could be so much simpler if we just put the people with the knowledge on the stand to explain all those things, and yet that runs counter to our criminal justice system.

If we create a different system under our constitutional framework, we lose the ability to impose criminal penalties. That's the difficulty here. I don't think there is one person who doesn't understand your difficulties and have sympathy. I think some of your comments have been instructive for me. They certainly brought back a lot of experience and concerns I have addressed in other situations.

I don't know if you have any comments. Am I way off track in talking about this?

À (1020)

Mr. Allen Martin: You're way above my capabilities. Speaking of myself and my situation, I know that if I had taken a gun and shot one of those mine managers, they'd have had no trouble putting me in jail.

À (1025)

Mr. Vic Toews: That's because--

The Chair: Mr. Toews, we appreciate very much your level of interest, but you're finished.

Ms. Desjarlais.

Mrs. Bev Desjarlais: Following along the line of criminal intent, I get from your presentation and your comments about the families who lost members that they view what took place as a criminal action. Did you work in the mine yourself?

Mr. Allen Martin: No, but Glenn was the fourth generation miner in my family.

Mrs. Bev Desjarlais: Were there a lot of discussions when people would come home from the mine, when guys would come home? Were there concerns raised about what was happening in the mine?

Mr. Allen Martin: That's another interesting thing. My brother had never worked in a mine prior to Westray. He was 35 years old. My dad hadn't worked in a mine for some 20 years previous to that. So when Glenn went to work in the mine, he didn't know exactly what a mine was supposed to be like. Of course, he caught up fairly quickly. Once rocks start falling on your head and coal dust is kicking up, you know those things aren't right. He'd talk about it with my dad. My dad wanted to go down the mine. He mentioned it to whoever it was at the plant. He said, that's fine, that's great, take him down. Then he found out dad was a miner—oh no, he can't come down. He would have known what was going on down there. He would have seen it with his own eyes.

Mrs. Bev Desjarlais: To follow up Mr. Toews' comments about criminal intent, that becomes the crux of why there's a leeriness for some members. Actually, it has become the loophole, I think, for some members of Parliament and industries to try to get out of being held criminally accountable. They say, if I didn't directly do this, I didn't commit that criminal act. I think that's why, even in murder or manslaughter cases, we have varying degrees of criminal intent. The bottom line is, there are criminal charges that are laid, and therefore prosecution can take place at a federal level, because of the type of criminal charges that are in play.

We have a system in place, as complicated as it is. I saw that system find a mother criminally responsible for the beating of her child just last week, a child that was brutally tortured and beaten in Ontario. That person was found to have had a certain degree of intent. She didn't reach a certain level of murder charge, but she certainly was charged at another level, found guilty, and put in jail. We just saw recently a situation where the leader of the Hells Angels, although he didn't necessarily pull the trigger, was found accountable, because of criminal intent.

I hope, for the sake of the Westray families and all other workers in any workplace, we can get beyond trying to see that loophole to find a way out for criminals and find a law we can put in place to address where the concerns are. By no means should we be looking for a loophole to get anybody out of that.

Thank you.

The Chair: Thank you.

The last intervention goes to Mr. MacKay.

Mr. Peter MacKay: Mr. Martin, I hope you'll be leaving here today with at least a sense that you've accomplished something by coming here, speaking on behalf of the families, on behalf of your brother. We take very seriously this task before us. You've acknowledged, and I think you've seen through some of the questions, the complexities of all of this. But you and I both know, back in Pictou County, the reason a lot of people went into that mine was economic circumstances. I dare say--and I say this with the greatest respect--if a mine opened up tomorrow, there'd be people lined up across the bridge to get jobs there. That's the reality we have to take into consideration too, that there are these external forces that come into play and sometimes contribute to these disasters. But your testimony is a very solemn reminder that for every action and reaction there's got to be some sense of responsibility for what people do and what decisions they take.

Looking at the Criminal Code and remembering what took place with the prosecution, there were, in many instances, acts of omission as much as acts of commission. There were things people didn't do that led to this explosion, people looking the other way, people choosing not to use the information and knowledge they had to prevent it. In strict legal cut and thrust that is sometimes very difficult to write into a law. But with the information we have, with the report of Mr. Justice Richard, I think the key to all this is to try to make things a little less complicated and craft a law that is going to send a message. And I think your testimony has been very compelling in reminding us that there has to be the threat of the law, the sword of Damocles coming down if somebody is going to be wilfully blind or refuse to act when it's their responsibility to do so.

So once again, we really appreciate your being here, Mr. Martin. Safe home.

À (1030)

Mr. Allen Martin: I want to thank you very much for allowing me the opportunity to testify here. I hope I've made some sort of impact.

The Chair: Mr. Martin, thank you for your courage and determination. I think I speak for all the members of the committee in saying you have had an impact. I recall very well our lengthy conversation in Halifax some few years ago on the subject, so clearly you do have that capacity.

Mr. Allen Martin: Thank you very much.

The Chair: Thank you.

We'll excuse our witness now. We're going to proceed to Mr. MacKay's motion. I want to suspend for a moment, just long enough for the witness to depart.

À (1032)

À (1034)

The Chair: I call the meeting back to order, and I'd like to turn the floor over to Peter MacKay.

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

Some of you at the committee may recall the origins of this motion. They deal essentially with a victim, a man by the name of Jeff Hearn, who was badly beaten in his own home by an individual named Brian Riches, who was out on statutory release. As a result of a decision that was made by Corrections Canada, as well as the parole board, this person was on the street. No one is suggesting that there wasn't evidence that led to his release, but what I find most troubling is some of the evidence that would have resulted in his parole being revoked. He failed to produce his identification card when asked by the police, which he was required to do. He gave the police a false name. He had tested positively for drugs in the community, which he was forbidden to use. He misused a student loan. He failed to tell his parole officer why he had left school, which again was one of the conditions he was to comply with. He acquired welfare during that time using false information. He absconded and remained unlawfully at large for a significant period of time while under parole conditions, and did not keep appointments with his parole officer.

The concern I have is that in the wake of all of this, Mr. Hearn was beaten with the claw end of a hammer, within an inch of his life. He was hit dozens of times with the claw end of a hammer and suffered a fractured skull, numerous face and scalp lacerations, a severed jaw muscle, and a displaced eyeball. Through attempts to deflect the blows, his arms were mangled and broken, his ring finger disfigured and displaced. He also suffered damage to his internal organs and lost four pints of blood. It took over 100 staples to close his wounds. He continues to suffer from chronic pain to his fingers, hands, back, and head. He has three plates inserted into one of his arms, three screws and two wires to keep his eyeball in place. His vision is permanently impaired. He's prone to mental blackouts and emotional outbursts. He's currently living a hand-to-mouth existence with his wife Crystal on welfare, and received $8,000 in injury compensation.

Members of the committee, a number of serious questions remain unanswered. Why was there no community assessment done with respect to the release of this offender? There doesn't appear to be a clear policy regarding community assessments and follow-up. There was only one meeting that occurred in October, when there should have been a bare minimum of two or three. There has never been a full inquiry into circumstances surrounding this case, why Brian Riches was released, and why these numerous breaches did not result in his parole being revoked, not only for the sake of this particular individual, but for the sake of the system and its integrity.

À (1035)

We know there are numerous cases right now that have resulted in civil actions against Corrections Canada and against the parole board. I don't have the numbers in front of me, but they are numerous, the claims amount to millions of dollars. Not for graphic detail or to shock you, I would like members of the committee to look at the injuries that were suffered by this man. All I am asking, committee members, is that we have the Commissioner of Corrections come, as well as the head of the parole board, to answer some specific questions about this case. But more importantly, how do we put in place some safeguards and use this case as a launching pad for tightening up and improving the checks and balances that should exist in our parole and corrections system, to ensure that this type of thing doesn't happen? There is a system in place to examine circumstances, and that didn't happen. There was not a review of this case. There was a file review that resulted in a two-page report the victim, Mr. Hearn, was not informed of, nor did he see it. So this person is left with a very profound sense of betrayal by the system. Clearly, he deserves some answers. That's the reason for moving this motion, and that's why I would like to have an opportunity for one day of our time, which is valuable at this committee, to have the Commissioner of Corrections come before us and to simply delve into this situation in greater detail.

À (1040)

The Chair: Thank you, Mr. MacKay.

Mr. Lee.

Mr. Derek Lee (Scarborough--Rouge River, Lib.): Colleagues, there are about three things I would say. I'm generally not in support of the motion, although I do have a lot of sympathy, as I know we all do, for victims of criminality everywhere in society, and no less for those who are victims of current and previous offenders in the corrections system. But I think we ought to do our own homework here. Mr. MacKay started off saying that this gentleman was on statutory release. I see from the motion that it was described as conditional release. I'm confused. It's not clear which it was. Maybe in the end it doesn't make a lot of difference.

This committee carried out an extremely comprehensive review of the CCRA approximately five years ago, which was a five-year review of the ten-year-old new statute. Prior to the new statute's being introduced, the committee intensively reviewed two cases of a similar nature, two escapes from various forms of release that resulted in killings. In the end there were three or four dead, and there were two separate escapes. We reviewed those closely, and it took us a couple of years to actually get through it all.

If members think there's an issue here, perhaps we don't have to reinvent the wheel. If there is a two-page report, I don't know why we and Mr. MacKay couldn't have a look at it. That two-page report may well indicate the assessment by Corrections Canada of whether or not there were errors made. We can't ensure that we become the guarantors of every person in the corrections system 24 hours a day. The system just isn't that perfect. I don't have a problem with asking the corrections service to make us familiar with this two-page report. If we were to ask for it, we would inevitably be told there are two or three categories of information in the report that are not publicly disclosable. Rather than debating the issue, it might be just as well to take the report in camera and insist on Corrections Canada delivering up the report on this basis, with appropriate protections for whatever information is in there, but without any white-out or black-out.

I would be in support of that, but at the moment I just can't support the motion. With due respect to the very unfortunate victim and the very ugly circumstances Mr. MacKay has taken great care to present to us, it is one instance, not necessarily reflective of a pattern. I think we could do a bit more homework with the report that's already in existence before we take further steps.

The Chair: Mr. Macklin, then Mr. Toews.

Mr. Paul Harold Macklin: I share the perspective of Mr. Lee. Recently, when the commissioner and the chairman did appear before the committee on estimates, a number of questions were brought forward. Much as I appreciate the situation that developed here and the injuries that occurred, unless this committee is going to take a different approach to the way we deal with issues, dealing with them victim by victim is, in my view, not the way to approach this subject. Rather, if we do believe there is something systemic, I think we need to duly put together a proper hearing process that would deal with the issue in its broad context.

I think this would, unfortunately, set a precedent I don't think would be an appropriate one for this committee. I think it would distract us to think, each time there was a victim, regardless of where that victim appeared within the system, we should listen to their particular issues. I think we would be greatly distracted from our main purpose, which is to try to deal with the broader issues of the day, rather than with individual cases. I know it may seem somewhat insensitive, but I think our job is broader than each individual person in this process. So I would again be more tempted, if we want to find out more information, to follow Mr. Lee's suggestion of asking for that information and having the meeting in camera. But unless it leads us to something we believe may be systemic, I think we ought to leave it alone.

À (1045)

The Chair: Mr. Toews.

Mr. Vic Toews: Thank you, Mr. Chairman.

Each case, of course, is unique, and sometimes there's difficulty in examining a particular case, but we have to understand that engaging a committee usually takes a particular incident. We just heard a witness from the Westray Mines talk about a particular case. We didn't say, this is just one case, so let's not consider it or let's not bring a witness forward. Each case can be an appropriate jumping-off point for a broader inquiry into systems, into procedures in government or elsewhere. I think this case may well be such a jumping-off point. I don't think it serves this committee well to say we don't know whether this is conditional or statutory release. Who really cares? Let's not get into that kind of thing; I think that brings discredit to this entire committee. I don't really care what the difference is, and I don't think it's particularly relevant. There are certain rules that govern those releases. I think the prior witness, Mr. Martin, would just be shaking his head if we hinged our decision on that kind of thing.

I share some of the concerns that were raised by Mr. Lee and Mr. Macklin, but I don't think it's sufficient just to get a two-page report. If we want to have a clear look at this case, we should start by examining the entire file, not just two pages, and that could be brought here in camera. With all the appropriate safeguards, we can review that file and see if there is a need to bring the Commissioner of the Correctional Service. So what I would support at this time is deferring the issue of the commissioner and bringing the file forward in camera, subject to all the restrictions that entails. Then we can proceed from there. I do understand that the commissioner looks after a broader mandate, but if in the file there's some indication that the broader mandate has not been fulfilled, we should then consider calling her. I'm just wondering whether that suggestion is acceptable.

The Chair: There are other people on the list, Peter. Maybe we can finish it off, and then I'll give you the last word.

Mr. Cadman.

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

There's something else about this that concerns me. Mr. MacKay mentioned that there were breaches of parole conditions. There have been a number of attempts over the past years, through private member's business and what not, to make breaches of parole conditions an arrestable offence. For various reasons, those have been defeated, primarily, to my understanding, because they're not orders from the bench. I would like to have some kind of indication from the commissioner and from the parole people of just what the criteria for not revoking parole are.

When I see major breaches and when I hear of people who have been ordered to stay away from alcohol as a condition of parole and then been found drunk in a bar by the police, but their parole is not revoked, that concerns me. I think this goes beyond just this particular case, because we've many incidents like that in the past. So that's something I think we have to look at. If we can't have it made an arrestable offence, for various reasons, I want to know from the parole board if they need to do something different with their policy on how they decide whether something is revocable or not. To me, somebody breaching a condition of parole is a slap in the face of society. We've told that person we're going to give them a chance, they breach the conditions they've been given that chance on, and parole is not revoked. That concerns me, and I think it goes to the heart of this.

À (1050)

The Chair: Monsieur Lanctôt.

[Translation]

Mr. Robert Lanctôt: I also see the problem with the drafting of the motion. If our aim is to begin a discussion in order to determine whether something must be changed, I think it would be more acceptable for the committee to do that rather than to examine an individual case.

I am well aware of the reason why this case has been presented: it is to get something started. It might be only the wording of the motion that is at issue. As with Mr. Macklin and Mr. Lee, I feel that this can be problematical if we must continually review a personal case, but I understand the rationale underlying your motion. I would agree to examine the situation to see whether or not, in a broader context, some problems might exist, and determine how something like that might have occurred. These decisions were based on criteria. Should we perhaps examine those criteria?

It is obvious that we will have to look at cases such as the one that was raised by Mr. Hearn, but is that how we should begin? That is what I have a problem with.

[English]

The Chair: Bev.

Mrs. Bev Desjarlais: No committee, I think, should necessarily deal with one particular case and make a decision on that case, but what often happens is that when you have a case study to deal with, you can see some of the problems that are inherent in a number of cases. I would agree with Mr. Toews that it might be the right approach to bring it before an in camera committee, take a look at it, then go from there as to whether or not you want to see if this is a systemic problem.

I too am aware of a number of cases where individuals who have been injured as a result of someone being released are now suing various departments of the federal government. So from a prudent economic standpoint, it might be worthwhile to look at it now, rather than later, when it becomes a much bigger problem.

The Chair: Thank you very much.

Mr. MacKay, you've got lots of advice.

Mr. Peter MacKay: Thank you, Mr. Chair. I take all that advice to heart.

I'm not trying to focus in on the Brian Riches case alone. This is a case that would be the impetus for us to look at what happened in that particular instance and examine some of the broader implications.

As to Mr. Lee's point about whether it was statutory or conditional release, my information is that it was statutory release, but I think such things are minutiae. What happened here is that this man breached conditions of his parole and may have been picked up if there were proper mechanisms in place that would have prevented Mr. Hearn being beaten with a claw-hammer in his own home.

On this systemic problem that may exist, the commissioner's directive number 41, which deals with investigative incident reports, states that in the case of a death or a serious injury, CSC is required by law to conduct an investigation. This is what happens when there's an incident in a prison. There is no such directive for when a prisoner on parole, whether it be statutory or conditional, commits an offence. So there has to be a incident report if an offence occurs in a prison where somebody is killed or injured, but there doesn't have to be a similar investigation if it happens among the general public. That, to me, seems ludicrous.

There appears to be a lot of discretion on the part of parole and CSC as to whether they do a full report. In this case there was a two-page report the victim never saw. So there's a serious question as to why victims are not protected and given a mandatory opportunity to review a report. I would go farther and say they should be given an opportunity to meet with the parole board to discuss the report after it's been completed. Whenever there's a serious incident involving violence or death, I believe there should be a mandatory investigation, and the victim should be told of that investigation, whether it's released or not. Another discretionary element is that not all these reports are released, and appropriately so, but the victim, I'm suggesting, should at least be given the opportunity to see what the findings of the investigation are.

This man is just one of many victims who have to live every day with their injuries and with the personal trauma of what occurred. He's been living now since 1998, in the wake of this horrific attack, not knowing how our justice system has dealt with this offender, other than through the criminal prosecution of the incident itself. He doesn't have the answers. That's all I'm suggesting, that we've got an opportunity not just to look into what happened with Brian Riches and why, but to ask how we might be able to improve upon a system that I think is failing victims.

À (1055)

The Chair: I'm going to call the question. You see the motion. It's attached to the agenda.

Mr. Alan Tonks (York South--Weston, Lib.): On a point of order, Mr. Chair, I didn't hear any amendment made.

The Chair: We didn't have an amendment.

Mr. Peter MacKay: Mr. Toews, I think, was moving what might be called a friendly amendment.

Mr. Vic Toews: I don't know exactly what words I would use to describe it, but it would be to say that we defer the motion to call the commissioner and the chair at this time and ask for the delivery of the file to be considered in camera, under the appropriate restrictions for this matter.

The Chair: Could you frame this in the manner of an amendment, Mr. Toews?

Mr. Vic Toews: It would be to defer the calling of the witnesses and request the immediate production of the file related to the conditional or statutory release of Mr. Brian Riches.

Mr. John McKay (Scarborough East, Lib.): The file or the report?

Mr. Vic Toews: The entire file.

Mr. John McKay: You're going further than what your argument was. The argument was to produce the report, which is two pages long. The file, presumably, is a great deal more than that.

Mr. Vic Toews: I think the report is simply not sufficient. We could start with the report, and then go to the file, but—

The Chair: Frankly, I think, to complete the amendment, someone would have to appear. You're talking about appearing in camera. Who is it you're calling upon to appear, to fill out the amendment, because you said in camera?

Mr. Vic Toews: I understand the sensitivity, that probably the majority of this committee don't want the commissioner here. So a file clerk to bring the file is sufficient.

The Chair: I'm not sure how this going to read by way of an amendment, calling a file clerk.

Mr. Vic Toews: We're simply calling for the production of the file, so that we can review it.

The Chair: So basically, we're deferring the motion as it currently exists, and we're calling for the production of the file at an in camera review.

Mr. John McKay: Is this the parole board file or the file on the incident?

Mr. Vic Toews: I am at a disadvantage, not having seen the scope of the file. Essentially, what I'm looking for are files relevant to the conditional or statutory release of Mr. Brian Riches, which I assume would also contain that two-page report, because I know how some of these files are created. There are background papers and a final report produced.

The Chair: Okay. This is put forward as a friendly amendment. Is it friendly enough?

Mr. Peter MacKay: It's friendly enough to me, if this involves the ability for us to examine the report and to make an informed decision as to whether we should use this as an opportunity to have the commissioner and the head of the parole board come before us. As I said, it has implications beyond this one case. If there were shortcomings, if there are lessons to be learned, that's the reasoning behind moving the motion in the first instance. So if this is a step to that point, fine.

The Chair: Before we get too far, I want to make sure our clerk has captured the essence of Mr. Toews' friendly amendment.

I have Mr. Lee, and then Mr. Cadman.

Á (1100)

Mr. Derek Lee: Mr. Cadman has a suggestion. I'm wondering if that'll be helpful.

The Chair: Mr. Cadman.

Mr. Chuck Cadman: I was just going to suggest that we get any documentation that's relevant to Mr. Riches' conditional release or statutory release, but also any documentation we can get that has anything to do with his breaches of parole conditions, why they were not addressed, and why his parole was not revoked. That's what I think goes to the root of this.

The Chair: Mr. Lee.

Mr. Derek Lee: Colleagues, the desire to see the file is one thing, but these files are inches thick. The offender file within Corrections Canada is one thing, but there may be another file at the National Parole Board. Getting a file and having it reproduced for us all is something we actually haven't done ever before, simply because it's so voluminous and it's filled with material we probably don't need. I'm of the view that we ought to focus on the report either corrections or the parole board did that was referred to earlier. Do we know where that report is? Whose report was it?

The Chair: Peter.

Mr. Peter MacKay: I'll check the documents I have.

Mr. Derek Lee: An offender file is potentially quite voluminous.

We're all going to decide how we're going to vote on this, but I'd prefer to start with the report that was referred to earlier. An official from either the parole board or Corrections Canada can be with it, or we can allow the chair to negotiate the conditions of its being made available to the committee, and that might serve our purpose. If there are additional questions after that, we can probably direct our time efficiently. That's my suggestion, and I appreciate the efforts to bring it forward.

The Chair: Thank you, Mr. Lee.

Mr. McKay.

Mr. John McKay: I have a motion to amend the amendment, Mr. Chair, to say that the committee calls for the production of the report of the incident and that only for an in camera session.

The Chair: Mr. Toews.

Mr. Vic Toews: I think I can basically agree with that, provided that we defer any decision on calling the commissioner or the chair.

The Chair: Mr. MacKay.

Mr. Peter MacKay: What is the question? We're going to have a two-page report tabled and we're going to examine that? Is that it?

Mr. John McKay: Yes, but you're still alive, you've just been deferred.

Mr. Peter MacKay: All right. We'll bring it forward, we'll get the two-page report. I think that's available through access to information and may be in the hands of the victim now.

Mr. Derek Lee: You told us it wasn't.

Mr. Peter MacKay: Pardon me?

Mr. Derek Lee: You indicated to us that the victim was not able to see that report.

Mr. Peter MacKay: I've never met the victim, let me make that very clear. If you want to pick through fly turds with boxing gloves on and try to pick this apart and get some kind of a little technical problem to try to disqualify the motion, why don't you just say so?

Mr. Derek Lee: Just trying to stick to the facts, Mr. MacKay.

The Chair: Frankly, Peter, I don't see it that way, as the chair. I think Mr. Lee was simply bringing up what he heard, and I think I heard, not for purposes of disqualifying anything, but just to make sure the facts are clear.

Probably we're going to call the question on Mr. MacKay's amendment to the amendment to the motion. My sense is that it may fly. If that happens, that will probably keep this alive. I have to entertain the amendments in any case, so I'm going to call the question on the amendment to call for the report in camera, which does not disqualify the motion we're entertaining otherwise.

(Amendment agreed to)

The Chair: Basically, with that motion, the other two are redundant, and your motion, Peter, is still alive.

Now we proceed to our calling of witnesses from the Corporate Responsibility Coalition and the Ottawa and District Labour Council. I'll suspend while they come to the table.

Á (1105)

Á (1108)

The Chair: I call back to order the 85th meeting of the Standing Committee on Justice and Human Rights. We resume deliberations, pursuant to the order of reference of February 19, 2002, on the subject-matter of Bill C-284.

For that purpose we welcome as a witness this morning Mr. David Miezenger. Please give us your presentation. We generally try to keep it within 10 minutes, so we have lots of opportunity for members.

Mr. David Miezenger (Representative, Ottawa and District Labour Council): I think I'll take less time than that.

I'm here on behalf of the Ottawa and District Labour Council, a coalition of unions in town, part of the CLC. I'm a member of the United Steelworkers of America local 5297, which represents security officers in eastern Ontario. I personally work at a federal government site.

The Westray report has 74 recommendations. I know Bill C-284, on the three or four other times it's come into the House, was only one of those 74 recommendations. I know you've asked Mr. Martin and others how many of those recommendations have been acted on. It's hard to say how many of the recommendations from the Westray Report have been acted on.

In most cases of accident or death in a workplace there are inquiries, inquests. Locally, we had the OC Transpo shooting, and there was a coroner's inquest with recommendations. I and our affiliates would like to see some sort of federal review of all inquiries and their recommendations, to see how many of those recommendations are implemented. The purpose of an inquest is to find out why something happened, so that an accident doesn't happen again. There has to be a review; after the recommendations, you've got to go back and say, how many of these have been implemented, and why haven't they?

What I've come here to say today is that there have been over 9,000 deaths since Westray—that number is staggering—and hundreds of thousands, probably millions of injuries.

Bill C-284 has penalties for directors and managers. When you drive your car and you speed, you may get a speeding ticket. If you have control that prevents a safe workplace, you should also have the potential for penalty. If you do the crime, you have to pay. That's short and sweet.

Á (1110)

The Chair: Thank you very much. Again, I don't do this as a way of limiting, but of expanding the discussion we can have, and if it's helpful to use the bill as a point of reference, that's fine, but I don't want anyone to be under the impression that it's the bill we're reviewing.

Mr. Conacher, welcome. As I explained to the first witness, we try to come in at about ten minutes, if that's possible.

Mr. Duff Conacher (Chairperson, Corporate Responsibility Coalition): Thank you very much to the committee for the invitation and opportunity to present to you today on this very important issue of corporate responsibility.

I am here today as coordinator of Democracy Watch, which is a non-partisan, independent, citizen advocacy group based here in Ottawa that focuses on issues of democratic reform, government accountability, and corporate responsibility. I am also here representing the Corporate Responsibility Coalition, which Democracy Watch has organized. It's a coalition of 31 anti-poverty, consumer, corporate accountability, democratic reform, environmental, human rights, international development, labour, women, and youth groups; 18 are national and 13 are located in 5 provinces. The collective membership of the groups is over 2 million Canadians. The coalition has for the past two years been active on the issue of corporate responsibility, and Democracy Watch has been active on the issue for the past eight years.

I will first speak directly to the issue of changing the corporate criminal liability standard. The coalition does have a proposal on this issue, and I will just read the proposal, but preface that by essentially saying it is in alignment with a corporate culture approach that has been taken in Australia.

The proposal is “that corporations should be liable for the criminal conduct of their employees where directors and officers fail to exercise control properly over their subordinates, and as a result, a subordinate commits an offence.” You can see in that the essence of the corporate culture approach. Further, “corporations should be liable where directors and officers know their subordinate is about to commit or is committing an offence during the course of employment or consciously disregard information that clearly indicates that such an offence is about to be committed or is being committed by the employee in the course of employment.”

This approach, we believe, will be most successful in changing the operations of corporations in a way that will ensure that prevention is the real aim, not simply punishment, retribution, rehabilitation after the fact. Of course, it's a very detailed discussion exactly what provisions would be part of a corporate culture approach to corporate criminal liability, as is laid out in some detail in the discussion paper that's been prepared for the committee by the Department of Justice. We, at this point, are simply putting forward this proposal and endorsing this approach. We would be happy to work with the committee through the details if there were detailed questions the committee had at a later date towards formulating a specific recommendation as to how the proposals in the bill may be somewhat modified before the government pursues this change to the corporate criminal liability standard.

My overall message today, though, is that a change is needed, very clearly. We also believe that other changes are needed, specifically in the area of enforcement. Simply changing the corporate criminal liability standard will not mean very much if the resources devoted to policing corporate crime are not increased, if the penalties are not increased, that is, if the chance of getting caught is not increased and the penalty for getting caught is not increased. There is an interdepartmental task force on corporate responsibility, and we believe this change to the Criminal Code must be complemented by other changes and would suggest that the committee examine those other changes as well, because the enforcement system you also develop will affect the rule you set out.

Á (1115)

For example, we believe there need to be much greater disclosure requirements on corporations. Detailed information about the records of compliance with all laws should be disclosed, and the government should set up an easily accessible database on the Internet, so the public can search under a corporate name and see the whole corporation's record on compliance with a wide variety of laws. This is essentially a moral suasion and marketplace approach to corporate responsibility, making it much easier for consumers and Canadians generally to find out whether they want to deal with a corporation. It's very difficult right now to know whether a corporation complies with the law generally or regularly violates the law, because often the stories about the violations are buried in the business pages, if they're reported at all.

In addition in regard to enforcement, we believe there needs to be a full whistle-blower protection system for employees to be reporting any violation of any law. That doesn't mean simply that they have a right to do so, as they do under a few limited statutes in Canada, but that they have a place to call that will protect them from retaliation when they do so. It's not good enough simply to have a right to blow the whistle, because the retaliation you can face may be quite enormous. You're on your own, and no one's protecting you. You're in court, you've lost your job, you're losing your savings trying to defend yourself. There needs to be a full system with an office set up, so that any employee can complain and be fully protected, and even rewarded if it turns out their blowing the whistle has prevented serious harm. In other words, there should be more incentives to blow the whistle than there are disincentives. Currently, there are many disincentives. By some coincidence, a documentary recently aired on the Westray disaster, and one of the managers was there at the hearings saying the reason he didn't report any of this was that he might lose his job. If you want to have a system that prevents corporate crime, you protect whistle blowers fully. That's part of enforcement.

I would also suggest to the committee that it call witnesses from the RCMP and find out how many resources they do actually put into policing corporate crime. What chances do they think any corporation has of actually getting caught if they do commit a crime? That's very important, again, when you're designing a system that is going to work.

Another proposal of the Corporate Responsibility Coalition is that the government should not give any contracts, subsidies, or grants to any corporation that repeatedly violates laws, again, creating an incentive for corporations to comply with all laws, including criminal laws, as part of an overall enforcement system that creates more incentives for corporations to act responsibly than there are incentives for them to act irresponsibly. President Clinton proposed this, but it was not implemented before he left office. Not surprisingly, the Bush administration has not pursued implementing such a system.

As well, we believe citizen watchdog groups need to be created for various corporate sectors, and we have a very easy system for creating these, which is simply that the government require various industry sectors to enclose a one-page flyer with mailings to their customers. For example, banks mail out bank statements and credit card bills to 20 million Canadians each month. If there were a one-page pamphlet periodically in that same mailing, 20 million Canadians would receive the pamphlet. If the pamphlet invited Canadian financial consumers to join a group that acts as a watchdog over the banks, you would likely have a very large group created that would be self-sustaining, consumer-funded, consumer-directed, and able to hold the banks accountable. Again, it would help very much with the enforcement of the Bank Act and the Criminal Code with regard to banks.

So we place this change to the criminal liability standard within the context of a range of measures that we think all need to be implemented in order to, again, create more incentives for corporations to act responsibly than there are incentives for them to act irresponsibly. Right now we believe there are many more incentives for corporations to act irresponsibly. Even though there are several laws, environmental, labour, human rights, when you look seriously and realistically at the chances of getting caught, multiplied by the penalty, it adds up simply for many corporations as being that they'll violate the law and just write it off as a cost of doing business. A $1 million penalty with a 1 in 1,000 chance of getting caught for a corporation is a $1,000 penalty, and that's not very meaningful to, for example, the banks, which each have $15 billion in annual revenues.

Á (1120)

We'll submit to you the list of the Corporate Responsibility Coalition member groups, the 10 proposals we are putting forward, and a discussion paper on the issue of corporate responsibility Democracy Watch prepared in 1994. It's also available on our website. We also believe corporations should be required to take into account stakeholder interests when they are making decisions and undertaking activities in the general and corporation laws, and I'll be submitting a paper Democracy Watch did on this issue in 1997. I would also refer the committee to the final report of the Canadian Democracy and Corporate Accountability Commission, just released at the end of January, which again addresses a wide range of proposals for ensuring that corporations act responsibly, changes to the criminal laws, but also to many other laws, and enforcement systems.

Thank you very much. I welcome your questions.

Á (1125)

The Chair: Thank you, both.

I now turn to Mr. Toews for seven minutes.

Mr. Vic Toews: Thank you very much to both of the witnesses for their presentations.

Mr. Miezenger, the idea of reviewing recommendations from enquiries I think is interesting, and it may be very helpful. The problem I see is that most of these inquiries are done under provincial legislation. There's a real question as to whether we have any jurisdiction to impose upon a province that requirement. While that's certainly something we can consider in the federal context, it may be of assistance to pursue that type of remedy with provincial authorities as well, that where a judge or a coroner makes recommendations, there be in the statute a term within which, a year perhaps, the people who have been asked to make certain changes must file a report to demonstrate compliance, and if they cannot, why not. I think that's worth considering with our federal jurisdiction, perhaps under the Labour Code or otherwise, and with provincial jurisdictions.

I also want to move on very quickly to Mr. Conacher's suggestions. Again, these are always complicated by provincial-federal relations, and we don't want to do things we can't do. It doesn't do the people of Canada any good to pass laws we know can't be effective. Some of your recommendations, of course, we'll read in detail and consider, and I want to thank you for those.

I think the whistle-blowing issue is a very important thing, to encourage individuals to come forward. Earlier this morning we heard in the Westray context that there were fears on the part of individuals, they didn't want to come forward for fear of losing their jobs. It shouldn't just simply be protection to the extent that this week he or she won't be fired, that protection must be meaningful.

I have concerns with some of the comments I heard, and hopefully, matters will be clarified, either in your comments here today or in the documentation. Let's start on the first point. Unions participate in management decisions; there is joint management of certain areas. If unions are aware of certain oversights of the law, should they be held to the same standard you're proposing corporations be held to? They, in many respects, are very similar to a corporate entity, with the same kinds of problems about the entity and the individuals under it. I'd specifically like to hear from you on that, because I think we want to ensure that our workplaces are safe. Should all of those involved have that level of responsibility you're seeking to impose as corporate responsibility?

Mr. Duff Conacher: We're endorsing the corporate culture approach. So if they are involved in the management structure, and if you're looking at a corporate culture approach, you're talking about internal training systems, insurance that everyone is trained, not just that booklets are produced and sent to people, who then put them on a shelf and never have to read them. To the extent that anyone within the corporation is involved in this whole compliance and prevention system and they fail to uphold their duty to make that system workable and effective, then yes, anyone involved in that would be part and parcel of the overall liability when an event occurs that breaks the Criminal Code or any other law.

Á (1130)

Mr. Vic Toews: So some of the recommendations on corporate liability you made may well be applicable to unions in regard to the standards of mental intent required?

Mr. Duff Conacher: Yes. When you're taking that corporate culture approach, you're looking at anyone within the corporate culture who has the role of prevention of violations of law, and if they're playing a role that encourages or condones, they will be held liable.

When you're talking about the provincial-federal split, we think the best place for a lot of these measures is in the Canada Business Corporations Act. It's the citizenship act for corporations that operate at the federal level. So rather than having it piecemeal, a little bit in the Labour Code, a little bit here, a little bit there, if you incorporate, all of these measures apply to you in respect of reporting, disclosure, the whistle-blower protection. Then you'll cover 155,000 federal corporations.

Mr. Vic Toews: I see, but we'd have to mirror that in the provincial sphere as well.

Mr. Duff Conacher: Yes, and you may see a split. The history has been that if the federal act or the Ontario act is changed, the other provinces tend to follow suit, so there is some harmonization and a level playing field across the country.

Mr. Vic Toews: Thank you.

Mr. Miezenger, I just wanted to hear your comments on the idea Mr. Conacher put forward about unions being responsible in the same way corporations would be responsible where there are management responsibilities.

Mr. David Miezenger: Joint health and safety is just that, but I have to say, many joint committees are dysfunctional. They're there, but in some workplaces they're ineffective. How can you hold the union to account? The employer has the control. Unless there's enforcement from the ministries of labour, how can you hold the members of that committee to the same standard as the employer?

Mr. Vic Toews: Thank you.

The Chair: Thank you very much.

Monsieur Lanctôt.

[Translation]

Mr. Robert Lanctôt: That is the question that I find extremely interesting. I would like to thank Mr. Toews for asking it because I was going to ask the same thing myself. It is obvious that we must look at the criminal responsibility of corporate entities, but we must not forget that unions are also corporate entities. I am a little surprised to hear you say that it should be applied to one but not to the other. I think we should have laws that will apply to all corporate entities and take care in the drafting and implementation of those laws.

I come back to what was said. This is the difficulty. Quebec has occupational health and safety legislation, as do other provinces as well. There are also a number of laws relating to mining. This also clearly affects labour legislation, among other things. The Canadian Labour Code might also come into play. There are many laws that cover multiple jurisdictions.

I don't think it is that clear cut, contrary to Mr. Miezenger's answer. Some say that this must absolutely be included in the organizational structure. If a union is involved... I think it is dangerous to assume that things will be so straightforward and to include provisions that will undoubtedly have an effect on your unions.

I would like to hear what you have to say about that, Mr. Miezenger.

[English]

Mr. David Miezenger: When there is management and union equity and the committee is working properly to fix problems, certainly, they should be the same. But very few committees function properly. We have to give the members education, and that's another part of the picture. Obviously, we have to give them the powers and the education to exercise the rights they have under the legislation. The employer still has the balance of the power, unless there is the enforcement from the various ministries. The worker members of a committee work to try to solve a problem collectively, but when the problem is above them or they cannot collectively solve a problem, they have to bring in a ministry of labour. So they aren't equal, from a power standpoint, on a committee.

Á (1135)

[Translation]

Mr. Robert Lanctôt: That is obvious. I hope that the inspectors and, indirectly, the governments agree with you. Say, for example, that management does not respect the union and refuses to set up a joint management-union committee. The union is aware of ongoing situations that are not acceptable. You allow your members to continue instead of striking or putting pressure on the governments or management. That is what I mean.

That type of relationship will always exist. Let's say that I happen to work there. As a union member I ask my union to do something. Everyone feels the same way and the union does act, but management does not pay attention to the demands. What happens then?

If I am injured, I might react by saying that in view of the amendments that were made respecting corporate entities, the union is just as responsible as management. We have to have these provisions so that you will be aware that, if you decide to go that way, the judge might not see things in the same light.

[English]

Mr. David Miezenger: Maybe I've not expressed myself well on that issue. I know the unions have to represent their members to the best of their ability. I know the members have recourse under the various legislations, so if the union does fail, they have that right to apply to the labour board and say they weren't represented properly.

The Chair: Mr. Conacher.

Mr. Duff Conacher: If I could speak to this issue as well, that's why I'm proposing today a more comprehensive system. Yes, you have a right to blow the whistle, but you're not protected at all from retaliation. Well, you're protected in law. If you can go through the court for years and years on your own money, maybe you'll get compensated in the end. But that's not much of an incentive to blow the whistle: you've stood up for what's right, but you're on your own, you'll suffer for several years, and may never be able to be employed again within the industry sector, because no one will trust you. A comprehensive system will ensure the effectiveness of a prevention system within a corporation.

Second, if you require the corporate directors and executives by law, under the Canada Business Corporations Act and the other special corporations acts, like the Bank Act, to take into account all stakeholder interests when they're making decisions, you're putting a positive duty on them to have effective committees on health and safety and other aspects of the operations of the corporation.

So you need to have this comprehensive system, otherwise, again, the overall incentives will be to act irresponsibly or close your eyes to irresponsible behaviour. Changing the corporate criminal liability standard will only be one step towards the overall system that's needed to encourage corporations to act responsibly.

Á (1140)

The Chair: Thank you.

Ms. Desjarlais.

Mrs. Bev Desjarlais: Thank you.

As someone who worked in a unionized workplace--and thankfully, it wasn't an industrialized workplace such as, I think, often goes through a whole lot more tragic incidents--if it's a matter of backing union representatives who are going to stand up and put their job and their lives on the line to ensure that there's a safe workplace and that nobody gets injured, I'll put my backing behind any union and any workplace group that's willing to stand up to do what's safe and what's right. I'm not afraid to do that at the risk that one of them might, somewhere down the road, not do the job. I'd take my chances behind them before I would with any industry that would fight accountability, because they're afraid they might be affected. I'll put my backing behind any union. It was a union that went in after the situation in Westray, and not because they were paid by those men at Westray. They were non-unionized, and a union went after that and represented those workers because of the unsafe conditions. So I'll put my backing behind them any day.

I also recognize, of course, having been in the workplace and been part of health and safety committees in Manitoba, and I believe it's the same for each and every province, because I don't think there have been major changes--there might have been some in B.C. at one point--that workplace health and safety committees make recommendations. The mandate is on management to ensure that they put in place those recommendations and they're followed through. Because ultimately, they control the workplace. Unions don't hire, unions don't fire. That's done by management. You work in conjunction.

There's no question that having preventive safety measures is the best way. If you can find any corporation in this country, any company, that gives the union the right and the mandate to do those things, I'll put my backing behind those things being done; they'll follow through. No union is going to stand up and argue that someone should be doing unsafe things and risking people's lives. It just wouldn't happen. So from that standpoint, I'm not worried about it, not in the least.

I would agree that there's nothing wrong with having a more comprehensive package that looks at the overall corporate responsibility. I'll highlight the fact that in Australia and the U.K. they were looking at corporate responsibility and manslaughter charges, as a result of deaths to numerous people. With the situation of the ValuJet flight that crashed in Florida, following a three-year investigation into the crash, officials in the United States decided to proceed initially with the prosecution of 24 federal charges against ValuJet's maintenance company; they were looking at corporate manslaughter charges and others, because of the numbers that were killed. Also, they were looking at possibly charging the workers. I made a point of following this case, because I was interested to see how it would follow through. I believe it was last year when the workers were vindicated as to the things that resulted in those deaths, because they weren't in control, they weren't in charge. They were told, you do this, and for the cost of a three cent cap that should have gone on a canister, 110 passengers died, the cost of a three cent cap the company didn't want to follow through with.

I have a question to both of you. I've been tallying up over the last years the number of deaths in workplaces and ones where there were actually charges laid, and there was an instance here in Ontario where I think the fine was $125,000 because of a workplace death. That's a high fine, I think, for workplaces. It's not as high as I'd like it to be, but compared to what was happening before, which was nothing, it was a high fine. Are you aware that companies that get these fines, because they might have resulted in the death of someone, can have them as an income tax deduction?

Á (1145)

Mr. David Miezenger: Yes, I am aware of that. It's from the previous meeting on that issue.

Mrs. Bev Desjarlais: I wonder, when you look at a comprehensive package and a culture that's out there, isn't that something that, right off the top, should be just done away with? There is no way a corporation should be able to deduct a fine if it has been the result of an unsafe practice, a death, or something they're responsible for.

Mr. David Miezenger: I believe Inco in Sudbury was fined $750,000 for three workplace deaths. That was a couple of years back. In Ontario there are prosecutions. They are available on the Ministry of Labour website.

The Chair: Mr. Conacher, did you want to answer this as well?

Mr. Duff Conacher: Rarely, if ever, could any enforcement agency prove that there is a 100% chance of getting caught. Then you look at the chance of getting caught multiplied by the likely penalty. You can't use the maximum, because the maximum is rarely levied. I would ask you to call people like Michael Trebilcock, one of the most conversative law and economic law professors in Canada, who will say the same thing. Corporations are driven by the bottom line. If the chance of getting caught, multiplied by the penalty, will not affect their bottom line, they will violate the law and just write it off, as they can, as a cost of doing business. It's not much of a cost.

You have to change this incentive system. When you look at individuals, the chance of getting caught violating various laws, and the penalties, it adds up, in a lot of cases, to an incentive. There's always this great debate, with the Young Offenders Act and other changes that have been made to the Criminal Code over the past eight years, concerning whether we are creating incentives for individuals to act responsibly. What I'm wondering is, when is this government going to turn its attention to what incentives and disincentives exist, and overall, whether there are enough incentives for corporations to act responsibly? You really have to take into account the chance of getting caught multiplied by the likely penalty, otherwise, you're just not dealing with reality. As corporations have shown again and again, it's the bottom line that's driving them. The penalty has to affect the bottom line, or the measure will be ineffective.

The Chair: Peter MacKay, seven minutes.

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

To pick up on the last point, Mr. Conacher, you're perfectly right to suggest that this idea of incentives and disincentives has to be strengthened. The disincentive part I think we all fully understand, penalties and the possibility of jail time in convictions. The incentives part I'm a little less clear on, what could be injected into federal or provincial statutes. I also would like both of your opinions on the necessity of a national standard here. The Criminal Code, obviously, applies in all provinces, and we're not in a position to change provincial statutes, although we are certainly in a position to make certain recommendations that the provinces might follow.

What sort of incentives are you referring to, Mr. Conacher, and what do you say to this issue of national standards? Coming from Nova Scotia, I understand some of the dynamics of the economic pressures that are at work, particularly in communities like Plymouth in Pictou county, where the Westray miners were willing to overlook some of the very apparent dangers and workplace flaws that existed. Evidence came out that miners themselves, on occasion tampered with equipment so they could finish their shift, so they would get paid. They didn't report workplace hazards, for fear of losing their jobs. That pressure is external as well, if there's no other major industry in the community and they feel they're either going to be fired or, if the safety inspectors come in and shut the whole place down, that's going to result in a lot of people losing their jobs. It's back to what you said about the culture. How do we encourage a positive culture for companies to look at these broader issues and ultimately make the right decisions? The loss of 26 men was not worth cutting corners at that coalmine. I would ask for your response to that.

Á (1150)

Mr. Duff Conacher: The loss of 26 men was not worth cutting corners in some people's minds, in other people's minds it was, with respect to how they view the world and a cost-benefit analysis, and that's the problem. They are allowed to view the world that way and set up a corporation and run it that way in the cost-benefit culture of the corporation.

We do have a difficulty. It's a transition from a system that allows corporations to act irresponsibly and profit to a system where they may go out of business if they continue to act in that way. We have global economic pressures, and it's something the Canadian Democracy and Corporate Accountability Commission has addressed. They did a poll of over 2000 Canadians, and 84% said Canada should set corporate accountability standards itself, even if other countries don't. So Canadians are world leaders in this. It's whether the governments will respond to this sentiment.

Are Canadians taking into account the fact that they may lose their jobs if Canada alone, not working with other countries, pursues a high standard of corporate responsibility incentives? They may not be taking all that into account. So we do very much have to take steps that consider all these stakeholders, and we may not be able to do some things right away in cleaning up polluting industries, because other companies will just export to us, and they're producing stuff in polluting ways; our businesses go out of business, but Canadians still buy all the products and services produced by a company just doing the same thing a Canadian company was doing before.

It's a difficult problem, but governments are very large purchasers of products and services and can very much drive the economy. According to this poll commissioned by the Canadian Democracy and Corporate Accountability Commission, 75% of the public and 78% of shareholders agree that governments should not buy goods and services from businesses that have a bad record of social responsibility. There really aren't, despite their claims, I do not believe, very many private corporations in Canada. A lot of them rely on some government or another paying them quite a bit for a product or a service, and it's a large part of their market. We shouldn't ignore the power the government has to change its procurement policies and its practices as a way of driving the economy and driving corporations to act more responsibly. It has been ignored by governments generally across the country today, and it should be a lever to create a very powerful incentive to act responsibly.

Mr. Peter MacKay: Is that what you're suggesting we should have as a criterion for government to do business with a corporation?

Mr. Duff Conacher: Yes, for a contract grant or subsidy.

Mr. Peter MacKay: That is, that they produce or have some ability to show that they have a safe workplace and have taken the necessary steps to protect their workers.

Mr. Duff Conacher: Yes, respect for the environment and other stakeholders, that they treat their suppliers well and don't have the highest complaint record in the industry from customers. There's a wide range of criteria and benchmarks you can use as part of the contracting process. It would create a very large incentive.

Mr. Peter MacKay: I think it's a terrific suggestion. Sadly, how we arrive at the criteria is difficult. I'll give you an example. The Westray mine received a workplace safety award. It had been announced, but they had not actually been in receipt of the award. They had received a workplace safety award just prior to this mine blowing up. As with everything, it just depends on how you set the criteria and who is actually arriving at these decisions.

Á (1155)

Mr. Duff Conacher: Yes. That's where whistle-blower protection comes into effect. If it's a full whistle-blower protection system, if such an award is a sham, employees can blow the whistle and say, you've judged this company, but you don't know the reality inside; here is the reality, and I'm coming forward because I know not only will I not lose my job, but if the company sues me for libel, I'll be protected, if it's true what I've said; I'll be protected from retaliation within the workplace, and there's a formal office that's staffed that I can call at any time and say, I've just been reassigned and I'm doing nothing, and I feel that's retaliation. That office has the power to step in and say to management, this person gets their job back and they continue to work in the workplace.

The Chair: Thank you very much, Mr. Conacher, Mr. McKay.

John McKay, seven minutes.

Mr. John McKay: Thank you, Mr. Chair, and thank you to you both for your presentation this morning.

Your essential thesis is that the Australian culture model is one we should explore and adopt, moving away from, if you will, our mens rea thesis, which is somewhat more precise: you have to be able, as a crown counsel, to demonstrate some intention, some recklessness, or some knowledge of what people were doing. If you move to the Australian idea, presumably, the directors could set out this directive, which may or may not be followed. Then it would be down to management to possibly also send out directives, which may or may not be followed. Then that would go to junior management, and may or may not be followed, and down to the employees, and may or may not be followed. Those are quite a number of degrees of separation between directives and actual action. This leads to a certain level of imprecision and vagueness, which generally heretofore our criminal law has not contemplated.

I wonder whether adopting that model might also result in some pretty bizarre exercises in corporate liability, where someone way down the feeding chain was doing something of which the people up the feeding chain had no real active knowledge. When you expand it to a cultural model, I wonder whether you also start to expand it beyond the corporate cultural model and get to some logical absurdities, such as Mr. MacKay pointed out, with Westray being about to receive a mine safety award of some kind or another. This brings in the whole political culture of that area. I wonder whether the attractiveness of the Australian cultural model of criminal liability doesn't, in fact, open up criminal liability to a level of vagueness and imprecision that would lead to its own level of abuses.

Mr. Duff Conacher: A directive that's handed down and may or may not be followed, I would say, is not an effective system within a corporate culture. Someone may be fully trained and have to sign a certification that they understand what they're expected to do. We're not just talking about directives being handed down, put on a shelf, and never read; the plastic encased binder arrives and the seal's not even cracked, it's just put on a shelf. The corporations would have to put more effort into that. With that being the standard, I don't see the danger, because from head office they've said everyone has to be fully trained to this level of understanding.

You may respond that it's going to cost money. Those costs are very easy to measure. The benefits are not so easy to measure: how do you measure the benefits of preventing accidents? You don't know what the costs of the accidents would have been, because they haven't occurred. But this is the whole skewed nature of cost-benefit analysis when it comes to corporate responsibility.

Â (1200)

Mr. John McKay: If you're adopting the cultural model, aren't you also adopting the notion that there may well be sabotage on all those little links down? It gets halfway down the system, and somebody in middle management says, this is crazy nonsense the directors want us to do, and they just shelve the stuff. Yet if you adopt this cultural idea, and that stuff is sitting on the top of somebody's shelf and doesn't keep on going down the chain, shall we say, you've left a level of liability on people who may well have had the best of intentions.

Mr. Duff Conacher: Not if the very first training session makes everyone aware that if they sabotage the system, they will be personally liable. The corporation should show that it had first educated everyone down the chain as to how things were going to work now: if you don't implement these directives in these ways, you are going to be held personally liable if something happens, because this is our new system. If the corporation could show they trained everybody to recognize that they have liability if they sabotage this system of directives coming from headquarters down to the front-line employees, the corporation would have a defence.

Mr. John McKay: You're introducing the defence, if you will, of due diligence.

Mr. Duff Conacher: That's right, and there's also the whistle-blower protection. The employees see the binders arrive, and the manager says, it's just head office sending out more stuff. But the employees have been trained to know they have to listen to this: this manager is not training us, so we have full protection if we blow the whistle on the fact that this manager is not upholding this legal duty. When I say blow the whistle, it's not just about breaking statutes, but this could be put into the actual Criminal Code system, as it has been somewhat in Australia, these kind of details as to the defence a corporation could show. So you really are saying, you have to operate this way as a corporation.

Mr. John McKay: Would you extend the liability chain down to subsidiaries and independent corporations, things of that nature?

Mr. Duff Conacher: It's not something we have fully explored. We're dealing with a difficulty, in that we created, with corporations and the rights we've given them, Frankensteins. They're human-created, and they've had these unintended powers. We put pieces together, and then corporations have taken some of their own arms and added them, so we have these strange beasts of holding companies etc. It's been a mistake, I think, because it's just created more and more shields and layers that protect people from liability. If they were acting as individuals doing a lot of things the corporations do, they would be liable, but they can set up a corporate structure that shields them from this liability. It's a very dangerous thing to create, especially when you then give those Frankensteins the rights humans have under the charter and the economic power they have.

But it's something I will take back to the coalition and explore further with them, so as to provide an answer later on how we would extend this through the various corporate structures that are now allowed.

The Chair: Thank you very much.

Mr. Toews, three minutes.

Mr. Vic Toews: I think that's a very interesting discussion on the creation of Frankensteins, for want of a better word. I don't know whether it was a mistake, but certainly, there have been other consequences we need to address. I think what we need to focus on is the intent. Whether it's a subsidiary or not, what level of intent is sufficient to attract criminal liability on the part of the directors of the corporation?

One of the other concerns I want to move on to, though, is something that really bothers me, the issue of these workplace safety and health committees not functioning. I was involved in drafting many of these regulations in Manitoba for our Workplace Safety and Health Act. I know the level of responsibility on workplace safety and health committees. Even in non-unionized workforces there are these committees. Workers and employers are involved, they participate in these decisions. Why isn't this system working? From what I hear you saying, the system we should be creating for getting knowledge about safety matters down to every level of the corporation relates to exactly the reason workplace safety and health committees were invented. What I'm concerned about is that we reinvent a wheel, put another layer of bureaucracy in. Why not fix the workplace safety and health committees and put the appropriate safeguards and strengths there to address that problem? Maybe we could briefly talk about that.

Â (1205)

The Chair: Mr. Conacher.

Mr. Duff Conacher: You are again getting into the difficulty of jurisdictional issues, but it is something we believe has to be tackled comprehensively by federal and provincial governments. There's no need to reinvent the wheel. If you're talking about a Criminal Code measure that's going to apply across the country, you're going to need some sort of general provision on all the internal systems, not just for health and safety.

Mr. Vic Toews: Let's leave the Criminal Code issue alone. I think that's a significant issue, and it's not that we're not concerned about it, but sometimes there are more effective ways of addressing safety than through the very clumsy mechanism of criminal prosecutions. That's what I'm concerned about. I specifically heard Mr. Miezenger say these committees aren't working. Why aren't they working? I want to know that.

Mr. Duff Conacher: I can't answer that question, because I'm not in those workplaces, so I would defer to Mr. Miezenger and other representatives of workers. Hopefully, you would question management as well about their experience.

Mr. David Miezenger: In most large industrial unionized workplaces there are functioning committees. Employers have an incentive, because fewer accidents mean lower premiums, under the WSIB. The larger workplaces have full-time health and safety activists, people who work strictly on health and safety, and every worker in the workplace is trained. At Stelco in Hamilton from the first day they get the 40-hour basic steel health and safety training. They have been unionized for 50 years, so they've got the people trained. In the smaller non-unionized workplace somebody volunteers for the committee, and he's gone a year later, so now you've got to train someone else. He or she develops a bit of knowledge, but they're still running him against that brick wall when he goes to the committee, if they're not using the act and regulations to their advantage. Again, they have to have the education. If you try to tell your employer, I want a week's training, he's going to say, a week--I'll give you two days. That's the reality in most non-union workplaces. In a unionized workplace the workers have the resource, the union will train them.

In Ontario workplaces you must have one certified worker. Certification can be four or five days of intensive classroom training, or you can watch a video and write the test. So the standards aren't there. The employer is probably going to try, if he can, to take the most cost-effective way of training his committee outside the unionized workplace, where there is that mechanism to fight the employer. I know there are some large corporations that are non-union that have effective committees as well.

So that's how I see some of the problems.

Â (1210)

The Chair: Thank you very much.

Mr. Macklin, three minutes.

Mr. Paul Harold Macklin: Mr. Conacher, I'd like to pursue an area where you advanced a possible solution, using the Canada Business Corporations Act as a means of enforcement. My experience has been that whether it's the Canada Business Corporations Act or the Ontario Business Corporations Act, corporations have tended to go to whichever act would permit them to operate in a less complicated manner. If we started adding obligations to them that were more onerous than the other jurisdiction, surely, all we would encourage is their going to provincial levels, incorporating, and using extra provincial licences or other ways and means of carrying on their business activities.

If we look at Westray, that was a situation of economic depression, if I can use that terminology, that related both to the workers and to the corporate body. In other words, they were all under the economic gun to try to perform. If the only tool was fines under the Canada Business Corporations Act, surely, that would prove to be very ineffective, because who would want to cut off their entire economic future, either the corporation or the employees, by whistle-blowing, even if we gave them that type of protection?

I would like your comments on that, please.

Mr. Duff Conacher: It's not an easy transition when you are in the situation where you have an industry, or just one business in the industry, which, if it did act responsibly, would go out of business. That specific situation is something the Coalition has not explored specifically, how the government could step in and subsidize the transition. How is the transition being subsidized now? Somewhat, I guess, through the regional economic development agencies, but generally, the costs are being externalized onto the environment or the employees, as in the case of Westray. Obviously, that is not a successful model, because that corporation did not continue to exist.

Again, that's why we have to look at a comprehensive corporate responsibility framework, where corporate criminal liability is just one element. Government procurement policy is another element. If there were products governments were buying from mining companies, for example, the companies would know they would have a better shot at getting those contracts if they acted responsibly. Other companies that are not acting responsibly will be automatically excluded.

It's not easy, of course, but raising the standards is something we hope the government will finally, after years and years, dedicate some resources to. When the Canada Business Corporations Act was being reviewed by the government, the government simply ignored these stakeholder interests and recommendations for more comprehensive changes. It made a few changes in the area of shareholder proposals and the ability of shareholders to push corporations to act responsibly, but simply rejected, and even misled the public about, the possibilities of making other changes for stakeholder rights and corporate responsibility.

Â (1215)

The Chair: Mr. Macklin, I'm going to Mr. Lanctôt, because I'm sure the other Liberal members will let you have another question.

Mr. Lanctôt.

[Translation]

Mr. Robert Lanctôt: Thank you.

You tell me that we are not reinventing the wheel or starting from scratch. But I think the suggestions that you are making come close to reinventing the wheel. We already have laws and they can be improved upon. There are provincial laws, and stricter penalties and criteria can be adopted. The legislation is already in place.

In answering the question put by Mr. Toews, you said that it was not a matter of reinventing the wheel, but I think that is what you are doing with your suggestions. If we spend more time and money enforcing existing legislation, then it can be improved, but what can we do with provincial laws?

You say that we should have national standards applied through the Criminal Code. People often want federal legislation to apply across the board. I know that there should be provisions in the Criminal Code for certain broad types of offences, but this can be harmful to the unions. You tell me that is not the case, but I am convinced that we must apply the proper legislation, like the Occupational Health and Safety Act, instead of resorting to the Criminal Code.

The standards set out in the Criminal Code are always quite broad. I also hope that the unions will be protected, but if we include that in the Criminal Code, it will be so all-encompassing that the unions might end up shooting themselves in the foot. Existing provincial legislation should prevail or be improved instead of resorting to some type of weapon. You are asking for it to be included in the Criminal Code. That is quite a weapon! I find that very dangerous, but I repeat that I also would like the unions to be protected.

I am not saying that the unions should be held responsible. If they operate in the workplace and are on equal footing with the employers, the owners or the directors, then it will apply, as you yourself have said, Mr. Conacher. The unions are corporate entities. That is the opposite of what Mr. Miezenger said, but Mr. Conacher clearly stated that this was the case. I think that not only should people be protected but the structures must be afforded some protection as well. We must not adopt national standards that could then be turned against us. The problem is very complex.

[English]

Mr. Duff Conacher: It is a complex problem, and we're not just calling for federal government action. When you say reinventing the wheel, none of the incorporation acts in Canada require the corporate directors and executives to take into account all stakeholders when they are undertaking various activities. There are environmental and labour laws that somewhat bring stakeholder interest into corporate thinking and decision-making, but it's not comprehensive. There isn't a comprehensive disclosure requirement allowing people, consumers, suppliers, governments to easily know which corporations behave and obey the law and which corporations don't. We have disclosure of toxins released, and there's a national inventory database you can search for the release of toxins, but there's nothing comprehensive with labour, human rights, etc.

Only New Brunswick has a comprehensive whistle-blower protection law, where an employee can report the violation of any law, but again, they're not protected when they report that violation by any system that gives them support. And no government in Canada has conditions on its contracts and grants and subsidies that say you have to be a responsible corporation to qualify. And we don't have the citizen watchdog groups for any sector in Canada either. The federal government and provincial governments have rejected all these proposals.

So yes, it's a complex problem, but some of the proposals we're putting forward are not reinventing the wheel, they're new elements we think are crucial for solving this problem and having a comprehensive corporate responsibility system. And hopefully, finally, not just the federal government, but provincial governments will start to put in place some of these measures and raise the standard of corporate citizenship in Canada to a level most individual citizens have to meet in their day-to-day lives and responsibilities. That's the overall problem: setting up a corporation allows you to act more irresponsibly than you would be allowed to act if you did the same thing as an individual. That has to change. It can't be a shield. A corporation can't be a shield against acting responsibly.

Â (1220)

The Chair: Thank you, Mr. Conacher.

Mr. Macklin, and then back, for the last question, to Ms. Desjarlais.

Mr. Paul Harold Macklin: I want to follow up on the question I asked previously in relation to the Canada Business Corporations Act and the provinces. Do you see that as a real issue? Quite frankly, raising our standards without a collective will across this country with respect to the Business Corporations Act is simply going to change the way the corporate entities do business. They'll modify their corporate structures accordingly. I'd like to know what defence you would raise in support of your proposition that we should put a lot of these issues within the Canada Business Corporations Act.

Mr. Duff Conacher: Through the history of Canada the issue has come up that one jurisdiction can't take this step, because the others may not follow, and that has been the cause of much inaction. We haven't seen much forum shopping, as it's known, in Canada. It's much more prevalent in the U.S., because there is not federal chartering of corporations in the U.S., and so corporations do shop around and states do race to the lowest level in order to attract the corporate headquarters, Delaware being the classic example, and it could be a danger. It's something we should be tackling. Generally, if the CBCA or the Ontario Business Corporations Act has been changed, the other provinces follow suit. But overall, again, we're not talking about any of them moving, in our perspective, to a very high standard of corporate responsibility.

It is something the federal government should be undertaking with the provincial governments. As this poll has shown, Canadians have said, don't worry about other countries, move forward anyway. We're simply looking for some moving forward, instead of saying, we're in a global economy, we can't do this; the provinces may not follow suit, so we can't do this. There has to be a way to raise this corporate citizenship standard, and we hope all provincial governments would continue, as the tradition has been, to harmonize their laws to a higher standard, not start to compete with each other, because it's not in the public interest at all to have that competition in forum shopping, as has been shown in the U.S. That's simply a race to the bottom.

Mr. Paul Harold Macklin: But there was some forum shopping here as changes occurred either federally or provincially, and it was because the new corporate act actually was less regulatory, or in some way easier for them to function under; they were attracted to that. But when we're going in the opposite direction, I suspect we don't have any incentive.

Mr. Duff Conacher: It's possible, and it would then reveal even more than in the past a corporation's true motives, not moving to a high standard of acting responsibly, but looking for the lowest standard where they can continue operating. If you change the law and say they are required to take into account all interests, not just shareholders, hopefully, you would have a change in that mentality as well. They'd start looking more at the public interests, the long-term interests of society, as opposed to the short-term interests of shareholder return.

It's not an easy problem to solve. We just hope the government will tackle it, as opposed to ignoring it or hiding, for example, as Industry Canada did: it hid the results of a consultation it did in 1998 on the issue of corporations taking into account stakeholders. We requested the results of that consultation under the Access to Information Act, and received them a year later almost. It showed that several corporations were quite prepared to have the government change the law to allow corporations to take into account stakeholder interests, in fact, the majority of those that responded. It wasn't a really meaningful consultation, but it was the only effort the federal government has put into the question to date. A much more meaningful process of policy-making, aimed at raising corporate citizenship and responsibility standards, needs to be undertaken by the government. So far the federal government has had its head in the sand, frankly, and just tried to ignore the issues.

Â (1225)

The Chair: Thank you Mr. Conacher, Mr. Macklin.

Ms. Desjarlais.

Mrs. Bev Desjarlais: I'm a little disturbed that I'm actually hearing around this table that somehow, by wanting to improve a system where corporations, directors, and managers should be held accountable if they are found to have neglected the lives or the well-being of employees or others, that's moving backward. Recognizing my colleague from the Bloc's provincial jurisdictional issues and why they're there, I don't have any problem with that, but if we have federal criminal legislation, there's nothing to stop Quebec putting in place that same legislation. I think the life of a worker in Quebec that's been disregarded is as important as the life of any other person in Canada. I think Canadians in general want to see the same type of responsibility and liability put in place.

From the earliest of times we have had this economic argument that corporations and industries can't survive if they have to meet what I think many of us have seen as progressive changes, decreasing the hours of work, putting in place safety standards, putting in place employment equity standards, making sure certain safe practices were put into the workplace. Somehow these are seen as always too much of a cost for industry, yet most corporations and industries survived just fine with these rules, and they don't have to neglect the rules. The management at Westray didn't have to neglect those rules. Quite frankly, I believe they were given an unfair advantage, and as a result, killed a number of workers at the expense of other members of that same industry who were following the rules and were able to survive. You find me a mining company in Canada that's doing extremely badly right now, in spite of everything that's happened. Some may be moving from here to there, lowering exploration, and the like, but they're still making a fair chunk of money out there. For me, it's hard to accept that Curragh Resources and its owner are in another country doing the same types of things, but somehow that should be okay, because they're not in Canada now. That's hard for me to handle.

I'll give you a final comment on what's happening today, because I think we're winding down.

Mr. David Miezenger: Worker education and management education on safety and health are the key, to get everybody on the same page and say one accident is one too many. We have to increase the education and move the education up the chain: you have to meet this standard and protect the workers. That's the bottom line. That's why I'm here today. That's why I got involved in health and safety, to protect workers in my workplace. It's a tough job.

Â (1230)

The Chair: Mr. Conacher.

Mr. Duff Conacher: With criminal liability and civil liability in all these situations of acting responsibly or irresponsibly, it's very difficult for individuals, when they've done something, to say, well, it wasn't me. But when you organize into a corporation, all of a sudden it becomes very possible for everybody to say, it wasn't me, and everyone is let off the hook. That system has to change, as do the overall incentives and disincentives. We've tackled it with crime organizations to try to get at that problem of everyone being able to say, it wasn't me, why are we not tackling it with other organizations? It has been proposed in this bill that's now been referred to this committee. It is something that has to be not only studied, though, but also finally acted upon and not just ignored. A comprehensive system will only help with the enforcement, adding up all the incentives, so that we have prevention as the mode of operation, not penalization after the fact.

We hope this committee can take on some of these broader issues. I know you're focusing on corporate criminal liability, but I urge you as well to explore how this standard will actually be enforced and change things overall.

Thank you again for the opportunity.

The Chair: To the witnesses, thank you very much. It's complicated, the point's been made many times, and I think your testimony today has made it a little easier for us to understand. Thank you.

The meeting is adjourned.