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37th PARLIAMENT, 1st SESSION

Standing Committee on Justice and Human Rights

EVIDENCE

CONTENTS

Thursday, May 9, 2002

0955

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

Mrs. Bev Desjarlais, M.P. (Churchill, NDP)

1000

1005

The Chair

1010

Mrs. Bev Desjarlais

Mr. Vic Toews

Mrs. Bev Desjarlais

Mr. Vic Toews

Mrs. Bev Desjarlais

Mr. Vic Toews

Mrs. Bev Desjarlais

Mr. Vic Toews

Mrs. Bev Desjarlais

Mr. Vic Toews

Mrs. Bev Desjarlais

1015

Mr. Vic Toews

The Chair

Mr. Robert Lanctôt (Châteauguay, BQ)

Mrs. Bev Desjarlais

1020

Mr. Robert Lanctôt

Mrs. Bev Desjarlais

The Chair

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

1025

Mrs. Bev Desjarlais

Mr. Bill Blaikie

Mrs. Bev Desjarlais

Mr. Bill Blaikie

Mrs. Bev Desjarlais

The Chair

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

1030

1035

Mrs. Bev Desjarlais

The Chair

Mr. John McKay (Scarborough East, Lib.)

1040

The Chair

Mr. John McKay

The Chair

Mr. John McKay

Mrs. Bev Desjarlais

1045

Mr. John McKay

Mrs. Bev Desjarlais

The Chair

Mr. Vic Toews

The Chair

Mr. Peter MacKay

The Chair

1050

Mrs. Bev Desjarlais

Mr. Chuck Cadman

Mrs. Bev Desjarlais

Mr. Chuck Cadman

Mrs. Bev Desjarlais

Mr. Chuck Cadman

Mrs. Bev Desjarlais

Mr. Chuck Cadman

The Chair

Mr. Paul Harold Macklin (Northumberland, Lib.)

1055

Mrs. Bev Desjarlais

The Chair

Mr. Robert Lanctôt

1100

Mrs. Bev Desjarlais

The Chair

Ms. Hedy Fry (Vancouver Centre, Lib.)

The Chair

Mrs. Terrie Lemay (OC Transpo Widows)

1110

1115

The Chair

Mrs. Terrie Lemay

1120

Mrs. Barbara Davidson (OC Transpo Widows)

1125

1130

The Chair

Mr. David Bennett (National Director, Health, Safety and Environment, Canadian Labour Congress)

1135

The Vice-Chair (Mr. Chuck Cadman)

Mr. Vic Toews

1140

Mrs. Barbara Davidson

Mr. Vic Toews

Mrs. Barbara Davidson

1145

Mr. Vic Toews

Mrs. Barbara Davidson

The Vice-Chair (Mr. Chuck Cadman)

Mr. Robert Lanctôt

1150

Mrs. Barbara Davidson

1155

The Vice-Chair (Mr. Chuck Cadman)

Mr. Bill Blaikie

Mr. David Bennett

1200

Mr. Bill Blaikie

The Chair

Mr. Peter MacKay

1205

Mr. David Bennett

1210

The Chair

Ms. Hedy Fry

The Chair

Mr. Hassan Yussuff (Executive Vice-President, Canadian Labour Congress)

Ms. Hedy Fry

Mr. David Bennett

1215

Ms. Hedy Fry

Mr. David Bennett

Mr. Hassan Yussuff

The Chair

Mr. Chuck Cadman

Mr. David Bennett

Mr. Chuck Cadman

1220

Mr. David Bennett

Mr. Chuck Cadman

The Chair

Mr. John Maloney (Erie—Lincoln, Lib.)

Mr. David Bennett

1225

Mr. Hassan Yussuff

The Chair

Mr. Robert Lanctôt

1230

Mr. David Bennett

Mr. Robert Lanctôt

The Chair

Mr. Ivan Grose (Oshawa, Lib.)

The Chair

Mr. Hassan Yussuff

The Chair

CANADA

Standing Committee on Justice and Human Rights

NUMBER 087

1st SESSION

37th PARLIAMENT

EVIDENCE

Thursday, May 9, 2002

[Recorded by Electronic Apparatus]

¿ (0955)

[English]

The Chair (Mr. Andy Scott (Fredericton, Lib.)): Good morning everyone. Bienvenue à tout le monde.

I call to order the 87th meeting of the Standing Committee on Justice and Human Rights. Pursuant to the order of reference of February 19, 2002, we are seized with the subject matter of Bill C-284, an act to amend the Criminal Code (offences by corporations, directors and officers). Bev Desjarlais, the member for Churchill, was responsible for that private member's bill, and will be a witness from now until 11 o'clock.

Before turning the floor over though, I want to pass along to the committee that I had an opportunity to speak to Mr. McBrearty from the United Steelworkers of America, who was responsible for the ceremony at the eternal flame, and advised him that we had decided at late notice that we would suspend the committee and attend the service. I passed along the sentiments of the entire committee, which I'm sure members would have wanted me to do. He also wanted me to extend to you his appreciation and his hope that the committee will live up to the expectations of this place.

So on that hopeful note, Ms. Desjarlais.

Mrs. Bev Desjarlais, M.P. (Churchill, NDP): Thank you.

I'll start off by thanking this committee for its sincere efforts to make sure the subject matter of Bill C-284 was put on its agenda. I want to acknowledge the justice critics, who were very accommodating and, I believe, sincere in their discussions with me prior to the agreement with the government that I would not proceed with the bill within the House, but rather would have the subject matter referred to committee. For me it was of utmost importance that the matter be addressed as quickly as possible.

I apologize--I'm told you don't have to apologize for being emotional, but this is a very emotional subject for me, being in a mining community and having, over the years, experienced numerous accidents and deaths, some of which I believe should not have happened, some of which I believe were criminal acts, where workers should not have been injured or killed. Most recent, of course, in the last two years, were the death of a worker in Flin Flon, Manitoba. There is a member from Flin Flon here who worked in that smelter. What took place was unacceptable, cooling down a furnace with cold water, hosing it down with molten rock inside, and it exploded. Numerous workers were injured, but one was seriously burned and killed. This was traumatic for him and his family, but there are co-workers who still, to this day, cannot go to work. That, to me, was the final catalyst for not allowing this to not be dealt with.

I really am not trying to play on the emotions of the committee, because I think we all genuinely care and want to see justice served, so I'm not going to mention the numerous workplace deaths that have happened. In the ten years since the tragedy at Westray over 6,000 more Canadians have been killed on the job and millions have suffered injuries of one form or another. Many, probably most, were accidents, not crimes, but many others were preventable crimes that our current laws, as the Westray inquiry made so clear, are deficient in dealing with.

Even one that is preventable is too many, and that speaks to my first recommendation to the committee, that you not allow probable prorogation of the House this spring or summer to derail this legislation again. In June of 2000, pursuant to our colleague Peter MacKay's private member's motion, the justice committee unanimously recommended that the Minister of Justice and the Department of Justice bring forward proposed legislation in accordance with that motion and the principles underlying then Bill C-259. Bill C-259 was the earlier incarnation of my Bill C-284, which has the subject matter your committee is now reviewing. Unfortunately, the government dissolved the last Parliament before the deadline to respond to the committee's report had passed, and there was no follow-up after that. After the election I began this whole process over from square one.

In the time that has passed because of the delay in getting this bill back to this point approximately 500 more Canadians have died on the job. I say that not to blame anyone for the preventable ones among those 500 deaths, but to impress upon the committee the importance of not letting this bill die on the Order Paper again.

My second recommendation concerns the role of this committee. Tempting though it may be to try to get down to the nitty-gritty details of what the future bill might look like, I realize the committee's job is not to write the legislation. This is a review of the subject matter of Bill C-284, not a clause-by-clause review. This can best be done if your committee focuses its study and its work on the principles underlying the bill. Thus, I ask that your committee work to establish those principles upon which a new corporate manslaughter law should be based and recommend in its report that the government bring forward legislation in accordance with the principles you define. The legal drafters in the Department of Justice can come up with the language, which you can review if and when the proposed government legislation comes back to the committee. The committee can focus now on providing guidance in the form of a set of principles that a future government bill should adhere to.

Finally, I would like to propose to the committee a set of three principles that I believe a fair and effective corporate manslaughter law should include, and urge you to make these principles the foundation of your report. The legislation should be true to the intent and spirit of the Richard inquiry in the Westray disaster. I understand that copies of Mr. Justice Richard's report are being made available to the committee. Although the report is several volumes long, I urge all members of the committee to at least read the executive summary of the recommendations. Mr. Justice Richard documented in great detail the litany of dangerous practices and gross negligence on the part of the mine's management that led to the deaths of those 26 miners. I think it's important that we not lose sight of what exactly went on at Westray, which Mr. Justice Richard captured in such detail in his report.

I have already heard some members of this committee express concern that a corporate manslaughter law would somehow hold directors and managers responsible for deaths or injuries they had nothing to do with. The reason we need this law--and hopefully, the committee will reflect this in its report--is to address cases like Westray, where there were repeated warnings that the mine was unsafe. The warnings came from the union and from individual employees. Management heard these warnings and wilfully ignored them. Even worse, they tried to cover up the unsafe practices rather than stop them. They clearly knew they were putting their employees' lives in danger, but decided to put cost cutting ahead of safety. By all standards of national justice, they were guilty of a crime, but they got off free because of the inadequacy in our Criminal Code that Justice Richard identified in recommendation 73 of his report.

So we're not talking about holding directors personally criminally responsible for accidents, mistakes, or bad decisions by their underlings, nor are we disregarding the inherent dangers of some jobs, as working in a mine carries some inherent risk with it, but there are minimum safety standards mines and all workplaces ought to comply with. If managers or directors are warned about unsafe practices and turn a blind eye, if they cover up, if they encourage or pressure their employees to work in such conditions, there should be a crime under our Criminal Code. That's what the Richard report speaks to.

Before moving on, I'd like to address another specific concern I've heard coming from some members of the Bloc. Some Bloc MPs are quite legitimately worried about federal government interference in provincial jurisdiction. Clearly, the vast majority of Justice Richard's recommendations have more to do with provincial matters, such as Nova Scotia's Health and Safety Code, than federal matters. But the one key specific recommendation that clearly refers to federal jurisdiction is with the Criminal Code, which recommendation 73 and my proposed bill specifically address. The intent is not to interfere with provincial controls of labour laws and health and safety, it is only to criminalize a specific form of gross disregard for human life that quite clearly belongs in the Criminal Code.

The second principle I would like to propose to the committee is part of the foundation of a fair and effective corporate manslaughter law in respect of due diligence. This again speaks to the concern some members have raised about holding directors and managers criminally responsible in circumstances where perhaps it may not be justified. Due diligence is a concept found in other aspects of Canadian law related to directors' liability. Under existing Canadian law corporate directors can be held personally liable if the corporation fails to pay its taxes. That's an important point to consider. If we see fit to hold a director liable for a corporation's unpaid taxes, why would we not see fit to hold a director liable if their corporation kills someone? However, it's not easy to pin corporate tax evasion on a director. The due diligence reference ensures that if a director exercises a reasonable degree of care, diligence, and skill to make sure the corporation meets its obligations, he's off the hook. Thus, a director couldn't be held liable for an honest mistake or if an underling deliberately withheld some information from him. As long as he does his job with good faith and diligence, he's not liable.

The same principle should hold true for corporate manslaughter and should completely allay the concerns there have been about the proposal. No one wants to go after corporate directors who couldn't have done anything to prevent a given death or injury. The purpose of this proposal is to prevent cases like Westray, not to target innocent people, and the committee should be clear about that in its recommendations.

À (1000)

The third principle I propose is that the punishment should fit the crime. Corporate manslaughter is somewhat like drinking and driving. Someone who drinks and drives may not intend to go out and kill someone, but the very act of drinking and driving shows such serious disregard for human life that we have rightly criminalized it and imposed severe penalties for drunk drivers who kill. Likewise, sending your employees into conditions you know to be unduly dangerous doesn't mean you intend to kill them, but it does constitute such gross disregard for human life that it deserves to be criminalized and severely punished.

I've read the legislative discussion paper that I believe committee members were given, and it comments on a number of different instances and certainly about laws being geared towards specific instances, rather than taking an overall approach. It talks about the possibility of corporate responsibility in cases of environmental damages or other deaths or accidents. I agree. We don't necessarily need a law specifically for workplaces. There are a number of cases, within Canada, within North America, and worldwide, where countries are looking at specific criminal charges for corporations in light of disregard for not just the lives of workers, but people in general. I'm not going to point to them, but I certainly have a number of those cases available if the committee wishes to have that information sent to it, so they don't necessarily have to search it out themselves.

I think people are no longer willing to accept that it's okay to incorporate and get off free when you commit a crime that results in the death of so many people, whether in the workplace, on the railway tracks, on the highway, or in an aircraft. The bottom line is, I think, that civil society is saying it's not acceptable, and they want to see those laws in place.

That concludes it. I'll answer any questions.

À (1005)

The Chair: Thank you very much.

It's not often that someone who's here as a member of the committee also is a witness before the committee, so I don't have to explain the rules. So I go to Mr. Toews for seven minutes.

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

I thank you for outlining some of the principles you would like us to consider, and also what you would like us to focus on, rather than looking at the details of any possible legislation, the technical aspects of the legislation. I think that is something to keep in mind. The other day, when we had union officials here from the Steelworkers, they had a legal official with them, and I think he was very helpful in explaining some of the technical aspects, because they did bring forward certain suggestions related specifically to the issue of associating the act of the corporation or the directors with the requisite degree of criminal intent. I think that was a very helpful discussion.

I think your position that criminal liability not attach to persons, directors, or officers who do not have the requisite degree of criminal intent is a sound principle, and it's a necessary principle if we're to attach criminal liability. I'm pleased that most members here, if not all members, recognize that there are certain minimum standards of criminal intent that we must see in the legislation.

I also share some of the concerns that the Bloc member Mr. Lanctôt raised about moving into areas of provincial jurisdiction. We've seen the federal Parliament move in areas like environmental law into the realm of provincial jurisdiction, and that causes a lot of concern. Where we have cooperative federalism, I want to make sure we respect that provincial jurisdiction, and yet properly exercise our jurisdiction as parliamentarians sitting in the federal House.

I note your comments specifically about corporate manslaughter. Manslaughter is indeed a crime that has a lesser degree of intent, general intent, rather than specific intent. It's been something the courts in Canada have shied away from with the equivalent in the area of motor vehicles. For example, we don't hear much of motor manslaughter here, as they do in the United States. I think that gives us additional areas to look at, issues of intent and the like.

So I think your comments have been very, very helpful in moving this bill forward. The comment I want to leave with you--because we're all going to be lobbied by people with varying degrees of interest in this bill, unions, individuals, corporations, and bar associations--is that one of the things we need to be sure of is that there is a sense of fair play in the bill and that it addresses both sides of the equation. It's an issue that has been raised at this committee a number of times. It basically deals with union culpability and the culpability of union officials. For example, if a union official fails to observe his or her legal obligations--and I'm talking about legal obligations that we see in places like the Workplace Safety and Health Act, and of course, you're familiar with the Manitoba act--should that disregard, where there is the appropriate degree of criminal intent, carry a similar criminal intent? That's the question I think many of us are going to be asked about in this bill.

À (1010)

Mrs. Bev Desjarlais: It's a fair enough question. I stated the other day, when I was sitting on the questioning side, that I am willing to stake that there's less chance--a very, very slim chance--of a worker's life being placed at risk because a union official is not doing their job. As you well know, unions have a duty of fair representation. Under their union incorporation, so to speak, as they are put into place, they have a duty of their own.

Mr. Vic Toews: There are certain aspects about workplace safety and health committees that are aside from fair representation. You have this great degree of faith in trade unions, and I have no reason to disbelieve that. I was a vice-president of a union myself--it was a crown attorney's union, so it may not be exactly the same thing.

Mrs. Bev Desjarlais: A very credible group.

Mr. Vic Toews: Yes. There are responsible people in the union movement, I have no doubt about that, but if you have that credibility, wouldn't it just be easier to say, if union officials fail to meet their legal obligations and have a criminal intent, they should be liable as well? That's the question.

Mrs. Bev Desjarlais: I don't suggest for one moment that someone who puts in place a type of culture that allows someone else's death to be the end result should not be held accountable. I know that as a union member, I didn't control the workplace. As much as there are people who like to get the message out that unions control the workplace, I can tell you that just is not the case. It's not in a hospital setting. It's not in an industrial setting. You have rules, but you don't call the shots.

Mr. Vic Toews: Let's assume there is a situation where you do have that responsibility, in the context of a co-management agreement or something.

Mrs. Bev Desjarlais: Wait a minute. You're talking about a different situation. If you have a co-management agreement, you're taking on a sort of managerial position. It's quite a different situation from a union representing the workers under specifics within a collective bargaining agreement.

Mr. Vic Toews: Okay. So you wouldn't see a bar in this legislation to that.

Mrs. Bev Desjarlais: Absolutely not.

Mr. Vic Toews: Where union officials do take over certain management functions, like an officer making recommendations to a board of directors, which happens.

Mrs. Bev Desjarlais: Yes. I wouldn't see it as the same situation. If we end up in a situation with those types of things coming before a court, I think we can deal with it. I think what Canadians want to see, what I want to see, what the families of the Westray workers who were killed want to see is legislation put in place where at least you can bring somebody to court, and then let's work out the fine details. At least you've got some kind of offence you can deal with. Right now we don't even have that, you can't even bring them to trial.

À (1015)

Mr. Vic Toews: I'm not disagreeing with that. I support the principles of this bill, there's no question about it. The issue here is whether it is broad enough to take into account all those people who should be accountable at a workplace. That's simply the thrust of my comments.

The Chair: I've always wondered why crown prosecutors had such a good workplace. Now I know.

Mr. Lanctôt.

[Translation]

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

First of all, I always go back to my concerns about provincial jurisdiction, of course, but we are talking here about principles. Consequently, I want this to be raised and taken into account in the drafting of the bill.

I too come back to the discussion you had with my colleague. Yesterday, I asked some questions of the Steelworkers. They came to my office, and we had a discussion. They see the following problem. I understand very well that if they are part of the board of directors, there is no problem. Unions will be just as responsible as any director, if the principle underlying the bill is maintained. However, I did mention the following example.

Let us assume there is a company in financial difficulty, where there is a union. The company does not necessarily have the money required to bring in the experts and improve the situation. The union then relies on what the workers are demanding by way of corrective action. The union makes suggestions and recommendations, as required under provincial legislation or Quebec legislation, and the directors of the company accept the union's recommendations. Let us assume that because of that, a problem occurs, because the principle of the bill is not to protect the unions, but to protect the workers.

Yesterday, and at the meeting I had with them, I think these individuals understood, since they are union representatives, that we should perhaps be broadening the scope of the bill, not because we should be including them and saying that the unions are not doing their job, but rather, because there is enough evidence to show that workplaces with unions have fewer problems of this type, because, as you say, you will always support their recommendations, which are usually good.

However, let us look at the example differently. Let us say a recommendation is made, perhaps because of a financial or economic weakness caused as much by the union as by the company, and a disaster happens. In such a case, why would the workers not be protected, and why would we not allow them to take legal action against both the directors and the union? I think that workers would be even better protected if the criminal mistake had been made by the union. This is not about penalizing you in the end, but rather about providing even better protection for workers.

[English]

Mrs. Bev Desjarlais: If a mistake happens within a corporation and it results in a death, no one is asking for them to be charged under criminal liability. What we're talking about is gross negligence, where you knowingly commit unsafe acts time and time again and jeopardize the lives of those workers. Mistakes happen, accidents happen, I think we all accept that. Westray was not an accident. Justice Richard was very clear: a predictable path to disaster is what he called it.

I know it's a huge volume. It took everything out of me emotionally to read it. It took everything out of me emotionally to watch the Westray play. It took everything out of me emotionally to read Shaun Comish's book. It's just not acceptable that anyone should have such disregard for human life and not be held accountable. It's not a mistake if any individual knowingly sends someone into an unsafe workplace. If they knowingly send them in there, they knowingly take part in unsafe acts, they should be held accountable. If you can give me some instances in Canada where unions or other workers did that, show them to me. I can find you numerous cases where corporate directors and managers are now being held accountable, where they're now being taken to task.

Westray was a huge disaster. There is the situation of the operation in B.C., where workers were put in a place where they were getting thallium exposure. It initially came out that they thought human error was to blame. What came out a few weeks ago was that they knew the levels were higher and continually exposed workers to this. I think we saw those things happening years ago in aluminum plants. There were asbestos exposures years ago, but we know better now, and we put in place safe measures, we don't send people in to their death. That's what's not acceptable.

À (1020)

[Translation]

Mr. Robert Lanctôt: That is exactly how I see it as well, but we need to take advantage of this opportunity. You have brought forward this bill, you are talking about principles, and if those principles could be broadened to provide even more protection... That is all I am saying. I am not saying that we should use provincial legislation to say that there should always be criminal charges when mistakes are made; that would be even worse. That would be similar to the situation I fear to some extent, and perhaps to a considerable extent. We must take advantage of this opportunity. We are here to talk about the issue, we are here to create something new; we are here for the movement; we are here to protect workers against this type of criminal negligence.

I appreciated your comments when you said that if the criminal mistake, if the criminal negligence arises out of... Even though I am told to give an example, that is not the most important thing at the moment. The most important thing is to lay down the principle and to acknowledge that such things could happen. Why not add this immediately, since we are talking about the bill at this time?

[English]

Mrs. Bev Desjarlais: If it's necessary to look at something like that and incorporate it into legislation, by all means. If it's dealing with a situation where an individual is jeopardizing someone's life because they know it's an unsafe condition and they're promoting it, by all means incorporate it. I'm not concerned that we have to worry about every union official or every director. Quite frankly, as I indicated the other day, I don't believe this legislation will ever deal with probably 99% of the corporations and industries in our country. What it will deal with is the 1% or 2% that do carry on this kind of action. They're the ones we want to deal with.

The Chair: Thank you very much, Monsieur Lanctôt,

Mr. Blaikie for seven minutes.

Mr. Bill Blaikie (Winnipeg--Transcona, NDP): Mr. Chairman, I don't have a lot of questions for the member from Churchill, but I do urge the committee not to forget what we have been charged with, the subject matter of the private member's bill, a bill intended to address the situation that was reported on with recommendations by Justice Richard following the Westray mine disaster. I don't recall there being any dimension of this that had to do with the culpability of workers or unions or any esoteric points that can somehow turn this into a discussion about how people who don't have any power over the workplace, who don't own it, who don't manage it and don't run it can somehow be made the object of this committee's work. There seems to me to be something at this point spurious and vaguely malicious about this line of enquiry. It certainly is open to the charge that somehow we're trying to get the committee unfocused or off track.

We have before us on this day, the 10th anniversary of the Westray mine disaster, a very real problem that was enquired into, was reported on, and had to do with the nature of corporate responsibility, not union responsibility, not individual worker responsibility, not even individual corporate responsibility, but corporate responsibility. Somehow the law can be improved in that regard. I just wish the committee could stay focused on that. I was reminded of the blaming the victim syndrome we see in respect of other criminal acts and investigations and reflections that accompany those acts. As I say, I use this more as an opportunity to express my regret at the persistent line of questioning coming from certain members of the committee than to address any specific questions to the member from Churchill.

À (1025)

Mrs. Bev Desjarlais: If I could take a moment to respond, I have given my thoughts on what I feel would be the case in those situations and also referred to some things being incorporated that were outside the realm of the subject matter of Bill C-284, mostly based on the fact that they appeared in the discussion paper that was presented to the committee. I thought it was important to make note of it, because I know everybody read that discussion paper and would have noticed that in there. But there's no question that I'm here as a result of Westray, knowing that numerous deaths have happened since, some people I knew personally, others within my riding, others just people you hear about. It's just not acceptable.

There was a fellow--I don't know if he appeared before you with the steelworkers--whose son was electrocuted. A second year university student, he takes on a summer job, goes to work for a contractor or someone, is told to go and work on this electrical outlet, is electrocuted, is now without three of his limbs, severely burned, will probably never have a peaceful moment in his life.

A young fellow in my riding was told to go into an area where there were chemicals and water mixing, and he is blind because he was not told anything about those chemicals and what would happen. He got in there, passed out, someone else went in to try to get him, another young fellow. Luckily, he didn't get as far in.

A 19-year-old went up into a venting fume hood to clean it out, his co-workers at the other end waiting for him, and fire came up and caught him. They had no indication of the consequences that were there.

We just cannot let this go on any more. It's just not acceptable, and that's what we're dealing with. Those employees did not have the authority to say, I'm not going to do this. Sadly, a good number of them don't have union representation. I think in most cases you will see less of this if there's union representation, because you don't have to worry about your job if you say, no, I'm not going in there. What many of you may not realize with the Westray situation is that there was a union organizing process going on at the time and it failed. It was after the explosion, when no dues were going to be collected by a union, that a union went in, represented those workers, and took on their cause. It's recognizing that people who don't have unions need this legislation as much as or more than those with unions.

Mr. Bill Blaikie: When did Flin Flon happen?

Mrs. Bev Desjarlais: About two or three years ago. I don't have the exact dates.

Mr. Bill Blaikie: I know it was a short time ago, but I meant the exact date.

Mrs. Bev Desjarlais: I could get it for you. It was in 2000, I think.

The Chair: Thank you.

Mr. MacKay, for seven minutes.

Mr. Peter MacKay (Pictou--Antigonish--Guysborough, PC): Thank you, Mr. Chair, and thank you, Ms. Desjarlais. I completely respect and understand the emotion you bring to this issue.You've shared some of your personal attachment to this subject matter, I'll share with you a little bit of mine.

I worked as a summer student for a construction company around that mine, which is something I've never said publicly. The thing that shocked me when the mine blew up--and I hadn't been to the depths of the mine, I'd just been down to the main face--was the condition. I'd never been in a mine in my life. I grew up in a community where there was a lot of mining, but it was state-of-the-art, and the presentation of that mine was that it was so safe and incredibly state-of-the-art. That was the initial feeling, I think, of many. Yet the mine blew up, and many of the stories started to come out, and there were rumours before it happened. It reminds all of us how important is the prevention side of things.

What we're trying to do now, obviously, is put in place a degree of accountability and a disincentive. We know there are lots of incentives for corporations and for individuals to meet performance targets, to meet certain deadlines and standards. I would suggest that what we're talking about here is a type of denunciation for taking shortcuts, for creating dangerous situations.

You described quite rightly and quite aptly the intent of this bill. The intent of any legislative initiative or change is not to capture the innocent or even the unknowing. But this is where it becomes a fine line, I would suggest. We're talking, in some instances, about omissions, wilful blindness, and callous disregard for circumstances known to be dangerous. We're not talking about a time of war, where it's clear that you're sending people into a dangerous situation, you're sending men and women into battlefields. What we are talking about in Westray is sending people into a dangerous situation to get coal, worth pennies a ton, out of the ground. So there has to be some perspective about when that dangerous situation exists and who's responsible for the conditions. I think that's where the efforts have to be focused in drafting the legislation, when corporations, when individuals have control over the environment in which workers find themselves. In Westray a lot of those miners--and we had one of them here--talked about the fear of losing their jobs and the fear of not having another place to go to get employment, to feed their families, and that's just the reality of a lot of workplaces in the country.

To go back to what I was saying, I've been in steel factories and fish-processing plants where it looks like something out of a Charles Dickens novel, and yet they're safe. So the Westray example is a reminder that we must ensure that the inspectors and the preventive steps that have to be taken aren't just a ruse, that it isn't just the presentation of safety, that it's really a safe environment. So your sentiment and your purpose here, about raising the bar of accountability, has to be what we address and what we put into action.

The mine managers and the directors, to a large degree, and the owners, I think, ignored a lot of the signals that this was coming. You quoted Justice Richard as speaking of a predictable path to disaster. In retrospect, it seems that these preventable circumstances conspired. The coal dust, the methane, and even the workers themselves, who acknowledge that there were things they did, whatever the reason, all seemed to be overlooked or ignored, wilfully or otherwise.That's what becomes very difficult in the law, to draw that line: was the omission made with such reckless disregard that it should attract criminal responsibility? I think we're looking for something between criminal negligence, which encompasses more of these elements of wilful blindness and omissions, and manslaughter, which does, as Mr. Toews said, have a higher degree of criminal intent.

À (1030)

So in that context, do you think even the inclusion of the words and the inclusion of a specific mention of directors or representatives or corporate agents failing in their duty to provide safe and appropriate standards in a workplace would address this culture, this need for changing? I think it's changing attitudes and mindset as much as changing the law, and knowing there is going to be retribution, there is going to be a deterrent, something brought to bear if a person wilfully refuses to act or take the appropriate action to prevent the type of disaster we saw happen in Plymouth at the Westray Mine.

À (1035)

Mrs. Bev Desjarlais: I don't think there's any question. I won't get into the specifics of what has to be in the bill to make it work. And I recognize your comments on the prevention; that's the best route to go--we want to have safe workplaces--just as we recognize that in the case of drinking and driving prevention is the best answer. We get out there, we educate, we encourage people not to do it. We recognize that if you do do those things and somebody gets seriously injured or dies, you pay a credible penalty.

In order to have a deterrent be effective, it can't be a deterrent that doesn't work. Workmen's Compensation actually just did a review in Manitoba, and what was terribly apparent was that it was cheaper to have a death than an injury, because it's more costly to keep someone alive and provide for their disability than to have them dead. Something's wrong with that system, and that's basically what we're dealing with here. If it becomes more cost-effective not to put in safe procedures.... I use the ValuJet case in the U.S., where, for the sake of a 3¢ cap on a canister, we have 111 dead people. Often it is a matter, I think, of just taking chances with people's lives, and it's not okay to have a gun with one bullet in it and keep firing and taking a chance with workers' lives.

You and I have talked about this previously, Peter, and I commented on it. What bothers me an awful lot in these instances is that the ones I seem to know the most about are men who have been killed in workplaces that are not safe, but it's just not macho to complain. The fellows in Flin Flon are having a hard time going back to work. Part of what they're dealing with is that they're not tough enough to have withstood that. It took years to encourage hockey players to wear helmets. It's still taking a heck of a long time to encourage farmers to adopt safe practices, simply because they're used to doing this and it's just a farming guy kind of thing. What did it take to get us wearing seatbelts? It took fines and penalties. I have a sister who was paralysed in a car accident. I didn't wear a seatbelt until there were $72 seatbelt charges.

It's just something in our nature: if we don't have enough of a penalty there, we're just not going to do those things. Corporations and their directors have got to know that it's a serious enough penalty. Those consequences have to be there.

The Chair: Thank you.

John McKay.

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

I, like Mr. Toews, am in a confessional mode. I too belong to a union, the Law Society of Upper Canada. Not many people would immediately jump to the conclusion that it's a union.

À (1040)

The Chair: Forgive us for not breaking into “Solidarity Forever”.

Mr. John McKay: I can't recollect in 27 years actually singing that song.

The Chair: Why am I not surprised?

Mr. John McKay: We don't do the May Day either.

I wanted to go back to your first comments about not letting the bill die on the Order Paper. I think our committee is in a bit of a jam here. There are persistent rumours that we may or may not prorogue. Also, we are doing a study of the content of the bill, not the bill, and it's quite a bit different. Third, we have raised expectations among people. Fourth, our focus has not been as precise as it might be for accommodation with the needs of the Criminal Code.

Peter was starting to circle the issue of whether you go up to manslaughter or criminal negligence, Mr. Toews was getting at it. I doubt there's anybody at the committee, having heard the compelling testimony of the miners and your own testimony, who doesn't have a gut sympathy, a feeling that something has to be done. But if you put that into a mix, we may be in a bit of a witches' brew here in trying to fashion something that would address the issue, would be charter-proof, would be something the government could adopt to meet what I consider to be very legitimate expectations on the part of people in the workforce.

So my comments aren't as much directed to you as they are to the committee and how we get ourselves moving towards the precision the Criminal Code requires. Regrettably, I think our testimony will have to focus on some of the corporate interests. Interestingly, I had a conversation with the owner of a very large corporation, who everyone here would know, and I was briefly discussing this with him, and he frankly didn't see the problem. Of course they should be liable, that was his response. So I think we fail to hear from corporate concerns at our peril, because whatever we draft will inevitably be challenged, and challenged by the best legal talent money can buy.

So I'd be interested in your comments as to how to focus the committee a bit more on the legal precision we need here.

Mrs. Bev Desjarlais: I don't think anyone could ever criticize the justice department on grounds of legal precision. From my perspective, I think there are enough wise lawyers out there who can come up with legislation that does not leave a loophole for situations such as we've seen in Westray. I also know Parliament can work as fast and as slow as it wants to. If there is a serious enough issue, it can be put into legislation, the government can bring it forth, and we can deal with it in the House. If this were a good bill, it would be an instance where you could invoke closure and you would not get me giving you an argument.

I know there are problems, I know there are technicalities, I know there are intricacies. I acknowledge this committee's dealing with it, and I'm glad there was, I believe, a sincere commitment to deal with it, but I'm not so naive as to have missed the fact that it was being made sure it was dealt with by the 10th anniversary. What I don't want to see is us back here next May 9 without a piece of legislation. We should not be going any longer, we have to get on with this, we cannot let it be put to rest.

À (1045)

Mr. John McKay: How do we not leave the good work of the committee to date on the table if in fact Parliament is prorogued?

Mrs. Bev Desjarlais: I think, if there's a will and a commitment to have an issue brought forth, the government can bring legislation on its own at any given point to be dealt with in Parliament. Although the committee may be put to rest, there's work done, information that's available. It's quite apparent from the discussion paper that there has been some preliminary work done. There are a number of ways of dealing with this. We know what the issue is, we know what the desire is. Let's see a piece of legislation to deal with it. We've had other legislation come forth with the risk of a charter case. So be it. Let's at least put something on the table, so that if we have a situation like Westray, we can at least bring someone court, we can at least make them appear to answer for what they've done. We can't do that right now.

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

I'm reluctant to take any more of Ms. Desjarlais' time, because she's only got a little better than 10 minutes left and there's a long list, but I do think we should perhaps have, let's say, a tactical discussion as a committee. Basically, we're calling on our witness to speak to issues of process and tactical issues. I'm sure I've asked the staff to present us with options available to us under procedure. I think, if the will exists, we want to make sure we buttress ourselves against issues. So far this has not been a political exercise, in my mind, or not a partisan exercise. My sense is that we need to buttress ourselves against something we don't control, which is the parliamentary schedule. I'd like to know how we would do that and get the most value out of the exercise, how many more witnesses we would want to hear, whether we want to proceed quickly to something else.

Mr. Toews.

Mr. Vic Toews: If you're raising a point of order, I think it is a very good one. I'm certainly willing to state that we should not leave this committee, if the House is prorogued, without an assurance that this discussion will continue from the position it reaches, so we don't have to start all over again and drag witnesses from Nova Scotia and make them go through this painful experience. So if that can be facilitated, I would certainly lend my support.

The Chair: On the point of order, Mr. MacKay.

Mr. Peter MacKay: Very briefly in support of that, Mr. Chair, as you know, virtually anything can be done around here by unanimous consent. We don't know what the compromise of the committee might be in the event of a prorogation, but I suspect strongly that many of the same members we see around this table will be here. I think it's worth putting on the record that moving a motion is an option that we could consider. When we return, we simply go to the House and reinstitute the work. Let's hope that doesn't happen, but there is a way, by unanimous consent, through the Standing Orders, we can continue with this work. To a large extent, that's what we've done. I think the goodwill shown by all members in allowing Bev's bill to appear at this stage demonstrates that. We can simply table the testimony of those who have already appeared and use that as the basis to continue.

In the meantime, I think Bev's right, there's nothing to stop the Department of Justice from taking the initiative and beginning to draft something to bring back to any committee that would be reconstituted in the fall.

The Chair: Okay. I'm going to cut this off, because it's my fault for bringing it up, but it did strike me.

I'm going to go to Mr. Cadman, who has three minutes, and then I'm going to Mr. Macklin, who's next on our list.

À (1050)

Mr. Chuck Cadman (Surrey North, Canadian Alliance): Thank you, Mr. Chair. Since we're all confessing, that's a union card I just took out of my wallet.

By way of comment, I'm a little bit disappointed. We've been asked to have discussions based on broad principles and substance, and for somebody to suggest that there are certain questions that shouldn't be asked I don't really think is appropriate. I think all questions are legitimate here. I don't think there's anybody around this table who doesn't agree that something has to be done and doesn't support the substance and the principles here, so I think all questions are valid.

I can certainly speak from my own experience. Having grown up in North Bay, just up the road here, I think back to some summer jobs I had and wonder how I survived. In fact, I went back there in 1995, and the plant hasn't changed. There's obviously room for work. There are other places I've worked in fabricating shops that were just horror shows. So yes, definitely, we have to do something.

My question is, would you include municipalities, because municipalities are incorporated? Are we going to hold mayors and city councils liable for their actions because they're incorporated? The City of Delta is the Corporation of Delta, and the mayor runs the show. There's a board of directors. It's a city council. Are they going to be held to the same level of accountability as, say, the folks at Westray?

Mrs. Bev Desjarlais: That's a fair enough point, I have to admit. I never thought of it from that aspect, but again, if it is something that needs to be looked at.... I was a school trustee, and I can tell you that many times we were informed, even though we were school trustees, that we needed to make sure we were aware of what was happening just in case. If we allowed a certain practice to take place, although we seemed to be exempt from certain things, there was always that line. You'd best be sure you know what's happening if certain practices might be taking place--you know about them and you allow them to continue, without doing what you need to do as a school trustee. I certainly think the key is if you knowingly do these things and allow someone's life to be jeopardized.

Mr. Chuck Cadman: You are saying you would hold a mayor and a city council to the same standard.

Mrs. Bev Desjarlais: I don't know how--

Mr. Chuck Cadman: I'm not saying you should, I'm just asking.

Mrs. Bev Desjarlais: I don't know how they would be held accountable if they weren't aware. Personally, I would have no problem. If people knew they were the ones controlling the city workers or whoever was involved in the city and knew these practices were taking place and people's lives were being jeopardized, I would have no problem with saying there should be accountability. Again, I'm comfortable in saying I think there are going to be so few cases. If I thought we were making the laws for the innocent, it would be one thing, but the criminals are the ones we are dealing with.

Mr. Chuck Cadman: How about Walkerton?

Mrs. Bev Desjarlais: There are a number of Canadians out there who feel there should have been criminal accountability as a result of Walkerton. I, for one, think there should be criminal accountability as a result of Walkerton, whether we do it under this type of bill or another.

Mr. Chuck Cadman: That should be on the record, because I think it's something we had better consider.

The Chair: Mr. Macklin.

Mr. Paul Harold Macklin (Northumberland, Lib.): There are so many questions one has after hearing your presentation that it's hard to know where to start and end, but one of the things you brought out was penalties and the effectiveness of deterrents we need to be looking at in whatever legislation we come up with. Yet I hear people around here suggesting that they've been in milieus where things weren't right, but they chose, for one reason or another, not to try to make it right. In other words, they never tried to blow a whistle.

I have a couple of thoughts in my head that don't necessarily relate directly to a corporate criminal mind, but rather to the people who make up the whole work site. I guess the question that flows from comments is, should whistle-blowing have played an important role in Westray, and if so, should that be put through a process of protection from the perspective of the federal government? Where should we be in respect of assisting? Although our focus at the moment is on the criminal window, I wonder if there are any elements that should be considered from a legislative perspective that may bear on this issue. Some people have suggested that there were lots of laws in place as deterrents, and it was more an inaction issue in Westray than it was a lack of law. If some of that inaction was a consequence of the failure of someone to feel that he or she had the ability to come forward and make the appropriate claim to an appropriate entity and get protection for themselves, is this an area where we should be taking a serious look as an adjunct part of this investigation?

À (1055)

Mrs. Bev Desjarlais: I wouldn't necessarily suggest that it has to be along with this process. Whistle-blower protection has come up in a variety of cases as being the type of legislation that should be there for a variety of different instances.

I don't think there's any question that there was fault in a lot of areas in Westray. I indicated that. What was crucial was that from the federal perspective, there was nothing within the criminal aspect of our legislation where it could be dealt with. There's no question, there are a lot of things that could be done.

With your law society, with your crown attorneys, you have a far better workplace than most out there. Without intending to be really critical of my former workplace--and I won't mention it--I hope nobody would hold it against them that we had a workplace health and safety committee. We all thought we were doing our best. We had a situation where asbestos was going to be flowing freely through the hallways for the public and workers to be exposed to, and we had to fight to have it dealt with properly. It was a hospital--it's easy to tell where it was, given where I come from. We had to fight for that to happen. We had to contact the provincial government to say they were going to close down the hospital if they didn't encapsulate properly.

If that could happen in a hospital, what happens in an industrial setting? I'm not here fighting for the rights of men, but I'm telling you it's harder. I really believe it's harder sometimes for people in those settings to fight for their rights, because it's seen as wimpy, non-macho, they're still seen as being the bread-winners. You've got to make sure you're providing for your family. That's what happened in Pictou County. They went to work day after day, knowing it was unsafe. I had a letter from someone in Stellarton saying, those families really didn't suffer, their wives just wanted them to go there and bring the paycheque. I can tell you, I don't believe for one second that was the sole purpose. They were trying to eke out a living. They don't want to be on welfare. I don't believe the majority of people ever want to be in that situation. Peter and I talked about this. If that mine opened up again, you'd still see people in there wanting to work and provide for their families. What we have to do is make sure we're providing justice if they're not provided with a safe workplace.

The Chair: Thanks, Bev.

I'm going to go to Mr. Lanctôt. I'm going to put others first on the list for the next witnesses, if that's okay, because we're just not going to be able to get through them and have people ready for 11 o'clock.

Mr. Lanctôt.

[Translation]

Mr. Robert Lanctôt: I agree that we need to act quickly, but in the light of some of the things we have heard here, we know that while we must act quickly, we must not leave out any steps. I disagree somewhat with my colleague, Mr. Blaikie. I think we should not adopt a blinkered approach and look at only one situation. I think that the example of municipal corporations, with mayors and councillors, and now someone is talking about school boards... There are a lot of directors around. Perhaps even some of you are members of various boards.

I think this is a very serious matter. We must act quickly, but we must not leave out any steps. That is my comment in response to Mr. Blaikie's remarks. I do not think we should be blinkered in our approach. We need to discuss this and look at all the options. From what I have seen so far, I think the committee is well aware of that.

That was a comment. Thank you.

Á (1100)

[English]

Mrs. Bev Desjarlais: That's a fair enough point, but what I'm asking you to do is not look for a loophole to get out of this, but find legislation to deal with it. If you want to find a loophole, I'm sure you can find it. We've got them now. What you're asked for is to come up with legislation to deal with it.

The Chair: Thank you very much, Ms. Desjarlais.

I would remind members of the committee that with the process of this place, one would receive legislation, if that's what we were able to convince the government to bring forward, then there's an exercise to make sure the details are worked out, such as the interests that have been expressed with regard to municipalities. There are important considerations now also, but let's not forget what happens after a piece of legislation is introduced. There's a lot of opportunity at that time to look at it.

Thank you very much, Ms. Desjarlais. I hope your leaving as a witness doesn't necessarily mean you'll be leaving us as a member of the committee.

I was going to do it when I gave her the opportunity to intervene, but since I didn't get that opportunity, I'd like to welcome Ms. Fry to the committee. I've been advised that Derek Lee and Ms. Fry have joined the committee to replace Mr. DeVillers and Mr. Paradis. Welcome. I think you'll find it a very functional group. In this place that amounts to pretty high marks.

Ms. Hedy Fry (Vancouver Centre, Lib.): Mr. Chair, I wanted to say thank you. It's interesting that it takes one woman to replace two men. I just wanted to note that.

Also, I was not only head of a union, but its chief negotiator for three years, the British Columbia Medical Association. So there we go.

The Chair: I'm going to suspend for a moment so our next group of witnesses can find their way to the table.

Á (1103)

Á (1108)

The Chair: I call back to order the 87th meeting of the Standing Committee on Justice and Human Rights. We'll continue our deliberations regarding the subject matter of Bill C-284. To help us in that exercise this morning, we have two groups represented by four people. We have, from the Canadian Labour Congress, David Bennett, the national director, health, safety and environment, and soon to be joining us we're sure, Hassan Yussuff, executive vice-president, and from the OC Transpo Widows, Barbara Davidson and Terrie Lemay.

Normally, we go in the order they're presented, but as Mr. Yussuff is not here yet, perhaps I would call on Ms. Lemay first. Generally, we try to keep our presentations around 10 minutes. I'll give you some signals and so on, but don't read too much into them. This is a unique kind of exercise we're going through. The testimony has been somewhat personal, and so we're a little more flexible than we would normally be.

Ms. Lemay.

Mrs. Terrie Lemay (OC Transpo Widows): First, I would just like to take this opportunity to thank you for letting us speak to your committee this morning.

My husband was a mechanic at OC Transpo. On this day he had left his work area to go into the stores room to ask for a part that he needed. During this time an ex-employee drove his car into the garage and started shooting. An employee got on the PA to tell everyone to start evacuating the building, as there was a shooter on the property. Meanwhile the shooter went into the chemical room and set a fire. Now the fire alarm was sounding. Then the shooter himself got on the PA and said “OC Transpo, your day of reckoning is here now.” The shooter left this area and entered the area where my husband was. He shot Barb's husband Clare in the back while he was working on the computer and my husband in the chest.

There was a coroner's inquest, and the agenda was based on violence and harassment in the workplace. It was at this time we discovered that on the fatal day our husbands continued to work because they were in a soundproof room and were unaware of what was happening outside that room. The procedure that was in place was that an employee would go and knock on the door to advise them that there was a fire alarm. However, on this deadly day the employee got shot, and it was every man for himself. Not that I blame anyone for running, but unfortunately, nobody went to this room. The police proved that our husbands would have had five minutes from the time the shooter entered the building until he reached the room. They would have had enough time to either turn off the lights and lock the door or leave the building.

It took the police two hours to go in and find our husbands, because this room was never established on the floor plan. Unfortunately, these items could not be discussed at the coroner's inquest, because they were not part of the agenda. It was based on violence in the workplace, and our lawyer was unable to discuss these.

I think you should be aware of the treatment we received from OC Transpo. One week after our husbands' deaths we received letters from OC Transpo advising us that as of June 30, 1999, we no longer had medical or dental benefits. Later, after we questioned the OC Transpo management about our husbands' pensions, they told us they was paid out as if they had taken early retirement. Our husbands did not choose to die. They were murdered in the workplace in a soundproof room. My husband was 44 years old and worked there for 18 years. I'll receive about 30% of his pension, based on early retirement, which I can't even touch until I'm 55 years old. Barb gets enough money to pay her taxes each year.

If you get hurt on the job, workers' compensation pays 85% of your net. However, if you die at work, no matter what the cause of death, your benefits change. My daughter, because she is over the age of 19 and attending school, collects 10% until her first degree or until she reaches the age of 25, whichever comes first. My son and I currently collect 75% of Dave's net. However, in two years, when my son turns 19, he will collect 10%, and I will drop down to 46%, having two children at home. It is based on the living spouse's age when the youngest turns 19. Barb had no dependents, so unfortunately, she only receives 51%, because of her age at the time of Clare's death. It is very difficult to tell your children that not only have they lost their father, they have also lost the standard of living to which they were accustomed.

We feel that corporate responsibility must be introduced. Directors and executives have to be accountable if negligence is proven. Workplace safety must be very important to everyone, whether a blue- or a white-collar worker. I support the Steelworkers, and we think everyone will benefit from this bill. I hope you will agree and support this change.

I would like to go into a bit of detail about those first few days. It was the Tuesday after the Easter long weekend, April 6, 1999. My day started like every other day. Dave and I drove into work together, he dropped me off at my workplace, we kissed each other goodbye and said, see you tonight. We'd had the same routine every day for the last 18 years. Who would have thought that this day would be any different? It was on this fatal day that our lives changed and we lived our worst nightmare. All our hopes and dreams came to a sudden end, and our world came tumbling down. Every day you wake up, you're on a different rollercoaster, and you never know what type of day you're going to have.

Á (1110)

It was about 3:55; five more minutes and my day would be finished. I would be heading home for the evening with my family. My girlfriend, who worked in the same office as me, came rushing over to my desk and said, I don't know how to tell you this, Terrie, there was a shooting at OC Transpo, they're saying at the garage where Dave works. There were not many details given on the radio other than that an ex-employee had entered the room and there had been several shots fired. Normally, I would leave the office at 4 o'clock, walk to the corner, and Dave would be sitting there waiting for me. We quickly left the office and walked to the corner. Dave was nowhere to be seen. We waited anxiously for about 45 minutes. He never came. I thought they delayed him because he was either giving a statement or helping his co-workers. We went back to the office. I thought there would be a message from him, but I had no message. I tried calling his work, the lines kept ringing, but no one answered. I called home to see if Dave had called there to tell them what had happened. My 14-year-old son was home alone, as our daughter Stacey, who was 19, was working. I asked Chris if his Dad had called, and he said no. He was very upset, because he also had heard about the shooting on the news. I didn't want to upset him more, so I told him not to worry, that his Dad was fine and was probably on his way home now. I told him I was going to back to the corner to meet his Dad and we would be home shortly. He wanted to call his sister at work, and I said not to bother her, that everything would be fine.

We walked back to the corner, but he still was not there, so my girlfriend offered to drive me to St. Laurent. I thought that once I arrived there, I would see Dave and all my worries would be over. We arrived there, and the police had the streets blocked off. I went over and introduced myself to them and told them who I was looking for. They said they had no information, but they would let me walk over the overpass so I could speak to any employees. However, none of the employees had seen Dave since 2:30 at the break. I called the hospitals and they had no information. I went back to the officer I was speaking to earlier. He recommended I go home. He took the details and said, if there was any information, they would call me.

I live in Carleton Place, so my friend drove me home. I think it was around 6:30 or 7 o'clock by the time we arrived home. My daughter Stacey had now heard of the shooting and was home with my son. We had received many calls from my family, friends, and Dave's co-workers to see if he was okay. We still had no information. We had the radio and TV on to get updates. There was now a number to call if you had any concerns. I called the number and was told that they could not give me any information on the phone, but I should go back to the fire station on Industrial Avenue. That was the same location I was at about one and a half hours before.

My girlfriend ended up driving the kids and me back to the fire station. I remember going into the building concerned over Dave, but never imagining what was ahead of us. There was a man at the door outside the fire station. He wanted our last names, and then he opened the door for us. There were two officers. One asked if we had heard what had happened. I was getting impatient. All I wanted was to see Dave and feel his arms around me. I got more impatient all the time. The officer said she thought Dave had been shot. I asked her what she meant by saying she thought Dave was shot. She said they had a body, but there was no identification on it; there was a pay stub beside the body, and it belonged to Dave Lemay.

Á (1115)

The Chair: There's no rush.

Mrs. Terrie Lemay: Immediately I wanted to know where he was. I wanted to go and see him. She said that was not possible; it was a criminal investigation, and no one could go on the property. I asked if they had a picture, and she said no. I was so shocked. How could I accept this information when I had nothing to justify it? She wanted to know if we wanted to go in and talk about it. I just wanted to get home, because I was so sure it was a mistake and Dave would be there waiting for us. Unfortunately, that was not so.

It was a very long night, and every time the door opened, I was sure it was Dave. It was only around 6 o'clock the next morning on the news that they announced there were four people murdered and I heard the name Dave Lemay. I was stunned. Although he never came home, I didn't believe he was dead.

A few hours later I received a call from the police asking for someone to go and identify the body. My family thought it would be too difficult for me. I was adamant that I was going. It was my husband, and no one was going to stop me. My dad, my sister, and I went to the General Hospital. They took us into this little room where they had Dave on a gurney, his body covered with a white sheet. The officer folded the sheet down to his neck. They told me I couldn't touch him, because this was a police investigation and an autopsy had to be done. I remember standing at his side, looking down at him. All I wanted to do was kiss him and hold him. I wanted to tell him everything would be okay. I remember thinking, this is just a bad dream and everything will eventually be all right. I just stood there and cried. This was not possible. How could Dave be lying there dead, shot in the chest? This was something you would see on TV, this was not supposed to happen in real life.

Á (1120)

Mrs. Barbara Davidson (OC Transpo Widows): Thank you for listening to us. I feel I'm speaking for my husband, that I'm now his voice, because he's unable to speak for himself. If you find I'm jumping around a little bit, I probably am.

We have taught our children to be accountable for their actions, to be responsible, but in our great country the companies their fathers and mothers work for are not accountable for their actions, and I am having a very difficult time explaining that. We have found through speaking with the Steelworkers that Australia and Great Britain actually do have a policy or a law in place for an amendment to the criminal code. Again, my daughter and I are having a hard time figuring out why, in this country we love so much and we always felt was so fair and advanced, we can't come to some sort of agreement that would do the same thing for her dad and for other workers. I'm hoping that from meeting with you today, I will be able to take back to her that the gentlemen and ladies who have listened to us have given us their commitment that they will give us a law that will make what happened to her dad not possible in the future, that people will have to be accountable for their actions, whether they're running an apartment and are responsible for having fire alarms, the CEO of a corporation, or the mayor of a city, and for safety in the workplace of their workers.

People keep talking about bottom lines: they wouldn't be having CEOs going into and running companies if they were made responsible. The question that comes to mind is, what would they be afraid of? If they're running a responsible company, what could possibly be wrong? They would be very interested in knowing that their workers are safe, because if their workers are safe, they will have fewer incidents in the workplace, fewer injuries, and no deaths, and those workers will want to stay there, will give their commitment to that workplace, because their CEO actually cares about them. I'm sure there are companies out there like that today, and I am sure you would be capable of finding those companies and seeing how they work, so as to set something up to show companies that this is something that can be done. It is workable, they do make a profit, they're able to stay in business--why can't you?

After the murder at OC, when we were able to get ourselves together, the police themselves met with us twice. They were big enough to admit that they made mistakes, they screwed up, but they've worked with us to change the policies, because of the events surrounding our husbands' deaths. They actually wanted to hear what we had to say. Where do you feel we didn't follow through for you? Where do you feel we should change what we're doing, so that we won't make the same mistakes again? We had a second meeting to discuss the changes they made and how they appreciated our help. Where was the company my husband worked for? They didn't want to speak to us. Why? All we ever wanted was to help to make changes.

Á (1125)

It has now gone so far that we have been asked to leave the property. Our biggest concern is with the people who are left there. There's nothing that can be done to bring our husbands back, but I sure wouldn't want another family to go through what we have gone through when there are things that can be put in place to make sure they have a safe workplace. They're not the only company we're worried about. We're worried about companies right across Canada where men are not going to come home, where they're not going to be able to walk their daughters down the aisle.

When we met with the Minister of Labour--we've actually had a couple of meetings--she suggested that since the men willingly went into that room, they assumed the responsibility for their own actions, even though her own officer has reported that the health and safety committees were determined to be dysfunctional at OC Transpo. I would assume that meant they really didn't know how to protect themselves in the workplace and they are now going to work with them to make sure they understand their rights and their responsibilities in the workplace, but to me, this must start at the top and work its way down to the shop floor.

There is also in the Labour Code a provision that the company can be charged and fined. However, we have been told by the minister herself that they have never laid a charge for negligence. If you didn't do an investigation to find out if there's negligence in the workplace, I guess you would never know that either. There are laws, but laws, again, are only as good as enforcement. We need some teeth in the Criminal Code, so people understand that these people are important too. When WSIB payments are taken, you can't sue; it's one or the other. We have consulted with a lawyer, and his opinion was that the maximum settlement would be $60,000. However, that wouldn't begin to cover his fees. So when you're now responsible for your family's welfare, what choices do you have?

To go back to “they chose to go into that room and they knew it wasn't safe”, there are many other things that go through your mind. For one thing, if you walk off the job, you don't qualify for employment insurance. If you are lucky enough to find another job, they're going to ask for references. Would you include the company that tried to kill you? What other choices do they have? When they walk off the job, they still have their wife and children, they still have their mortgage payment, they still have their loan, they still have their taxes to pay. There are a lot of other things involved. It's very easy to judge someone when you're not in that position and say, you can refuse to do that. You have to be in their mindset, you have to walk a mile in their shoes before you judge them. That's what we're asking you to look at.

I didn't hear all the presentation by Bev, but what I would really like you to think about is that we should not try to bury this argument by going off on tangents. What I'm asking for today from all of you here in this room is that you give us a commitment that you're not going to stray off this very important principle. I want your commitment that you will make it work, that you will take it seriously enough to protect the workers in this country.

Thank you.

Á (1130)

The Chair: Thank you very much. I appreciate how difficult it is, and we appreciate very much your courage in being here to share your stories with us.

Mr. Bennett.

Mr. David Bennett (National Director, Health, Safety and Environment, Canadian Labour Congress): Thank you.

I want to first thank the justice committee for enabling the Canadian Labour Congress to testify over this important matter, which is crucial to the public interest. The CLC represents 2.2 million workers in both public and private sectors across Canada. One of our most prominent affiliated unions is the United Steelworkers of America, which has taken the lead in working for the new offence of corporate killing to be enshrined in the Criminal Code of Canada. I would also like to thank the Bloc Québécois for ensuring that the Quebec Federation of Labour could testify. The CLC is testifying on behalf of our federations of labour, which include the QFL.

Today is the tenth anniversary of the Westray mine disaster in Stellarton that killed and entombed 26 miners through a sequence of events for which the corporation, Curragh Inc., and its directors should have been held criminally responsible. To date not a single party or individual has been brought to justice over this entirely avoidable disaster, and it is episodes such as Westray and others where a worker has been culpably killed or injured that amendments to the Criminal Code are designed to address.

We have to remember that Mr. Justice Richard was most scathing and critical of the Nova Scotia occupational health and safety regime for having allowed Curragh to operate the mine in such a way that it resulted in corporate killing. He considered the Government of Nova Scotia so inept that health and safety jurisdiction should be transferred to the Government of Canada. This has not happened, nor has the administration of health and safety in Nova Scotia been significantly improved. The Nova Scotia Occupational Health and Safety Act has been changed, but not in such a way that the enforcement authorities have been directed to monitor employers closely and enforce the law against atrocious employers such as Curragh.

Like many other health and safety authorities across Canada, including the federal jurisdiction, Nova Scotia has a regulatory policy of voluntary compliance or internal responsibility, which means in practice that the government abdicates virtually all responsibility for health and safety within the area of its authority. The appearance of an inspector at a workplace is the exception rather than a regular event. It means inspectors turn a blind eye to radically unsafe conditions of work and management practices. Even when enforcement action is taken, it is in the form of the delivery of a piece of paper, such as the widespread use of the assurance of voluntary compliance under Part II of the Canada Labour Code (Health and Safety).

The current regimes to administer health and safety, which are quite similar in all 13 jurisdictions across Canada, came out in roughly the 1970s. The CLC and its provincial and territorial federations of labour were in the forefront of the campaign to establish regimes that would ensure the health and safety of all workers, regardless of sector and the type of work carried out. This was a much needed venture that fulfilled the public interest in the central area of environmental health. For two decades the system worked very well or quite well. The various hazards of work were addressed in specific regulations under the Occupational Health and Safety Acts. Workers were empowered with the requirement to establish joint health and safety committees and the legal right to refuse unhealthy or unsafe work, and the inspectorate enforced the law, often using the joint committee as the first point of contact in the workplace. Most employers acknowledged the law, and it was often corporate policy to bring operations into compliance with the regulations, with or without government scrutiny.

The system began to unravel in the 1990s with deregulation and the systematic attempt by businesses to get government off their backs. The regulations stagnated, with new hazards unacknowledged or unrecognized in the regulations. The existing regulations were subjected to weaker standards or types of standard setting. The chief form of deregulation was simply to cease to enforce the law. The enforcement branch was radically weakened through some euphemisms, such as rationalization, and the inspectors were persuaded or intimidated into pursuing the policy of voluntary compliance, meaning that employers should conform to the law only if they felt like it. Ontario, for instance, abolished the technical backup for inspectors and allowed inspectors to deal with work refusals on the phone. Alberta privatized its inspectorate, and continued to require joint committees in the workplace only with ministerial consent.

Á (1135)

Criminal prosecutions had never been a prominent feature of health and safety regimes, but with the decay of the system, there were calls to increase prosecutions in the context of the decline in inspectors' orders or directives. This has not happened. Prosecutions are still rare, and when they are successful, the penalties inflicted, usually on the corporation rather than on individuals, are small, in spite of stiffer penalties in most of the legislation. Because of Canada's workers' compensation system, as the OC widows also pointed out, workers or their surviving families cannot sue an employer for damages due to death or loss of livelihood. The net result is that Curragh, for instance, got off scot-free, and the responsible managers thumb their noses at the calls to have them face justice in Nova Scotia. There is no more eloquent testimony to the need for the offence of corporate killing to be enshrined in the criminal law. The net result is that only where there is a strong union will compliance with the law be ensured. There was no union at Westray at the time, and the employees who protested working conditions were intimidated into silence.

We strongly support the content of Bill C-284. It is a very well crafted bill, with the reference to the culture of the workplace particularly welcomed. Members of the committee may want some assurance that the provisions will not be used for purposes for which they are not intended, much as NAFTA chapter 11 is being used to penalize legitimate government action on the environment. We simply ask the committee to examine the bill in detail to see whether it addresses cases of real culpability. It's clear that not every case of death or serious injury will result in a criminal case of corporate killing.

The bill should achieve three things. It should result in prosecution of cases where there is reason to believe a corporation or its managers were guilty of the offences stipulated. Second, it should serve as a warning to directors and officers of a corporation that abdication of responsibility is itself a crime. Third, it will serve as a warning to health and safety authorities that unless they enforce the law properly, their jurisdiction will be overtaken by the Government of Canada in a way that, arguably, Mr. Justice Richard intended.

Not only will the families of the Westray miners see justice done, they will get an assurance that everything is being done to ensure that their sons and their daughters are not liable to succumb to a similar tragedy. As with the criminal law generally, the bill should have the effect of reducing crime, as well as bringing those responsible to justice. On this tenth anniversary of their tragedy the justice committee could do no better than to declare its firm intention to realize those moves that are the committee's mandate, to protect human rights and to serve justice.

All this is respectfully submitted on behalf of the Canadian Labour Congress. Thank you, Mr. Chair.

The Vice-Chair (Mr. Chuck Cadman): Thank you, Mr. Bennett, and I thank all the witnesses for coming this morning.

Mr. Toews, 7 minutes.

Mr. Vic Toews: Thank you very much.

I appreciate the testimony of the witnesses. Certainly, the committee has received first-hand evidence about how directly workplace violence affects not only workers, but their families. Some of the comments stray far beyond what we're looking at in this bill, and yet I think it very helpful for members of the committee to hear and to think about these comments and how victims are treated in our criminal justice system. That's something my colleague Mr. Sorenson, who is the critic for the Solicitor General's department, and I have raised on numerous occasions, and I think other members at this committee as well, on both sides of the House. With the troubling way in which the witnesses were dealt with in the aftermath of that very disturbing and tragic shooting, I am glad to hear the police took steps to correct their actions. I hope that serves as an example, not just for that police force, but for other police forces, so they can move forward and deal with victims in a sympathetic manner. I think this again reminds us of the importance of treating victims in a dignified and respectful manner.

The issues we're dealing with specifically the witnesses have borne in mind in highlighting that there needs to be responsibility on the part of everyone in the workplace. Everyone who's in a position of authority, anyone who can make that change happen needs to be held accountable. We've heard some troubling comments about the strength of the workplace safety and health acts that fall within provincial jurisdiction, and certainly, we would encourage our provincial colleagues to continue to renew those very important statutory regimes.

It's interesting to note that when the workplace safety and health and occupational safety and health acts were enacted in the early 1970s, the specific thrust was to avoid criminal charges and rather attempt to change workplace culture through educational and cooperative compliance mechanisms. There was a feeling or an understanding that criminal prosecutions were not effective in changing that corporate culture. So if we read, for example, Hansard from the 1970s, when Manitoba brought its act in, we see those comments made. I believe it was the drafter of that bill, Mr. Rabinovitch, who stated, we want to move away from criminal prosecutions and go to cooperational and education.

I think the witnesses have indicated that perhaps it's not simply one or the other, but a balance of both aspects. I think that's the challenge the committee has to meet here today, to learn from not only the experiences of the witnesses here today, but also the legislative history and the experience of legislation, and to craft better legislation to ensure that we don't miss an important mechanism to protect the safety of our workers.

I know this might seem like a bit of a technical question, and maybe you're not in a position to respond to it, but I'd be interested in knowing whether the issue of this room in the headquarters was ever raised with a workplace safety and health committee prior to this terrible crime that was committed. Was that brought to someone's attention, and how was that dealt with? I'd be interested in knowing that, if you have any evidence.

Á (1140)

Mrs. Barbara Davidson: Again, we go back to a very dysfunctional health and safety committee. They didn't realize that complaints should be put in writing, so most of them were verbal to whomever, taken who knows how far, and intimidation was the name of the game.

Mr. Vic Toews: So in this particular situation, if we didn't have those kinds of written complaints, I can see some legal problems arising if we wanted to hold, for example, corporate directors and officers liable. What this illustrates to me is that we need not only strong criminal mechanisms, but also a well-functioning workplace safety and health act, because in order to prove those criminal acts, if we extend the liability to directors and officers, we need that paper trail. So we need both provincial and federal legal systems, the statutory regimes, working together.

Mrs. Barbara Davidson: As you mentioned, they brought the WSIB Act in to move away from criminal action and to focus on safety in the workplace. You were depending on the corporation or the company to follow through on that, on the regulatory body, either provincial or federal, to have officers to go in and do safety inspections. Well, we know what's happened in the past few years. Companies are downsizing, money is getting harder to make. So who's taking the fall? It's the workers.

Á (1145)

Mr. Vic Toews: I think your point, then, illustrates the fact that it's not simply an educational exercise we need to be looking at, but also the criminal penalties we are discussing here today.

Mrs. Barbara Davidson: I think one would depend on the other. You would be responsible for making sure part of your agenda is how health and safety are carried out in your company. Are your new employees given health and safety instructions? Is your committee functional? Do they know what their rights are? Do they have training? Are they certified? These men didn't even know what certified was. We're talking about a health and safety committee that did what they were told, basically, because that's the way it was run, and it had been run that way for years. They just didn't know any different. It wasn't until Terrie and I started asking questions and wanting answers as to why this was allowed that we got a meeting together of the fire chief, the union, the health and safety committee, WSIB, and a Ministry of Labour representative and asked these questions. What happened? Why did this happen? How is this room allowed? How could you have a soundproof room with no fire alarm? That ball bounced around that table pretty quickly, and it never seemed to stop anywhere. It's got to stop. Somebody has to be accountable. We never did get the answers. We don't have the answers today.

The Vice-Chair (Mr. Chuck Cadman): Thank you, Mrs. Davidson.

Monsieur Lanctôt, seven minutes.

[Translation]

Mr. Robert Lanctôt: I would like to thank the three of your for your testimony. It is always somewhat disorienting to hear this type of thing. This is the first time I have heard witnesses talking about what happened at OC Transpo.

As you know, I am a member of the Bloc Québécois. My immediate reaction is always to be careful, when we are discussing matters of jurisdiction. The fact is that there is provincial legislation to cover everything you have described. Was there a problem with the enforcement of the legislation? What happened with the inspections and everything? Often, disasters such as the one that happened to your husbands and yourselves occur when there is a problem enforcing the legislation.

I understand this attempt to include such criminal negligence in the Criminal Code, and I agree with that. I think you have greatly raised the awareness of all committee members, and have motivated us to review this aspect of the issue thoroughly. However, I will also ensure that there is no incursion into provincial jurisdiction in this matter. Your comments are very thought-provoking.

Is there a shortage of resources? I do not think so: the legislation exists. Is it badly enforced? I think the job must be done by each of the provinces as well, not just by the federal government. We have to look at these aspects.

Was there a union at OC Transpo? I think there was. Workers must be protected in all ways—by companies, by unions, by themselves, through the enforcement of existing legislation, and perhaps, through new legislation. I agree with you, but it is disturbing that some are trying to say that human beings who have to work and whose spouse and children are living quite well should have made such an announcement; they had surely done so. I find it troubling to hear this type of thing.

We have to listen to workers. We have to listen to employees. The more we hear about disasters of this type, the more I hope that we will be able to minimize them by introducing some new provisions into the Criminal Code, if necessary. I agree with you, but we have to take a broad view. I do not want to adopt a blinkered approach and make this into a debate about unions and management. I don't want it to come to that. I don't want the committee to get caught up in that trap.

Personally, as a member of the Bloc Québécois, my objective is that the bill to be presented will respect workers. I don't want to turn this into a fight between unions and companies, directors or officers. I don't want our discussion go off on that tangent.

However, if we introduce a bill of this type on corporate criminal liability, I want it to apply to all corporations, including municipalities, as we discussed earlier. If we decide that we need legislation of this type, it could apply to unions as well.

The example I gave to Ms. Desjarlais and to the Steelworkers yesterday was as follows. Let us say that there is a company that is not doing well, where there is a union, and a recommendation is made—I know that they are not the ones who administer the company, but I'm just giving the example of a recommendation that would come from the union as a result of comments made by employees—that leads to a genuine case of criminal negligence. These people should be held responsible as well, along with the directors and officers of the corporation.

I do not think that this is incompatible with the principles involved here, because the principle I see is worker protection. I hope we will move in this direction.

Á (1150)

May I have your comments on this?

[English]

Mrs. Barbara Davidson: You talked about provincial legislation. OC Transpo is actually governed under the federal code, because they cross the provincial border. So I would assume there's lack of funding federally and provincially. Again, this is why we need this Criminal Code provision, because I do not believe, until you make this an action that would stay a company, anyone is going to take it seriously.

Again, I don't want to see people go to jail, I don't want to see companies have big fines. I want them to look after their workers. I want them to make sure, when they walk in the door, they know what is a safe workplace and what isn't, what their responsibility is, and what they can do about it, that they do have the right to go to somebody, that they don't have to worry about losing their jobs, that they're trying to make their company better by protecting other people and themselves. But the mentality has to change in the boardroom. I think a clear statement on that is in the National Post of Thursday, May 9: “Clifford Frame can expect a cold east coast welcome”. This man wants to open another mine. Were 26 workers not enough? Does he want to go for another 26, or does he want to add more to that?

I guess I'm a very naive person, but if somebody's done something wrong.... I go back to teaching your children: you make a mistake, you stand up and say, I made a mistake, and you take the punishment for that. I guess if you have no conscience, that's where the Criminal Code has to come in and say, you made a mistake, you cost some people their lives, you have to pay for it.

I'm just going to read a few things. I'm sorry, but this is just so unnerving, I can't believe this is happening:

Mr. Frame is a director and major shareholder of a Toronto-based company that wants to develop a dormant zinc mine northwest of Halifax. Ten years ago today, at the Westray coal mine, another Nova Scotia project developed by Mr. Frame, a methane gas explosion thundered through the tunnels, and 26 of Mr. Frame's employees died underground.

But he wants to give it another shot.

And also further on--and I can't believe this, again I'm very naive: “Almost certainly he will seek provincial and federal financing to reopen the Scotia mine.” Wow!

Á (1155)

The Vice-Chair (Mr. Chuck Cadman): Thank you.

Mr. Blaikie, seven minutes.

Mr. Bill Blaikie: Mr. Chairman, it seems to me, with respect to the tragedy at OC Transpo, a soundproof room without a fire alarm is sort of prima facie evidence. It was neglect on somebody's part. There's not much to quarrel about here. I can understand the reason for the soundproof room. I'm guessing that it may be so that people who are working in that room are insulated from the sound of buses. There are occasions when it's a requirement of occupational health and safety to be insulated from noise, but to be insulated from a fire alarm is an entirely different matter. It seems to me to simply say you can count on somebody running by on their way out to knock on the window or the door, whatever, is absurd, outrageous, on the face of it. I can understand how you must feel about that leading to the deaths of your husbands in the way it did.

The other thing that struck me from this, Mr. Chairman, is that we should be clear that while we're talking about corporations, and we tend to talk about private corporations, this is not a witch hunt on the private sector, it's a witch hunt on corporations, period, whoever is responsible. This is a municipal corporation. Whether it's a federally owned corporation, a provincially owned corporation, a municipally owned corporation, or a private corporation, it's all the same. It just so happens that Westray was owned privately, but I wouldn't want to create the impression, because of the extent to which we talk about Westray--and I think that's appropriate--that somehow other kinds of corporations, particularly publicly owned ones, somehow would not be the object of any legislation we would bring forward. That would be inappropriate.

Mr. Bennett, could you perhaps expand a little on the extent to which deregulation over the last little while, since it became a kind of ideological preoccupation somewhere in the eighties, has contributed to a lack of safety in the workplace?

Mr. David Bennett: I think there are two aspects of it. In the 1980s we had a situation in which most employers acknowledged the law, respected the law, and some of them even had a corporate policy of coming into compliance with the regulations, whether or not the inspectors were on their backs. Deregulation or the failure to enforce the law has generated a mentality among employers, even good employers, that they really don't have to bother with this, because they're not really going to see an inspector; they don't have to take the law or the details or the regulations seriously, because these matters are essentially a matter of complying voluntarily with the provisions of the law. In any case, they could make out an argument that the intention of the law was for the parties inside the workplace to handle this themselves, without the need for any form of government intervention. That's not, in fact, how the law came out, but they could make out that argument, so that even among good employers it generated an attitude that health and safety law really doesn't matter: we can do health and safety in the workplace according to our own corporate culture, because the public interest is no longer relevant to what we do.

The second thing that happened was that some employers, and Clifford Frame and Curragh were a case in point, never did have any regard for the law, for practice, for the culture of health and safety, which is developed in Canada in pretty much the same as in most industrialized countries. It really wasn't a factor that there were all sorts of provisions on the details of mining regulations, there were questions of having a joint committee, there were questions of respecting the employees' right to refuse. All these things were totally irrelevant. That's your case of sheer, cold-blooded corporate irresponsibility and your paradigm of people who should be prosecuted under an amendment to the criminal law--Curragh and Clifford Frame. Frame should have gone to jail for a long time, instead of which he has the effrontery to show up in Nova Scotia demanding that the same old corrupt organization he perpetrated in Westray is going to be repeated--having, by the way, narrowly escaped criminal prosecution for running down an employee in South America with a bulldozer.

This is the sort of individual, the sort of corporation we're dealing with. But we have to be clear, I think, that even when the system is working properly, there's still going to be a need for a criminal law amendment. Put it this way: the better the system works, the better the provincial, territorial, and federal authorities do their job, the less need there will be to invoke the Criminal Code, because it's there. It's needed because there will always be employers like Curragh, but also, the law would have an enormous deterrent value. It would tell provincial authorities, do your jobs, otherwise the Government of Canada is going to take over your jobs. And it would tell Curragh, you may think you can get away with it, but you will no longer be able to do this.

Â (1200)

Mr. Bill Blaikie: It seems that the other element with respect to lack of enforcement is that even if you're an ethical corporate president, and you're competing with someone who isn't, they can cut corners, because they know there's no inspector coming along. Therefore, they can reduce the cost of production, so at a certain point the good guy goes out of business or starts to behave like the bad guy. The same thing is true if you don't have the appropriate criminal sanctions available, because someone who knows the criminal sanction isn't there and has a particular frame of mind--if you don't mind the pun--is going to cut corners, reduce the cost of production and somebody else who has a different frame of mind is put in this position.

So whether it's enforcement or whether it's criminal liability, there's a need for both, in order to make sure we don't have this form of competition. Sometimes we laud it, but I think it actually produces quite nasty results.

The Chair: Thank you.

Peter MacKay.

Mr. Peter MacKay: Thank you, Mr. Chair, and to Mr. Bennett, and particularly Mrs. Davidson and Mrs. Lemay for very gripping testimony about what has happened. I think it reminds us again of the human impact of our task at this committee.

There's a chilling parallel between what happens in workplace environments around the country when in many instances, with Westray as a prime example, acts of omission, things that weren't done resulted in atrocities and disasters. In some regard, that happened at OC as well. There were things that could have been done to be proactive, to prevent. Because someone chose not to do them and someone chose not to take responsibility to make the necessary changes and put in safeguards, we saw what unfolded. We have to be mindful of that, because I think we should use that example as a backdrop.

Your testimony and the testimony of other witnesses reminds us that now we have that task. We have the knowledge now of something that has to be fixed. Part of it, as Mr. Bennett has just described, involves consequences, Criminal Code changes that put clearly in place a bar that says, if you don't do certain things, and if you do certain things, there will be a price to pay, not just a corporate price, a fine and a tax write-off, but actual jail time. I think this is where we are in trying to now put legislation in place. We have to try to craft something in law that will provide that disincentive. Businesses get incentives to do things, to meet deadlines, to make bottom lines. There has to be a disincentive against putting those things ahead of people's lives and their safety. That's part of the equation.

I'd like to ask a brief question about the need to protect so-called whistle-blowers, individuals who have knowledge of shortcomings in the workplace and who are prepared to come forward with that information. It seems to me that part of the overall picture here is allowing safeguards, so that a person isn't going to lose their job and their livelihood if they have the courage to come forward and say, there's something wrong here and there's something we have to do. I think we should not let jurisdictional questions or a power struggle between various levels of government get in the way of this. There has to be some degree of greater accountability on inspectors. As much as it was the fault of Westray managers and directors, there is an incredible portion of blame that has to be laid at the feet of inspectors who came and seemed to be prepared to overlook, for whatever reason the peril that was there. The Criminal Code, the disincentive, the consequences are part of it, but so is something that allows people the comfort to come forward with evidence and say, we're aware there's danger lurking, we want to make you aware of it, without feeling they're going to pay such a price for it that they'll lose their livelihood. I'm sure this is something you've given some thought to as well.

Â (1205)

Mr. David Bennett: I think that's a very fair question. When we're talking about whistle-blower protection, I think the committee will agree that we're talking about an area of rights that goes beyond health and safety. Health and safety provide one part of it, but it should be a general public right that workers have to report and publicize offences if the employer is behaving contrary to the law, or contrary even to corporate responsibility. As a matter of fact, there is limited whistle-blower protection in the Canadian Environmental Protection Act. There is also some form of whistle-blower protection in environmental legislation in Ontario, the Northwest Territories, and the Yukon. Yukon also has a right to refuse to pollute, which is comparable to the right to refuse unsafe work in the federal jurisdiction.

Let's look at why this is needed. It's obviously needed because, in some sense, the health and safety system has gone wrong. If the health and safety system is working properly, you don't need that right, or at least you don't need to exercise that right. So that's the first thing.

Second, the whole problem here is that the health and safety authorities are not doing their jobs. You could argue that employees already have the right to report their employer's infractions of the law to the health and safety authorities, but if the health and safety authorities have been told they basically don't have to enforce the law, this right is only a right on paper.

Then, in cases like Curragh, the bigger issue over whistle-blower protection is the ability to publicize, not merely to report to the authorities. Think what would have happened if any Curragh employee had gone public and said, life down this mine in sheer hell and it's Frame's responsibility. They would never even have got to the stage of reporting it. If by some miracle they had, they would never have gone down that mine again.

So there are good, legitimate arguments for whistle-blower protection. I just ask the committee to consider what problem this right is designed to solve. Furthermore, perhaps there are better ways of securing this right than the right of whistle-blower protection.

Â (1210)

The Chair: Thank you very much.

Ms. Fry, seven minutes.

Ms. Hedy Fry: Thank you very much, Mr. Chair.

There are two question I want to ask. One has to do with how you define a corporation. We've talked about municipalities--and I know my colleague Chuck Cadman asked this earlier on--but are we also talking about police and firefighters? If we are, how do you define risk in a risky job? Is there a way we can define that? For instance, if a firefighter is bound to go into a building that's on fire in order to rescue certain people, is there a time at which a firefighter may suggest that they cannot go into a building, because they know there are other risks involved in that building? Is there a way we can define what is risky within the boundaries of a risky job? This is for the sake of having some clarity on that issue.

The second question concerns punishment. The intent of this proposed bill is that the punishment should fit the crime. When you're talking about victim compensation, that's an easy thing: the corporation can put up the money for victim compensation. When you're talking about remedial action, if they want processes in place to assure safety etc., that is also an easy one. The one I think we're grappling with--at least I am--is, if you've agreed that there's criminal culpability, how do you define who does the jail term, the CEO, all the directors, the middle management person who did not carry out the instructions properly?

I really just want to put my head around how you define some of these things if you're bringing about legislation.

The Chair: By the way, welcome to Hassan Yussuff. I understand there was a problem with the flight.

Mr. Hassan Yussuff (Executive Vice-President, Canadian Labour Congress): Air Canada's schedule I can't control. What can I say?

The Chair: I fly to Fredericton, I know all about it.

Ms. Hedy Fry: I just wanted to say that the testimony was really moving, echoing Peter MacKay. I think it really makes us recognize the human face on what could seem to be some sort of faceless corporate disaster. Thank you.

Mr. David Bennett: Perhaps I can relate a personal experience as a firefighter that addresses the question. You should know that the fire officers have a war cry, and the war cry is, get in there. I was at a fire and I said--I won't use the exact words--I'm not going in there. Before there was a reply, bathroom fittings came tumbling through the roof, and nothing more was said about the incident.

But in general, it's true that firefighters are asked to go into burning buildings and the like where there is more risk to the firefighter's own safety than there is benefit in protecting the public. If you've got reason to believe a warehouse, for example, is empty, it should not be that firefighters have to go into such premises or walk on the roof, and then the roof collapses and six firefighters have lost their lives. But you're not going to get the criminal law directed at fire authorities, because it is the normal situation that fire authorities require firefighters to obey orders and to prevent as much damage as possible to property. It's where a fire authority asks in an irresponsible fashion for the firefighters to do a job that is of huge risk to their own safety that the law might come into play, and I really don't see any objection to that.

Â (1215)

Ms. Hedy Fry: Can you define those parameters?

Mr. David Bennett: I don't think you have to. If you look at the way the bill has been drafted, it's triggered, as it were, by deaths and by incidents. The authorities never have to gauge the risk in question, they can just simply look at the situation in the workplace, look at the responsibilities for health and safety in the workplace, and find either a harmony or a discrepancy between the two. So I don't think, the way the bill is drafted, there will ever be a question of the authorities having to gauge the risk before they decide whether or not to prosecute.

Mr. Hassan Yussuff: As to the latter point of comparability and who you would actually hold responsible, in the chain of a workplace there's usually a structure, the CEO, who gives orders, and his managers and supervisors, who carry them out. It's clearly recognized under health and safety law that there are individuals who are delegated responsibility for ensuring that employees' health and safety are protected in the context of the workplace. The prosecutors also have to make a determination of the appropriate person to be prosecuted in regard to the negligence. In some cases it may be the manager, in some the CEO. It should be left to the prosecution office to deal with those realities. There are supervisors who will quite often just carry out orders rather than have any more responsibility than a particular worker in the workplace. It may not be fair to prosecute him or her, but I don't want to get into the details of that.

I think the point has been earlier, I'm sure by David, about the importance of a deterrent. Far too many workers are dying in this country every year. I can't say all those deaths were directly attributable to negligence, but certainly, this is unacceptable in a country that claims to be highly developed and has the rule of law whereby workers rights should be protected.

I think there is ample recognition in the bill that the law would prosecute the right person.

The Chair: Thank you.

I am going to Mr. Cadman now for three minutes.

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

This is a purely technical question, mainly for my own information. Mr. Bennett, you suggested that a lot of the problems were with the health and safety boards, with the provincial people, the inspectors, and that if they weren't going to do their job, the federal government would be taking it over. Do we not get into a bit of a constitutional issue here, with the federal jurisdiction trying to take over what's clearly in the provincial jurisdiction?

Mr. David Bennett: Possibly. It's very interesting that when Justice Richard came out with his Westray report, he had no qualms about saying that the Nova Scotia department is so inept that the federal inspectorate should take over the role of the provincial inspectorate. Again, the way the bill has been drafted, I don't think that problem arises, because the crown has a right to prosecute, irrespective of--

Mr. Chuck Cadman: I'm not questioning the crown's ability if we have a criminal offence. I was just questioning the statement you made about the federal government taking over something in the provincial jurisdiction willy-nilly. Did the judge actually explain how that would be done, or was that just a comment?

Â (1220)

Mr. David Bennett: He didn't explain, but I simply don't see any clash of jurisdiction. The way we phrased our brief, it may appear that way, because we referred to the Government of Canada, but even now you get police investigations of workplace incidents to see whether an offence has been committed under the Criminal Code. It's quite clear that the police, representing a provincial or a federal authority, have the right to go into that workplace if they think a crime has been committed, irrespective of the scope of the provincial health and safety law. So I really don't see a clash of jurisdiction.

Mr. Chuck Cadman: I don't disagree. For investigative purposes, I can understand it, but you spoke of taking over something that's in the provincial jurisdiction. That's all I was questioning. Is there not a constitutional problem here that we could run into?

The Chair: Thank you, Mr. Cadman. Thank you, Mr. Bennett.

I'm compelled to remind everybody once again that we're not looking at a bill. I know that it's understood, but there's been reference made to that. We're actually looking at the subject matter of the bill. It's a small point, but one that gives us probably more latitude.

Mr. Maloney, three minutes.

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

Perhaps my question can be directed to the Canadian Labour Congress. Our focus has perhaps been on heavy industry, where there are inherent dangers and there are accidents happening. We also have comments like Justice Richard's reference to a predictable path to disaster. Mrs. Desjarlais has referred to dangerous situations where culpability should lie with individuals who knew a dangerous situation existed, allowed it to continue, and did nothing about it. I'm just wrestling with the question of how far we should be casting the net.

We've heard concerns here today that it would perhaps cover municipalities, municipal corporations, mayors, town councils, school boards. Would it also cover, say, an executive director of the Association for Community Living who sends employees to work in a home with clients who may be violent from time to time? Would it cover a situation where the Victorian Order of Nurses sends a nurse into a home to care for an individual who is known to be violent?

We've also heard of the culture of the workplace. We know workers themselves may take shortcuts to perhaps get to the lunch shack a little earlier. You don't have to be management. There are levels of authority where one worker may receive a few cents more an hour because of his additional responsibilities and tells a co-worker to go into a situation where he knows there are inherent dangers and has done nothing about it. Should that person be liable?

We've heard also about dysfunctional health and safety committees where there is union representation. There have been representations and resistance by the labour movement, but perhaps somewhere a union or an individual could also come under that umbrella.

How far do we cast that net?

Mr. David Bennett: The Canada Criminal Code simply can't talk about distinguishing between sectors or types of workplace, because the Code applies to everyone and anyone, every party or any party. So you have to say that the scope of the Criminal Code will be the scope of the Criminal Code. I presume you cannot have provisions in the Criminal Code that say the public sector is excluded. I doubt it. The CLC deals with employers, whether they're in the public sector or the private sector. We have absolutely no problem with the principle that this has to apply to all employers to whom the concept of corporate responsibility applies. For example, in Bill C-284 the term management is used, in particular officers and directors of corporations, or companies, or employers.

The idea of health and safety acts being used against employees, rather than managers or employers, has been a very sore point, because deregulation, it seems, applies to employers. Enforcement is virtually non-existent when it comes to employers, but the inspectors go in and serve orders on employees, at the expense of serving orders on management. I really don't see this as a problem in the bill, because the key concept is responsibility. Responsibility will apply to the degree to which the employee concerned has responsibility. In common law everyone has a duty of care. If, for example, one employee was fooling around and horseplay resulted in the death of another employee, already the criminal law has a provision for that, irrespective of the fact that it happened in the workplace. There will be a charge, probably, of manslaughter in that case.

So when it comes to actually applying the bill to employees, we're concerned about it, but I really don't see that this is going to be a problem. We're talking in this case about employers and the senior officers of a corporation. It's hard to see how this could be extended to throwing the book at employees.

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Mr. Hassan Yussuff: Again, I don't want to belabour this point, as I'm sure it was made in my absence, but I think it is important to remember that in the vast majority of workplaces in this country employers do take their health and safety responsibilities very seriously, so we don't have a situation such as Westray. But there are circumstances that need to be recognized. We're negligent in having employers not enforcing requirements under the legislation.

I think it is important to recognize also that with a small employer, big employer, private or public, regardless of what domain they may be operating in, there is a responsibility for them to assess the situation they're putting their employees in, the conditions of work. That is a requirement of law right now. When that is not being considered and someone dies unnecessarily, it is critical that somebody be held accountable. A worker shouldn't have to lose his or her life in the process of earning a living. The employer's responsibility is to assess whether there are situations of danger, whether they have done everything possible to ensure that an employee's life is not put at risk in the context of their responsibility.

The Chair: Thank you very much.

Monsieur Lanctôt.

[Translation]

Mr. Robert Lanctôt: I would like to make a comment. This goes back to the concern I had initially. You say that we must make changes regarding inspectors, and put them under the federal government, rather than the provincial government. This is what I am afraid of, and that is why I liked what the Steelworkers had to say. They said that there are five principles, including compliance with recommendation No. 73. One of them, the fifth one, states that the principles must be met without violating the principles of the Canadian Charter of Rights and Freedoms, the distribution of powers under the Constitution, or the Criminal Code. Thus, I am prepared to support a bill such as the one we have before us, but I am not prepared to have the federal government get into areas of provincial jurisdiction. That was my concern.

And your answer to Mr. Cadman, Mr. Bennett, was exactly along those lines. You want the federal government to get involved in an area of provincial jurisdiction, and that is what I am worried about, and that is what the Steelworkers told us they would never do when I met with them personally. You tell me that you also represent the Fédération des travailleurs et travailleuses du Québec. I find that somewhat surprising. If that federation goes along with you and says that the federal government should assume responsibility for the inspectors in order to solve the problem, I think we are heading in a direction I like far less.

Â (1230)

[English]

Mr. David Bennett: I think the CLC has quite simply been misinterpreted. It was not the CLC that said the federal government should take over the jurisdiction of provincial health authorities, it was one recommendation of Mr. Justice Richard, who, no doubt, thought the health and safety of workers in the province was more important than questions of jurisdiction. It is not the Canadian Labour Congress that has advocated that. We said we do not think there is any conflict between provincial authorities and the operation of the Criminal Code.

[Translation]

Mr. Robert Lanctôt: Thank your for the clarification.

[English]

The Chair: Mr. Grose.

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

I keep hearing a couple of words here that bother me a bit, law and voluntary. I must remember that the next time I'm stopped for speeding. I'll tell the officer I'm not volunteering today.

We're wandering off here. We've talked in the last hour mainly about something that concerns us not at all, provincial jurisdiction. You'll appreciate this, Mr. Lanctôt. Health and safety is not our jurisdiction, it's not our problem. We don't want to get into it, as far as I'm concerned. We want to get this thing done, I want it to happen. All we're being asked to do is provide a hammer to hold over them, and someone else is going to have to provide the nail. That's the way our federation is made up.

I'm quite sure that if we provide the hammer, any responsible corporation is going to say to their board of directors, fine, what do we have to do to avoid this happening to us? Follow the regulations. Who makes the regulations? The province does that. Are they making them? They have them, but they don't want to enforce them. They'd better enforce them. You people then will be able to go to the corporations and say, look, your health and safety is no good, and your corporation will probably go out of business if you have a fatal accident. Besides the fact that it's a terrible thing to happen, the corporation will go out of business, so you had better straighten up your health and safety regulations.

But they're not our business. Let's talk about what we should do, our part of it, and that's provide the hammer.

The Chair: Your response, Mr. Yussuf.

Mr. Hassan Yussuff: I second your suggestion.

The Chair: On that note, I want to thank the witnesses--I'm sure the CLC won't be offended if I say, in particular, the witnesses from OC Transpo. It's obviously a very difficult thing. As Ms. Fry has suggested and others have said, during the course of this inquiry we've seen a lot of the human side. I think it compels us, because perhaps this isn't so much an exercise in coming up with the detail as it is in coming up with the will. I think it's the human side that gives us the will. So thank you for that.

The meeting is adjourned.