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37th PARLIAMENT, 1st SESSION

Standing Committee on Justice and Human Rights


EVIDENCE

CONTENTS

Tuesday, May 28, 2002




Á 1100
V         The Chair (Mr. Andy Scott (Fredericton, Lib.))
V         Mr. Patrick Healy (Individual Presentation)

Á 1105

Á 1110
V         The Chair
V         Ms. Clare Mochrie (Director, Aurora Institute)

Á 1115
V         

Á 1120
V         The Chair
V         Mr. William Trudell (Chair, Canadian Council of Criminal Defence Lawyers)

Á 1125

Á 1130
V         The Chair
V         Mr. Vic Toews (Provencher, Canadian Alliance)
V         Mr. Patrick Healy

Á 1135
V         Mr. Vic Toews
V         Mr. William Trudell
V         Mr. Vic Toews
V         Mr. William Trudell
V         Mr. Vic Toews
V         Mr. William Trudell

Á 1140
V         The Chair
V         Mr. Robert Lanctôt (Châteauguay, BQ)
V         Mr. William Trudell

Á 1145
V         Mr. Robert Lanctôt
V         Mr. Patrick Healy

Á 1150
V         The Chair
V         Mr. Bill Blaikie (Winnipeg—Transcona, NDP)
V         Mr. Patrick Healy
V         Mr. Bill Blaikie
V         Mr. Patrick Healy
V         Mr. Bill Blaikie
V         The Chair
V         Mr. William Trudell
V         Mr. Bill Blaikie
V         Mr. Patrick Healy

Á 1155
V         The Chair
V         Mr. William Trudell

 1200
V         The Chair
V         Mr. McKay
V         Mr. William Trudell

 1205
V         Mr. John McKay
V         Mr. Patrick Healy

 1210
V         The Chair
V         Mr. Vic Toews
V         Mr. William Trudell
V         Mr. Patrick Healy

 1215
V         The Chair
V         Mr. Paul Harold Macklin (Northumberland, Lib.)
V         Ms. Clare Mochrie
V         Mr. William Trudell

 1220
V         Mr. Paul Harold Macklin
V         Mr. William Trudell
V         Mr. Paul Harold Macklin
V         Mr. Patrick Healy

 1225
V         The Chair
V         Mr. Robert Lanctôt
V         The Chair
V         Mr. William Trudell

 1230
V         The Chair
V         Mr. William Trudell
V         The Chair
V         Mr. Patrick Healy
V         The Chair
V         Mr. John Maloney (Erie—Lincoln, Lib.)
V         Mr. William Trudell

 1235
V         The Chair
V         Mr. Patrick Healy
V         The Chair
V         Mr. William Trudell

 1240
V         The Chair










CANADA

Standing Committee on Justice and Human Rights


NUMBER 091 
l
1st SESSION 
l
37th PARLIAMENT 

EVIDENCE

Tuesday, May 28, 2002

[Recorded by Electronic Apparatus]

Á  +(1100)  

[English]

+

    The Chair (Mr. Andy Scott (Fredericton, Lib.)): Good morning. Bienvenue tout le monde. I call to order the 91st meeting of the Standing Committee on Justice and Human Rights, and pursuant to the order of reference of February 12, 2002, we have the subject matter of Bill C-284, an Act to amend the Criminal Code (offences by corporations, directors and officers).

    To help us in our deliberations around the subject matter of Bill C-284, we have today, as an individual, Professor Patrick Healy, professor of law at McGill; from the Aurora Institute, Claire Mochrie, director of the Aurora Institute; and from the Canadian Council of Criminal Defence Lawyers, William Trudell.

    I'll remind everybody before we begin that the subject of our investigation is in fact the subject matter of the bill rather than the bill itself. I think it's helpful to have the bill as a point of reference, but we'd want everybody to recognize that in the context of our discussions there is a great deal of latitude in terms of how we might proceed on this. I mention this because it's come up a couple of times in the last couple of days.

    With that, I'm going to go first to Professor Healy.

+-

    Mr. Patrick Healy (Individual Presentation): Thank you very much, Mr. Chairman.

    May I say before I begin that it's a great pleasure to be here once again, and I thank the committee for the invitation to appear today.

    I understand clearly that this is a subject, corporate criminal liability, that has been referred to the committee for general consideration and not specifically consideration of this bill. However, I think that as this bill incorporates a number of ideas that have been raised over the years with respect to possible bases of corporate criminal liability, I would like to make a few remarks about the bill itself because it seems to me that on any account of the matter, some of the ideas that appear in this bill are likely to appear in any other consideration of the subject.

    The first thing I would like to say, however, before turning to the bill itself is that the subject of corporate criminal liability deserves the careful attention of Parliament now. It has deserved the careful attention of Parliament for some time and has not received it. I say this because, as you know, the only basis that we have for corporate criminal liability in the broad sense is the common law as reflected in the Supreme Court's decision primarily in Canadian Dredge & Dock.

    There are other instances in federal statutory law where liability is created with respect to the directors and officers of corporations, but primarily the basis of corporate criminal liability is the common law. And given the seriousness of the subject, given the importance and technicality of the subject, it is my view that it is not sufficient any more for this matter to be governed solely by the common law without statutory guidance.

    With respect to the bill itself, it is an ambitious undertaking with respect to corporate criminal liability. It is, however, in my view an undertaking that in its present form is open to comment and criticism. I don't want to be understood, however, as saying that I criticize the idea of an attempt to create a legislative footing for corporate criminal liability. My remarks are directed in the next few minutes to whether this is a good way to go about it.

    Basically, as I see it, the bill can be divided into two parts: those parts that are found in proposed sections 467.3 and 467.4, and that which is found in proposed section 467.5. The second deals largely with occupational health and safety, whereas the first two, 467.3 and 467.4, are concerned with corporate criminal liability on a much wider plane.

    I'm not convinced that it's possible for Parliament to regulate, certainly at the provincial level, all forms of occupational health and safety as proposed in 467.5 in the form presented here. I simply raise that as an issue that you should be concerned about—the scope that Parliament's action can take with respect to occupational health and safety through the use of the criminal law.

    With respect to 467.3 and 467.4, I do have considerable anxiety. Some of my anxiety is attributable to fairly technical points. Other reasons I think are more substantial, and, if I may, I'll go through some of those points one after another.

    I am concerned, for example, in proposed paragraphs 467.3(1)(a) and 467.3(1)(b), about a problem that would probably be best described as a problem of vagueness. I don't know, for example, what it would mean to refer to “the part of the activity of the corporation”. I understand the purpose of that phrase in these two paragraphs, but nevertheless I'm not sure that that phrase is sufficiently precise.

    The second point I would make is that at several points in the bill there's the use of the phrase “where it is shown”. I don't think that this is what is intended here. It must be what is intended is “when it is proved”.

    There is the small matter of the presumption of innocence in Canadian criminal law, and any accused, including a corporation, is entitled to the protection of the presumption of innocence. So if there is going to be any phrase like that, as in 467.3(2) at the opening words “Where it is shown”, because that sentence, which is the charging provision in the bill, concludes with the words “the corporation is guilty”, then it's not simply a question of showing it's a question of proving beyond reasonable doubt.

Á  +-(1105)  

    The next point I would make about proposed subsection 467.3(2), which is really the core of this proposal, is that when it's taken together with proposed section 467.4, it creates a kind of cascade of liability. I would like to draw the committee's attention to a couple of points.

    Let's start with the assumption that if the possible use of provisions like this proceeds on the basis that we don't have a natural person who can be clearly identified--perhaps there is one, but this goes beyond the identification of a natural person who could be alleged to have committed a criminal offence—proposed subsection 467.3(2), in paragraphs (a) through (d), creates alternative grounds for corporate criminal liability. In other words, if it is shown that an act or omission has been committed on behalf of a corporation, then if any one of (a) through (d) is satisfied, that makes out the complete case for criminal liability in the corporation.

    There is one general question—and this is something on which you will ask us questions, I have no doubt—about whether each of the bases of liability in paragraphs (a) through (d) are of equal gravity, equal culpability. In my view, incidentally, although I will develop this in answer to questions, I don't believe they are of equal gravity. In any event, that's the basis for corporate criminal liability: when you have proof of the opening words of proposed subsection 467.3(2), plus any one of paragraphs (a) through (d).

    Then, even assuming you've got proof of corporate criminal liability on any one of those grounds, proposed section 467.4 would say the liability can be extended further to directors and officers. That would mean at the end of the chain directors and officers are going to be held liable and exposed to the same level of punishment as a natural person who is proved to have committed the offence with a full degree of fault.

    This is a sweeping measure. I understand its purpose; nevertheless, it's sweeping in its scope, and I think there is a very real possibility—Mr. Trudell will comment on this, I have no doubt—that this measure would be open to constitutional challenge on the basis that the grounds of culpability, certainly so far as directors and officers are concerned, are not of commensurate weight and culpability with the commission of an offence by a natural person.

    As I say, certainly if you take the extreme example of the possibility of a corporation or a corporate officer or director being held liable for murder or for theft under a provision like this, it is highly improbable that a measure such as this would satisfy constitutional challenges.

    There's a reference in the bill to the notion of corporate culture. This leads me to make a couple of observations. One is that there is nothing in this bill that would deal with the specific evidentiary problems raised by corporate criminal liability. If Parliament were to rely on a notion of corporate culture as a basis for the liability of corporations, it seems to me it would be impossible to do it without specific evidentiary mechanisms that would allow for the compulsory production of information, that would allow for proof of what that corporate culture actually is. And if that is the case, it's going to be extremely difficult, in my view, for the provisions on corporate criminal liability to coexist with the liability for directors and other officers.

Á  +-(1110)  

    A final point, because I know you wanted to limit us, Mr. Chairman, to ten minutes, is that there is no definition in this legislation of what a corporation is. Section 2 of the Criminal Code provides a partial definition, but by no means is it a complete definition. Does it include, for example, partnerships? Does it include different kinds of what are called in French personnes morales that might exist in the civil law of both the common law provinces and Quebec? It would be impossible for Parliament, in my view, to pass legislation dealing with corporate criminal liability in the absence of a comprehensive definition of corporate bodies that could be found liable.

    I think that probably exhausts my ten minutes to begin with, Mr. Chairman, but I will happily develop these and other points in questions.

+-

    The Chair: Thank you very much.

    Madame Mochrie.

+-

    Ms. Clare Mochrie (Director, Aurora Institute): Good morning. On behalf of the Aurora Institute, I'd like to thank the committee for this opportunity to contribute to the discussion on Bill C-284 and for extending the time to hear witnesses on this issue.

    The Aurora Institute is a national, not-for-profit, non-partisan organization established to provide accessible research and education about the structure and role of the corporation, as well as to foster alternatives in response to an increasingly market-driven society.

    I'd like to begin by affirming Aurora Institute's support for Bill C-284. With over ten years since the tragedy of Westray and with hundreds of workplace accidents occurring since then, it is critical that we as a society seriously address the accountability of our institutions and their agents for corporate behaviour resulting in harm to workers, their families, and their communities. The introduction of corporate criminal liability standards is long overdue in this country, as it is a definite step towards achieving this goal and preventing similar accidents in the future.

    Our comments are therefore intended to enhance rather than hinder the progress of C-284. The committee has already heard extensive testimony on the legal and ethical issues regarding the bill. We'd like to take this opportunity to take a slightly different approach. I'll first build on the broader issues raised by the bill and then focus on their application with respect to its provisions, its scope, and its feasibility.

    Speaking at the macro level, the purpose of the bill is to address the capability of corporations to act in a manner that jeopardizes the health and safety of employees. Corporate criminal liability is meant to incite greater concern amongst corporate management towards their employees and foster a corporate culture that makes work health and safety a priority. As such, as several previous witnesses have indicated, the bill may not be sufficient by itself to ensure against accidents such as Westray. Aurora supports points already made, highlighting the importance of adequate health and safety regulations, as well as the need for sufficient enforcement mechanisms.

    In addition, we would like to point out the need to ask the broader question of what allows—some would argue encourages—corporations to disregard employee safety. The question leads us to address how corporations operate and the legal building blocks that define corporate structure.

    Corporations are institutions created by law. Laws spell out the rights, powers, and responsibilities of the corporation, and these in turn inspire the goals, rules, and purpose that form the basis of any corporate culture. Therefore, the corporate culture this bill rightfully addresses is necessarily a function of the corporate structure as it exists in law, and unless that structure is addressed, the type of corporate culture that overlooks employee safety will always be an issue.

    There are a number of specific aspects of the corporate structure that are particularly relevant in inspiring the type of behaviour Bill C-284 aims to eradicate. The Aurora Institute has identified nine legal principles that are key to understanding how corporations operate, but I will only address five here and refer the committee to our guide entitled The Corporation: Inside and Out for further details on the remaining principles.

    The first and paramount objective is profit maximization, which derives from the fact that corporations are and always have existed in essence as economic institutions. Directors are required by law to act in the best interests of the corporation, and courts have interpreted this to mean they must always seek to maximize profits for shareholders.

    Limited liability is another key facet that influences the way corporations operate, insomuch as that means shareholders can obtain unlimited profit from the activities of the corporation but are only liable for the amount they invest. Even in private corporations, where shareholders are often management, this principle ensures that individuals as shareholders are immune from the effects of corporate wrongdoing.

    The third principle, which has also been addressed by previous witnesses, is corporate personhood. Mr. Blaikie has pointed out very compellingly in an earlier session that “corporations seem to have all the freedom of persons...when it comes to economics, but they have none of the responsibilities of persons when it comes to the consequences of their actions”. This paradox exists largely as a result of the principle of corporate personhood and the fact that when a corporation does something wrong, the court will not look behind the corporation to hold its owners and directors personally responsible.

    Fourth, the separation between owners and employees has created conflicts between the interests of management and employees.

    And finally, the ability of corporations to own other corporations allows companies, by virtue of corporate personhood and limited liability, to shield themselves from responsibility for the acts of their subsidiaries.

    These five principles have all been discussed indirectly before this committee with respect to the bill. However, it has not yet been acknowledged that these are in fact the legal principles that produce the type of corporate culture and reckless management decisions that underlie the predictable path to disasters such as Westray.

    As such, in addition to regulatory actions with respect to health and safety regulation and enforcement, we would like to impress upon the committee the need for parallel regulatory changes to address the rules and constraints under which corporations operate.

Á  +-(1115)  

    Specifically, we recommend regulations that promote “triple bottom line accounting” to factor in the social and environmental costs and benefits of doing business. Similarly, we see the need for regulations that shift the conception of employees as mere expenses to assets.

+-

    Regulations that expand the scope of what directors are able to consider when making decisions are also necessary in order to allow directors to give worthy consideration to employee health and safety over and above the need to maximize profits for shareholders.

    These recommendations offer to address the principles of the corporate structure and thus reinforce the effect of the bill through regulations. However, there are also a number of associated points that relate to the bill itself.

    First and foremost, examining the structure of the modern corporation reconfirms the importance of a corporate culture approach to addressing criminal liability. In light of profit maximization, the separation of ownership and labour, and the principle of corporate personhood, the law requires a means of addressing the relationship between the actions of individuals within the corporation and the corporation as a whole.

    The Crimes (Workplace Deaths and Serious Injuries) bill that has been referenced a number of times before this committee and is currently in its second reading before the Parliament of Victoria in Australia, goes even further with this concept of corporate culture and the assumed link between the employees and the corporation.

    Subsection 14A(2) of the Australian bill seems to suggest that the culpable actions of any one employee of a company would automatically implicate the larger corporation. It states:

the conduct of employees, agents and senior officers of a body corporate acting within the actual scope of their employment...or within their actual authority, must be attributed to the body corporate.

And I would emphasize “must be attributed”.

    At the very least, Australia's interpretation of corporate culture lends support to this component of the current Bill C-284. In addition, it raises the question of who should and should not be encompassed within the definition of corporate culture. The committee has already explored this to some degree with respect to unions and independent contractors. However, in order to address the chain of unaccountability that is created by the ability of corporations to own other corporations, we see the need to also extend corporate culture to include the parent corporations of subsidiaries.

    As stated, limited liability and corporate personhood shield a parent company from liability for the acts of its subsidiary. This is a critical point because the primary decisions and resources of the corporation are often held by that parent entity.

    As such, a concept of “enterprise liability” exists within both Canadian and U.S. law—with respect to contaminated sites, for example, in Canada—as a means of removing the shield provided to parent corporations. Under enterprise liability, corporate groups, rather than each subsidiary company, are recognized as a single unit under the law, with the effect of implicating parent companies in the wrongdoings of their subsidiaries. Extending responsibility in this way is a preventative measure that encourages parent corporations to maintain greater involvement and oversight in the operations of their subsidiaries. As such, we submit that this liability standard is necessary in such instances where worker health and safety are at stake.

    Finally, we would like to highlight a weakness of the penalty section of the current bill. In several of the earlier sessions the committee has discussed the importance of this legislation to actually affect the way business is conducted and corporate culture is developed. To this end, we would like to point out that as it stands there is nothing in the current bill to prevent directors or officers of a corporation found guilty of authorizing an offence from joining other boards in the future.

    As I am, surely the families and friends of victims of Westray would be deeply disturbed to know that the managers and directors of Curragh Inc. are now operating as a new numbered company, and they would still be able to act as such were they to be convicted under the Criminal Code with Bill C-284 as it is written.

    This point speaks in part to a weakness in the bill. However, similar to other points raised, it too finds roots in corporate law, which does not preclude convicted criminals from serving as directors on corporations. Whether it is through amendments to the bill or to the Canada Business Corporations Act, which governs corporations, we feel this issue clearly needs to be addressed.

    In conclusion, Aurora would like to restate the imperative of Bill C-284. While recognizing that criminal law is not the only vehicle for addressing the capacity of corporations to disregard the well-being of their employees, still, as distinct from civil law, criminal law has certain qualities and carries with it such a stigma that it is a very potent and appropriate agent to address this issue.

    Thank you again for this opportunity to appear before you.

Á  +-(1120)  

+-

    The Chair: Thank you very much.

    Mr. Trudell.

+-

    Mr. William Trudell (Chair, Canadian Council of Criminal Defence Lawyers): Thank you, Mr. Chair and members of the committee. On behalf of the Canadian Council of Criminal Defence Lawyers, I am grateful for the opportunity to appear here today.

    I'm also grateful to hear that the bill itself is a catalyst to a wider look at corporate responsibility. We have not to date but will be providing something in writing from across the country in relation to these issues that may be of some assistance.

    I had a dream last night that I—

    A voice: [Editor's Note: Inaudible]

    Mr. William Trudell: No, as my five-year-old says, that's a mirror light, as opposed to a nightmare.

    I dreamt I came here and the bill had already been passed, and I was running to a phone to call all the persons I know who are directors of corporations to tell them to resign immediately before I was reported to the law society.

    Quite frankly, that's the sort of stark and maybe real concern here with some of the aspects of this bill. But let me just give you an overview of how we look at this.

    There is no question about the fact that the Westray disaster contributed to this bill and why you're perhaps looking at the larger issue. But I would respectfully submit that there's another culture, and the other culture is that the big guys are getting away with it all the time, and how do we catch them?

    I don't think that's really fair, because Westray, for example, was case-specific. The tragedy isn't lessened, but the prosecution in Westray may have resulted in something different had there not been problems along the way.

    I disagree, with great respect, with Professor Healy's suggestion that we really do need to look into an expanded corporate liability in relation to criminal law. The Canadian Dredge & Dock case, which I don't pretend to know that well but had an opportunity to read again last night, expands the definitions of “directing mind” to include the board of directors, the managing director, the superintendent, the manager, or anyone else delegated by the board of directors who is delegated the governing executive authority of the corporation. So it's not narrow. In my respectful submission, it's expansive and can be used to find more than one directing mind.

    So do we need to change the law in relation to corporate responsibility in criminal law? I would frankly suggest that we don't.

    Some of these things happen, and you work very hard on all these bills. Some of these are reactions to disasters, and reactions to disasters are not the way to look at the changes that may or may not be necessary in basic principles of criminal law.

    Of some concern about the bill, of course, is that it shifts the onus. In other words, once something is established, it shifts to the corporation to prove that they're innocent, in effect. That's a shock to the basic principles of criminal law.

    Basically it is also too expansive and too vague in terms of including, for instance, an independent contractor who does something and the corporation then becomes responsible.

    This is a bill about workplace safety. That's evident from the last couple of sections. But the first sections don't help, don't address, and are not needed in relation to the issue of workplace safety.

    There is an issue of corporate culture that runs perhaps through this bill, in the very helpful article of Anne-Marie Boisvert of McGill University, that's a backdrop to this. But it's my respectful submission that this is going off into social policy issues.

Á  +-(1125)  

     Unless we can show we are unable to prosecute corporations properly, or there's a deficiency in the law—not disasters that occur—it's our respectful submission that this bill ought not to be changed.

    The way we identify corporate culture is it's a corporate culture. It's something we know about. I would respectfully submit that it's not hard to move through that with investigative agencies to discover if, at the top, there was a recklessness or negligence. At the end of the day, what you have here is negligence. What you're talking about is wilful blindness. With respect, the law is equipped to deal with these issues.

    It may very well be that new legislation is needed for workplace safety. If that's the case, let's say it, but let's not go on to say it looks like or it appears that these disasters mean we can't get the people responsible; therefore, we're going to change the law. In my respectful submission, it is very dangerous. I would ask you to continue to study this, and divide it up into deciding what's really necessary and what may be a reaction to large events.

    Thank you, sir.

Á  +-(1130)  

+-

    The Chair: Thank you very much.

    I'm going to go first to Mr. Toews for seven minutes.

+-

    Mr. Vic Toews (Provencher, Canadian Alliance): Thank you very much for your comments and presentations.

    I, too, share some of the concerns Mr. Trudell has indicated in respect of the scope of the law and issues of constitutionality. It would be a great disservice to the survivors of Westray, and the families, if we were simply to pass a law that reacted to the situation without ensuring the principles were constitutionally sound. I think the advice you've provided is very important in this respect.

    I'm particularly interested in some of the comments Mr. Healy made, which you glossed over. I think we need to revisit some of them. This doesn't relate as much to the issue of the charter and that aspect of the Constitution. But I noted your comments in respect of the scope of the bill and provincial jurisdiction.

    Increasingly, we've seen the courts giving more and more jurisdiction to the federal government in respect of the area of criminal law. Perhaps this is just something coming full circle again: whenever the federal government or federal Parliament decides something is criminal, they can pass a law and make it criminal. I know there are some exceptions to this issue. But I was particularly interested in your comments in respect of provincial jurisdiction in occupational health and safety. Why couldn't the federal Parliament simply declare something to be criminal activity, whether it involved traditionally provincial areas of occupational health and safety? It disturbs me that we might be able to do this as a federal Parliament, given our federal system. But why couldn't our Parliament do this, in light of some of the comments made in the recent gun registry case, for example?

+-

    Mr. Patrick Healy: It's not just the recent litigation on firearms. The Tobacco Products Control Act litigation produced some very sweeping statements about the scope of the criminal law power.

    At the moment I haven't given this as much attention as I should, in order to answer your question intelligently. But I would say it's probable that Parliament could go into the field of occupational health and safety, under the guise of the criminal law, to some extent. What the extent of this would be precisely, I can't tell you at the moment. I haven't thought about it sufficiently.

    I think there are two points. One is the use of the criminal law as a mechanism for controlling disasters of an occupational health and safety nature, within the federal labour domain. This is possible. I think there's considerable scope for this. How far it would go beyond this, into areas traditionally covered by provincial legislation... There's no doubt the Supreme Court has expanded the notion of Parliament's control or jurisdiction over criminal law, but I really don't know whether it would go as far as we see in proposed section 467.5. The only reason I mention it now is that if this matter is given long and careful consideration, it is an issue that will have to be addressed carefully.

Á  +-(1135)  

+-

    Mr. Vic Toews: My concern is that in our eagerness to fill the perceived void in the appropriate regulation of workplace safety and health--through a criminal law angle--we are destroying the balance with provincial responsibility, to ensure it also has inspectors and regulations addressing this type of issue. I think it's not only in the tobacco case, but also in environmental cases, where we see an ever-increasing expansion of federal powers. I think sometimes the local authorities need to retain this kind of jurisdiction. I'm concerned about this.

    I'm wondering if some of the other witnesses would like to comment, particularly on this point, to see if they have any concerns about the federal Parliament expanding its overt jurisdiction through legislation.

+-

    Mr. William Trudell: I don't see the void. I think the proper application of existing legislation, both provincial and federal, will satisfy the need to address environmental protection and workplace safety, etc.

    I don't think we need to really examine the whole corporate structure. What we need to do is look at the tools we have in relation to enforcement.

    So, sir, I don't perceive the void. I don't know where the void is.

+-

    Mr. Vic Toews: Isn't the criminal law tool in this area also a very clumsy tool? And didn't some of the criticisms about the Westray prosecution result not necessarily from the negligence of anyone involved in the prosecution, but from the fact that there are necessarily certain safeguards in our criminal law process?

    Perhaps there are other ways of achieving corporate responsibility without moving in this direction.

+-

    Mr. William Trudell: This bill includes lots of things like “ought to have known”, which is just foreign to everything in terms of affixing responsibility.

    I apologize for doing this, but if we could just take it out of Westray for a minute and talk about a small corporation.... We're not just talking about disasters here, but also corporate fraud, stockbrokers, municipalities, and the entire corporate community. If we think in terms of enforcement and environmental workplace safety to avoid disasters, that's one thing.

    I think we should look at whether or not there really is a void. More importantly, what needs to be done is to look at the domino effect, or what else we're doing in terms of potentially criminalizing persons who, for instance, give their time to be directors.

    I don't know whether I am answering your question. It's just the basics of criminal responsibility...a mind that is directed to the event and the event itself, or recklessness, or willful blindness. It's covered.

+-

    Mr. Vic Toews: I think it's key that we don't affix criminal responsibility to people who don't have the requisite criminal intent. There are perhaps issues that need to be addressed in the context of the criminal law. But I think the principle of criminal intent, which is necessary for criminal prosecution, needs to be saved.

+-

    Mr. William Trudell: When you talk about directors and officers' liability, and then about life in prison for unsafe working conditions resulting in the death of any person, can I just say—wearing a defence counsel's hat—this is kind of a shocking statement to get us all paying attention. But obviously this flies in the face of everything we know in this country in relation to the presumption of innocence.

    There are other ways to get the message out in relation to corporate responsibility.

Á  +-(1140)  

+-

    The Chair: Thank you very much.

    Monsieur Lanctôt, for seven minutes.

[Translation]

+-

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

    I will not talk again about the competency problems that this can raise, but we are very worried about this. This is something that really annoys the Bloc québécois. Everything will depend on how the bill will be worded. Currently, we are not reviewing how the bill is being worded; we are talking about the principle behind the bill. We put a lot of importance on the wording. In light of the Constitution, this is where I see the biggest problem with such a bill.

    We have heard witnesses, and we know about the Westray story, but we have also heard a lot of other stories. I would like to respond to what Mr. Trudell said. If the current legislation is correct, we surely have a major problem in terms of resources or applying the legislation, because these workers must be protected, and they currently aren't.

    All these terrible accounts that we have heard from the start are incredible. Is this due to a lack of resources? Is it due to improper application of the legislation? Do the inspectors have personal problems? Should we look even further? And this is where the constitutional problem comes up. Do we have to once more use the Criminal Code to address a problem?

    Will the proper application of existing legislation on workplace safety and health, which is provincial legislation, as well as sufficient resources, help avoid problems that we have heard about from the witnesses? Is the problem at this level, or must we really amend the Criminal Code?

[English]

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    Mr. William Trudell: I think there are two issues I'd like to comment on. First, I think it's a problem of enforcement, in relation to what's available out there. Second, why do we need to change the Criminal Code? We have criminal negligence in the Criminal Code.

    There's no question about it that if someone acting on behalf of a corporation is criminally negligent in the performance of their duty, the corporation can be charged also. The question then becomes whether the crown can prove there's a degree of negligence establishing criminal negligence in the Criminal Code. The code is not silent. The issue seems to be that we can't.... You mention that workers need to be protected and that it doesn't seem they are being protected. In all the disasters we have, unfortunately, experienced in the last number of years, I would suggest there is a failure to put into effect what's in place.

    Just because I spent so much time there, Walkerton comes to mind. Walkerton represents a failure to use the existing law. Might I say this with some delicacy: we talk about corporate culture, and there was a culture in the Progressive Conservative government that cutbacks should take place, and that we should get out of regulatory...or enforcement and move to voluntary compliance. There was a move to privatization. Without blaming anyone, this unfolded by the work of the commission. By the use of subpoena, there was no difficulty in finding whether there was a culture that set things in place.

    So I think the tools are there. What we found in Walkerton was that the tools that were there weren't being placed or weren't being used. We also found there was a culture that perhaps led to the tragedy. You all know of all the layers. It wasn't hard to find it. This is government. With great respect, there may be some people who are saying right now there's a corporate culture in British Columbia. If, eventually, a tragedy occurred, this wouldn't be hard to find, if someone then says it's the result of the policies being put in place.

    To try to answer your question, it's my respectful submission that it's twofold. The structures are there. They need to be enforced and to be given the finances. The infrastructure needs to be supported, as opposed to cut back. Then we have to look at the existing provisions of the Criminal Code and other statutes, which are getting tougher on environmental concerns, etc., throughout the provinces.

    I think this may solve the issue.

Á  +-(1145)  

[Translation]

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    Mr. Robert Lanctôt: Mr. Healy, you spoke to us about the problem of corporate culture. This is not demonstrated in the bill. What could be done to address this in the bill? How could we improve it so that we have the necessary tools to highlight this problem?

[English]

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    Mr. Patrick Healy: It will take me a minute or two to develop the answer to this question.

    What I said in my earlier remarks was that if Parliament were to adopt a test of liability based upon corporate culture, there would have to be particular means of getting information about what that culture was.

    There are in the Income Tax Act and the Competition Act measures that allow for the compulsory production of documentary information, information of one sort or another. Those provisions are problematic still in a number of ways, but it would be impossible to operate a test of corporate culture for criminal liability, in my view, in the absence of such provisions.

    Now, by giving you that answer, I'm saying amongst other things that the evidentiary mechanisms would have to be tied to the test of liability itself, and I have remarks that I would make about the test of liability.

    At the moment, we operate under the test in Canadian Dredge & Dock that Mr. Trudell talked about and I mentioned earlier, which is known as “the identification doctrine”. You have to be able to identify a natural person acting on behalf of or for the corporation, whose actions can engage the corporation, with proof of all of the required elements of the offence—mens rea, whatever it happens to be; negligence in some cases.

    As to the identification doctrine, on this point I'm not sure that Mr. Trudell and I actually disagree, but the identification doctrine is a fairly narrow test in the sense that you have to be able to identify that natural person within the corporation who is identifiable as the directing mind, as a person of sufficient seniority and responsibility to engage the corporation's liability.

    There are other models, as you know. There's a wider model based on vicarious liability, notions of vicarious liability, that has found favour in the United States, where you don't have to be able to make proof of all the elements of fault in a particular natural person. And then there's an even wider test of liability, this notion of corporate culture.

    May I just say this in response to your question? I know it's a roundabout way of getting there—and I don't say this as criticism, believe me, and Mr. Toews' question actually raises this too—but this bill fails to address the different degrees of severity among criminal offences.

    There's a difference between culpable homicide and careless storage of dangerous substances, right? This bill does not make a discrimination, a sophisticated one or even an unsophisticated one, between different degrees of criminal liability. It doesn't make a distinction between criminal liability, in its core orthodox sense, and regulatory liability, that is to say, the kind of criminal liability that could be incurred by corporations in the regular conduct of their business.

    I think of statutes that have been passed by this Parliament such as the Hazardous Products Act, which provides for criminal liability. This is a far cry from culpable homicide.

    So when this bill discusses corporate criminal liability, it doesn't do that with any degree of discrimination amongst types of liability, whether it's regulatory or criminal, or different types of criminal liability, and that, for me, is a signal failure of it. The reason I say it's a failure is that it might be appropriate to have a wider net of criminal liability for less serious offences, but a narrower one, perhaps even the identification doctrine that we see in Canadian Dredge & Dock, for the most serious offences. I'm thinking, for example, of culpable homicide.

Á  +-(1150)  

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    The Chair: Thank you very much.

    Mr. Blaikie.

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    Mr. Bill Blaikie (Winnipeg—Transcona, NDP): Mr. Chairman, perhaps I could ask Mr. Healy to just carry on from there, because what I wanted to ask him was, in his view, what's wrong with the bill, and how this can't be done in many respects. On the other hand, he sort of opened up with an encouragement to do something.

    So, in your view, how can it be done, the very thing that you want the committee to do, but that in your view can't be done through what we have before us? How would you do it if you were us?

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    Mr. Patrick Healy: Well, that's why you're elected.

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    Mr. Bill Blaikie: No, that's why you're here as a witness, because you're a law professor.

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    Mr. Patrick Healy: This gives new meaning to vicarious responsibility.

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    Mr. Bill Blaikie: You won't be liable for anything you say—

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    The Chair: We're creating a scenario, Mr. Blaikie, where Mr. Healy may not be back.

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    Mr. William Trudell: Could I just have a minute, outside, before he answers the question?

    Some hon. members: Oh, oh!

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    Mr. Bill Blaikie: I didn't realize I was asking such a difficult question.

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    Mr. Patrick Healy: A lot of people have spent a lot of time thinking about corporate criminal liability, and there are different models that have been advanced, as you know.

    What this bill shows...it's as if they were all thrown into one bag. I'm not saying all of the ideas in here are bad, but it has to be considerably more sophisticated than it is at the moment for it to be workable.

    As I said a moment ago, perhaps for less serious offences, offences that are properly designated as offences of negligence, a wider test of liability than that found in Canadian Dredge & Dock would be feasible, perhaps even reliance on a notion of vicarious responsibility that goes further down the corporate ladder, the corporate structure, than the identification doctrine would allow.

    But I do think—and I have no doubt that Mr. Trudell and I agree on this—when you're talking about the most serious criminal offences, not just homicide, but the top end of fraud and other commercial offences, it's going to be very difficult for the courts to find constitutional validity in legislation that does not preserve some notion of individual fault, rather than a very diffuse form of collective fault. I'm convinced of that, at least to the extent that the courts have said there are offences that require proof beyond reasonable doubt of an element of mens rea, by which I mean a subjective mental element of intention or recklessness.

    Where the courts have said that is a constitutional requirement, the kinds of things that are proposed in this legislation will not meet that requirement.

    It's not possible to substitute, under current constitutional standards, these grounds of liability for those grounds—that is intention or recklessness--without running into constitutional difficulty. That is an observation that I make about the most serious criminal offences.

    There may be other things at the lower end, offences of negligence, where a wider test of corporate liability would be workable. But certainly at the top end, I think there would be serious difficulties.

    One point that I would make to underscore this—and it was mentioned by Mr. Trudell—is that this bill provides for a reverse onus in respect of every alleged instance of corporate criminal liability, and it would be for the defence, the accused, to prove his, her, or its innocence.

    It is a sweeping proposition that there should be a reverse onus imposed on corporate entities for all forms of criminal liability, and I have no doubt that would also meet with severe constitutional challenge.

    But to answer your question, Mr. Blaikie, first of all, there has to be some attention given to the differences between true crimes as we know them and offences that are more of a regulatory nature. In current Canadian criminal law, this is one of the most intractable, difficult problems. We do not have, in current law, a workable distinction between regulatory liability and criminal liability, and it's absolutely central to the problem of corporate liability.

    There is also going to have to be, in further work on this subject, not only attention to corporate criminal liability and regulatory liability, but to different types of criminal liability, because the model that is adopted will have to take into account the seriousness of the offence.

    There will have to be, again, evidentiary mechanisms that are specifically designed for dealing with corporate criminal liability, and I would suggest that there are also problems here about prosecutorial policy.

    If you look at the way the bill is drafted, proposed section 467.4 basically says that if you have proof beyond reasonable doubt under proposed section 467.3 of the liability of the corporation, then it goes without saying that the directors and officers are equally liable for the offence that is charged.

Á  +-(1155)  

    I assume that this would have to mean that there is an indictment that charges the corporation and those individual persons jointly. I don't see how it would work otherwise. Even if it were to work in that way, it seems to me that there's a huge problem about saying that those natural persons, the directors and officers, are in the same legal position as the corporation under these measures. There, too, I would suggest that while I understand the idea that is here, the current mechanism doesn't do it.

    I realize, Mr. Blaikie, that you're saying I'm not answering your question. How do we do this? How do we go forward? Perhaps Mr. Scott will invite me back another day. I didn't actually put my mind to how you were going to do your job; I did put my mind to what is reflected in this bill so far. Ask me back.

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    The Chair: Mr. Trudell.

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    Mr. William Trudell: Following up on this issue, I'd say to Mr. Blaikie that I didn't mean to be trite at all in the beginning. If there's no fault here, then there will be no directors. Unless you are able to say that I haven't exercised due diligence as a director and unless that's in some form of legislation, the due diligence argument is an absolute defence.

    Whether it's a big company or a small company, corporations are important. Some are offensive, but corporations are important. You will not have people who want to be directors and officers. Then we're in a different state.

    I would never even pretend to start thinking as rapidly or as well as Professor Healy, but I don't think I'd have concerns about a more serious offence as opposed to one based on negligence that's less serious. What may be extremely serious to ABC Corporation, which is huge and a conglomerate, can be just as devastating to C Corporation or F Corporation, the smaller corporations at the other end of the scale. I don't think Professor Healy was saying that, but I offer that as an item of some concern.

    If you're going to legislate this, then as much attention should be paid to defences as there is to a position that something's gone wrong here and everybody's responsible.

  +-(1200)  

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    The Chair: John McKay.

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

    Initially I had written down questions that in some measure have been covered by the other questioners. Your position, Mr. Trudell, was that the Dredge & Dock case was a perfectly adequate common law response to this issue. Then Professor Healy expanded on those comments to say there really wasn't that much of a disagreement between the two of you, namely that this identification doctrine, by some means or other, would identify the corporate person responsible.

    The first question, therefore, is to Mr. Trudell. Do you agree that whatever disagreement between the two of you is somewhat reduced by this notion of the identification doctrine?

    My second question is to Professor Healy. When you were expanding on this notion of identification doctrine, you talked about it identifying a particular person. Then you said something about the U.S. model. It wasn't clear to me what the difference was between the U.S. doctrine and the identification doctrine you mentioned in the Dredge case. What is the difference between that and the corporate culture model the Australians appear about ready to adopt?

    The sub-question to that is whether we are under charter and constitutional constraints that the Australians are not, and whether that precludes us from going to that kind of corporate culture model.

    Finally, there's the old saying in law that bad facts make bad law. Westray certainly set out pretty bad facts, yet Justice Richard, in recommendation 73, said:

...should introduce in the Parliament of Canada such amendments to legislation as are necessary to ensure that corporate executives and directors are held properly accountable for workplace safety.

    I took your point on the Walkerton inquiry, with which I'm a little bit more familiar than the Westray inquiry, that it wasn't so much a failure of law as a failure of prosecution. I wonder whether that is true with Westray, and there should possibly be a refocus on the means of prosecution as much as the content of the law.

    I appreciate that that's a kind disparate set of questions, but we are circling here on issues that don't readily yield obvious answers.

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    Mr. William Trudell: I'm not familiar with whether or not Australia has the type of charter protection we have, so I can't answer that question.

    Let me say that Professor Healy and I agree on the issue of finding a human face for fault. We are both interested in whether or not the identification test meets all the needs here. I think it does. Professor Healy intimated that perhaps it wasn't enough and it should go farther. I found the expanded definition helpful in Canadian Dredge & Dock.

    In Westray, Justice Richard made some comments in relation to his findings. Those comments, I respectfully submit, have to be taken into consideration in the context of an inquiry, and it's my submission that they must be separate and distinct, and looked at separately and distinctly, from the prosecution in Westray, which had problems along its path.

    Lastly, I agree with you that we have problems of enforcement. We had problems of enforcement in Walkerton, and perhaps problems of enforcement in Westray, in relation to the provincial government's inspection process.

    I don't know whether that answers any of the questions you had. Probably not.

  +-(1205)  

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    Mr. John McKay: We're circling.

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    Mr. Patrick Healy: In the first part of your question, I understood you to ask if I could clarify, or if we could clarify a little bit, what the differences are among these different tests. Is that right?

    Mr. John McKay: Yes.

    Prof. Patrick Healy: I'll try to do it simply. I don't think it can be done simply, but I'll try.

    With the identification doctrine, it's narrower than the American approach to vicarious liability in the following sense.

    Think of it this way. In a corporation you have a wide variety of people, and I appreciate the point that you can have a single-person corporation, but let's not get into that for the moment. The point I'm getting at is this. The identification doctrine forces us to focus on the commanding officer, if you like, whereas if in the American approach to vicarious liability you can find a non-commissioned officer, not necessarily a major or a commander or even a foot soldier, who acts for the corporation, that will be sufficient to engage the liability of the corporation.

    So you can see that there's a wider scope in the American approach than there is in the identification doctrine, which does require proof that the person who is identified was responsible for that corporation's activities in question, was the directing mind.

    I don't know if that helps on those two, the identification doctrine as opposed to the wider vicarious liability approach. The identification doctrine is vicarious liability. It's just at a very focused, narrow level, whereas you can have a wider range of people engaging the liability of the corporation under the American approach.

    As for the corporate culture point, I don't mean to be flippant about it, but the idea is, was it in the air that this kind of activity would be tolerated on behalf of the corporation? That obviously is a much more nebulous notion, a wider notion, and one that raises, in my respectful opinion, severe evidentiary problems, since, at the end of the day, criminal liability requires proof beyond a reasonable doubt.

    As for the Australian constitutional position, there is no charter that is comparable to ours, and there are a number of principles that have been found in our charter that have to be taken into account, as Mr. Toews said earlier, when designing legislation for this purpose. One is that our model of criminal responsibility requires proof that the act be committed with the requisite degree of fault by an identified person, and that the act and the degree of fault have to coincide; they have to be contemporaneous.

    All of the models of corporate criminal liability in this bill deviate from that to some extent. That's even true in the identification doctrine, although it has never been challenged constitutionally on this basis.

    When you move progressively away from the idea of individual responsibility, in my view, it's likely that you would open the legislation to further and further constitutional challenge. That would certainly be a possibility or probability if the corporate culture test were adopted, because, first of all, it would be open to challenge on some ground of vagueness, which is a concern of the Supreme Court under a number of decisions over the last decade, and further, there would be a serious possibility of challenge on the basis that the test for the directors' and officers' liability is not proportional to the offence with which they're being charged. In other words, they're effectively being held responsible for something that they might not have been able to influence or control.

  +-(1210)  

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    The Chair: Thank you very much.

    Mr. Toews.

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    Mr. Vic Toews: Dealing with the constitutional issues and trying to focus in on the charter concerns, as we know, the Supreme Court of Canada struck down the constructive murder sections in a case—and I can't recall its name any more—basically because there were significant problems related to the mental intent in these constructive murder sections. They were basically stating that in order for someone to be convicted of a crime as serious as murder, there needs to be that requisite degree of mental intent.

    In its place what it left standing was essentially manslaughter. For example, there doesn't need to be that same specific intent in order for someone to be convicted of manslaughter.

    Without getting into all the constitutional details of how we would construct it, is that an option? Certainly, there has to be, again, a measure of intent. There must be intent in order to be convicted of manslaughter. There still has to be an acceptable constitutional degree of mental intent.

    Is the manslaughter option open to us when we are considering corporate directors? And related to that, would we have the same problem if these kinds of liabilities were imposed through provincial penal statutes, or even federal labour law, to create some kind of penal provision related to Parliament's labour jurisdiction?

    That's basically my question.

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    Mr. William Trudell: Let me say that in relation to manslaughter, you have to start with an unlawful act. Death occurs as a result of an unlawful act. I'm trying to think of a scenario where a corporation might be responsible for, or found guilty of, manslaughter. If there was an unlawful act to which a corporation was wilfully blind and death resulted, I guess it would be there, if it can be proved.

    Professor Healy talked about the corporate culture as something in the air. If something bad is in the air and you don't pay attention to it, that's wilful blindness. So I think, sure, a corporation or its directors could be found guilty of manslaughter if the requisite degree of criminal responsibility was there; in other words, if an unlawful act resulted in death and the directors demonstrated the requisite intent or wilful blindness, I would think--I don't know whether I'm getting too far off here--in relation to the commission of that initial illegal act.

    I don't want to try to answer your question about the provincial penal statutes. I'd prefer to defer to Patrick on that.

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    Mr. Patrick Healy: On the provincial statutes, you can try to dress it up however you like, but if it looks like homicide, then it looks like crime. And if it looks like crime, then it's not within the jurisdiction of the provinces. It's that straightforward at the end of the day.

    It's possible to have lots of arguments about whether something is colourable, about whether it's provincial legislation masquerading as criminal legislation. There's no doubt that there's room within provincial penal statutory law for the control of some regulatory aspects of this, but creation of crimes, no.

    Can I answer your other question, because I think it's an extremely important question? You're absolutely right. Constructive murder was declared unconstitutional in the Vaillancourt and Martineau cases at the end of the 1980s.

    What's even more important for your question is that constructive manslaughter was approved by the Supreme Court of Canada in a case called Creighton and in a number of other cases released on the same day.

    Now, the substance of what they said in the Creighton case was absolutely crucial to your question. They said it was possible for constructive manslaughter to be prosecuted successfully, provided that the prosecution proves, amongst other things, that the accused had foresight of at least the danger of bodily harm.

    If we try to transpose that conclusion to this context, it would mean you would have to be able to demonstrate that some identifiable person foresaw the danger of bodily harm that ultimately resulted in death. That's the mechanism by which you could get to corporate manslaughter. And you could do it either by reliance on the identification doctrine that we have now, or conceivably you could do it by a somewhat more expanded notion, moving towards the American principle of vicarious liability. The constitutional minimum deriving from the Creighton decision would be that someone has to be proved to have had foresight of the danger of bodily harm.

  +-(1215)  

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    The Chair: Thank you very much.

    Mr. Macklin.

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    Mr. Paul Harold Macklin (Northumberland, Lib.): There are so many questions raised, and answers are difficult to find in this.

    First of all, I'd like to ask Ms. Mochrie a question, because it seems like we've let these gentlemen run away with the process today in terms of their views.

    You seem to have a differing view, and that is, we really do need some more legislation to deal with this issue of corporate liability.

    And I want to give Mr. Trudell a chance to come back and respond to it. He says we have met the requirements and that's adequate.

    Dealing with the question of corporate liability itself, in other words, the corporate structure, I guess we have some concerns here because at times some of the testimony gets confusing. Sometimes we're talking about directors' liability; sometimes we're talking about the corporate liability side.

    In looking for blanks or voids that we're trying to fill, some of the commentary by the victims suggests that the corporation is getting away with it. So the question I would like to pose is this. Do we have a void within our legal system where we should in fact be trying to develop an answer to this corporate liability, in other words, the body itself, as opposed to just zeroing in on the directors per se? And I'd like to get a response on whether you think that is there and that we could develop it, using, let's say, the corporate culture model and including a specific statutory defence of due diligence.

    I'll leave it at that.

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    Ms. Clare Mochrie: Thanks for the opportunity to speak.

    I think this void does exist, and it exists as a result of the fact that we've given corporations considerable rights and freedoms. And those are rights and freedoms of persons. Yet there's no commensurate mechanism within law to hold them accountable for their actions. The victims of the Westray mine disaster have communicated that. They're looking to hold the corporation responsible.

    The same rules obviously don't exist. Corporations aren't just one person; they can be massive amounts of people whose actions all contribute. At the same time, it doesn't take away from the fact that those corporations can do harm and there's no way to hold them accountable for that.

    So in defence of using the Criminal Code, it's in place for legal persons. Corporations are legal persons and therefore there should be a mechanism that addresses that.

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    Mr. William Trudell: We did at the corporation, Mr. Macklin, by getting at the directing mind, I think. In other words, if those persons and that expanded definition in Canadian Dredge are responsible, then we get at the corporation. That's a corporate responsibility of the directing mind. I simply don't see, in our world, how we can, when we talk about criminal legislation, get away from some individual or series of individuals who are the directing minds. I don't know that corporations are getting away with it. Charges are happening every day in relation to corporations.

    I don't think I can help you because I don't think there's a void. I don't think the void has been demonstrated. I think there have been some disasters that resulted in unsatisfactory prosecutions.

  +-(1220)  

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    Mr. Paul Harold Macklin: But that's when you're clinging to the directing mind theory. I'm saying let's suppose you cannot put your finger on a directing mind per se, but in fact you're looking at it globally, if I can use that term, the corporate entity.

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    Mr. William Trudell: But how do we penalize, in relation to criminal statutes, criminal law if we can't find a person who's actually put the actus reus in place?

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    Mr. Paul Harold Macklin: We're thinking maybe a little outside that box. In other words, there may be some fiction being generated here, or at least legal fiction in relation to the person, I agree.

    But I wonder, and I'd like to hear Mr. Healy's comments on this.

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    Mr. Patrick Healy: Well, your question goes directly to the heart of the issue. A corporation is a fiction, by definition, and any attempt to construct a model of criminal liability for a fiction will involve further fictions.

    The question you ask is, where is the limit of the just imposition of responsibility on these fictitious entities? I'm going to think aloud for a moment, without having thought about it enough, so I ask you to forgive me for babbling a bit. I can certainly understand in a variety of circumstances that there is, in the public's perception--and I don't think the public is wrong--the view that there are individual officers... I don't mean directors and officers, but people who act on behalf of corporations or for corporations who might be identifiable as people who have committed wrongs. But I also understand very clearly that the public does not want to see these corporate entities that have such sweeping power immune, if you like, from responsibility for things that are done on their behalf.

    It doesn't take much to start thinking about examples. Can you imagine the possibility of a tobacco manufacturer being held criminally responsible under some of these proposals? Can you imagine an automobile manufacturer being held responsible for the deaths of people if it were known at some point along the chain of production that the wheels were going to fall off at 40 miles an hour? There are all of those sorts of issues.

    The idea that it would be sufficient to identify only the natural person is clearly repugnant to the public, and it's based, I assume, on the public's appreciation that while corporations have or should be entitled to a wide measure of latitude in the conduct of their business, they have to accept the responsibilities that go with it, the consequences, as Ms. Mochrie said earlier on, of their activities.

    Coming back to your question, I don't know if there's going to be a single model that will work for all different kinds of criminal liability. I do think there is scope now in Canada to move away from the narrowness of the identification doctrine, but I think it would be extremely difficult for us to negotiate with the concept of corporate culture. It would have to be defined as precisely as possible. Personally, at the moment, I do not see how that could be done in a way that would allow for proof beyond reasonable doubt of that which constitutes the element of criminal liability. I don't see it, but perhaps I haven't given it enough thought.

  +-(1225)  

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    The Chair: Thank you.

    You suggested you would like to come back. You can continue to think about it and prepare yourself for the possibility. Maybe you won't be, and you'll have thought about it anyway.

    Mr. Lanctôt.

[Translation]

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    Mr. Robert Lanctôt: I hope we will ask him to come back, because I would like to really look at this definition of corporate culture. It's perhaps a way of achieving something in terms of third party liability and identification. If we properly define this concept...In any case, we are never obliged to specifically define things. Sometimes, if we define something too narrowly, we impose limits or restraints. The definition will come about by itself, whether through jurisprudence or circumstances. We can issue guidelines and reflect upon the definition, but we are not obliged to define the specific criteria required to validate it. As we have seen in Bill C-36, when we try to predict what will happen, that can be dangerous.

    I would like to come back to corporate culture. The Australians had this debate. They probably had it before us because they are ready to legislate based on this theory, if we can call this a theory.

    You have given us an example. In very specific cases, there must be intent. The Constitution refers to mens rea. We won't get to the definition by referring to corporate culture. In the example Mr. Trudell gave us, that could be an argument. We always refer to guiding lights. There can be guiding lights from Germany or another country that has multinationals around the world. In Germany, enterprise functions well and respects the safety legislation, but it doesn't mean that is respects it here, or elsewhere. If we are able to show that in many countries where the enterprise is doing business it does not comply with workplace safety and health legislation, it could be found criminally liable. We can even establish that it had criminal intent, as Mr. Toews mentioned earlier.

    I think we really have to think about this. We know that you will come back to testify. People like you who work in this specific field. Around the table, we are hearing a lot of things, but we are not experts. You said to Mr. Blaikie that we were elected to do this. We were elected to adopt legislation that will help people. In this case, we are dealing with workers. I think, however, that you have some work to do.

    I know that the study has not been a detailed section by section review, but a study of the principle surrounding the legislation. I think that it would be interesting to see what we could do regarding corporate culture. What do you think?

[English]

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    The Chair: Would anyone like to respond?

    Mr. Trudell.

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    Mr. William Trudell: As far as I'm concerned, the Australian definition of corporate culture--which is in the discussion paper from the Department of Justice--creates problems. It is defined as “an attitude, policy, rule, course of conduct or practice”. It's vague.

    But the other thing about the Australian model is that corporate culture is only one of four ways to get to criminal liability. So we have to be open to considering all of them and not any in isolation.

    My concern is we're really early in terms of our thinking on this. I think it's really important that you are able to hear from corporations, and their officers and directors, on these issues. They have insight in terms of what happens on the board, and with the setting of guidelines in place and the expectation that they're being followed. Before this topic is completed, I think the experts in corporations are the ones who might be able to assist this committee. I would hope you're able to hear from them.

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    The Chair: I'm going to Mr. Healy, but I would ask Mr. Trudell to use his formidable powers of persuasion to cause some of them to come.

    Professor Healy.

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    Mr. William Trudell: Okay. Yesterday I spoke to a corporate lawyer because I really didn't know the viewpoint. I was very interested in looking at it.

    I may be able to suggest to you that there are some corporate lawyers who may be able to assist you.

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    The Chair: Thank you.

    Professor Healy.

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    Mr. Patrick Healy: As further attention is given to this topic, I would hope the committee, Parliament, or anyone involved in this activity, would think about how the issue is addressed in legislation, if it's going to be addressed.

    Corporate criminal liability is about one form of participation by corporate entities in criminal offences. In my view, it belongs properly in the part of the Criminal Code that deals with participation with general principles of criminal law. It perhaps will require a separate part of the Criminal Code to deal with this subject because it has its own peculiar characteristics.

    I would close on one small point. It is not intended to be humorous, but I don't know who drafted the numbers on the bill. If you look at proposed section 467.3, following on the principle of knowing things by the company they keep, do you know what comes immediately before? It is criminal bikers or, in other words, organized crime.

    I'm not sure, for myself, that corporate criminal liability belongs cheek by jowl with organized crime. It's simply a question of planning the architecture of the Criminal Code. I'm not sure it sends exactly the right message to have it where it is.

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    The Chair: Thank you very much.

    Mr. Maloney.

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    Mr. John Maloney (Erie—Lincoln, Lib.): Mr. Trudell had suggested, the day after passage of this legislation, there would be a mass resignation of directors from corporations. I probably would agree with you. It would immensely, over time, have an adverse impact on the workers we're actually trying to protect.

    Conversely, I think there's a strong feeling that there has to be a greater awareness and responsibility for occupational health and safety as a response to it. In order to do so, there has to be more “teeth” to it. It has been suggested criminal liability, personal criminal liability, would be a way of doing it.

    Can we reconcile the two positions? Will we ever suggest something that can perhaps prevent an unintended practical outcome of mass director resignations with the need to meet the objectives of responsibility for egregious violations of occupational safety?

    The question would be to all of you.

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    Mr. William Trudell: I think probably one of the most helpful catalysts of coming before these committees is the educational experience. I think there has to be an enlightened public, in relation to how corporations work and what this means in relation to disasters and things.

    I really am not convinced there is a void. I hate to keep coming back to this. I don't think we are using the mechanisms we have in the Criminal Code and other legislation to get the message out. The message in terms of corporate responsibility, unfortunately, as a result of disasters, is getting out, in my respectful submission.

    I'm not answering your question.

    I think there is a balance already using the tools and the Criminal Code that we have. I think education of the public and education of corporations is very important here.

    I'm going to urge, actually, some representatives from corporations to come and assist here.

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    The Chair: Thank you very much.

    Professor Healy, or Ms. Mochrie, do you want to respond to Mr. Maloney?

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    Mr. Patrick Healy: The question that has come up several times in the last hour and a half is, is there a void? Mr. Trudell says there is no void, by which I take him to mean that there is no obvious case for legislative action beyond where the law is at the moment.

    Mr. William Trudell: I wish I could have said it like that.

    Mr. Patrick Healy: Everybody understood it, Bill.

    But my point is--and this came out in Mr. Macklin's question as well as yours--is it not the case that the public feels that corporate entities are not being held to a sufficiently exacting standard of care? There's the possibility for the void.

    It would have to be expressed like this, it seems to me--that the identification doctrine we have now under Dredge & Dock takes us so far, but not beyond it. If we were to go beyond the identification doctrine, we would say, well, perhaps the actions of some people who do not qualify as its directing mind would be enough to engage the liability of the corporation. If we adopted that model we would have the possibility, subject to all of the usual difficulties of evidence and proof, of a wider possible range of accused or defendants.

    Now, whether that is a void that needs to be filled is precisely the question you're debating. And it seems to me that the argument I would make, at least for some offences--not the most serious offences, by any means, but for some offences--is that there is probably a case for going beyond the identification doctrine to allow for the engagement of criminal liability by a wider range of officers or employees of a corporation.

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    The Chair: Thank you very much.

    Let me just remind everyone that because we aren't looking at a bill, which is normally the way this committee functions, we would be recommending something to the government in response to our investigation, and we have some direction from Judge Richard in terms of the inquiry, in terms of the inadequacy of the Criminal Code, as he suggests. We also have the discussion we've undertaken. The bottom line here is that in the event that we were to recommend something, we would all be back here together looking at whatever it is the government would bring forward.

    So I'm reminding everyone of the process. What we're really talking about now are real or imagined inadequacies, the values behind the justice system and so on, and trying to respond to them in the face of a disaster that was specific to those circumstances. All of that is to say that we will have other opportunities to speak to the execution, or the various means available to us to execute on those values.

    I would refer today's panel to last week, when we had a day of sociologists. It's an interesting difference in the way one interprets the issue in the context of what should we do and how can we do it, and whether there efficiencies in this approach as against that approach, or if they are even possible. Those who were speaking to the values in the beginning weren't really speaking to the hows. In fact, they would argue that, well, we're not lawyers and we're not sure how you would do this; we just know that this is something we would want to try to do.

    It's an interesting way to engage in this process because it's quite different from what we normally do here.

    All of this is to say that we're going to be back in a different stage and we will all have a chance to look at it again, if in fact that's what the decision of the committee is.

    So thank you very much.

    Mr. Trudell.

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    Mr. William Trudell: May I just add one thing that picks up on what Mr. Macklin said in relation to corporate culture in conjunction with due diligence? If I am a director and I'm looking at the bill, I would probably say, what does this mean? How can I protect myself?

    So when we think about it, I hope we really spend some time thinking about clearly identifying as best we can what directors and officers have to do, in other words, to exercise due diligence. The defences have to be in there so it's a document that can educate.

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    The Chair: On that note, thank you very much.

    Our next meeting of the committee is Wednesday afternoon.

    The meeting is adjourned.