September 15, 2003

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Some hon. members

No.

Topic:   Government Orders
Subtopic:   Parliament of Canada Act
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The Deputy Speaker

All those in favour of the motion will please say yea.

Topic:   Government Orders
Subtopic:   Parliament of Canada Act
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?

Some hon. members

Yea.

Topic:   Government Orders
Subtopic:   Parliament of Canada Act
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The Deputy Speaker

All those opposed will please say nay.

Topic:   Government Orders
Subtopic:   Parliament of Canada Act
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?

Some hon. members

Nay.

Topic:   Government Orders
Subtopic:   Parliament of Canada Act
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The Deputy Speaker

In my opinion the nays have it.

And more than five members having risen:

Topic:   Government Orders
Subtopic:   Parliament of Canada Act
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The Deputy Speaker

Call in the members.

And the bells having rung:

Topic:   Government Orders
Subtopic:   Parliament of Canada Act
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The Deputy Speaker

The vote is deferred until tomorrow at the end of government orders.

Topic:   Government Orders
Subtopic:   Parliament of Canada Act
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LIB

John McCallum

Liberal

Hon. John McCallum (for the Minister of Justice)

moved that Bill C-45, An Act to amend the Criminal Code (criminal liability of organizations), be read the second time and referred to a committee.

Topic:   Government Orders
Subtopic:   Criminal Code
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LIB

Paul MacKlin

Liberal

Mr. Paul Harold Macklin (Parliamentary Secretary to the Minister of Justice and Attorney General of Canada, Lib.)

Mr. Speaker,I am pleased to begin the debate on Bill C-45, an act to amend the Criminal Code concerning the criminal liability of organizations. The bill will transform the principles contained in the government's response to the 15th report of the Standing Committee on Justice and Human Rights looking into provisions in the Criminal Code. The standing committee's report was the result of hearings that were prompted by the debate on Bill C-284 sponsored by the hon. member for Churchill.

Fundamentally the bill has its origins in the tragic deaths of 26 miners in the Westray mine explosion in May 1992. I will not review in detail the lengthy and ultimately fruitless criminal proceedings that followed the investigation of the explosion. All members are aware that the company that operated the mine, and two of its executives, were charged with manslaughter. The trial judge ordered a stay of the charges because of problems with disclosure of evidence by the Crown. Although the appeal courts overturned that decision, the prosecution decided it could not go forward.

The Government of Nova Scotia appointed Justice K. Peter Richard to conduct an inquiry into the disaster. The inquiry itself was delayed by legal proceedings but when hearings got underway, the evidence disclosed, in Justice Richard's own words, “a complex mosaic of actions, omissions, mistakes, incompetence, apathy, cynicism, stupidity and neglect”. Justice Richard ultimately made 74 recommendations to enhance workplace safety. These recommendations dealt with such issues as training, ventilation, mine safety and the like.

The United Steelworkers of America, to their credit, have been the untiring champions of the families of the Westray victims. They urged Justice Richard to recommend fundamental reform of the criminal law as it affects workplace safety and the responsibility of corporate directors and officers for maintaining a safe workplace.

Justice Richard concluded that this was beyond his mandate but he did make recommendation 73:

The Government of Canada, through the Department of Justice, should institute a study of the accountability of corporate executives and directors for the wrongful or negligent acts of the corporation and should introduce in 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.

In this Parliament all members of the standing committee have given careful consideration to both the issue of the role of the criminal law in promoting workplace safety and the general rules that should govern the liability of corporations and their officers and directors.

A discussion paper setting out the issues and reviewing the evidence of other countries, which had been prepared by the justice department, was provided to the committee. The committee heard from officials of the justice department and other experts. It heard moving testimony from victims and relatives of victims of industrial accidents. The 15th report of the committee recommended “that the government table in the House legislation to deal with the criminal liability of corporations, directors and officers”.

Clearly all parties in the House felt that it was time for fundamental reform in this area. The government in its response to the report reviewed the evidence that had been heard by the committee and agreed on the need for reform. The government also concluded that there was no perfect system in other countries that Canada could simply copy. The report therefore set out the principles that would guide the drafting of a made in Canada approach to the problem of corporate crime.

However, just as reform of the criminal law was not the primary focus of Mr. Justice Richard's report, this bill is not the primary response of the Government of Canada to the Westray tragedy. The government has already acted decisively to promote workplace safety because prevention of accidents is always better than prosecutions after a tragedy.

In 2000, amendments to part II of the Canada Labour Code established a number of improvements to occupational health and safety in workplaces under federal jurisdiction. Three fundamental employee rights were established: the right to know about hazards in the workplace; the right to participate in correcting those hazards; and the right to refuse dangerous work. The role of workplace health and safety committees and of policy health and safety committees was strengthened.

Bill C-45 builds on those changes by proposing to include in the Criminal Code a new section, section 217.1, which provides that everyone who undertakes, or has the authority, to direct how another person does work or performs a task is under a legal duty to take reasonable steps to prevent bodily harm to that person or any other person arising from that work or task.

The importance of having such a duty in the Criminal Code is that if there is a breach of that duty, wanton and reckless disregard for the life or safety of people, and injury or death results from that breach, a person can be convicted of criminal negligence causing death which is punishable by up to life imprisonment, or criminal negligence causing bodily harm which is punishable by up to 10 years imprisonment.

Members will note that this duty is not specific to corporations. Many corporations already have a similar duty. The Canada Labour Code for example provides in section 124 that “every employer shall ensure that the health and safety of work of every person employed by the employer is protected”.

As well, a duty of care to workers may exist in provincial legislation or under the common law. Breach of these duties can currently lead to criminal charges where there is reckless disregard for the safety of others.

Bill C-45, if adopted, will have its greatest impact on the liability of corporations and other associations of persons for all criminal offences. The definitions of “representative” and “senior officer” and the rules for attributing criminal liability for negligence offences and other offences set out in proposed sections 22.1, 22.2 and 22.3 will modernize the approach to criminal liability of all corporations.

Members will have noted that although the standing committee held hearings on corporate criminal liability, the bill refers to “organizations” which is defined broadly to include all major participants in the economy and all associations of persons created for a common purpose, having an operational structure and holding itself out to the public as an association.

There has been a great deal of creativity shown by corporate lawyers in developing new structures, for example, limited liability partnerships and joint ventures. Quite simply we want to ensure the Criminal Code applies to every organization of persons without any artificial distinctions based on how those persons chose to structure their legal relations.

In practice of course, corporations are likely to be charged far more frequently than other forms of association because of their dominant role in Canadian society. The proposed rules for attributing criminal liability to an organization are necessarily complex because the criminal law requires proof of both the commission of a prohibited act and that the person had the necessary mental state.

Since organizations can only act through individuals, the fundamental problem with which the law has struggled is to decide whose acts are to be considered the acts of the organization and who in the organization has to have the necessary guilty mind for the organization itself to be considered as having a guilty mind.

Until now, Parliament has been content to have bodies, corporate societies and companies included as persons and to leave it to the courts to develop the tests for determining when they are criminally liable. At first, the courts were reluctant to find that a corporation could commit a crime, but case by case they have built up rules for holding corporations accountable for crimes carried out in their name and for their benefit by their employees and officers.

With respect to the first question, namely, whose acts should be considered the acts of the organization, we propose that the acts of representatives are the acts of the organization. Representative is defined broadly so that it includes not just officers and employees, but also agents and contractors. As long as they are acting within the scope of the authority given them by the organization, their actions should be the actions of the corporation.

As for whose guilty mind should be the guilty mind of the organization, the government in its response stated that it found the Supreme Court approach too narrow because of its insistence that a directing mind had to have executive decision making authority on matters of corporate policy.

Through the definition of senior officer, we propose to broaden who can be the directing mind by including, in addition to those who would already be so considered, a person who has an important role in establishing policy rather than having to have the ultimate power to make policy, and a person who is responsible for managing an important aspect of the organization's activities even if that person has no policy making authority whatsoever. The proposed change reflects the way that large modern corporations are organized.

While the courts would still have to decide in each case whether a particular person is a senior officer, I believe the proposal clearly indicates our intention that the guilty mind of a middle manager should be considered the guilty mind of the corporation itself. For example, the manager of a sector of a business such as sales, security or marketing, and the manager of a unit of the enterprise like a region, a store or a plant, could be considered senior officers by the courts.

An organization would be responsible for crimes based on negligence where the acts and omissions of its representatives, taken as a whole, are negligent and its senior officers showed a marked departure from the standard normally expected in the circumstances.

In a tragedy such as Westray, it may not be possible to find a single representative of a corporation who was criminally negligent. The deaths may have resulted from a series of actions and omissions by many representatives. Even though no single individual might be convicted of a criminal offence, it may be possible for the corporation operating the mine to be criminally liable. For example, if three employees simultaneously turned off three separate safety systems and death resulted, these employees might not be subject to criminal prosecution because they each believed that turning off one system would not endanger anyone because the other two systems would still be in operation. However, the corporation might be charged with criminal negligence.

For the court to convict the company that operated the mine, the Crown would have to show that the management fell well below the standard of care that would be expected in the circumstances. In making this determination, the court would have to consider industry practice and procedure. If other companies have a system to ensure that no more than one safety system could be turned off at a time, the court could well conclude that the accused corporation had fallen far below what was reasonably to be expected and convicted.

For all other criminal offences, we are proposing that the organization be criminally liable whenever a senior officer with intent to benefit the organization commits the prohibited act, or uses representatives lower down in the organization, or outsiders to commit the act, or fails to act on knowledge of criminal activity by its representatives.

An organization should not be able to avoid criminal liability by turning a blind eye to indications that its representatives are committing crimes.

All of these changes reflect the positions taken by the government when it tabled its response. At that time the government indicated that the Criminal Code should provide more guidance for the courts when they impose sentences on a corporation, but we made no specific proposal.

The Criminal Code contains principles of sentencing and aggravating factors for judges to consider, but mainly they are applicable to the individual. For example, it is an aggravating factor to abuse a spouse or a child in committing the offence.

We are seeking, through the proposed new section 718.21, to assist the courts in determining an appropriate sentence for an organization. Of course, jail is not an option for a corporation. Therefore, in practice the court has to decide how heavy the fine to impose.

In determining that fine the court should consider the moral blameworthiness of the organization through such factors as the profit it made and the planning involved in the offence. It should also consider the public interest. Except in unusual circumstances, a fine should not be so high that the company is bankrupted and morally blameless employees lose their jobs.

Just as the criminal record of an individual is very important in determining sentence, the court should take into account any previous criminal convictions and convictions for regulatory offences of the organization and its personnel involved in committing the offence.

Finally, rehabilitation of the offender is always important. An organization may have shown that it is determined not to commit further offences by imposing penalties on managers involved in the commission of the offence or by paying restitution to victims.

We are also proposing to encourage the courts to innovate by setting out optional conditions of probation geared to the corporate offender in the proposed new subsection 732.1(3.1). Probation is possible for corporations, but it is virtually never imposed.

We believe there may be circumstances where the court wants to ensure as best it can that the corporation will change its ways and commit no further crimes.

Topic:   Government Orders
Subtopic:   Criminal Code
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The Deputy Speaker

The hon. parliamentary secretary will have slightly more than 20 minutes left at his disposal to conclude his remarks after question period. At this moment, I would like to proceed with statements by members.

Topic:   Government Orders
Subtopic:   Criminal Code
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LIB

Hélène Scherrer

Liberal

Ms. Hélène Scherrer (Louis-Hébert, Lib.)

Mr. Speaker, it is our pleasure to welcome into our ranks two new Liberal members of Parliament who will be making their official entry into the House in a few moments. They represent the ridings of Lévis-et-Chutes-de-la-Chaudière and Témiscamingue, which they won in byelections held on June 16. Each of them defeated the leading opponent by more than 20% and obtained more than half of the votes cast.

These victories in ridings that were bastions of the Bloc Quebecois for 10 years constitute a vote of confidence in the Liberal Party and follow close on the heels of the Quebec Liberals' defeat of the Parti Quebecois in the April provincial election.

I am convinced that the voters of Lévis-et-Chutes-de-la-Chaudière and Témiscamingue will find their new members to be valuable representatives who will watch over the social and economic development of their region within Canada.

Topic:   Statements By Members
Subtopic:   Members for Lévis-et-Chutes-de-la-Chaudière and Témiscamingue
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CA

Werner Schmidt

Canadian Alliance

Mr. Werner Schmidt (Kelowna, Canadian Alliance)

Mr. Speaker, my constituency of Kelowna has been tested severely this summer. The driest weather on record resulted in devastating fires which have scarred our community. The financial and emotional toll has been heavy. But times of such crises expose the best of a community and today I wish to pay tribute to the people of Kelowna.

For their community leadership, I pay tribute to Kelowna Fire Chief Gerry Zimmermann; Ron Mattiussi, Director of Kelowna's Emergency Operations Centre; and Mayor Walter Gray. For their bravery and heroic efforts, I wish to thank the firefighters and the Canadian armed forces. Words cannot express the gratitude we feel toward those who helped save our houses and property.

For their courage and humanity, I pay tribute to the people of Kelowna. In the midst of uncertainty, people went out of their way to help each other. The fires have been destructive, but we have learned that we can count on each other to get through the most challenging crises. In this way we have gained more than we have lost.

Topic:   Statements By Members
Subtopic:   Kelowna
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LIB

Gérard Binet

Liberal

Mr. Gérard Binet (Frontenac—Mégantic, Lib.)

Mr. Speaker, last week a conference was held to denigrate Canadian chrysotile asbestos; it was chaired by the member for Windsor—St. Clair and the international ban asbestos movement.

Their goal was to accuse our government and pro-chrysotile stakeholders of hypocrisy and profiting from the export of Canadian asbestos.

At a rally organized last Friday by the pro-asbestos movement, 250 miners and regional stakeholders came to Ottawa to protest the holding of this conference.

On Tuesday, results of a study on the low biopersistence of Quebec chrysotile released by the directors of the Asbestos Institute provide sufficient evidence to support the debate over the safe and responsible use of chrysotile.

And I reiterated the position of the Government of Canada—that when chrysotile is used safely it poses no risk to health.

I would like to thank the residents of Frontenac—Mégantic and Asbestos for this rally in Ottawa. We were able to demonstrate to all of Canada that properly used chrysotile is a fibre worth preserving.

Topic:   Statements By Members
Subtopic:   Chrysotile Asbestos
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LIB

Peter Adams

Liberal

Mr. Peter Adams (Peterborough, Lib.)

Mr. Speaker, the fine work of Habitat for Humanity is known around the world. This is a group which works to provide affordable houses. It encourages future homeowners to invest sweat as well as financial equity in their new homes.

I am pleased that Habitat for Humanity is now active in Peterborough building homes. The first will be for a low income family of six. I want to thank all those involved in this project, those who initiated it, those organizations and individuals who provided support in kind and in cash, and all those who volunteered their time to build the new house. All of them deserve our thanks and congratulations.

Affordable housing is a serious problem in many of our communities. Habitat is one solution for this.

Topic:   Statements By Members
Subtopic:   Habitat for Humanity
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LIB

Charles Caccia

Liberal

Hon. Charles Caccia (Davenport, Lib.)

Mr. Speaker, the energy blackout in Ontario had many repercussions, including an economic impact across the country, so serious it required the setting up of an international task force appointed by the Prime Minister and the U.S. President.

Blackouts could occur again. To prevent them the government should take several steps, including: first, facilitating the establishment of an east-west national electrical transmission system; second, making energy conservation a permanent feature in the behaviour of Canadians at home and at work; third, offering programs to advance renewable energy generating systems; and fourth, improving existing tax measures to encourage the production of green power.

Energy must be used carefully to prevent blackouts and achieve the Kyoto targets. I urge the government to give strong leadership in energy conservation to individuals, retailers, industries and the public at large.

Topic:   Statements By Members
Subtopic:   Energy
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CA

Carol Skelton

Canadian Alliance

Mrs. Carol Skelton (Saskatoon—Rosetown—Biggar, Canadian Alliance)

Mr. Speaker, Beth Robertson and Elaine Kowpak put Harris, Saskatchewan on the map. These two ladies were already well known locally as the writers and producers of the Harris Ruby Rush Days famous vignettes. Their latest production has taken them places they have never dreamed.

I first saw their performance of “The Pull of the Land” in the Harris-Tessier School, but it soon garnered national attention with its story of modern farm life in Saskatchewan. The stories are told from the points of view of various family members, set to clever dialogue and music. The actors are drawn from the talent within our local community.

Their productions are a labour of love and have benefited the local church, community hall and health centre. They have found an imaginative and entertaining way to relive, recreate and restore much of the culture of rural Saskatchewan.

Our community and our country is richer as a result. We thank them both.

Topic:   Statements By Members
Subtopic:   Arts and Culture
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LIB

Joe Peschisolido

Liberal

Mr. Joe Peschisolido (Richmond, Lib.)

Mr. Speaker, this has been one of the most challenging summers in history for the people of British Columbia. As we are all acutely aware, we have endured months of ferocious forest fires.

Communities like Kelowna, Cranbrook, Okanagan Mountain Park and others suffered through a summer of uncertainty, multiple evacuations and devastation. Thousands of firefighters, including 2,000 military personnel, continue to fight the fires. Firefighters from the B.C. Fire Service, Ontario and Saskatchewan are doing their best to protect and save communities.

On behalf of all members of the House, I extend our sympathies to those who have been displaced by the fires and our heartfelt thanks and gratitude to the thousands of firefighters who have risked their health and lives in doing their duty. They are true heroes and incredible Canadians.

Topic:   Statements By Members
Subtopic:   B.C. Forest Fires
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BQ

Monique Guay

Bloc Québécois

Ms. Monique Guay (Laurentides, BQ)

Mr. Speaker, my colleagues from the Bloc Quebecois and I toured more than 30 ridings in Quebec to meet with union representatives and to raise awareness of the need for federal legislation that is as effective as the anti-scab legislation in Quebec.

All the stakeholders unanimously applauded and supported my bill, which is designed to prohibit the use of scabs. Adopting Bill C-328 will correct the injustice suffered by the workers at Cargill, Vidéotron, SECUR, Société du Vieux-Port and that the workers at Radio Nord Communications in Abitibi have been suffering for more than ten months.

In a few weeks parliamentarians in this House will be asked to participate in an historical vote. In a show of solidarity, I call on parliamentarians and the public to sign the petition that is circulating throughout Quebec and Canada in support of workers.

Topic:   Statements By Members
Subtopic:   Canada Labour Code
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LIB

John Harvard

Liberal

Mr. John Harvard (Charleswood—St. James—Assiniboia, Lib.)

Mr. Speaker, the first Terry Fox Run took place in 1981. It attracted 300,000 participants across Canada and raised $3.5 million.

The Terry Fox Run is held each year to carry on the quest of the young man who began this annual tradition. After losing his own leg to cancer, Terry discovered that funding for cancer research in Canada was minimal. This was the motivation for his Marathon of Hope: to raise funds to help find a cure for cancer.

In the last 22 years over $300 million have been raised for cancer research in Terry's name. Each year thousands of volunteers organize Terry Fox Run events in Canada and around the world. This year was no different as the 22nd Terry Fox Run was held yesterday.

The emphasis of this event is not on how much is raised but rather on participation in Terry's memory to help him finish his Marathon of Hope.

As Terry said in 1980, “If you've given a dollar you're part of the Marathon of Hope”.

Topic:   Statements By Members
Subtopic:   Terry Fox Run
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September 15, 2003