STANDING COMMITTEE ON JUSTICE AND HUMAN RIGHTS
COMITÉ PERMANENT DE LA JUSTICE ET DES DROITS DE LA PERSONNE
[Recorded by Electronic Apparatus]
Tuesday, June 6, 2000
The Chair (Mr. Andy Scott (Fredericton, Lib.)): I'd like to call
the meeting of the Standing Committee on Justice and Human Rights to
Today we will be considering recommendation 73 of the Province of
Nova Scotia's public inquiry into the Westray disaster.
My helpful support staff have been up here trying to decide whether
we should offer the witness an expense claim. It's an interesting
change of circumstance, but we have Peter MacKay, the MP for
Pictou—Antigonish—Guysborough, who will be speaking to his motion.
I would also welcome our visitors, who we'll be talking a little bit
about later. I'll be seeking an opportunity perhaps for others to
appear before the committee. We had not arranged this in advance, so
I'll be seeking consent. But for the first part of the day it's Mr.
Mr. Peter MacKay (Pictou—Antigonish—Guysborough, PC): Thank you
very much, Mr. Chair and colleagues, and those who are in attendance.
I'm very appreciative of the opportunity to speak to this motion,
which did receive consent in the House of Commons, and it has arrived
here through the usual procedural path.
The private member's motion itself reads: that in the opinion of the
House, the Criminal Code or other appropriate federal statutes should
be amended in accordance with recommendation 73 of the Province of
Nova Scotia's public inquiry into the Westray disaster, specifically
with the goal of ensuring that corporate executives and directors are
held properly accountable for workplace safety.
To the committee I must provide a short background, but a very
important and poignant one. This report, which came out of the
Province of Nova Scotia and was drafted by Mr. Justice Peter Richard,
was the result of a very tragic and violent explosion that took place
at the Westray colliery coal mine in Plymouth, Nova Scotia, on May 9,
This incident, this tragedy, killed 26 men and was something that in
very stark terms drew attention to the issue of workplace safety, not
only in the province of Nova Scotia, but around the country.
There were many Nova Scotians who acted in a very heroic fashion.
Draggermen from the island of Cape Breton and local individuals such
as Vernon Theriault, who was decorated for his bravery, took part in
the rescue effort to assist those 26 men who were thought initially to
be trapped underground, but tragically their lives were taken.
The motion that is before the committee, I would suggest, is a very
broad one. It is drawn from the recommendations that came from Mr.
Justice Richard's report and speaks specifically of changes not only
to the Criminal Code of Canada, but I would suggest to any federal
statutes that impact on workplace safety. So it is very much, I would
suggest to all assembled, a bread-and-butter, life-and-death, human
compassion type of initiative that we have before us.
Many people in Nova Scotia are still very much affected and very
much, still to this day, dealing with the aftermath of this tragedy in
Plymouth. Some of those individuals are here today, Mr. Chair, and as
you indicated at the outset, I will be seeking unanimous consent near
the end of my presentation to have two of those individuals come
forward and speak to this motion, and I will move that motion at the
To delve into the gist of the motion itself, it speaks very much to
the issue of prevention, and by way of background, again, I would like
to dwell for a moment and chronicle some of the happenings in the
aftermath of the explosion on May 9.
There was an obvious immediate rescue effort, and the mine itself was
closed, never to reopen. After charges were laid under the Nova
Scotia Labour Standards Code, those initial charges were set aside
with an end to lay criminal charges. And that happened; I don't have
the exact date, but criminal charges of manslaughter and criminal
negligence causing death were in fact laid in the Nova Scotia courts.
To speak to that for a moment, those charges proceeded through the
court, through the various stages of preliminary inquiry, on through
the Supreme Court of Nova Scotia, the appeals court, and all the way
to the Supreme Court of Canada. There were a number of procedural
delays and wrangling that took place that very much aggravated, I
would suggest, and exacerbated the situation, as to getting down to
the actual root causes and bringing about some form of accountability
and closure for all involved. And there were some very hard lessons I
think learned as a result of the aftermath of the proceedings.
On the civil side of things, there were attempts made at lawsuits,
and there were also efforts put in place immediately by the Province
of Nova Scotia and the premier at the time, Donald Cameron, to have a
public inquiry, the results of which I have referred to. “The Westray
Story: A Predictable Path to Disaster” was tabled by Mr. Justice
Richard in 1997. I have copies of that report, and I will in fact
undertake to ensure that all members of the committee receive copies
of this very comprehensive and, I would also add, very disturbing
chronicle of what took place in the Westray case. It summarizes
essentially the history leading up to the opening of the mine, and it
speaks very much in a foreboding way as to how this terrible loss of
life and this impact could have been avoided.
Essentially, to summarize, Mr. Justice Richard's findings indicate
that there was sufficient blame to be shared by all; that is, the
politicians who were involved in the initial procurement and arranging
of financing both at the federal and provincial level. It speaks of
the mismanagement of the mine operators, and in particular it speaks
of the preventability from the safety inspection side of things in the
Province of Nova Scotia and how there were clear indications that
there were problems with respect to dust, some degree of fall-ins, and
a general shoddy atmosphere of workmanship with respect to adhering to
safety standards within the mine itself.
This was, again historically, one of the richest seams of coal, the
Wimpey seam, in North America. Along with that label of being the
most prosperous and richest seam of coal came the label that it was
the most gaseous, that is, the most potentially explosive because of
the methane that is released during the coaling and the colliery coal
I cannot speak to the technical aspects of mining procedure, although
I will add on a personal note that I was in that mine as a summer
student working for Satellite Construction. I had been down in the
mine—and like yourself, Mr. Chair, I have had the occasion to tour
mines in Atlantic Canada.
It's a very personal project for many to see that this issue is
addressed and addressed in a significant fashion. It has been a long,
arduous road for those who were involved in bringing this issue
forward. I know my colleagues in the New Democratic Party have also,
because of their maritime roots and because of their commitment to
workers and to workplace safety, undertaken similar efforts.
I would suggest that this is a non-partisan issue and one that deals
with very fundamental human interest aspects. It is one that I would
encourage all members of the committee to look very closely at. I was
very encouraged to see that at the end of the day it received the
support of the House of Commons, and through simple timing it has
arrived here at our doorstep, I think at a very important juncture.
We have an opportunity to react to this report, and the motion I have
brought before you is drawn directly from Mr. Justice Richard's
report. It is not meant to be nuanced or in any way limited in scope.
It includes, I would suggest, a very similar intent to a motion that
is also before the House of Commons, although it has not, as I
understand it, officially been drawn—and I stand to be corrected.
But Bill C-259 focuses in specifically on amendments to the Criminal
Code of Canada that would create in essence a new standard to be
applied with respect to corporations, directors, and officers, and
focuses on acts and omissions that would be of a criminal nature when
loss of life or threats to life and limb arise in the workplace.
This motion, I would suggest, encompasses very much that same intent
under the Criminal Code, although it is not limited only to the
Criminal Code, and the wording was taken specifically from
It is not, obviously—it goes without saying—limited to mining
operations. I would suggest that it has to do with any workplace. It
has to do with fish plants; it has to do with lumber mills. It has to
do with any place in which men and women, and children in some
instances, are exposed to dangerous situations. It is a genuine
attempt to raise the standard of accountability for those who are
responsible for not only just overseeing what is taking place in the
workplace, but also who have set the operation up, who are
responsible, I suppose, at the high end of the financing and make
decisions that may in a boardroom seem very sterile, but those
decisions can have very direct and sometimes tragic implications if
they involve cutting corners or if they involve in any way, through
acts or omissions, permitting a dangerous situation to exist.
This is where—and I have to step back a moment and return to the
point in the prosecution of the case—if I can put it this way, things
broke down. I know I have colleagues here who have equal or more
experience in the law, but in terms of the mens rea and the
actus reus, it is sometimes very difficult for directors and
managers to be drawn in. The civil standard there is something called
“the corporate veil”, which doesn't necessarily exist in the
criminal aspect, but it is this direct tie-in of accountability and
responsibility that is extremely tough to present to a court of law
and draw that nexus.
This attempt, both by the motion and, I would suggest, by the bill as
well, is to bring about a new standard that would permit, in a
criminal sense.... If we get into the broader implications under the
Canada Labour Code, this is an attempt to bring about a higher
threshold of accountability that would perhaps, I suggest, initially
shake the foundations of how some corporations operate. But once more
I would say to you that this is also an attempt to bring about this
direct accountability to workers who are, in many instances, in grave
danger because of decisions that are sometimes even unknown to them
but very much impact on their day-to-day safety and their day-to-day
labours in the fields, in the factories, and in their workplace
That is a bit of the background. There are certainly broad
implications, I would suggest. This motion, in the fashion in which
it is before you, is drafted in such a way that it allows us to go
where we have to go, which once more, I think, is very much in the
spirit of what Justice Richard has been telling us.
I must add that other provinces have responded and have indicated
and, I would suggest, requested that the federal government act on
these recommendations. It has been over three years now since this
report was completed. It was a very intensive and very comprehensive
review that took place. They heard from hundreds of witnesses who
urged Mr. Justice Richard to bring forward a report that was going to
be indicative of the grave implications of not reacting.
The Westray mine explosion was simply a catalyst to a situation that
has been ongoing in the country, I would suggest, for a number of
years. It is sad and extremely troubling that it takes such a massive
tragedy as this to focus public attention and political attention on
I recall, and I'm sure my colleagues will as well, that there have
been other such tragedies since, including other mine explosions,
including ships going down. In fact, in close proximity to the Westray
mine explosion there was a ship that went down off the coast of Nova
Scotia in Yarmouth, where there were actually more lives lost. They
went out into a storm against the advice of those who should have
known better, and once more we saw massive loss of human life because
of knowledge that existed and wasn't shared or advice that wasn't
I spoke to miners that had been down in this mine. Many of them, for
economic reasons, went about their daily duty and didn't report things
they saw. It's not popular to talk about the responsibility that fell
on the miners; it's sometimes a very contentious issue. Many of those
miners felt, I think, that they couldn't afford to complain. There
was very much an atmosphere of fear and loathing that was prevalent.
As for the inspectors themselves, I think to this day it must haunt
them knowing that this perhaps—and according to this report—was a
very preventable disaster. The mine managers and directors will have
to live with this, but we don't, Mr. Chairman.
This is an opportunity, I would suggest. We can do something very
substantial and very honourable in the memory of not just those who
lost their lives at Westray but for workers across the country. I
would suggest that this is the time to do that.
It is also interesting to note that the statistics that were
published in the The Globe and Mail today clearly point out that
Canadians favour our government and our Parliament reacting favourably
to changes in the workplace atmosphere. I think those statistics once
again show that perhaps the public sentiment is ahead of our daily
machinations here in Parliament and sometimes of our own introspective
partisan circus that we are involved in.
We should heed the public in this regard. I would suggest that if we
can embark on a study that will bring forward perhaps some of the same
witnesses who appeared before the Westray inquiry.... I think we
should be prepared to hear from people across the country on this
particular motion and to focus our efforts on what we can do.
One of the suggestions—and I think it has moved the yardsticks
forward—is to adopt or at the very least, perhaps, incorporate into
this motion Bill C-259, because the draft section of the Criminal Code
that appears in that bill does a lot of the work for us, I think. A
lot of the legwork has already been done in creating a new Criminal
The indication that I made at the outset was that we should hear from
some of the persons who are closest to this disaster. There's one
individual in particular, who I want to tell you was in that mine the
day before, just hours before the explosion, and was scheduled to go
back that night. He was very instrumental in the recovery operation
as a bare-faced miner working with draggermen. His name is Vernon
Theriault. He had been employed at the mine for approximately seven
months. He's a welder by trade and is currently employed at Trenton
Works in Nova Scotia.
With him is Howard Sim, who is the vice-president of the Nova Scotia
Federation of Labour, also a welder, for 23 years at Trenton Works in
Trenton, Nova Scotia.
Both of these gentlemen are here in Ottawa as part of an effort to
raise public awareness for workplace safety, a very noble cause
I think that for a change there is a real opportunity before us that
we can seize. I'm very hopeful that we can do that through a
cooperative effort, through this motion, through the bill that is also
in the gristmill, if I can put it that way, and may make its way
through the procedural workplace.
Mr. Chairman, I would be more than pleased to take questions on the
specifics of the motion, but I would also like to reserve the time to
have these gentlemen join me at the table and make a brief
presentation, if they may. I would seek unanimous consent for that at
The Chair: Mr. Mancini.
Mr. Peter Mancini (Sydney—Victoria, NDP): Thank you, Mr.
I would be prepared to second that motion, but I would ask for a
friendly amendment to it. With the Steelworkers here today is Mr.
David Doorey, who has done a tremendous amount of background material.
He's a lawyer with the United Steelworkers of America. There are also
a couple of members of the executive of the Steelworkers here. I
don't expect Mr. MacKay would have a problem if they were to join as
witnesses as well.
So we wouldn't limit the number of witnesses that could come forward
to the two mentioned, but we could broaden it somewhat, because I
think they do have some technical information that they can share with
The Chair: The way I'd like to proceed—again, with unanimous
consent, and given both Mr. MacKay's suggestions and Mr. Mancini's
suggestions—is that as soon as we're finished questioning Mr. MacKay,
we would ask the other witnesses to come forward and essentially give
testimony in the usual manner.
I'd like to establish this now so that we would then govern our
questions and our time accordingly. Is there any objection to the
suggestions that have been made by Mr. MacKay and Mr. Mancini? A
couple of members on the government side had also come forward, so I
don't anticipate that there's any objection.
That being the case, when Mr. MacKay is finished, we'll ask the
others to come to the table. Now we'll proceed with questions for Mr.
MacKay in terms of his motion.
Would everybody keep in mind the fact that as soon as he's finished
we'll be hearing from others on a similar subject? Therefore, govern
Mr. Peter MacKay: Mr. Chair, can I just ask, generally speaking,
what our parameters for time are? I have to speak in the House at
The Chair: Historically, the committee goes until 12:30, but—
Mr. Peter MacKay: Yes, that clock, I know, is not—
The Chair: That clock is not.... According to my watch, it's 25
minutes to 11. We generally finish at 12:30. Okay?
Mr. Peter MacKay: Sure.
The Chair: Mr. Abbott.
Mr. Jim Abbott (Kootenay—Columbia, Canadian Alliance): Taking a
look at the Westray story, I'm reading from the executive summary, the
fourth section, page 52:
First, the requirements of the regulations should not be
unreasonably onerous. If this golden rule is
overlooked, mine management will go through the motions
of observance but without the attention to the substance of
I think recommendation 59 speaks to the issue of management not just
having to adhere to regulations, but having to adhere to the spirit of
the regulations, which again speaks in favour of your motion.
On page 50 of the same report, recommendation 55 says:
The unacceptable performance of Claude White and Albert McLean in the
conduct of their duties as mine-safety inspectors and regulators,
coupled with their demeanour at the Inquiry hearings, must surely have
destroyed any confidence the people of Nova Scotia might have had in
the department's safety inspectorate. Accordingly, both White and
McLean should be removed from any function relating to safety
inspection or regulation.
Recommendation 56 says:
The lassitude that paralysed the inspectorate and
rendered it ineffectual in dealing with Westray seems
deep-seated and pervasive. Therefore, an independent
professional safety consultant should evaluate the
inspectorate and its personnel.
The question you touched on, and I'd like to underscore, is I don't
understand the decisions that were made following this terrible
disaster. I would like to know who made the decisions to allow the
flooding of the mine, which led to the direct destruction of evidence.
I spoke with Kenton Thiesdale, the leader of the victims' families.
I had two meeting with him and some of the victims. It still is, to
my mind, a criminal question as to how the evidence was destroyed by
this flooding. I would like to know why and who made that decision.
This goes beyond this motion, but there are still so many questions
related to this.
The other one I want to note is recommendation 74, which follows
recommendation 73 and says:
The province of Nova Scotia should review its occupational health and
safety legislation and take whatever steps necessary to ensure that
officers and directors of corporations doing business in this province
are held properly accountable for the failure of the corporation to
secure and maintain a safe workplace.
I think that speaks to the issue that I would want to see this
committee or an appropriate committee of the House of Commons go
forward with the inquiry that is asked for, prior to bringing forward
the criminal legislation. As part of that, I would want to see Nova
Scotia contribute to that. Obviously, they have made that
recommendation in this.
It says at the beginning of this fourth volume in IX:
...management at Westray displayed a certain disdain for safety
and appeared to regard safety-conscious workers as the wimps in the
There are some questions I have—and again, I am in favour of this
coming forward; I want that to be unequivocal. But some of the
questions we have to address include: How would this relate in terms
of the size of a company—5 people, 500 people, 5,000 people—to the
manager supervisor or the director executive, and what happens if
there is a crossover between the two?
There are many of these questions we would need to be very precise
about, but at the end of the day I'm speaking in favour of us doing
something, of getting some wheels under this thing. I can only
summarize this case in the way it is summarized in the inquiry, but
this is a story of incompetence, mismanagement, bureaucratic bungling,
deceit, ruthlessness, cover-up, apathy, expediency, and cynical
indifference. This is absolutely one of the most egregious cases of
workplace malfeasance that has ever occurred in the history of Canada.
So I'm speaking fully in favour of the motion to bring this forward
and initiate a study to create the most appropriate legislation.
Mr. Peter MacKay: Thank you for that, Mr. Abbott. You have
summarized, to a large degree, the spirit of what Justice Richard has
said; that in essence, this could have been prevented and there was
this sharing of blame.
I just want to refer quickly to the report. He summarized four
points about the Westray operation itself and how they were operating.
[It] defied the fundamental rules and principles of safe mining
practice.... ... ...rejected industry standards, provincial
regulations, codes of safe practice, and common sense in [its
operational practice].... ... ...failed to adopt and effectively
promote a safety ethic underground. ...through its actions and
attitudes, [conveyed the message that] Westray was to produce coal at
the expense of worker safety.
So sometimes it's intangible what takes place in the workplace. It's
this spirit you refer to that they're going to ignore very fundamental
safety practices. Sometimes, in fairness to those who are involved,
complaints are being made and reports are being done, but they're
That's why I believe some of the focus of this study, if we embark on
it, has to be about bringing in this whole chain of command, with
safeguards involving the ability of workers who are on the floor, in
the mine, or on a ship, to have a reporting mechanism that sometimes
might even bypass their bosses. If they have to go to a provincial
safety manager...there has to be some recourse, some place where they
can go and be protected. There are reprisals, obviously, when
complaints are made at times.
I'm encouraged to hear your words of support. I know there were some
in your party and other parties who spoke against this motion
initially. But I think as we flesh this out and give it greater
focus, I'm as open as I can be to going where we have to go to
incorporate, amend, or bring in any ideas from any parties at any
level, as to how we can move this issue forward.
Training is another aspect that's sometimes overlooked. We must
ensure that individuals who are in dangerous situations, whether it be
operating machinery or working in an environment generally, have
sufficient knowledge of what they're expected to do. I'm fearful that
on many occasions persons are thrown in the breach, without the proper
understanding of what's expected of them. They're simply told they're
going to have on-the-job training. When that involves being in
jeopardy of losing life and limb, that's just simply not acceptable in
Canada's modern workplace.
The Chair: Madame Guay.
Ms. Monique Guay (Laurentides, BQ): Peter, you know that the Bloc
Québecois supported your motion on all accounts. We are very, very
sensitive to what happened at Westray. In Quebec, we also had a deadly
accident at a gold mine in Balmoral, Abitibi. There were eight deaths.
So for sure, we have to do something if we want to improve the
situation and the safety of the people who work in the mines. You can
count on our support.
On the other hand, we also have to take into account that the
responsibilities of employers for health and safety in the workplace
is the jurisdiction of provinces. It is therefore important that the
study ensures that the Criminal Code provisions complement the
provisions relating to security and health in the workplace in the
each provincial legislation, so it can really work in all provinces in
Lastly, in the House, we went through the third reading of Bill C-12,
which is a complete revision of part II of the Canada Labour Code
relating to health and security in the workplace. In this piece of
legislation, it said, among other things, that in large companies with
more than 30 employees, new committees will be struck. Those
committees will ensure that the acts of Parliament pertaining to
health and security in the workplace are enforced. We did not have
that before, but it is now mandatory. I don't know if it's going to be
very effective, but anyway, we had to make some improvements.
The Bloc Québecois also suggested a few amendments to increase the
penalties for employers at fault when there are incidents or accidents
in the workplace in their businesses.
I don't know where the Conservative Party stands on this. There was
no representative from that party on the committee that dealt with
health and security. Peter, I would like you to give us your view on
the issue of health and security in the workplace and on Bill C-12.
Mr. Peter MacKay: Without having an in-depth knowledge of Bill
C-12, it's difficult for me to tie the two together. I do agree with
your earlier statement, Madame Guay, that there has to be very much a
I would not want to see, nor do I suspect anybody at this committee
would want to encourage, something that would shackle businesses and
put them into a position where they would not be able to be
competitive or perform their tasks. However, when I speak of balance,
to put it in very blunt terms, we are looking for a chain of command
that will bring in managers, and in particular on some occasions
directors, who are controlling the financing and making business
decisions aimed at one level that sometimes ignores very fundamental
principles of safety.
Business decisions have to be made and businesses have to turn a
profit. This is not to put unwieldy, unconscionable regulations or
red tape into place. But it seems to me we're talking about very
fundamental issues of human life. When it's down to that level, the
balance has to be tipped toward protecting people in the workplace, as
opposed to simply making a profit.
Obviously, the financial implications have to be part of the
equation. But in this modern civilized country of ours, our record is
really not the best when it comes to workplace safety. It's
chronicled in this specific case and it's chronicled around the
country in other instances. I suspect a lot of the tragedy resulted
because of financial decisions, as opposed to concentrating on
ensuring that people were going to be safe when they showed up for
work in the morning.
I'm encouraged by your words of support, and I think your position
and suggestions and your party's input will be very helpful in that
regard. We have to be mindful of companies that are in a very
competitive time, as they always are. They have to be productive and
ensure that their products and their businesses are operating at a
competitive level, but they also have to ensure that people are not
being killed on the job.
It's the government's responsibility to intervene when there's
evidence—and there's ample evidence—that it's happening. We should
hear more about the actual statistics. I'm sure members of the New
Democratic Party are armed with those statistics. Every day, three
people in this country are killed or injured on the job.
It reminds me of when we were studying the drunk driving legislation.
We heard just stark, startling statistics that people were dying out
there. In the context of the Criminal Code, we are usually examining
matters. When it comes down to that level of human life and limb,
that's where we have to step back and sometimes intervene and be a
little more vigilant and diligent in shackling directors and corporate
executives and ensuring that they're aware of the implications.
The Chair: Thank you very much.
Mr. Peter Mancini: Thank you, Mr. Chairman. In this round I will
be giving my time to the member for Halifax, Ms. McDonough.
Ms. Alexa McDonough (Halifax, NDP): Thank you very much, Mr.
I think it's appropriate for us to acknowledge that today what we're
doing is acting on the urgent pleas of the survivors and widows of the
Westray miners killed, the co-workers of the Westray miners, and their
family members, to engage in work that will ensure that there will
never be repetition of a Westray.
I know some people's reaction to that is to say “Well, you can't
bring the miners back”, or “Is this just driven by revenge?” As
someone who had the horrifying experience of meeting with the Westray
families within 72 hours of the Westray disaster, I have to say that
this has never been the emotion that has driven the families to demand
I will never forget, as long as I live, the very specific pleadings
of two young widows, young women with, between them, five children
below the age of ten: “Please work with us to ensure that we can say
to our children that their fathers did not lose their lives in vain.”
I think it's very important that we're considering this issue today,
and I want to commend Peter MacKay for his initiatives. As he knows
all too well, you can't live in a community where this kind of
disaster has occurred without caring, without some sense of
responsibility to make sure there's never a repetition.
One of the things I want to say briefly and then ask for your
comments on, Peter, is that I think often there is a confusion in
people's minds about whether what we're talking about here is building
in hopelessly onerous, complicated, and costly procedures around
health and safety regimes that will make it impossible for people to
do their work or for corporations to function. I think it's very
important that we use the opportunity of this discussion and others to
make it clear that this is not what this motion is about. That's not
what Bill C-259 is about. It's about doing what we do in this
country—that is, dealing with criminal conduct through criminal law.
That's how we deal with criminal conduct.
If there's one thing that was absolutely clear immediately following
the Westray disaster, and then fully, exhaustively documented in the
Westray report, it was that criminally irresponsible conduct took
place on the part of that company at the most senior level and at the
mine management level.
Peter, I wonder if you could just comment on that, because I think
there is confusion. What we're talking about is holding people to
account for criminal behaviour. That's what we do in other segments
of life, and that's what we're talking about doing here.
Perhaps I could make one very small correction, just to have in front
of us the magnitude of the problem. You're quite right in referring to
three workers a day, but it's actually three workers a day who are
killed in this country; 10,000 are injured on the job in the
course of a year. So that's more than 30 people a day who are injured
on the job.
We know we have health and safety regulatory regimes everywhere in
the country, but clearly it has not prevented the kind of criminal
conduct that went on in the case of Westray.
Could you comment on that?
Mr. Peter MacKay: I'd be glad to, and I thank you for that
correction and your comments.
You're certainly right to say that it affects everybody who lives in
the community. I drove by that mine the day it blew up. I live a
mile from the entrance to the Westray mine. They've since brought
down the silos, but they certainly haven't in many ways dealt with the
grief and the ongoing pain that's there.
Focusing on your question, it's very much an attitude that exists
with respect to liability, and often in the context of a Criminal Code
prosecution it's acts of omission that become the intangible factor,
difficult to prove—that is to say, somebody didn't do something
that resulted in something as tragic as Westray. They ignored the
warning signs. They ignored their ethical obligations to act in a
positive way to prevent. That is where it sometimes....
It's very onerous to try to attach criminal liability to something a
person didn't do, and I think we have to be very careful when we start
assigning such a weighty degree of liability for acts of omission.
Again, this is where it becomes complicated to prove, in the criminal
sense, that the person had knowledge, but you have to look at the
entire corporate structure to show where their responsibilities are,
when that knowledge came to them, and what that knowledge was
comprised of when you're attaching this type of weighty criminal
responsibility. The bill your party has brought forward I think quite
effectively does that.
Now, there may very well be a need to fine-tune it, and I understand
from talking to Mr. Mancini that you're amenable to that, but the
implications for not doing as you have outlined are very grave and
very serious. If we do not act in the spirit of trying to increase
the threshold, we won't change the attitude. The attitude, at this
point, in many instances is very smug and arrogant. It is something
that is extremely disturbing when we see what can happen when
corporate executives step back and say “That's not our problem. We're
in the business of making money, and we're in the boardroom, in the
sterile world of the Toronto Stock Exchange.”
When you get down into a mine or on the deck of a ship or in a
workplace—and I'm not going to start citing examples, because we all
know them—where somebody is in real danger daily.... Then there's
this fear of losing your job, which is always there. That's another
intangible factor, this fear that if you report, if you kick up a
fuss, you're going to lose your job.
And we know, Ms. McDonough, in areas like Atlantic Canada, what it
means to lose your job. It means you lose your home, and you lose
your roots when you have to go somewhere else.
So it's a holistic problem, and that's why this motion, I would
suggest, shouldn't be limited just to changing the Criminal Code. I
think that's a big part of it. Having the Damocles sword of the
Criminal Code hanging over a corporate executive's neck is helpful,
but it's not the be-all and end-all to improving workplace safety.
Still, it certainly puts the force of law and the tentacles of
government at least in a position where they can change the attitude.
So it's as much about raising awareness and changing attitudes...that
we embark on this exercise.
The Chair: Thank you very much, both of you.
Ms. Aileen Carroll (Barrie—Simcoe—Bradford, Lib.): Thank you,
Thank you, Mr. MacKay, for your insights this morning.
I can remember, as a very small child, the sound of crunching gravel
under the wheels of my father's car in the middle of the night. I
remember how bizarre that seemed to me, to hear his car leaving. His
car was leaving because he'd had a telephone call from Springhill. He
was a civil engineer with a construction company, and they were
building a building in Springhill. Many of his men were housed
nearby. Out of a sense of great alarm, more immediately for his own
men, he left that night.
That's a memory that's particularly acute. When all of that began at
Westray, that memory was very clear in my mind. So I'm listening very
carefully, obviously, with a past that makes me very tied in to the
And I was appalled to hear of man sitting on his horse farm in
Ontario while we had a process going on in Nova Scotia.
With all of that as my baggage, I have great sympathy, obviously, for
what you have done and for what Ms. McDonough is attempting to do.
But I do have some questions.
Mr. Justice Richard's recommendation in section 73 reads that this
...through the Department of Justice, should institute a study of the
accountability of corporate executives and directors for the wrongful
or negligent acts of the corporation and should introduce
in...Parliament...such amendments...as are necessary to ensure that
corporate executives and directors are held properly accountable....
As I read on the order of reference, your recommendation is to make
amendments to the appropriate statutes to accomplish what the judge
has recommended. I note, of course, that this was after consideration
by the Standing Committee on Justice and Human Rights.
My concern here is that a good job be done. I recognize, without
question, the need to make changes and to ensure that this type of
dilemma never occurs again. And it's not just in mining situations,
although to my memory that's the situation we are most acutely aware
of right now. It's always, from my view as a public policy-maker,
very important that we enact the very best legislation we can enact.
So I do hearken well to the judge's advice of a study, and I note that
you have asked it to come here.
I am concerned that the private member's bill from Ms. McDonough, who
has joined us at the table, might perhaps be—and I'd ask you to
respond to this—a little premature given what the judge has
recommended and given what you have brought to this committee. I
would like you to comment on that.
Second, we do have directors' liability. It exists. But I am
assuming it is insufficient at this time. I look forward to your
insights as to why it is.
Mr. Peter MacKay: Thank you very much for your words and for your
comments. I'll address some of the issues you've brought forward.
I have had the opportunity to review Bill C-259 with respect to
criminal liability. I wouldn't say it's necessarily premature,
because I have to respond that it wouldn't be necessary for Bill C-259
and it wouldn't be necessary for this motion to even be here, with the
greatest respect, if the government had acted in a more “timely
fashion”, to use the justice minister's words.
One of the real motivating factors for me, and I think it should be
for all of us, is that time is going by. When we hear statistics like
three people a day, the more time we don't act, the more jeopardy, the
more loss of life, the more tragedy. So I don't think anything is
premature if it's moving toward a greater degree of corporate
This bill, I think like most bills, government or private member, is
perhaps imperfect in the sense that it hasn't had the trials and the
templates applied yet by our justice department. That's not to say
the justice department always comes out with perfect legislation,
either. There are always constitutional implications whenever we get
into it. But because of the complex nature of criminal liability,
when it includes, as we were talking about earlier, acts of omission
and how to bring in this issue of knowledge, which is probably the
most onerous type of evidence there is—it's based on human
consciousness and human frailties and evidence that is very hard to
present in a court of law—then....
But I don't think this bill is by any means fatally flawed. I do
think it may take some nuancing and fine-tuning.
With respect to the criminal sanctions proposed, I'm sure the simple
knowledge of the corporation or an executive that there is now a
specific section of the Criminal Code that will attach....
My recollection of the prosecution of the case—I was working in the
same office—was that one of the greatest difficulties the prosecutors
had, aside from all of the procedural roadblocks they ran up against
and the delays and the onerous evidentiary burden, was the fact that
they were unable to grasp some of the very subtle pieces of evidence
that existed, and there was no way to present to the court the
knowledge that executives and directors, and in some cases the mine
managers themselves, had. It was just so large.
Going back to Mr. Abbott's comment about whether this should apply
equally to a company of 500 as to a company of 5,000, yes, I think it
should. There has to be a level standard right across the board.
Turning back to your question, whether or not we should in some
instance amend provincial.... Well, we can't amend provincial
legislation, but again, turning back to the attitude that exists, what
we have to do is put in place sanctions or put in place some higher
degree of liability for those who are engaged in the day-to-day
practice of management and business decisions.
You know, financial implications are but one part of the equation.
What we want to do is include, after a study of the issue, some teeth,
some repercussions for those who go outside normal safety practices.
Ms. Aileen Carroll: I appreciate that. I agree with that.
There's no question in my mind that Westray must never happen again.
It's just that I'm trying to say that although we can quote statistics
of how many people die a day, it would be difficult to say if a person
died of their own negligence or because of someone else's negligence.
Most important here is to come up with a resolution in law that is
well done, well researched, and appropriate.
That's all. I just want to make sure we don't have a knee-jerk
reaction so that this is not the best public policy we can do. I was
glad to hear you use the word “study”.
Thank you, Mr. Chair.
Mr. Peter MacKay: I agree with that sentiment entirely, but I have
to reiterate, it's seven years after the fact with Westray, and it's
three years after the fact with respect to this report.
You know, ideologies and business ethics and attitudes do take time
to change. And there will be a lag time. I suggest that even after we
put legislation in place there will be a period of time in which the
business community will have to adapt and respond.
Again, it's about demonstrating the importance and the seriousness of
workplace safety, and letting the country, all our citizens, including
our corporate citizens, know that there is a price to pay. There are
reprisals and repercussions for ignoring workplace safety. That's
all. I don't think we have to focus in on any one specific way of
doing that. There's the Criminal Code, labour standards, coordinating
things with the provinces, education—all of it.
The Chair: Thank you very much.
We'll go into a second round. I have a couple of names. In doing
so, I would remind members that we do have other witnesses we would
like to hear.
I don't see anyone on the Alliance side.
Mr. Jacques Saada (Brossard—La Prairie, Lib.): We are talking
about Westray here today, but it goes far beyond. It is much larger
My first question has to do with acting consistently when we consider
that. By that I mean how can we, for instance, as was done
recently—and I think Ms. McDonough mentioned this a moment ago—,
work on tightening the Criminal Code to ensure that every type of
negligence resulting in a crime is penalized and exclude from that
type of criminal considerations something as fundamental as work
conditions and security and health in the workplace?
How can we, as a country, go on fighting for more decent human
conditions for Haitians workers in the Dominican Republic, for
instance, or for the children who work in Pakistan or in the shops
where they make sport items and, at the same time, not want to do at
least the same thing at home to ensure a minimum of safety for our own
workers? It's a matter of consistency. We have to be consistent.
Some allude to the fact that, and wrongfully so, I think, presumed
guilt is tricky. I think there is a difference between having a
provision in the Criminal Code that holds people liable of their acts
and what is called in English due process. There is a difference
between liability and guilt. Those two things will be established
separately. So I am not happy with the argument that inserting this in
the code would constitute a prejudice.
I have not yet heard arguments that go against such an initiative as
the one you are proposing and as Ms. McDonough is proposing.
Obviously, I would like to hear those arguments so that we can bring
about the most appropriate amendments, but there is a difference to be
made between the enforcement and the principle.
On the principle, I think that we do not have any choice if we want
to be consistent with ourselves. We must have provisions that enable
us to hold those who are in charge of the employees' safety liable,
but also send clearly the message that such liability goes with
actions to be taken at a very local, very regional level, for all
companies. It cannot be perceived—
It cannot be a motherhood statement. It has to be something with
teeth that acts as a deterrent at the same time as a remedy.
In that regard, my understanding is that this bill, Bill C-259, has
not been drawn yet. Is that correct?
It hasn't been drawn.
What I would like to say, simply, is if the bill is not drawn, in the
normal process, I think we should really look into that as a
government as well.
I appreciate your sentence, Peter. We often use the word
“non-partisan” to make sure we remain partisan. But in this case, I
think you are very right. I think this issue doesn't pertain to one
particular party. It belongs to Canadian society, and I think we
should address it.
I didn't have much in the way of a question for you at this point,
but I wanted to make sure I had a chance to explain why I supported
this motion in the House.
Mr. Peter MacKay: Thank you very much, Mr. Saada. I'm very
encouraged to hear you say that, because having been around this table
with you, I know you do have a very large social conscience for issues
I agree with your sentiment that this has to be something that will
bring about a degree of accountability, and it doesn't necessarily
have to come just from the Criminal Code.
I was just reviewing again the current sections of the code with
respect to murder and manslaughter. I guess we all know that is the
most heinous act that one can commit, taking another person's life.
Whether you do so by direct intervention with a gun or a knife, or you
run over somebody with a car, or you knowingly put them in a situation
or you create a situation through your own negligence that results in
the same thing, the loss of life, there has to be something, to use
your words, that has teeth, that makes a person stop and think about
what they've done.
This bill that's also in the works talks about fines, but it also
talks about incarceration. We are limited in this country as to what
we can do by legislation to get that message through.
So I don't disagree with you when you say it may not be just through
the Criminal Code. It may be amendments to the current sections with
respect to negligence and simply making an amendment rather than
creating an entire new offence. That may be more complex and may
create, at this point, more problems than it solves.
So I'm not married to the idea of simply creating a new criminal
offence. I think if we're going to delve into this exercise, we
should look at the current sections and see if there's a way we can
amend the negligence and murder-manslaughter provisions of our code.
But I'm very encouraged by your sentiment that this is something we
As a final point, on your “non-partisan” comment, I'm quite
confident when I say that everyone around this table would gladly turn
this over to the Department of Justice to pick up and run with, and if
your government is prepared to do that, away with you. Great. We'll
back you 100%. You won't see any opposition coming from the
Conservative Party. The others can speak for themselves.
The Chair: Thank you, Mr. Saada and Mr. MacKay.
Mr. Peter Mancini: To pick up on your last comment and the two
questions that preceded it, I think we need to be clear on this,
because recommendation 73, as has been quoted by Ms. Carroll, says the
Department of Justice should institute a study of the accountability
of corporate executives.
I don't know if you're aware that the Law Reform Commission of Canada
in 1976 recommended changes to the Criminal Code. Springhill was
brought up. I won't say how long ago that was, since Ms. Carroll
remembers it. It's a number of years since Westray.
When your motion talks about recommendation 73, I am presuming, in
light of what Mr. Saada has said, that we are not talking about more
study. I am assuming that what we are suggesting is that the private
member's bill that has been introduced, coupled with your motion,
would clearly indicate to the Minister of Justice that the response we
are desirous of is that legislation come forward for this committee to
examine, the way we do with other bills, amending the Criminal Code
There is a precedent for that. Mr. Cadman, who is at the table,
introduced a private member's bill that eventually was brought forward
as part of Bill C-3, the Youth Criminal Justice Act.
So I would assume that with your motion, as much as it makes
reference to section 73, you would agree with me that the time for
study is past. There is Bill C-259 before the House, not drawn yet,
but the drafting is there, and there is your motion. Surely now, in
light of what Mr. Saada said, the appropriate response is that before
there is an election, legislation be forwarded to this committee for
examination in the normal course of events, whereby we could then
fine-tune the legislation and bring it to the House for passage. Am I
Mr. Peter MacKay: You're absolutely right, Mr. Mancini, and in
recommendation 73 that I've incorporated in 79, the reading is that in
the opinion of the House, the Criminal Code or other appropriate
federal statutes should be amended—“should be”, as in busy bees.
We should be doing this now.
The study has been done. There are other documents that support it.
There is certainly ample evidence of reasons for doing it, and public
sentiment. There seems to be a very non-partisan attitude around this
table and around this issue. It's time to put it into the machinery
of government and simply make it happen, and I'm here simply trying to
be a conduit for that.
This motion and your bill were done in genuine effort to get the
wheels in motion, and I think that's happening. I get the sense it is
happening. It's like a heavy coal cart, once it does start to roll.
I think we have great ability to do that through statute. Through
statute we can change attitude, and through attitude we can change the
safety in the workplace.
The Chair: Thank you, Mr. Mancini.
One quick question.
Ms. Alexa McDonough: Because Peter MacKay has raised the question,
does the New Democratic Party have anything to say on the question of
ownership, sponsorship or whatever, let me make it absolutely clear on
behalf of the New Democratic Party and all of those who have been
working so hard—the Westray families, the steelworkers' union, the
labour movement—that we have not one ounce of hesitation about saying
that if the government wants to take that holus-bolus and move it
forward, that is exactly what we're after.
I think, Peter, we've worked very hard together on this to ensure
that it's a non-partisan issue. I would just add that I can't think
of anything that would better rebuild a bit of confidence in
Parliament's ability to do its job than for us to come to an agreement
at this committee today and to say let's move this through.
It has been discouraging, frankly, that it's not only eight years
since the Westray disaster; it's 24 years since the Law Reform
Commission recommended the exact same course of action. I think if we
could achieve that on behalf of the people of Canada, particularly the
workers of Canada....
Let me just throw in one other thing. I think Pat Martin, as the
labour critic of the NDP caucus, is horrified that Peter and I have
both under-represented the number of workplace accidents that are
happening, literally by hundreds of thousands. The statistics are
really very alarming.
I think if we could hear from the other witnesses to help build the
momentum and come to a cross-partisan agreement to move this forward,
we would all go away from this session feeling very good about it.
The Chair: Mr. Maloney.
Mr. John Maloney (Erie—Lincoln, Lib.): Welcome, Peter. Certainly
Alexa's bill would send a message to corporate boardrooms across the
You talk about situations that arise in the day-to-day operation of
the mines. From a practical perspective, these individuals in
boardrooms in Halifax, Montreal, Toronto, and Vancouver are far
removed. Are they so far removed from the day-to-day operations that
they would be insulated so that there may be a message, but the
practicality of prosecution, of holding them liable, would fail?
Mr. Peter MacKay: That's a very good question and it's one that is
purely legal and evidentiary. What it comes down to, in my mind, is
that the nexus and the onus would be on a prosecutor.
First and foremost, you would know that obviously there has to be
sufficient evidence to lay a charge in the first instance. It would
not have to be beyond a reasonable doubt, but there would have to be a
preponderance of evidence to suggest that there was knowledge that was
overlooked or ignored. There would have to be proof that decisions
were made that contributed to an unsafe work environment. It is a
very high threshold for the police to get over to even justify the
laying of a charge in the first instance, let alone proof beyond a
reasonable doubt in a court of law.
I suggest that there are instances. I think Westray is perhaps the
most glaring example of cases where it did exist, where there was that
thin line of knowledge that went to the very top and wasn't acted
It's not enough to say that there are very few cases that could ever
be successfully prosecuted. My suggestion is that we have to have a
mechanism in place that exemplifies.... For general and specific
deterrence, there has to be a mechanism—in this case, the Criminal
Code—that would allow, when the evidence was there, for a prosecution
to occur. But we have to be extremely careful when we start casting
that net. I know—and you're right to point it out—that there are
sometimes directors who never go to meetings, who never have input
into decisions that are made in a company.
I'm glad you raised this, because in my mind, there is one troubling
aspect of this current bill in this form, and that is the reverse
onus. It's on the person to basically prove that they didn't have the
knowledge. I don't necessarily buy into that. I think that is a
little bit questionable. I know Mr. Mancini is smiling, as an old
defence lawyer would. At the same time, with that reverse onus, I
think he would agree that his clients would have a very difficult time
trying to exonerate themselves. They're presumed guilty unless they
can prove themselves otherwise. If I can say so, with the greatest
respect, I think that is one aspect of this bill that's problematic.
Again, your question is an important one. I think that has to be a
subject of greater study. We should hear from constitutional experts.
We should hear from individuals in the corporate world. I've never
had the distinction to be in one of those boardrooms, but I know
sometimes that information isn't there.
The Chair: Thank you very much, Mr. Maloney.
I'm going to seize the opportunity to acknowledge the degree of
consensus that exists around this and put it on the record.
Mr. Peter MacKay: It's very encouraging.
The Chair: I think we've raised the bar. We may have created a
race to the top, and I hope we have. When people were speaking of
this, there were heads nodding around the table, on all sides of the
table. The challenge is put that we know there is a draw. We know
that because there is a draw there are certain risks associated with a
I think it's fair to say that the government has an opportunity to
react to what Ms. McDonough suggested in terms of a cross-partisan
support for this. I like the Canadian expression of bipartisanship.
I think an occasion to do ourselves proud as parliamentarians is to
recognize the consensus on this subject that exists in the room among
members of five political parties. I also think it would give credit
to the audience. Credit should go where it belongs in terms of all of
those who have advanced this issue. Perhaps it's my maritimeness that
is not letting me lose the occasion to nail this thing down as far as
we've brought it today.
I think there's a message for everybody in this. I'm sure the
transcripts will be read in the Department of Justice. Because the
transcripts cannot reflect the large number of government members who
are nodding, let it be established that large numbers of government
members are nodding.
Mr. Peter Mancini: Mr. Chairman, I appreciate what you're saying
and I do think there is a sense of consensus. In light of that and in
light of Mr. MacKay's comments, I think we might want to formalize
that a bit more by way of a motion. I would be prepared to move that
the minister and the department bring forward legislation in
accordance with Mr. MacKay's motion 79 and Ms. McDonough's Bill C-259
for consideration by the committee. I would be prepared to move that
if there's a seconder.
The Chair: The first thing we would have to do is ask Mr. MacKay
to cease to be a witness and be a member to give us quorum. If there
are no other questions for Mr. MacKay....
Mr. Peter MacKay: Before I do, I would like to just revisit the
issue of having two individuals come forward and make a very brief
presentation in keeping with this motion.
The Chair: I believe it was a friendly amendment that received
unanimous consent for five. I have five names. We'll do that
immediately following. Again, I see some momentum here. You talked
about a coal cart. Well, let's keep going.
Mr. Peter MacKay: I appreciate that and I appreciate your
comments, Mr. Chair. I think this is a mother's milk issue. Rather
than building more monuments to tragedies, I think the best monument
we could build would be legislative change that will help remedy this
The Chair: Thank you very much, Mr. MacKay.
As Mr. MacKay returns to his place, we have a motion. Just the
presentation of the motion will require unanimous consent because we
did not have notice.
Mr. Jim Abbott: Can I hear the motion again?
The Chair: Mr. Abbott has asked for Mr. Mancini to repeat the
motion, but I understand we still don't have unanimous consent to
receive the motion. In order to ask for unanimous consent, I would
ask that the motion be repeated.
Mr. Peter Mancini: Mr. Chairman, I would move that the minister
and the Department of Justice bring forward proposed legislation in
accordance with Mr. MacKay's motion 79 and Ms. McDonough's Bill C-259
for consideration by the justice committee.
The Chair: Before I ask for consent, I would also, just by way of
process.... I think I know the spirit. We may even wish to report as
a committee on Mr. MacKay's motion and include the reference to Ms.
McDonough's bill and make it a report of this committee to the House
specifically, on the basis of today's consensus. I don't make that as
a suggestion other than one that you would accept on the basis of the
political momentum it would reflect.
Mr. Abbott, and then Mr. MacKay.
Mr. Jim Abbott: Before we get to the question of unanimous
consent, the linkage of Bill C-259, which has not been approved by the
House to this point.... I'm just wondering if procedurally we're out
of sync. In other words, if the motion were to proceed on the motion
that has already cleared the House, I would feel quite comfortable in
the Canadian Alliance giving unanimous consent. I'm just wondering if
procedurally the linkage of Bill C-259 creates a problem.
The Chair: Thank you, Mr. Abbott.
Now I'm going to hear from Mr. MacKay. I don't want to ask for
consent until we know what we're asking for.
Mr. Peter MacKay: Yes, Mr. Chair, I'm fully in support of the
motion and the amendment as proposed, because I do believe that given
all of what has been said and what has transpired here, having now a
procedural mechanism to achieve what we all want to achieve would, I
think, entail taking this a step further, hearing from some witnesses,
getting the Department of Justice involved, and drafting, whether it
be in some form similar to Bill C-259 or, as I hoped we would
encompass in a larger sense, in a study of other federal statutes,
which was envisioned by recommendation 73 from Mr. Justice Richard's
In the normal course, what I heard you suggest was that we report
back based only on what has transpired thus far. I would like to see
us go to the next step, which is, I think, the mechanism that Mr.
Mancini is trying to receive unanimous support for. I would speak
very much in support of Mr. Mancini and Mr. Abbott in their attempt.
Mr. Peter Mancini: I understand, Mr. Chairman, that if I change
the wording to read, in accordance with motion 79, “and the
principles underlying Bill C-259”, that solves the kind of technical
problem we may have.
The Chair: Okay.
Ms. Aileen Carroll: I think Mr. Mancini has corrected the dilemma,
but not being a procedural expert.... I think it's because Ms.
McDonough's bill procedurally doesn't yet exist, so when making
I do not diminish a bill that I have signed, but it might need to be
focused on the principles she wishes to espouse and incorporate them
without the framework of a bill.
Mr. Peter Mancini: So I'm prepared to change the wording of the
motion, Mr. Chairman.
The Chair: Okay. One more intervention, from Mr. Maloney, and
then we're going to seek consent to hear the motion.
Mr. John Maloney: My concern with adding Bill C-259 to your
motion, Mr. Mancini, is that I haven't had an opportunity to review
Bill C-259 in detail and I would be reluctant to sign a blank cheque
without having done so.
Mr. MacKay has pointed out what he feels are shortcomings within
that. We are agreeing to the principle of that. Therefore, there is
the problem. I certainly agree in principle with what we're talking
about in M-79, and perhaps even with Alexa's bill, but I haven't had
the opportunity, so I'm not about to sign a blank cheque, as I
The Chair: I think we want everybody today, so let me just seek a
little bit more.... I think we're really now discussing the
definition of “principle”—
An hon. member: Yes.
The Chair: —in terms of the fact that there are provisions in the
bill that we may not, as matters of substance, support.
I think we'll have to let the record demonstrate Mr. Maloney's
reservations in his interpretation of “principle”.
The principle that Mr. MacKay's motion has presented is consistent
with the bill that Madam McDonough proposed. We do not necessarily,
at this moment, subscribe to the content of her bill; that isn't the
point. What it attempts to do, as is Mr. MacKay's motion...we can
Can I put it that way, for the record, so that everybody is
comfortable with what it is we're about to do?
Ms. Aileen Carroll: I agree with you completely,
Mr. Chair, and I think that does....
I should assuage Mr. Maloney. For instance, Mr. MacKay mentioned
reverse onus, and that's something we have to look at. I have some
concerns about that, but that didn't prevent me from signing the bill
because I want the bill and what it's trying to do to get forward,
with the attitude that we'll fix it later. And of course those were my
opening remarks: we want the very best legislation we can get. That's
why we come to Ottawa. If we need to move a small vehicle into a
larger venue, so be it, so that we produce what we want: the best
The Chair: Procedurally, I would bring to Mr. Mancini's attention
the fact that we cannot demand or call on the minister. All we can do
is recommend. So the language of this committee is that we would
recommend, as long as you can live with that.
Mr. Peter Mancini: I can live with that.
The Chair: Okay.
Do I have unanimous consent to receive the motion? I do.
Could you repeat the motion, Mr. Mancini?
Mr. Peter Mancini: Yes, Mr. Chairman. I would
move that we recommend—
The Chair: The committee recommend....
Mr. Peter Mancini: —the committee recommend that the minister
bring forward legislation in accordance with motion 79 and the
principles underlying Bill C-259 for consideration by the justice
Mr. Jacques Saada: Can you repeat it slowly, please?
Mr. Peter Mancini: Yes, okay. I would move that the committee
recommend to the minister and the department that they bring forward
legislation in accordance with motion 79 and in accordance with the
principles underlying Bill C-259 for consideration by the Standing
Committee on Justice.
The Chair: You heard the motion? I call the vote.
(Motion agreed to)
The Chair: That's carried unanimously.
Voices: Hear, hear!
The Chair: Mrs. McDonough will appreciate the comment, “shades of
the heritage committee”.
I would also give considerable credit to the audience. The presence
of the audience, as has been brought to our attention by Mr. MacKay
and members on all sides, has heightened our desire to do the right
With that, there's one question before people get away. This is my
understanding, but I may be wrong, and the clerk tells me I may be
wrong in my interpretation. Is it the intention of the committee that
this is to be reported to the House as a report of this committee?
Some hon. members: Yes.
The Chair: Okay. That was my understanding.
The clerk tells me I need a motion to report.
Mr. Jacques Saada: So moved.
Mr. Jim Abbott: Seconded.
The Chair: I call the vote.
(Motion agreed to)
The Chair: Thank you very much.
Ms. Aileen Carroll: Mr. Chair, is it the will of the committee
that we have an official government response?
The Chair: It's a requirement.
Ms. Aileen Carroll: No, not necessarily. Do we wish it?
The Chair: You see, it happens so infrequently.
Voices: Oh, oh!
The Chair: I am told we need now a motion and a definition as per
the government's response.
Ms. Aileen Carroll: I'd like to make that motion, but I may need
the assistance of the clerk to do it correctly.
I move then that we have the response of the government to the—
The Clerk of the Committee: It's 150 days.
Ms. Aileen Carroll: It's 150 days? Can't we shorten that up?
The Clerk: No, it's in the Standing Orders.
Ms. Aileen Carroll: All right. Then I move that we request the
government to respond to this committee within the requisite period of
The Chair: Just a moment.
Ms. Monique Guay: As quickly as possible.
The Clerk: We can ask, but....
The Chair: Essentially we can ask the government to do this as
quickly as possible, with an understanding that according to the
Standing Orders, they're required to do it in 150 days.
The Clerk: That's right.
The Chair: I'm assured that we have all our “t”s and “i”s
done. So with that, I call the question on that motion.
(Motion agreed to)
The Chair: Let the record show we still have Mr. Abbott for
Now, as we received unanimous consent earlier, we will hear....
Is there a point of order?
Mr. Jacques Saada: Yes, it's quite straightforward. Normally, when
we discuss a motion so that it can be carried, we have it in both
official languages. Here, we only started from an English version. I
would like those who want it to get the French version quickly so that
we are sure we are all talking about the same thing and we can correct
whatever has to be corrected before we report to the House.
The Chair: Yes. It's important to note that because we have
simultaneous translation, we can receive an oral motion, and it's
deemed to be in both official languages because of translation. We
cannot receive a written notice in one language only.
Now, I have five names, and correct me if I'm wrong—Vernon
Theriault, Howard Sim, David Doorey, Dennis Deveau, and Lawrence
McBrearty—who all have expressed an interest in appearing. So would
those five witnesses, if I have them right, please come forward?
Mr. Howard Sim (General Vice-President Representing Steel, Nova
Scotia Federation of Labour): Good morning, Mr. Chair and ladies and
gentlemen. I'd like to start this off, seeing as I have less to say.
My name is Howard Sim. I am from Pictou County. I drive by the
Westray Mine every day on my way to work and every night on the way
home. I still have two good friends who are underground there. To
me, this has been going on long enough. It has been eight years,
three years since Justice Richard's report. I like what happened here
today. I'd like to see the government of the day move ahead with this
and do something with it.
I'd like to straighten out a couple of facts. For the last three
years, I've been going to the high schools in Pictou County, talking
about health and safety to people who are graduating from school. In
1998, 58 young people between the ages of 18 and 24 died in Canada on
the job. There were 60,000 reports of accidents involving young
people between those ages in 1998 alone. It's time we make some
changes here to make somebody accountable for what's going on in the
It's nice to see everybody here today working and moving ahead to get
something going. I don't have a whole lot to say. My colleague here
worked in the mine. He'll have more to say than I do. I'd just like
to say I'm here on behalf of the Steelworkers, representing over
200,000 members from coast to coast.
Thank you very much.
The Chair: Thank you very much, Mr. Sim.
Mr. Lawrence McBrearty (National Director for Canada, United
Steelworkers of America in Canada): Good morning. My name is Lawrence
McBrearty. I'm the national director for the United Steelworkers of
I want to wish you a good day.
First of all, I would like to congratulate the committee on their
efforts to come to a consensus this morning. I understood it the way
I understand labour movements, but I hope this is going to come to an
end. I don't know all the political procedures it has to take before
it gets into a formal debate, but I want to congratulate you on that.
I have a very emotional presentation to make this morning. I do come
from the mining industry. I worked in a mine. I worked for Noranda
Mines in Murdochville. Some of you probably remember the 1957 strike.
I was very young, and I was president of my local union. I had to
carry out of a rod mill—for those who know what a rod mill is, and I
won't take the time to explain it—the body of a 17-year-old friend of
mine who, I'll have to use the words, got killed.
The coroner's inquest in the early 1960s determined a criminal
responsibility towards the first-line supervision and also towards the
company as a corporation. You can imagine that the community and the
family of that young person, 17 years old, who had just got married to
a young girl, 16 years old, who was pregnant, wanted us, the union, to
make every effort we could so that prosecution would go ahead.
We were refused prosecution for the reason that corporations were
covered under workmen's compensation, and that was considered an
insurance carrier of any liabilities the company would have to face.
Secondly, the Minister of Justice at the time, Jérôme Choquette—and
you can imagine the events that were going on in Quebec in the early
1970s—mentioned to us there was not enough evidence to prosecute.
I want to put that aside, because I've got that emotion out of me
now, but I want to take some time to give you some facts. I hear
people saying, “We have to study”, and I understand the purpose of
the questions and the reasons for the questions, but I would like to
make very clear that the facts are now there, not only in Westray. If
we only go back to 1981, the rate of corporate deaths, killings—call
them what you want—was four times higher than the rate of Criminal
Code deaths in Canada. So the facts are there.
We have accidents that should be incidents instead of accidents.
Deaths have happened in the workplace that should not have happened,
for many reasons. But we have to also take into consideration that if
I am an employee of company A and an accident occurs and there's a
death, and I am the co-worker of the person who lost his life, I will
be under investigation by the justice, by the police, which is normal.
Deaths should be investigated. I will be under investigation to see
if I had any relations or voluntary views related to that death, and
if it is considered that I did, I will be penalized and I will pay the
There's a big difference between responsibility and accountability.
People have to be accountable. If I drink and drive and I hit a
person with my car and that person loses their life, I did not
voluntarily kill that person, but I violated the law, and I'm going to
have a price to pay for that, and I will pay and our justice system
will see that I pay.
In the case of Westray, everybody who knows Westray will define who
was responsible. There are some who had more responsibility than
others, starting with the premier of the province at the time, the
mine inspectors, the corporation executives, the managers. There were
26 lives there, and there are still 11 bodies buried underground. One
of our members received the Order of Canada for his courage during all
that tragedy, trying to get the bodies out.
I don't think we need any more studies. If you need facts, my name
is Lawrence McBrearty. I'm the national director for the union. I
have a lot of friends in the labour movement, and I have a lot of
friends in corporations also. We'll bring you all the facts you need.
Before coming here, I just finished attending and chairing a book
launch by a professor from St. Thomas University in Fredericton, New
Brunswick, on a case study of the corporate crime. It's The
Westray Chronicles. The book is $25.
I'll ask you all a question. If you promise me to read the book,
I'll buy it. I'll have it delivered to you by the 12 lobbyists,
steelworkers, we have on the Hill for two weeks. But you have to
promise to read it. If you don't read it, I'll have somebody read it
to you, because I know you're very busy. But I think the facts are
there in this specific case.
We have criminal lawyers across the country who looked into Westray,
and looked into other cases also.
I want to mention another issue. I don't know much about politics.
I'm only elected by the workers. But people say the minute you take a
pencil to vote, you're in politics, so I guess I'm in politics.
Nevertheless I can understand the pressure all of you in Parliament
will receive from us, from my union, our members, and I understand
that you'll also receive pressure and lobbying groups from
I guess that's the name of the game in politics. But one thing is
sure. This is a human issue, and this is about political will. This
is about doing the right thing for the country, for the society, and
the ones who are going to follow.
When I walked in this morning—I think it was here, anyway—somebody
was mentioning that we can't bring those people back. We can't bring
them back, but we're goddamn well not going to forget them, and a lot
of other people aren't either.
I think you must have read that a poll was conducted in the last few
weeks where 85% of Canadians questioned will recommend and ask that
their MPs support the amendments to the Criminal Code. We can give
you a copy of the study.
In closing, I want to say that there are other countries.... If
we're talking in the society in which we're living, which is an
industrialized society, of a globalization of trade, free trade,
commerce, exchange, human rights, human rights violations, women's
issues, and child labour, I think we have to look a little bit at
what's going on elsewhere.
I think you all know there's an involuntary manslaughter commission
report 237 that has been introduced in the U.K. in the House of
Parliament, and we have a copy of that here. There will be
legislation passed in the U.K. for involuntary manslaughter.
Australia already has legislation, the Criminal Code Act from 1995.
I could be mistaken on the numbers, but I have the number and names
of states in the U.S. that have such an amendment. You've probably
read or heard that not too long ago in the United States there was a
corporate representative who was sentenced to 17 years in jail and a
fine of $5.9 million.
In that aspect, in Canada, in our Criminal Code, I think we're far
away from quite a few industrialized countries that we deal with.
In closing, I would congratulate you and ask that you talk to your
counterparts, talk to your friends, the one sitting beside you in the
House, to please do everything in your power—because you have the
power—to have these amendments come up in this session before the
House closes. We cannot afford as human beings, as people who want to
move ahead in the country, to face another tragedy such as Westray and
any other effects in the workplace. If there is any support and any
effort our union can bring to you, we will be pleased to do so.
The Chair: Mr. Theriault.
Mr. Vernon Theriault (Steelworker): My name is Vernon Theriault.
I've been a steelworker for 19 years. I worked at Trenton Works for 19
years, but in that time I worked at Westray. Work wasn't steady back
in the late 1980s to the 1990s, so I ended up going to work elsewhere.
I worked at Westray for seven months, and in those seven months I saw
a lot of mistakes with regard to health and safety. I can sit here
all day telling you of the mistakes, but I'll go to one mistake I saw,
with the Department of Labour in there one day, with Roger Parry.
We were up in the south main. We were going up the hill. I drove a
boom truck and took supplies into the face. One day I couldn't get
up, so he ordered the dozer—we have a dozer underground—to come down
and push me up. This time when the dozer was pushing me to get up to
that spot, Roger was going around with the Department of Labour. I'm
not sure which fellow was on the tractor, but he pulled up beside us
and hollered to us, “What in the blank are you doing down here with
that Machinery? Get out. You're not supposed to be in that area.”
So we went out with the machinery, and we went back up to the launch
area we had up top. A few hours later he came in, and we saw him
there. He said, “Get back down there and get those supplies up
there; they need them.” So we had to go back down—after the
Department of Labour had left.
I'm saying I didn't see any health and safety there. I was there
seven months, and I never even had a health and safety meeting. I
wasn't trained. I didn't know anything about coal mining when I
started there. I was a welder by trade. I worked at tire shops. We
all look for jobs to make more money, but we also look to be trained.
After the mine blew up—I'm going way ahead here now—I learned more
in the inquiry than I did when I worked for seven months at the mine.
I couldn't believe it. If I had known what I found out in those days
by going to the inquiry, I wouldn't have been in that mine, I'll tell
May 8 I was on my last day off. I went in on the overtime shift on
May 8. That was a Friday. I got off Friday night. While I was down
in the mine on Friday...I can tell you a few things I experienced in
the mine on Friday. There was methane gas. Another fellow and I were
working down in the mains. The machine we were using was a scoop they
called the big eight-foot bucket. It kept quitting on us, so the
supervisor told us to grab the other scoop, which didn't have the
machine that killed them off so they wouldn't be running—because if
the methane gas is so high, it shuts them off.
The guy I was working with kind of went down, because the gas was
high in that spot. I picked him up and we went out to the fresh air
for a bit. We kept on working there because I didn't know anything
about safety in the mine. I didn't know about the gases. I don't know
what to say on that one. I wasn't trained.
It's up to your employer or workplace to train you on health and
safety, I would say. When you go for a job, that's usually the top
thing on the list.
We'll go back to May 8. I went home Friday night and went to bed. I
got a call at 5:28 a.m. from my sister-in-law. I answered the phone
and she said, “Vern, you're home.” I said, “Yes, why?” She said,
“Oh, there are ambulances and sirens going off at the mine.” She
just lives across from the mine. I said, “We had cave-ins in the
last few weeks. Probably somebody got buried. It's a cave-in.” So I
just told her, “I'll find out when I go in this morning.” On May 9,
I was to go back to my regular day shift. I said, “I'll check it out
when I go in.”
I went back to bed and got up at 7 a.m. I got something to eat, got
washed up, got ready for work, grabbed my lunch can. I drove down to
Blue Acres by the gas station, just across from the mine, and there
were cops there. One said, “Where are you going?” I said, “I'm
going to work.” He said, “You didn't hear? The mine blew up at
5:30.” I didn't know what to say. I just felt something go from my
head right down to my feet, like wow. He said, “Well, you guys can
go over to the garage there. The day shift are ordered to go over to
the garage, and we'll see what happens from there.”
I went in for overtime on May 8, and on May 9, my regular day shift
back, the mine blew up before I got there. Instead of going back into
the mine to work, I ended up going on rescue squad. It was a terrible
thing to go through. We had five days of going down that mine on the
rescue. It was a terrible experience to go through. I live with it
day in and day out. I'll probably live with it until I go and sit
underground myself in my box.
The biggest reason why I'm up on the Hill for these two weeks is to
help force the bill for employers to be accountable to their
I had three young children eight years ago. Now one fellow is in the
workforce and another one is going to be in the workforce. I'd just
like to see safety for my children. Probably everybody here who has
children or some type of family would like to see safety in the
workforce. But for my children—I'm saying my children here, but I
mean everybody in the world—it would be nice to see a nice workforce;
nobody has to get killed. People go to war to get killed.
I could go on here all day, but that's what I've got to say.
The Chair: Thank you very much, Mr. Theriault.
Mr. Deveau or Mr. Doorey.
Mr. Dennis Deveau (Staff Representative, United Steelworkers of
America in Canada): First of all, I want to thank everyone. I've been
here on the Hill for two weeks with some of my fellow colleagues,
going around and taking the opportunity to speak to many of you and
It's very good to see some commonality among everyone today.
Everyone's looking at this together and not fighting over this
particular part or that particular part. It's very encouraging,
because some of the MPs have said a lot of times you have a problem on
the Hill kind of getting together on some things. If we've helped
that at all by coming to talk to you, we'll definitely come again.
The Chair: Mr. Doorey.
Mr. David Doorey (Lawyer, National Office, United Steelworkers of
America in Canada): My name is David Doorey. I'm a lawyer working
with the United Steelworkers. I've been involved in this process for
some time now, in terms of looking at recommendation 73 and trying to
see what exactly it is about the criminal law, as it stands today,
that allows corporations such as Westray Industries and the officers
of that corporation to escape such a situation as occurred at Westray,
when all the findings are that it could have been prevented.
I'm not going to speak very long, as an introduction. I'm here
basically to do my best to address some of the questions I've heard,
just sitting here in the back row—questions in terms of what the bill
says. I'll leave it at that and answer any questions anyone may want
to address to me on that issue.
The Chair: Thank you very much. Thank you all for your testimony.
I will go first to Mr. Cadman.
Mr. Chuck Cadman: Thank you, Mr. Chair. I really have no
questions. I just want to go on record as thanking the witnesses for
taking the time to come and talk to us, specifically Mr. Theriault. I
think I can understand how tough this is for him. Again, thanks very
The Chair: Madame Guay.
Ms. Monique Guay: It's not really a question I have, Mr. Chair. I
would like to thank the witnesses for being here today. We are very
sensitive to their plea. And my party is meeting tomorrow with the
United Steelworkers. Several MPs will be at there and I think that we
will have a chance to talk then. Thanks for coming.
I think that the work we have done today, as members of all parties,
is quite exceptional. I never saw that in a committee. It's the first
time I see as wide and as non-partisan a consensus, I really mean
non-partisan. So I hope that this will move ahead.
But one thing is quite important for me. To be quite honest, I must
say that we will not be able to pass anything in the House at this
session. We only have one and a half or two weeks left for the
business of the House. We have to follow a parliamentary process. We
must work with the system, which is not always effective, I confess,
but that is how it works.
Besides, I think that we can move this issue forward quickly if we
all work on it. If we all want to do it, whether it be on the
government side or the opposition side, we can pass something rapidly.
The Chair: Thank you very much, Madame Guay. I don't think
there's any need for a response.
Let me just say that I've instructed the clerk to have the report
ready to be reported in the House tomorrow.
Mr. Peter Mancini: Mr. Chair, I'll pass to Ms. McDonough on this
Ms. Alexa McDonough: Mr. Chair, let me also thank all five of the
witness who have come before the committee today.
I think we all would be even more pleased if we were able to say that
eight years of strenuous work by many of the people who have appeared
before us today as witnesses have now culminated in the kind of change
that people have been working together to try to achieve. We know
that's not the case, but I want to say that today is a very important
milestone and perhaps the most promising sign that the Westray
families, the surviving miners, and the steelworkers have received in
that long struggle.
One of the things that probably is recognized by everyone around this
table but not necessarily understood by all Canadians is the
relationship between the United Steelworkers and the Westray miners
and their families. I think that needs to be said for the record.
When people hear of the horrors of what went on underground at
Westray, they need to understand that one of the reasons those
horrifying conditions were permitted to exist is that the miners were
not organized. They were not represented by a union. They therefore
were not in a position to exercise the rights of workers in relation
to health and safety: the right to know, the right to participate in
decisions affecting their health and safety, the right to refuse
unsafe work. Strenuous measures were used by Curragh Resources in
management to discourage and in fact to punish people for any attempts
to try to organize.
It's an extraordinary story of political action at its best and the
labour movement at its finest. At the time of the Westray disaster on
May 8, 1992, the workers were not organized, but they had in fact
begun to organize and had cast a vote to be represented by the United
Steelworkers of America. That vote had not yet been counted.
In some situations, you might have seen a union or another
organization under similar circumstances walk away. That was the end
of the Westray Mine. The chapter might have been closed. But
instead, the United Steelworkers from that day forward assumed the
responsibilities of representing those miners, I guess you'd have to
say posthumously, and worked to respect the wishes of the Westray
families, worked to act on their urgent pleas.
They played a major role in fighting for a proper, full public
inquiry to be held in the first instance. They made a very important
contribution to that inquiry, which was acknowledged by Justice
Richard in the Westray inquiry report. They have continued to this
very day to advance the issues, intensifying their political action
work here on the Hill in the last couple of weeks.
I just want to take the opportunity to make sure that this chapter is
understood and that proper tribute is paid to the extraordinary
partnership that developed between the United Steelworkers of America,
the Westray families, and the surviving miners, and to congratulate
them on the fact that we have reached this milestone. I think we all
look forward to celebrating the day that we actually have enforceable
legislation in place as it relates to criminal liability for criminal
The Chair: Mr. Mancini.
Mr. Peter Mancini: Thank you, Mr. Chairman. I'm going to be very
Given the interest that members have shown in the committee and some
of the questions that have been raised, legitimate questions.... This
is going to be one lawyer complimenting another, but Mr. Doorey has
prepared an excellent research paper, a background research paper for
the United Steelworkers of America on this very issue, comparing
legislation in Australia and in other countries. I would ask if he
would make that available to the committee members. It would be my
hope that as we move forward, this would form a backdrop for some of
our deliberations. I have a copy of it, but I would ask if he would
make that available to the committee members.
Mr. David Doorey: I will do that. I brought some copies, but I'll
Mr. Peter Mancini: Thank you.
The Chair: Thank you very much.
Mr. Peter MacKay: I want to thank all of our guests who are here
with us. In particular I want to thank Vernon Theriault. I know he
has to bring this into his mind every day. It's an extremely
difficult thing that he lives with. I also note that he has on his
chest the medal of bravery that he received for his efforts to rescue
miners trapped underground as a result of the explosion.
I would just echo some of the sentiments that have been expressed. I
think we have reached a very pivotal point. It is because of the
efforts of a lot of people, yourselves included in that number, and it
is my genuine hope and belief that we can now go to the next step. We
can take this committee and use it as a vehicle to achieve some of the
legislative change that is required to address all of the problems
that result from negligence and malfeasance in the workplace. My
sincere thanks to all of you.
The Chair: Thank you very much, Mr. MacKay.
Mr. Jacques Saada: I would first like to make some clarification,
if I may, to Ms. Guay's intent. You say that this is the first time a
committee is able to get such a large consensus.
Ms. Monique Guay: I said it was the first time I saw that.
Mr. Jacques Saada: I understand. I am sorry.
Ms. Monique Guay: It's my personal perception.
Mr. Jacques Saada: But I wanted to tell you—and I think it's
important that people know—that often, when we agree, people don't
hear about because the media don't mention it.
Not very long ago—and Mr. Mancini was part of the process, as was
Mr. Cadman—, we discussed a bill on the protection of children and
vulnerable people against former sexual offenders, and we managed to
have a consensus to promote a bill that was very quickly passed,
precisely because there was a consensus. So this is not a first. This
is may be the most stimulating thing that can happen around this
table. Our committee generally works very well.
I wanted to tell Mr. Theriault that
one of the things that I personally, as a member of Parliament, find
most difficult to do is to make sure I don't lose sight of what's
going on in real life. Here it's so easy to be lost in an ivory
tower. Once in a while we have people like you come to see us, and I
think it's essential. I will not reiterate all the compliments you've
received; I simply want you to know that I share them.
There is one thing I'm worried about. At the beginning of my remarks
a moment ago, I alluded to the fact that this transcends Westray. It
goes much further than Westray; it's a matter of the concept of
society in which we live. A law cannot be retroactive. It would be
very difficult to make a law retroactive. In fact, what we're talking
about here is the Westray experience being the foundation for
something for the future and not for the past.
I felt I had to say that. I think it's a matter of integrity. I
don't want to create the illusion that we're going to be able to deal
with Westray's responsibilities around this table. This is not the
commission or the inquiry. I just want to make sure we are all on the
same wavelength here. I don't want to be misinterpreted on this.
I have one last short word for Mr. McBrearty. When we talk about
studying, I agree with you if we say that there is no more need to
study further the necessity of passing an act on this issue. But what
still has to be studied, is the best way to do it. I think it's quite
clear. There is a process for that. You know that when a private
member's bill or government bill come for second reading, it is
automatically sent to the standing committee in charge of that matter.
It is therefore obvious that the bill, whether it be Bill C-259 or a
government bill, will be sent to this committee for discussion. We
will hear from experts. We will hear from people who will come to tell
us what works and what does not work in what the bill says. This is
what we mean when we talk about a study. We do not mean the
fundamental principle of the necessity to pass an act to ensure that a
situation like Westray does not happen again. So what we have to study
now, is the best way to do that.
Mr. Clerk, I take it that the paper by Mr. Doorey that was
mentioned is only in English.
The Clerk: I haven't seen it.
Mr. Jacques Saada: Anyway, if it's in English only, I take it
we will have a translation of it before it goes out to all members so
that we can all address it from the same basis.
Mr. David Doorey: We'll get it translated.
Mr. Lawrence McBrearty: Our translators will send you English
copies and French copies.
Mr. Jacques Saada: That's super. I'm not dogmatic on that. I
just simply want to make sure—
Mr. Lawrence McBrearty: You need it in Spanish, we'll get it in
Spanish. We'll get all the languages you want.
Mr. Jacques Saada: No, no—I just simply wish that we could all
address it together, okay?
The Chair: Thank you very much.
Mr. John Maloney: Mr. Doorey, in any industrial operation there
are different hierarchies of management, from maybe a ship boss or a
lead hand, to foreman or supervisor, to a mine manager or a plant
Mr. MacKay's M-79 targeted directors and executives of corporations.
Ms. McDonough's legislation targets the same individuals as well as
those having control of day-to-day operations of the industry.
Would the net encompass all of those individuals in the hierarchy?
Or where would we draw the line? In your opinion, is Bill C-259 wide
enough or is it too wide? What about people like the provincial
inspectors who perhaps turned a blind eye as well? I don't believe
they would be caught by this statute. Should we be looking at
Mr. David Doorey: I think to answer that you need to understand
how the criminal law test works as it stands now; it's rather
complicated. I understand that I don't have time to do that now, and
I won't try to.
To answer your question, the way the bill works is that it looks at
the corporation first, in a sense. It looks at the corporation and
says, “Is there a corporate failure here that could have prevented
this?” First it attempts to find whether the corporation itself is
guilty of an offence. It then goes on to say that if the corporation
is guilty, then we have to look at the directors and officers and ask
whether they could have prevented it. That's the second part.
But you're right in that the proposed bill does cast the net wider in
terms of who can be the actor or the person who admitted to the act,
as the case may be. I say “wider”. It does that because the
present criminal law as developed by the courts says that the only way
a corporation can be found guilty of a criminal offence is if a
single, high-ranking person—in law, they could say “the directing
mind” of the corporation—did the act or ordered the act done.
So the difficulty, the reason why corporations are never convicted
under the current law, is that it's hardly ever the case, especially
in a larger corporation, that a sole individual, high in the ranking,
makes every decision and makes every order. They delegate.
So what the bill does is say, okay, for a criminal offence we need
two things: we need an act and we need fault or intent, an actus
reus and a mens rea, to use legal terms. The bill says,
let's move away from the focus on the current law, which is the level
in the corporate structure of the person who does the acting, because
that doesn't get us anywhere. Let's look instead at the act that's
done and then really concentrate on whether the corporation could have
prevented it through different structures.
So what this bill does is it casts a wide net on the act. It
basically sets up a test of vicarious liability, to use legal
terminology. It says that for the purposes of that first component of
the offence—the act—we're going to throw that net wide. We're going
to say that any person who is acting on behalf of the corporation is
So if you're acting on behalf of the corporation, it's deemed to be
the act of the corporation, but that's only the first step. The real
test, which I submit will still be a very difficult test for the
prosecutor to meet, but it'll be possible, whereas under the current
law it's basically impossible.... I think my paper will explain that
and I won't get into it.
So it casts a wider net on who the actor is in order to prove the
actus reus part of the crime, but then we move to the more
difficult part of proving the crime against a corporation. That is
the mens rea part default. In that sense, we're no longer
looking at just the intent of the individual employee, for instance,
who may not have followed the health and safety practices. What we're
saying is that we want to know why that person didn't follow it. If
it's just a person off on their own violating all the policies and
they've been told otherwise, then the corporation will succeed in
their defence. We won't be going after the corporation.
What the bill is trying to do here is to prevent the Westrays of the
world...where there's a corporate culture throughout the whole
corporation that says, to lower-level persons, don't enforce that
health and safety rule because it's going to cost us money and we're
going to have to shut down the mine for a few days. So that employee,
who is the one who actually doesn't act, for instance, by shutting the
mine down, that person.... Under the current test, if a lower-level
manager doesn't act, doesn't enforce the health and safety rule, that
individual might be responsible but the corporation won't be, because
that person is not the directing mind. The corporation is off the
hook in that situation.
So what has been said by commentators all over the world is that the
current test, which is known as the “identification test”.... It's
the test developed in England, so it applies throughout the
Commonwealth. That's why you see England having a royal commission
saying, “We have to change this.” Australia has already changed it.
Our Law Reform Commission has changed it.
The reason it doesn't work is that all a corporation has to do is
delegate authority over health and safety to a few people and the
corporation will, in most cases, never be found guilty, because there
will no longer be one individual who knew of all the facts and did or
In terms of your question about whether it goes too far or not far
enough, I think it takes an understanding of the bill to.... I
believe not everyone in the room has read the bill. When you read the
bill, you see that the only individuals this new bill is going after
here in terms of liability are directors and officers. It's not
creating any new offence for someone of a lower ranking than that. It
allows someone of a lower ranking to perform the act or the omission,
as the case may be, but then it's the corporate policy and it's the
directors and officers who can control that policy and create an
environment that encourages lower-level people to come forward and
say, “I am going to enforce that act because if we don't, we're in
big trouble here”.
So it's the corporation first. The liability for the directors and
officers, the way the bill is set up, only comes into play if the
corporation itself has already been found guilty.
If you read the bill, you see that it says where “a corporation”
has been found guilty of an offence, then the director or officer may
also be guilty, but then it sets out, in essence, a defence for them,
for the directors and officers. It says they're guilty if they
actually authorized it themselves. That's the current law. If a
director actually says, “don't enforce that law”, we can get to
those people today, but that hardly ever happens.
The second part of the bill goes beyond the director or officer
actually ordering the lower-level people not to enforce the law or to
break the law. It says “ought to have known”: “Did you know or
ought you to have known, Director, that there's a whole lot of stuff
going on in this workplace?”—as in Westray, for instance.
“Everyone's ignoring the health and safety rules because there's a
culture there of produce, produce, we can't shut down the mine, we
have jobs to produce. The government's given us money so we'll hire
people, and they require so many tonnes per year.” Lower-level
people are afraid to speak up. There's a culture.
So the act says if you're a director or officer and you knew there
was such a culture, or you knew that laws weren't being enforced, or
you ought to have known and you did nothing, then you can be
Then the bill goes on to say, when we're deciding whether a
particular officer or director knew or ought to have known, we have to
put it in context. I think this addresses some of the concerns I
heard around the table today. There's a defence, right? It says when
you're deciding whether an officer or director ought to have known
that these systemic problems were going on in the corporation, you
have to look at that particular director's experience, qualifications,
and duties. So that's a defence for a director, who's off in
Vancouver and doesn't know anything at all about mining.
There'll be legal arguments about what that means, whether they ought
to have known something, or what duties they were assigned, but the
bill deals with it there. It's not automatic that as soon as the
corporation is guilty, an officer goes to jail. It's not going to work
that way. It's still going to be difficult.
This bill is not going to lock up directors and officers from across
the country. It's still going to be rare. We're dealing here with
the Westrays of the world, where there's a systemic problem that's
allowing these things to happen, and no one's taken any action to stop
That was a little bit longer than I intended to be.
The Chair: Thank you very much. It's a new record.
Is there a small short question on this side? I have one tiny
question over here, I'm told.
Ms. Carolyn Bennett (St. Paul's, Lib.): This is a supplementary to
that. I think a lot of us have sat on boards where we felt the CEO
gave us the information they wanted us to have, in order to make the
decision they wanted us to make. I think there's a lot of work being
done in the voluntary sector to clean that up.
Is there such a thing as mandatory reporting of health and safety
reports to boards? Sometimes you only get the committee reports that
somebody asks for. Would that have helped in this situation? If
there were mandatory reporting of health and safety committees to
boards of directors every six months, would that help protect workers
in a situation like this?
I'm worried that the boards still aren't really being given the
information they need, unless they're actually out there on the shop
floor, which I also believe board members should ask to do. But if
they don't, do you think we should be asking for such a thing as that?
Mr. Lawrence McBrearty: I can probably answer one, but I can't
answer the legal side of it. My friend here will do that.
I deal with quite a few companies, as you can imagine, and health and
safety reports do not go to boards. I could even add that
negotiations on conflicts and strikes don't even go to boards.
Sometimes that's why we have long conflicts. We try to get to the
boards, when we end up in the company shareholder meetings on a yearly
basis. We did that in quite a few cases.
In real life, if I go back 10 years, companies on a local basis were
saying, “Health and safety is our business, because we want to get
involved in health and safety”. Now it's everybody's business. We
understand now why corporations were telling us, “Okay, it's
everybody's business. Do you want to do this, Mr. Union? You go
ahead and do it, but you're going to be caught with the liabilities.”
The problem we face—and it was mentioned by other speakers here
today—is that in a situation like this, and Westray is not the only
situation, there's a cost to implement health protection or safety
protection against accidents. There's a cost to defining an accident
that could become an incident rather than an accident. There's a cost
to everything today; we all know that.
The productivity aspect equals profits, which we don't have anything
against. If you make profits, you're going to give us some of them.
There's also a huge cost to the health of the working people, in both
the environment of the workplace and the environment outside the
workplace in the communities, that falls into the production costs.
That affects my productivity, my competition, etc., so maybe I'll
decide to move to Mexico.
Health and safety issues, in real life, don't end up going to the
boards. They sometimes don't even end up with the president of the
company or the CEO. The majority of the time they never do. We're
lucky if they end up with the manager on the plant site.
Ms. Carolyn Bennett: Does the union ever circulate a letter to all
the board members? If I were sitting on a board and I got a letter
from the union saying we were really worried about the health and
safety of the workers in this place, as a board member I would
be mindful of it, don't you think?
Mr. Lawrence McBrearty: We'll do that.
Ms. Carolyn Bennett: Okay, thank you.
Mr. David Doorey: I would like to make one quick legal response.
I think you posed a hypothetical question: would it help? The answer
is yes, obviously, it would help, if the board of directors were given
all of the facts.
First of all, that's dealt with in the bill, in that one of the ways
fault can be attributed to the corporation under the proposed bill is
where the management of the company—that's defined as the people who
are given responsibility for making the decisions—have failed to
provide procedures and policies whereby the facts would come to their
notice. So it would help if we legislated that.
I suggest the bill will have that effect, and this is really the
intent here, isn't it? The corporations and the boards of directors
will have to sit down and look at this bill and say, “Okay, we have
to make sure we don't have systemic problems”. One of the ways to do
that is to make sure members of the board of directors are getting the
facts properly, and not the facts the mine manager might be hiding to
protect their own job. So they will have to put in a system.
Ms. Carolyn Bennett: If they're criminally responsible, they had
Mr. David Doorey: That's right. The goal of the bill is to make
sure someone who has the authority and control over the workplace puts
in policies and systems, so that information is transferred.
The Chair: Thank you very much for that tiny three-part question,
and thank you all very much.
Mr. Lawrence McBrearty: Could I just add two short bits of
information? We have set up all across the country, related to every
province, a committee that's called MITAC, which is the Mining
Industry Training and Adjustment Council. Through talks under the
Yellowknife mining initiative with the major mining companies across
the country, our union has set up this committee to do training and
adjustment programs, in case of downsizing. But right now we are
focused on training. We've received quite a bit of funding from HRDC.
The other main aspect I want to talk about is we're going to
establish in Nova Scotia on the Westray site what we would like to
call a workers' occupational health and safety training centre for the
mining industry. We're going to need some political help around that.
But we're not hung up on the question of the mining industry—we can
have it for everybody. It would be in recognition that we do not want
to forget what happened there, and we don't want it to happen again.
We're trying to get some help from the Province of Nova Scotia on
that. The MPs from that province have been working hard with us on
that, but we haven't been able to establish that yet. In your
deliberations, or when you're having internal discussions between MPs
and Parliament, please don't forget the aspect of training. Attached
to the aspect of training is also the aspect of adjustments.
Thank you very much for receiving us.
The Chair: Thank you very much. I would urge members,
particularly the witnesses now before us, to not let up,
notwithstanding what we saw earlier today. I do think it represents a
genuine consensus of this committee. Ultimately we're only partially
there, so persist. All the members of the committee know what I mean.
Tomorrow I intend to report on behalf of the committee.
It is moved—That the committee recommend to the Minister of
Justice and the Department of Justice that they bring forward
legislation in accordance with motion 79 passed by the House on
March 21st, 2000 and with the principles underlying Bill C-259 for
consideration by the Standing Committee on Justice and Human
The meeting is adjourned.