PARLIAMENT of CANADA

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Publications - May 22, 2002
 

37th PARLIAMENT, 1st SESSION

Standing Committee on Justice and Human Rights


EVIDENCE

CONTENTS

Wednesday, May 22, 2002




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

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¹ 1550
V         The Chair
V         

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V         Dr. Susan Dodd
V         The Chair
V         Mr. Bill Blaikie (Winnipeg—Transcona, NDP)

º 1600
V         Dr. Susan Dodd
V         Mr. Bill Blaikie

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V         The Chair
V         Mr. Peter MacKay (Pictou—Antigonish—Guysborough, PC)

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V         Dr. Susan Dodd
V         Mr. Peter MacKay

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V         Dr. Susan Dodd
V         Mr. Peter MacKay
V         Dr. Susan Dodd
V         The Chair
V         Mr. Derek Lee (Scarborough—Rouge River, Lib.)
V         Dr. Susan Dodd
V         Mr. Derek Lee

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V         Dr. Susan Dodd
V         Mr. Derek Lee
V         Dr. Susan Dodd
V         Mr. Derek Lee
V         Dr. Susan Dodd
V         Mr. Derek Lee
V         Dr. Susan Dodd
V         Mr. Derek Lee
V         Dr. Susan Dodd
V         Mr. Derek Lee

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V         Dr. Susan Dodd
V         The Chair
V         Mr. Kevin Sorenson
V         Dr. Susan Dodd
V         Mr. Kevin Sorenson
V         Dr. Susan Dodd

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V         The Chair
V         Mr. Paul Harold Macklin (Northumberland, Lib.)
V         Dr. Susan Dodd
V         Mr. Paul Harold Macklin
V         Dr. Susan Dodd

º 1635
V         The Chair
V         Mr. Bill Blaikie

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V         The Chair
V         Dr. Susan Dodd
V         The Chair
V         Ms. Hedy Fry (Vancouver Centre, Lib.)

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V         The Chair
V         Dr. Susan Dodd
V         The Chair
V         Mr. Peter MacKay

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V         Dr. Susan Dodd
V         The Chair
V         Mr. John Maloney (Erie—Lincoln, Lib.)

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V         Dr. Susan Dodd
V         Mr. John Maloney
V         Dr. Susan Dodd
V         Mr. John Maloney
V         Dr. Susan Dodd
V         Mr. John Maloney
V         Dr. Susan Dodd
V         Mr. John Maloney
V         Dr. Susan Dodd
V         The Chair
V         Mr. Peter MacKay

» 1700
V         Dr. Susan Dodd
V         Mr. Peter MacKay
V         Dr. Susan Dodd
V         The Chair
V         Mr. McKay
V         Dr. Susan Dodd
V         Mr. John McKay
V         Dr. Susan Dodd

» 1705
V         Mr. John McKay
V         The Chair
V         Mr. Paul Harold Macklin
V         Dr. Susan Dodd

» 1710
V         Mr. Paul Harold Macklin
V         Dr. Susan Dodd
V         Mr. Paul Harold Macklin
V         Dr. Susan Dodd
V         Mr. Paul Harold Macklin
V         Dr. Susan Dodd
V         Mr. Paul Harold Macklin
V         Dr. Susan Dodd
V         The Chair
V         Mr. Peter MacKay

» 1715
V         Dr. Susan Dodd
V         The Chair
V         Mr. Bill Blaikie
V         The Chair
V         Mr. Bill Blaikie
V         The Chair
V         Ms. Hedy Fry

» 1720
V         Dr. Susan Dodd
V         The Chair
V         
V         Dr. Susan Dodd
V         Mr. Chuck Cadman
V         Dr. Susan Dodd
V         The Chair

» 1725
V         Mr. John Maloney
V         The Chair
V         Mr. John Maloney
V         The Chair
V         Mr. Kevin Sorenson
V         The Chair










CANADA

Standing Committee on Justice and Human Rights


NUMBER 089 
l
1st SESSION 
l
37th PARLIAMENT 

EVIDENCE

Wednesday, May 22, 2002

[Recorded by Electronic Apparatus]

¹  +(1540)  

[English]

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    The Chair (Mr. Andy Scott (Fredericton, Lib.)): Good afternoon. I call to order the 89th meeting of the Standing Committee on Justice and Human Rights. Pursuant to the order of reference of February 19, 2002, the subject matter of Bill C-284, an act to amend the Criminal Code (offences by corporations, directors and officers), is the item the committee is dealing with today, and to help us in that exercise we have Dr. Susan Dodd of the University of King's College, Nova Scotia.

    Welcome, Dr. Dodd. I hope that you've been advised that we would expect a presentation of ten minutes, more or less, and then there will be an opportunity for members to engage in some dialogue.

    Please proceed.

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    Dr. Susan Dodd (Individual Presentation): I would like to begin by thanking the committee for asking me to speak. I was looking at some of the notes from one of your recent meetings, and I know you've accumulated a lot of legal information, and to some extent you're inquiring also into sources of political will to criminalize corporate wrongdoing. I see myself as contributing to the latter part of this debate today, rather than presenting further legal options.

    A couple of weeks ago, at the memorial service in Plymouth to mark the tenth year since the deaths of their men in the Westray Mine, two family members came up to me and told me they were thinking of me on February 15. February 15 this year was the twentieth anniversary of the sinking of oil rig Ocean Ranger, along with its crew of 84 men, off Newfoundland, and my oldest brother, Jim, was among them. And some Westray family members know me because I interviewed 27 of them as part of my doctoral study on the aftermath of industrial disaster, as the Westray aftermath became my case study.

    My scholarly interest in aftermaths became clear to me about a decade after my own brother's death. That was when I asked my parents if they could explain legal negotiations that had led to their out-of-court financial settlement with Mobil Oil Canada and Ocean Drilling and Exploration Company. Between the two of them, my parents couldn't provide a coherent account of their negotiations with the companies. They had settled out of court within the first year after my brother's death, and when I first started thinking about this, it didn't seem possible that 84 men could die unnecessarily and the burden of holding the culprits responsible would fall to bereaved relatives of the dead. But not only was it possible, it's exactly what happened twenty years ago when Odeco and Mobil Oil chose not to provide rudimentary safety equipment, when they chose not to provide basic training for workers in things like ballast control, which is keeping the rig upright, and when they chose not to provide an industry standard evacuation plan for their crew, among other things.

    It's also what happened ten years ago when the highly subsidized Curragh Resources management intimidated workers, bullied compliant inspectors, and then evaporated into bankruptcy with millions of dollars in taxpayers' money. And this will continue to happen, I believe, until the Government of Canada makes clear that profiting from unsafe workplaces harms Canada as a state, and so will be prosecuted as a crime under the Criminal Code. To my mind, there's a fundamental problem with putting the burden of holding corporations responsible for wrongdoing on the shoulders of bereaved relatives and their allies within the trade unions and media.

    As a teenager, I was intrigued by the receipt of our royal commission report. It seemed to me to show clearly that the companies were responsible for my brother's death, and yet Mobil Oil continues as one of the federal government's main partners in offshore development in both Newfoundland and Nova Scotia. So in part, this translated into doctoral work, and in my doctoral study I tried to understand something about what exactly inquiry reports do. As part of that study, I interviewed Westray family members to get a sense of what the report did for them and to them. Currently, I am extremely skeptical about inquiries, inquiry reports, and the socio-legal work they do.

    I know I'm not alone in this skepticism, and this is part of what I see as a legitimacy problem the Westray case exemplifies for this government. It seems to me to be up to this committee, and then this government, to show that such reports can affect policy and do something more than neutralize the guilt, fury, and most of all, the political power of bereaved families.

    When I looked at the notes from recent meetings here, it seemed to me that when the minister was here, if his failure to respond to Mr. MacKay's question about the criminalization of corporate misdeeds on the Westray anniversary is any indication, this committee is being cast in the same role at the federal level as Justice Richard was at the provincial level. So this committee's best intentions notwithstanding, your role may be to participate in deferring and pacifying, in putting off justice until we all become so psychologically disturbed that we either give up or crack up. Alternatively, on the up side, your role could be to provide guidance on how to use legislation creatively to take into consideration the awkward corporate person as an organizational culture and a collection of responsible individuals. When that happens, I will be happy to revise my work.

    When people try to understand how difficult these events are for family members, they tend to focus on the sadness of the loss. I think it is important that this committee recognize that the main source of suffering for family members is not necessarily the loss as such--as astute political analysts in coffee shops across this country have noted, who hasn't suffered the loss of a loved one? My point here is that family members of people who are killed unnecessarily at work suffer strains related to the failure of justice, on top of their very normal grief.

    I also noted that a number of you commented on Allen Martin's fortitude in appearing before you. At one point Mr. Martin replied to a question with the example that if he were to take a shotgun and go after one of the managers or the directors from Westray, he would certainly go to jail. Mr. Martin's comparison reminded me how intensely some family members experienced the pressure to take matters into their own hands. The possibility of what we might call vigilante action was certainly present, in my view, when I interviewed family members as late at 1997, which was five years after the explosion and deaths. The family members I spoke with presented this pressure, this violent possibility, as a very deep degradation to them. The failure of the justice system put them under tremendous strain, and I believe the Westray families group did a great deal to prevent such violence and to help focus family members' energy on legislative goals.

    I think perhaps the greatest service performed by Justice Richard's inquiry was to put that violent possibility to sleep, if not to lay it to rest. The inquiry report did this, in my view, by breaking out of the long tradition of inquiries in Nova Scotian coalmines by not blaming the miners for their own deaths. I noted that the “blame the miners” possibility keeps bubbling to the surface here, and one of the places that comes from is the long history of inquiries into mining accidents in Nova Scotia. The expectation that the men would be blamed for their own deaths was very prevalent among family members during the 1997 interviews, and it tormented them.

    By my second set of interviews with family members, which followed the release of Justice Richard's report, many family members were beginning to pull back from public life. The good names of their men had been retrieved by the inquiry report, and many family members felt it was time to mourn at home and to get on with life.

    Another strain in Westray's aftermath was their lessened public credibility once they'd received workers' compensation payments. Barbara Davidson testified wonderfully about the alienating experience of having one's loss translated into dollar figures. In insurance payments and tort settlements there is an exchange of what's often called blood money, and despite being highly stigmatized, such monetary exchanges are often considered to be one of the turning points in what we see as the emergence of civilization in pre-Homeric times. We always tell the story about the development of our legal system in western culture that a cycle of violence was stopped by a bereaved party's acceptance of payment in lieu of continued bloodshed.

    Criminal law issues are a further development of this, and it's the moment when a community considers a wrongdoing to be an offence against the collectivity itself. Harms against individuals become crimes per se when they're treated as challenges to the very possibility, together with minimal overt violence. I think it's time Canada recognized the creation and perpetuation of unsafe workplaces as a harm against all of us. The provision of criminal sanctions against corporate cultures is crucial.

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    We need to recognize organizational culture as something people make and remake on a daily basis, and that deaths like those in the Westray mine are not the inevitable outcomes of things left undone. It's not a matter of neglect, but of the consequences of positive acts, of choices made in pursuit of profit, and these days, of increasingly deregulated workplaces. Often the authors of those choices are hidden within the black box of the corporate hierarchy, and this black box is a culture within which corporate decision-makers decide on the priorities of the organization. If this government wants people to believe there is justice in this country, it will need to draw on the rich literature on corporate criminology and develop ways to either shed light on the contents of such black boxes or to compensate for this lack of transparency by finding means to discipline the corporation as if it were an agent in its own right.

    The recognition that corporations have organizational cultures shifts the focus to long-standing practices within companies like Curragh Resources, long-standing practices like breaching regulations, offending the culture of coalmine safety and basic common sense, and away from particular acts of stupidity and brutality. A manager like Roger Parry who intimidates, belittles, and pressures workers into a minute-by-minute breaching of regulations is an agent of a board of directors. That board of directors should be responsible for their choice of focusing on profit to the utter exclusion of everything else. It's crucial that our Criminal Code acknowledge that some corporate cultures are criminogenic, that they tend to produce, or at the every least encourage, the breach of law.

    I've had a quick look at the United Steelworkers submission, and I think it's excellent. It points towards some of the ways the corporate person could be disciplined. Further possibilities include corporate capital punishment: you could disband the organization and seize its assets. You could have corporate probation, where the board of directors would be subject to ongoing scrutiny until they showed themselves to be reformed. You could require public service, including demands that corporations put a percentage of profits into research and development for safety and environmental protection. There is a huge literature on this stuff.

    The Criminal Code is our strongest legal means of addressing antisocial behaviour. When regulation fails, torts and no-fault insurance can help replace incomes families have lost, inquiry commissions can shed light on potential policy implications and meet some of the cultural needs to hear people explain the reasons for their behaviour through testimony, but criminal prosecutions alone can convey the full weight of Canada's censorship of deadly profit-making.

    Our government's fundamental responsibility is to protect us from opportunistic predators like Clifford Frame. Nova Scotians and Canadians generally at this point, I think, have very little reason to believe that the government is accepting this basic responsibility. Until safe workplaces are more profitable than unsafe workplaces and until corporate directors and officers know they are criminally responsible for the safety of their workers, people will continue to die. As long as people continue to die unnecessarily in workplaces and directors and officers are not made criminally liable for their roles in creating and sustaining unsafe workplaces, family members will be diverted into a maze of legal futility in their search for justice.

    Thank you.

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    The Chair: Thank you very much.

    Mr. Sorenson, for seven minutes.

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    Mr. Kevin Sorenson (Crowfoot, Canadian Alliance): Thank you, Mr. Chairman, and thank you, Ms. Dodd, for appearing before us today. I apologize for not being here for the beginning of your testimony

    I don't have a lot of questions, but let me first say that when we began this Westray hearing, I didn't know much about the Westray mine. I obviously knew there had been a terrible accident with a great loss of life. As I've sat and listened, I've been impressed by some of the legal questions that have been brought forward by Mr. MacKay and Mr. Toews and those who understand the law, on the other side as well with Mr. Macklin, and their concerns that we are missing out on something. I'm a first time member, and coming in, I thought, we're going to have corporate bashing, we're going to take a disaster and play on it, but we did have a huge disaster here, where there was obviously gross negligence, perhaps one of the most horrific examples in history. We can be sure there are many other instances out there where corporations are negligent in the safety of their workers, and all those who are involved perhaps have to stand up and say, listen, we have responsibilities to those working there.

    One of the questions—and I'm not sure which legal mind around these tables threw it out—concerned the idea of mens rea, criminal intent. Did they really have the intention to commit that act? We have to find a balance. Whether or not there's an intent for criminality, there's still a responsibility for safety in the workplace. In your opinion, what is appropriate, and how far down the chain should there be a responsibility? You talk about directors. We had testimony here of workers knowing there were a number of machines with the methane sensors shut off, and yet they were using the same equipment. Is there a responsibility with workers? There's a responsibility with directors, there's a responsibility with management. I still have a problem. How far down the line do you go with responsibility for an act such as we saw? What sanctions are appropriate? Maybe I missed that part of it. Are we talking about jail time, are we talking about compensation beyond what is available through the Criminal Code and through civil suits now, are we talking about probation?

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    Dr. Susan Dodd: I want it to be clear that I'm not trained in law. I've read a fair bit of this stuff, I'm interested in it, but you've got a whole whack of people coming here from Osgoode tomorrow, and some of those details seem to have taken up a lot of the committee's time, particularly in trying to think through the implications of a bill like this relative to the charter. I don't want to get into those things. There are people who will be able to do a much better job of that.

    My main point here has been that there is a legitimation problem, that people do not see corporate directors or corporate agents being held accountable for acts they should reasonably have been able to prevent. The Criminal Code needs to find a way to recognize that corporations are entities in two ways. They're collections of individuals who should have the right to protection and who need to be held responsible. To my mind, the existing provisions do some of that work, the existing manslaughter laws and those kinds of things, but a corporation is also a moral world, a cultural environment, in which there is a hierarchical structure, and procedures and standards move from the top down. There needs to be some way to legally entrench a way of criminalizing--can we use a double negative?--an insufficient intention not to create an unsafe workplace. Do you know what I mean? Does that make sense?

    So on the one hand we want to acknowledge that individuals are responsible for their acts and that their rights need to be protected, and our legal system is built on that presupposition, but on the other hand, organizational theorists want us to start acknowledging that behaviour can be determined in a very strong sense by one's cultural environment and that those cultural environments are not even playing fields. And there needs to be some way in which the people who are making decisions that create cultural environments in which people's lives are put at risk are held responsible for creating those environments.

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    The Chair: Thank you very much, Dr. Dodd and Mr. Sorenson.

    Mr. Blaikie, for seven minutes.

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    Mr. Bill Blaikie (Winnipeg—Transcona, NDP): Thank you, Mr. Chairman.

    To pick up on what is more a conversation than an interrogation, it seems to me, as we're talking about what was typical of inquiries before the Westray Inquiry, blaming the miners, there wasn't a sufficient appreciation of the power relationships that exist within a company. Workers, particularly in a non-unionized workplace, as Westray was, don't have the power to refuse unsafe work without putting at risk their ability to provide for their families etc. Any attempt to blame the victim or to push the liability down the line so far that it's something the workers have to pick up themselves shows a certain ignorance of the kind of power relationships that exist within a mine or, for that matter, within other places of employment. I'd invite you to comment on that, and then I have another question.

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    Dr. Susan Dodd: To return to this whole notion of risk evaluation, what we wound up with in Nova Scotia was a kind of mock regulatory regime. We wound up with, I think, the general public having a sense that there were in place regulations to protect people in the workplace, when the political will was no longer enforcing those regulations. People tend to believe there's a healthy regulatory regime there that monitors workplace conditions and enforces standards, and that installed a kind of communication problem for the guys in the mine, so that their experience in the mine couldn't be adequately understood by people outside, even when they tried to use the legitimate means available to them. So one of the effects was that the responsibility for trying to calculate the risk fell to the individual men, rather than its being culturally evaluated.

    The miners were definitely participating in a culture of an unsafe workplace, that's clear. The extent to which that, in itself, is a result of the.... What I would like to see is a criminal act of producing the kind of horrible and brutal workplace where people are forced daily to breach regulations. I just see, both within the family members' view of what occurred and what happened to their men at Westray and in a broader public sense, a demand for the government to take action on this.

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    Mr. Bill Blaikie: I want to say I'm sorry to hear about the fact that your brother was killed in the Ocean Ranger disaster. When that happened, I was with John Crosbie from Newfoundland on a parliamentary trip in Europe, and I remember the whole delegation being seized with what was happening, but particularly, obviously, the member from Newfoundland.

    It seems to me, Mr. Chair, what we need to do here is something we've done before, changing a non-criminal matter into a criminal matter, changing our definition of what mens rea means. We did that with respect to drunk driving. There was a time when people who killed somebody when they were driving drunk got off with a fine; they hadn't intended to kill that person, so they had no criminal intent, and we changed that. We said, when you create the environment in which that becomes possible, in other words, when you drink to a certain degree, you go past 0.08, that's where the mens rea is, that's where the criminal intent is. So it seems to me that a parallel shift is needed here, and I say that out of a painful experience. I have some solidarity with the witness, as my youngest brother was killed by a drunk driver in 1979, and he was fined $150. That was long before the law was changed in 1985 or 1986. So there is a need. We've come a long way since 1979, when my brother's life was worth $150, to post-1985, when somebody can be charged with murder and brought before a court in a much more severe context.

    The inquiries only provide so much closure and so-called healing, because there's no repentance, that is, from the society that allows this to happen in the first place by not having an adequate Criminal Code. If there's no justice, whatever short-term good is created by these inquiries is ultimately dissipated, as people go to their graves knowing nothing eventually happened and not only did the people who were responsible get away with it, but people who create these kinds of circumstances in the future will continue to get away with it unless this committee acts.

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    The Chair: Thank you.

    Mr. MacKay, for seven minutes.

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

    I want to begin by thanking Professor Dodd for being here. This is the type of issue, as you've found through your study and through the personal tragedy in your family, that really hits people in the heart and in the home when they start to confront the human impact it has. The Westray families sat through the various machinations that went on through the court, the run-up to the charges being laid, the provincial charges being dropped, and criminal charges being thrown out, and I think your assessment about their sense of justice being severely shaken is very apt.

    I live in Pictou County, and I was there when the mine blew up. I worked in the crown office where the prosecution was being conducted. I was out this past weekend and found myself standing in front of that Westray memorial. I couldn't help but reflect on the fact that it's a dead monument, a monument made up of inanimate objects, beautiful as it is. The living monument would be to change the law so that to the greatest extent possible, these types of tragedies are avoided, most importantly, but at least are dealt with in such a way that there is, to use Mr. Blaikie's word, some sense of closure. Your statement--and I hope I'm quoting you correctly--that it's morally wrong to put the responsibility of holding liable the corporate entity on the shoulders of the bereaved relatives I think is bang on. We've got an opportunity now to do that. You're right, this committee is charged with that.

    Part of the problem that's been identified is, again, trying to put into words what you're struggling with too. How do we hold the corporations responsible for what, in many instances, were omissions, things they didn't do, they should have been responsible for doing, chose not to do? That was what the crown struggled with in presenting their case. There's a whole chapter in Richard's report about what went wrong with the prosecution, which aggravated the tragedy, aggravated the sense of loss. I spoke to the chief crown attorney as recently as today about what happened with that prosecution. Under the current law that case could and should have proceeded. There were all sorts of procedural problems, as you know, relating to disclosure, there were indiscretions on the part of the judge, there was a tremendous sense of complexity that caused the case to collapse, but at the end of the day, I think the crown had sufficient evidence for that case to proceed. In fact, the Supreme Court, looking at the merits of the case, agreed.

    So is what's needed here is, in your view, the insertion perhaps of certain words that encompass corporate manslaughter, corporate killing? Sometimes we struggle for a more complex, convoluted way to improve the law, rather than simply inserting words that change the culture, that change the attitude that is required. Creating a whole new criminal section is one of way of doing it, but perhaps we should look at the existing sections that deal with criminal negligence and manslaughter and include the language that would encompass the corporate liability, the corporate responsibility that follows this chain, that follows this connection between the decision-making and the deeds. That's the fine line that has to exist before a court of law. There has to be the ability to show this nexus between what was done and what wasn't done that resulted in the tragedy.

    Do you agree with that general sentiment, that this is the direction we should be looking at?

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    Dr. Susan Dodd: I'm not sure, because I think we're still working within this sense that we have to only break through the culture of a corporation and try to track individual lines, chains of command. It seems to me that it will be extremely difficult to take it from the shop floor to the directors. There has to be some way to recognize that corporations are in fact cultures and there is a responsibility on the part of the people who govern that culture to ensure that all reasonable measures are taken to create a workplace where health and safety are at the forefront of their thinking. So it seems to me there needs to be a combination of both the existing ways of holding individuals accountable for their actions and those kinds of direct lines you're talking about. There's the individual level, but there also have to be creative ways to start recognizing that corporations are corporate persons, agents that may need to have their behaviour modified as entities.

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    Mr. Peter MacKay: I guess what I'm getting at is this chain of evidence. You're more than aware of the fact there has to be proof of both the act, the actus reus, and the mens rea, the intent. A perfect example is another tragedy that happened in our region, in Nova Scotia, in Antigonish. A young boy was murdered working at a convenience store. The case was concluded last week, so I feel comfortable talking about it now. He was working alone, someone came in and killed him, stabbed him brutally. The case is finished, there was a sense of justice and closure on the criminal side of it, and yet the corporate element of being responsible for creating a safe work environment has really yet to be addressed.

    Short of all of the educational elements you've spoken of, preventing workplace dangers and creating this safe environment, what we're talking about here is after the fact accountability and a deterrent saying, you will, in essence, pay a price for not complying with the law, not creating this. The corporation still has to be linked to the egregious results. There has to be a direct connection to what they didn't do and the fact that they were wilfully blind and let this take place. Sometimes it's the person they chose to manage that business. The decision to put profits first, which was driving them, also has to be considered in the mix at the end of the day.

    The crown, in presenting that case, still has to follow that line. Even with lines in the Criminal Code that suggest this corporate responsibility is there, the crown still has to prove it beyond a reasonable doubt. But I think it helps address this cultural issue. It's esoteric, it's hard to pin down in a tangible way, but it forces corporations to change their mindset, to start thinking in that direction. I also believe having those words there allows the crown to say to the judge, the lawmakers of this country, the legislators, have recognized this as a potential criminal offence. Anything we do here is going to be challenged, it's going to wind up before the courts, with charter implications, all of it.

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    Dr. Susan Dodd: Again, I'm not going to say what I think would or would not be a precise change that would respond--

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    Mr. Peter MacKay: I'm not asking for the wording so much. Do you think this Criminal Code change will contribute to the change in attitude you're looking for?

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    Dr. Susan Dodd: One would hope so. We would have to see.

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    The Chair: Mr. Lee, for seven minutes.

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    Mr. Derek Lee (Scarborough—Rouge River, Lib.): Ms. Dodd, initially in your presentation you referred to a failure in the justice system. You, of course, had the experience of the loss of your brother in a previous death by mishap in an industrial situation, but would you agree that the entire justice system did not fail following the Westray disaster, that elements of the justice system did come into play? To put this on the map, I'll refer to the civil liability elements of our justice system, quasi-criminal regulatory elements, and then, last, but not least, the Criminal Code connections, if any.

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    Dr. Susan Dodd: I wish you'd asked Allen Martin that question. I won't speak for him.

    There is definitely a broad perception that the criminal justice system, or the justice system generally, failed in the Westray case. To my mind, in part, the role of government is to make sure that those perceptions don't linger. Clifford Frame is coming back to Nova Scotia to try to open another mine.

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    Mr. Derek Lee: The general who was in command of the four Canadian soldiers who died by accident in Afghanistan recently is still on the job. These accidents are not intended. I'm not talking about things that are intended to happen that take life or cause injury, I'm talking about things that are not planned. There may be carelessness, but they're not intended to happen. And whoever was involved in the Westray matter, either as a victim or as a survivor, life goes on there.

    I don't accept that there has been a total failure of the justice system in the Westray file. Do you accept that there were financial settlements in response to the deaths at the Westray Mine? Were there?

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    Dr. Susan Dodd: There were the workers' compensation payments.

    The use of the term accident just makes me crazy. It's very difficult to conceive of the Westray explosion and deaths as an accident, because these people were going to work through knee-high coal dust some days. Anyone who knows anything about coalmining knows that's—

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    Mr. Derek Lee: With respect, we do have a sense of the facts. I realize that it wasn't something that just happened out of the blue, that there were things that led up to it, carelessness, things not done; people didn't do things, people did other things.

    To get back to the justice system, there were elements that did kick in. In the case of the death of your brother there were financial settlements, there was insurance that kicked in. That's all part of the justice system, as I see it, and you accept that those responses were there. What was dysfunctional, in your view, was the criminal law?

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    Dr. Susan Dodd: Right.

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    Mr. Derek Lee: Okay. And maybe other elements of the regulatory scheme were dysfunctional?

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    Dr. Susan Dodd: But what those other functions of the justice system may have done is alleviate some of the pressures to hold corporate agents and directors accountable in the strongest way we know how, which is under criminal responsibility.

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    Mr. Derek Lee: But if they knew nothing or little about what was going on, I don't see how we can make the criminal law reach that far, walk in the back door with the criminal law when some person on a corporate basis might have had no idea of what was going on on the workplace floor, a corporate director, for example.

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    Dr. Susan Dodd: In fact, your point is very helpful, and the point in the Steelworkers' brief that's very helpful is that they should have known. In that case, yes, you're directly responsible for it. The Westray explosion and deaths and, I would argue, the Ocean Ranger sinking weren't about things that were just not done, so that a kind of natural accidental progress took its course. There was an active creation and re-creation on a daily basis of a deadly work site, and there was an active—

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    Mr. Derek Lee: You're saying that happened intentionally?

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    Dr. Susan Dodd: Yes, I think so, because in the Westray mine they had the inspectors coming, and they were pretending to actually move around stone dust to meet basic coalmine activities of occupational health and safety. Yes, they were intentionally not meeting the basic requirements of a safe workplace.

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    Mr. Derek Lee: I assume as well that you have personally reached the conclusion, in relation to the goal of modifying corporate behaviour, that our workplace regulatory schemes are not capable of doing that. You have to remember that after a criminal act has occurred, it's all over; you're not going to modify that one, that sucker's finished. The challenge in our society is to influence workplace safety before the critical event happens. So it is the regulatory process that perhaps is a better vehicle for the intervention, allowing the application of financial incentives and fines for inspectors. That could be a more effective tool in achieving the end you seek, rather than the imposition of the criminal law after the fact in relation to some people who, under normal criminal law standards, would not have been involved in a sequence of knowingly criminal acts intending to cause the event that occurred.

º  +-(1625)  

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    Dr. Susan Dodd: I would say you need both. We need to develop strong external regulatory systems for occupational health and safety to reinforce the current internal responsibility system. At the same time, we have to find a way to make the agents, the people who live at the centre of that black box of decision-making in a corporation, wake up in the morning and say to themselves, my name, my life, and my livelihood are on the line if my workplace isn't safe. Criminal law is the strongest way we can do that.

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    The Chair: Thank you very much.

    Mr. Sorenson.

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    Mr. Kevin Sorenson: To carry on with what Mr. Lee suggests, is there a fear of going way too far here? You say criminal law is the toughest way to make them recognize and realize that they have a responsibility, and I fully agree. I know an incorporated municipality, for example, that sent people out, young college students, with one of these whippersnippers, a heavy-duty one, missing one little guard. It hit something, spun around, and got an artery in the leg, and the guy died—devastating. They had been warned to a certain degree about this little shield and maybe not having these guys trained properly on this grass snipper, but the guy died, he bled to death.

    Are we opening the floodgates here for criminal prosecutions of corporations and businesses that maybe, in some cases, would never be able to afford a defence? We're taking the Westray mine as the most horrific example, perhaps, in Canadian history, where we saw such gross negligence, and we're using it as the symbol of everything bad, but in reality, a lot of these criminal prosecutions that are going to come will involve these incorporated municipalities, perhaps ranches that have a hired man working on them, or a farm that has a hired man. Now, rather than just a simple civil suit, we've got a guy who's going to jail. Do you think that's overstepping the bounds?

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    Dr. Susan Dodd: Not at all, if the person who is responsible for training the person with the equipment should have known and should have trained that person adequately.

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    Mr. Kevin Sorenson: So there's no responsibility on that worker to say, listen, I haven't been adequately trained here? I realize that at Westray it was totally different, but you're saying that never is there any responsibility on the worker to say, I'm not picking up this equipment, because I have not been trained on it.

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    Dr. Susan Dodd: One of the ways these debates work is that the people who want to draw attention to the fact that there are cultures that produce unsafe work environments are forced into using their kind of victim language, and that victim language puts you in a position where you start acting as if workers are always passive. So it seems to me that in a way, your question is putting me into a false dichotomy: I have to say either workers are completely passive and management has the entire organization of things or everybody is just an individual responsible for their own life. What I've been trying to get at is that there has to be some way for us to recognize that within hierarchical organizations both apply.

º  +-(1630)  

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    The Chair: Mr. Macklin, three minutes.

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

    Before I begin, what is your area of expertise, because I don't think that was clarified at the beginning?

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    Dr. Susan Dodd: I am a sociologist, and mostly I do language theory. My background is language theory and I'm interested in, as I said, the aftermath of industrial accidents and the way the debates that follow these events have a way of nailing people into positions.

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    Mr. Paul Harold Macklin: Okay, thank you.

    I don't know whether you did go back and review all the testimony that's been given here, but one of the areas that concerns me—and I know it's not necessarily a general application, but it does seem to have some specificity with respect to Westray—is that there has been some impression given here that Westray wasn't a deadly profit-maker. It was more or less a way of existing, and although one could argue that management had more power, in effect, everyone seemed to be somewhat complicit in trying to survive in this environment. We had testimony that indicated that there wasn't another job to go to, and they had to make a living for the wife and family. This may be almost, as I say, complicity in breaking some rules in order to try to survive. For example, a fine in this situation would never have worked, because no one, it seems, would have wanted to blow the whistle in order to have the company fined and effectively shut the whole operation down. Can you sit back and give us your perspective on this relationship? Because it seems it wasn't necessarily just an interchange of power at this point, where the management had more power. How do you see that this could be effectively managed through a criminal system? Is a criminal sanction enough to change the attitude? In fact, there were legal sanctions that would apply, it just happens that they didn't get applied in this case.

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    Dr. Susan Dodd: To begin on the risk-taking and risk evaluation front, again, there's a huge literature on why people take risks the way they do. I'm thinking about the workers in particular going back again and again into the mine, which at some level they knew was unsafe. When I interviewed family members, there was a huge guilt, because family members had a sense that their social expectations had contributed to their man's fatal risk-taking. I don't think that kind of pressure is comparable to the kind of risk-taking that goes into a decision to push production at all costs.

    One of the things that's going on here when people from Nova Scotia talk about the Westray coalmine explosion is that they are often remembering in some way the explosion in 1926 at Glace Bay, in which it was found that the guys working there were actively blocking the methane detectors so they could keep up production and make bonuses. It was found there that the institution of production bonuses led men to take bad risks. The same thing was going on in the Westray mine, but with a more brutal environment, and again, it seems to me that there has to be some provision built in to make the people who are profiting or attempting to profit from the kind of social vulnerability that comes from not just making money in a workplace, but also having a job, which is incredibly culturally important, accountable for that.

º  +-(1635)  

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    The Chair: Thank you very much.

    Mr. Blaikie.

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    Mr. Bill Blaikie: Thank you, Mr. Chairman.

    I don't think we should try to start from scratch here. We have the subject matter of a bill referred to us at a certain stage in a process that began with the Westray mine disaster and with the inquiry, showing that there had been this kind of behaviour. If Mr. Lee wants to start from scratch, that's fine for him, but I hope we don't have to go through this learning process with him. We began at a certain point. We take the inquiry that led to the call for legislation, I presume, as a starting point. We're not going back, for the sake of some obscure legal stimulation on the other side of the room here, to try to debate again what Justice Richard found to be the case with respect to Westray. I am concerned that we not do that. We have recommendation 73 of the inquiry. Unless we're convened as a committee to determine whether or not the inquiry was right in its findings, which I don't think we are, we should not try to rehash the whole thing.

    I guess the crux of the matter is, as raised by Mr. Sorenson, whether there is something about death in the pursuit of livelihood or profit—the pursuit of your own livelihood if it's your fault, pursuit of profit if it's the fault of someone who's ordered you to do something—that somehow makes that death less significant or less liable to the kind of moral discourse we observe when people are killed in other circumstances. I think what we're called upon to do here is recognize that we want to go beyond that kind of attitude. At least, I do.

    For years people have been killed on the job, and people say, well, you know, that's the way it goes; they should have put the guard on the tool, but they didn't. I just wish that somehow we could bring the same kind of moral outrage to the deaths that occur because some corporate executive or foreman or supervisor, whoever it is, said, oh well, who gives a damn? We'll get around to putting that guard or shield on when we get around to it. In the meantime the young kid is put at risk, and he cuts an artery and dies. Well, you know, c'est la vie. There's been a whole lot of c'est la vie when it comes to death on the job, for decades and decades and decades. The idea is to try to get beyond that, to see those deaths in a completely different light.

º  +-(1640)  

    I have, for the last few years, been in correspondence with and met a woman whose son was killed on the job at Lake Winnipeg. A 17-year-old guy gets hired for the day to go fishing. He's out in the middle of Lake Winnipeg, and they don't even have life jackets on the boat. Has this guy ever been charged? He's out there fishing now, probably with other 17-year-olds who aren't in a position to say, I'm sorry, I'm not going to work unless there are life jackets on the boat. To somehow imply, as it comes up over and over again, that there should be some kind of moral equivalence between the position these kids and others find themselves in and the power management has—where does it end? Somebody says, kid, if you don't want to work with the weed whacker that doesn't have the shield, fine, I guess there are another 100 guys down the block who are willing to, so away you go. They finally find the one kid who is desperate enough to work with the weed whacker that doesn't have the shield, and it's that kid's fault? Or is the guy who kept working his way through all the kids until he found somebody who was willing to work with the weed whacker without the shield responsible? It seems to me pretty bloody obvious where the moral responsibility lies. I just find all this talk about somehow trying to pin it on the kid or on some other kid or on the miners or whatever, increasingly morally repulsive. In fact, I'm getting fed up with it.

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    The Chair: Dr. Dodd.

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    Dr. Susan Dodd: I can actually speak to the history of blaming miners for accidents in Nova Scotia. There are generally considered to be three waves of occupational health and safety regulation, in particular for coalmines. I did a kind of discourse analysis of the inquiry reports, starting from the earliest ones in Nova Scotia and going through to the Westray report.

    In the first wave, which is the very beginning of mining and industrialization generally, between 1830 and 1880, injuries were seen to be a moral failing of workers, a very Christian framework, where there's a presupposition of fallen nature and that accidents are caused by people not paying attention or other absences of discipline or attentiveness on the part of the workers.

    The second wave of regulations, 1880 to 1970, is when the external regulations came into place and when, for instance, relief societies were taken over, to be administered by governments. In that period the reports seemed to take the high level of injury in mines as an administrative problem. So they had to try to figure out what to do about this. It wasn't necessarily something they were trying to eliminate, but they wanted to get statistics on it, to get as much information about this stuff as they could. One response to that problem, of course, was the development of workers' compensation, and I won't go into that.

    The third wave is from 1970 to the present--and these three waves are laid out by Eric Tucker in another work. This is where you have the development of the internal responsibilities system. This whole notion of worker imprudence becomes transformed into this notion that the right to refuse work is also a responsibility to refuse work. Then, once the political will behind regulation starts to dissipate, as it clearly did in Nova Scotia in the Westray case, there's nothing left but this particular responsibility of the worker to get themselves out. So, in a way, they're totally alone in trying to figure out how to calculate the risk in the workplace, and yet the tendency that's been there forever through these inquiry reports to blame the worker for their own injury is still in place.

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    The Chair: Thank you very much.

    Hedy Fry, for three minutes.

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    Ms. Hedy Fry (Vancouver Centre, Lib.): Thank you, Mr. Chair.

    I'm not a lawyer, so excuse me if I'm not particularly up to the necessary terms of law, but it would seem to me that what we've been talking about here is the concept of mens rea, which is the intent. Then we can talk about actus reus, which is the act. On the other hand, the unions have talked about moving away from that and looking at the concept of criminal negligence. In medicine, if you're going to prove criminal negligence, you must have some template or general rule of thumb by which people must act, so that failure to act in that manner constitutes negligence. First you must have, then, a legal set of guidelines by which corporations and companies can act, a set of clear rules they must know, concerning occupational health and safety, obviously. Every company should have knowledge of occupational health and safety. What are the problems in mining? You have to know that. There has to be a body of knowledge that one expects a corporation or the head of a corporation to know about if they're going to enter mining, or whatever it is the corporation does. You expect a physician to know that.

    With the concept of whether people were complicit because they came to do the job and they had no choice, it's the same thing. I would like to make that equivalent to a person who is sick and has no choice but to go to a doctor. Going to the doctor and going to a mine to work are equivalent things. It is expected that the doctor knows, and the doctor has to know; there is a set of rules the doctor must follow. In the same way, if you go to a mining corporation, they should know. They have a right to know certain things about mining. They have a right to know what is dangerous and what isn't. They have rules of occupational health and safety they must follow. Failure to do that must surely constitute, therefore, criminal negligence.

    I think that is what we have to do, produce a set of rules that is apparent to and known by people, regardless of what they're engaged in. We're talking about mining here, but we could be talking about a municipality that knows it has to put a thingamabob on the edge of the tool so the person doesn't get cut. If they don't do so, they're obviously negligent. You have a duty to perform, a set of things you must do. Wouldn't it be so simple to just say, here is a set of things corporations, companies, must know in general about occupational health and safety, particularly with the specific employment they provide? Mining companies must know about mining problems. Municipalities must know about the safety rules for people cutting grass. If you're in medicine, you must know about what you're supposed to do when a person comes to you with a particular problem. You don't need to have any specific expert knowledge. In medicine it's common knowledge, what the doctor is expected to know. If they don't know, they're criminally negligent. The patient who comes cannot be found at fault, because the patient has no choice but to go to a doctor. If you're looking for a job, you have no choice but to go to a corporation and a company to find work. The corporation or company also has a legal duty not to take advantage of that and to have full knowledge of what they're doing.

    Isn't that simple? I don't know, I'm not a lawyer. It seems to me it's so simple for us to just do that. There's a clear moral issue here: the corporation must have a moral duty. It can be made into a legal duty to have the knowledge, and failure to have the knowledge in itself should involve guilt. You shouldn't be running a company if you don't have the knowledge. That's my argument. If it is simplistic, I just want to lay it on the table anyway and ask what you think of that kind of simple way of looking at the problem.

º  +-(1645)  

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    The Chair: Thank you Ms. Fry.

    Notwithstanding your lack of familiarity with legal terms, I will note that all the lawyers nodded when you said thingamabob. So that must have passed muster.

    Go ahead, Dr. Dodd.

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    Dr. Susan Dodd: Thank you.

    I just agree. I would add that the responsibility to know also should be expected of the companies that come into Canada from other jurisdictions. For instance, in the Ocean Ranger case, during the inquiry there was a sense presented from the Ocean Drilling and Exploration Company that they needed to learn about how to properly operate a safe oil rig in northern waters. In fact, those organizations had much more experience and knowledge about those kinds of operations than the Government of Canada did. Once you get into the transnational stuff, you're into a world where the organizations the government is trying to deal with have a lot more experience in operations than governments.

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    The Chair: Thank you very much.

    Mr. MacKay.

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

    I think much of what Dr. Fry has said is actually quite correct, although in a criminal trial there is the need to put it into a context of expert evidence, with a mine for example. Most people don't have a workplace environment where you're up to your knees in coal dust. There's also a need for regional knowledge. That seam was one of the most dangerous in methane gas emissions anywhere in North America, if not in the world. Expert evidence was important, but there was also common sense. If you're going before a judge or a jury or tryer of fact, common sense comes into play.

    In the issue of criminal negligence, again, and the element of being a party to an offence or apportioning blame, which is something I think Mr. Sorenson was getting to in his comments, there is an ability under the law to take into consideration, whether it be in a criminal or a civil case, that a person is responsible for a portion of the result, a portion of the blame. A party action can bring into play that this person was a party to the offence, an enabler of certain circumstances. That is an area I think we can't overlook in trying to draft criminal law or criminal liability for corporations, that they have this obligation to meet a standard, to have this common sense workplace environment that's safe, that will allow people to come in and go home at the end of the day, or not cut their limbs off or subject themselves to particularly dangerous situations.

    It also bears repeating that it's not in only laying of charges and prosecuting of offences that you have this ability to apportion blame and bring parties in, but at the end of the day, once a conviction has been rendered, you have before a judge aggravating and mitigating circumstances. Was there an element of recklessness on the part of the workers themselves? This is not to throw it back into this subject matter, but what aggravating and mitigating circumstances were there?

    So with wording that allows us to change the culture, to change the liability, these are the importance nuances, would you not agree, Dr. Dodd, that we have to incorporate into the Code so that we can use this legal means of redress you've mentioned in apportioning liability? Because this corporate element that's there is critical. Nobody, even unionized and non-unionized workers, wants to drive business away. They want jobs, and that's the social aspect you've touched on. People in Pictou County in Nova Scotia and around the country want to work.

º  +-(1650)  

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    Dr. Susan Dodd: It sounds fine to me. As you were speaking, I was thinking also of how I would want to say, yes, the justice system as a whole can be seen to have failed, even though of it parts of it were still functioning in the aftermath of Westray. The reason I would want to say it failed is that as excellent as the inquiry report is, as necessary as the workers' compensation payments have been, and as heartbreaking as the pursuit of civil cases has been for family members, all of those have in a way helped keep people busy and not focused on precisely these kinds of responsibilities on the part of the directors and officers of the corporation. So you get this sense that the other parts of the justice system work to alleviate the pressure for the kinds of changes you're talking about.

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    The Chair: Mr. Maloney.

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

    I have a number of questions. One of the sanctions you suggest could be corporate capital punishment. I wonder how you justify that to the 50, 100, or 500 other employees of that firm.

    Given that someone could convince me that the holding of a director criminally liable for an incident that he or she had no knowledge of, where he or she had no intent or reckless, wilful disregard for the situation, and given that directors have some value because of their business acumen, their education, their experience, their background for corporations—

º  +-(1655)  

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    Dr. Susan Dodd: No knowledge, but a responsibility to know.

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    Mr. John Maloney: I'm into my second question.

    Why would anybody in their right mind want to be a director. How would this affect the competitive advantage of corporations and the economic seas companies have to negotiate these days, to the benefit of all, employees, shareholders. officers, and directors?

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    Dr. Susan Dodd: For the majority of directors, who can be reasonably assured that their workplaces are safe and run according to occupational health and safety regulations and within the bounds of good common sense, I can't see how anything would change. And those who feel the need to get out of business probably should, right?

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    Mr. John Maloney: Then what responsibility is it? Would having a designated person as a health and safety supervisor be sufficient for me, as I'm sitting as a director, to rely on?

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    Dr. Susan Dodd: It seems to me that kind of thing would be worked out in the courts.

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    Mr. John Maloney: I don't want to get to court. I don't want to have any loss of life. I want the situation addressed before there is a problem.

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    Dr. Susan Dodd: Then that would be worked out in the details of the law.

    It seems to me that the presupposition here is that directors should not be responsible for what the people on the shop floor are doing, and to my mind, they should be. Maybe we're talking at cross purposes. I think a director should be responsible for having a totally incompetent occupational health and safety regime in his workplace, and if he's not responsible for that, he should be forced out of business. I have a problem understanding.... Well, I'll just leave it at that.

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    Mr. John Maloney: But if I'm sitting in a corporate boardroom in Halifax or Vancouver or Toronto or Montreal, General Motors perhaps, realistically, how can I be held liable because a health and safety supervisor in the General Motors plant in Oshawa is incompetent or negligent?

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    Dr. Susan Dodd: If the supervisor of your advertising campaign had swear words mistakenly come out all over one of your major advertisements, you would feel yourself responsible for making sure something happened to that person, that they went away and a competent person was put in. What we're talking about here is trying to have some kind of legal structure in place so that you would feel as responsible to make sure you have competent people running your occupational health and safety. Directors are responsible for making sure their corporations are viable as corporations, and what we're talking about here is trying to make part of that viability occupational health and safety.

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    The Chair: Peter MacKay.

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    Mr. Peter MacKay: I have a very brief question, something of a supplementary to Mr. Maloney's. What about the responsibility here—and we seem to gloss over this—of the inspectors, in this case the provincial inspectors, who, I would suggest, to some degree were under a greater obligation, not a greater obligation than the mine managers, but perhaps a greater obligation than the corporate directors? As Mr. Maloney has pointed out, the directors may have never seen a mine or the actual work site they preside over. You don't condone the reasoning behind driving workers to make a profit, you know there's a very nefarious intent there, the almighty buck. The sole purpose of an inspector is to go down there, see things that are inappropriate, and do something about them, shut them down. They're not bound by the same corporate greed, responsibility, or whatever way you want to put it. Do you feel that criminal liability might extend into that area too? If somebody is specifically mandated to do a job that would save lives or prevent injury to life and limb, should they be liable as well?

»  +-(1700)  

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    Dr. Susan Dodd: If I'm not mistaken, we're getting into the problem that comes up with the workers' compensation and whether the province is liable or not. I can't see why they shouldn't be criminally responsible for that, and ethically, they do, in a way, have a stronger responsibility, because they're public servants.

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    Mr. Peter MacKay: I realize it's outside the gamut of what we're talking about. It's not corporate responsibility, but individual responsibility.

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    Dr. Susan Dodd: But it is organizational, how you figure out individual responsibility and at the same time recognize that everybody is operating within an organizational cultural setting.

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    The Chair: Thank you very much.

    John McKay.

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

    You made a very interesting comment--I wrote it down--that people who suffer loss due to industrial negligence are further penalized by no access to justice. I want to ask you whether your observations are, after having interviewed quite a number of people, that this is a failure of the justice system or a failure of law. I dug out recommendation 73 of Justice Richard that we should introduce to the Parliament of Canada such amendments to legislation as are necessary to ensure that corporate executives and directors are held properly accountable for workplace safety. It's pretty vague. There were criminal charges laid. Presumably a crown attorney felt the Criminal Code was adequate to get a conviction, that there were adequate facts, provable facts, to warrant the laying of a charge that would lead to a conviction. I'm not as familiar with the ins and outs of the case as Mr. MacKay, but from what I've been able to pick up and listening to testimony, there seem to have been some problems with the file, possibly inappropriate judge comments, and possibly some stuff with respect to the crown attorneys.

    With all that, is it your view that this is a failure more of the justice system than of the adequacy of the law, or is this more the Criminal Code being inadequate in the circumstances?

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    Dr. Susan Dodd: I'm not sure. One of the things that kept coming up during the interviews with family members was the point that even though there had been trials, they were for people who were effectively middle management. Some of the people family members considered to be the most responsible were never taken to task. In fact, they couldn't even get them to come and testify at the inquiry proceedings. So they've never had any kind of access to those people. That's all I have to say about that.

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    Mr. John McKay: So the question there is, are we having a failure of law in that we cannot go up, or was this just a botched criminal prosecution?

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    Dr. Susan Dodd: I don't know if you've read the executive summary of Richard's report. In the Westray case it's just so huge. It's a kind of rot in so many different parts, the way the mine was not regulated, the failure to provide adequate resources to the attorneys who were attempting to prosecute, when the prosecutions finally happened. So in a sense, the Westray case is problematic, because it is so completely encompassing and points to all kinds of problems that aren't directly related to the legal things you were trying to focus on here.

    I don't think the continuing sense of not having had justice serve them among the family members is strictly a matter of wanting to be vengeful towards the most important person they can find. In this sense, the Westray case is helpful, because Clifford Frame is an identifiable public figure and people can say, he's the guy, and he's walking around still wanting to do these things, and there needs to be something to stop him.

»  +-(1705)  

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    Mr. John McKay: Okay. Thanks very much.

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    The Chair: Mr. Macklin.

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    Mr. Paul Harold Macklin: I would like to follow up a little on this. I'd like to take advantage of your background as a sociologist and a person who obviously also has the background to deal with Westray and what does have an effect. I think maybe we're going along the same train of thought here. It concerns how you see the creation of a safer workplace. Do you, for example, see that possibly the issue was the failure to get worker empowerment in this particular situation? Do you believe it was a failure to have laws that truly constituted a deterrent, or do you feel that the failure here was a lack of political will to prosecute effectively, as we have the laws in place? I'm trying to get a sense of what you believe would have led to a safer workplace in this particular instance. Can you give us, from your study, what would have likely got us to that safer workplace?

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    Dr. Susan Dodd: It's a funny question. If the laws are there and nobody is utilizing them, it seems to be a catastrophic problem, right?

    I would say “all of the above” to your list of what the causes of the Westray explosion and deaths were. At one level, one of the causes is the politics of patronage in Nova Scotia, or maybe a less inflammatory way of putting that is the approach to regional economic development, whereby so much stock is put in the success of one particular employer that there is a fear of having anything go wrong with it, so there are all kinds of cultural pressures on people not to complain about it: we have jobs here, shut up.

    The resources and the kind of accountability on the occupational health and safety division of the Department of Labour had completely gone to pieces. But fundamentally--and this is why I introduced my own family's experience into this--none of those things would matter as much as they did at Westray if the directors and agents knew they would be criminally responsible for an unsafe workplace. To criminalize this would not be to undermine, eliminate, or say any of those other systems or methods that are in place already are redundant, but to reinforce them.

»  +-(1710)  

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    Mr. Paul Harold Macklin: Do you believe there is anything that is more effective, any particular means or methods? We have talked about whistle-blower protection, empowering the people on the floor to protect themselves. I'm looking at it from a sociological perspective. What is it that might be more effective in creating the safer workplace, as opposed to dealing with it after the fact?

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    Dr. Susan Dodd: Having criminal provisions in place doesn't mean you're dealing with it after the fact, if the people who are making decisions know that they are going to be held criminally responsible in the event of death or injury in the workplace.

    As for whistle-blower provisions, I find it astonishing that we don't have them. It seems to me that if you're in a workplace that's unsafe, you should be protected if you blow the whistle on the workplace.

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    Mr. Paul Harold Macklin: But do your studies indicate anything that would be more effective?

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    Dr. Susan Dodd: I think whistle-blower protection might have helped in the Westray case--it couldn't have done any harm. Given the wretchedness that was the regulatory regime around these guys as they were trying to work, whether anyone would have taken any action relative to the operation of that mine, I don't know.

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    Mr. Paul Harold Macklin: So it may not be the failure of laws?

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    Dr. Susan Dodd: Well, if it wasn't the failure of laws, what was it?

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    Mr. Paul Harold Macklin: That's what I'm asking you as a sociologist. What did you find as you investigated and reviewed and interviewed?

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    Dr. Susan Dodd: I don't think I understand what your question is. The failure of law was in not meeting the circumstances this mine was operating in.

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    The Chair: Thank you, Mr. Macklin.

    Peter MacKay.

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    Mr. Peter MacKay: We need an answer to the last question. Was it a failure of law? To use Mr. Lee's clinical approach, there is truth in saying charges were laid, albeit belatedly, and there were issues with the evidence and how it was collected. Charges were laid, the corporation was charged. The corporation then was insolvent, so it became redundant, the owner-operator was not charged, so there is perhaps a gap there that has to be closed. But the real issue then became the process. The process is what failed. The process completely fell down, and there are all sorts of reasons. We know how those men died, we want to know why, about that convoluted conspiracy of circumstances that led to this disaster.

    Is there some way of ensuring that the process works, that a trial is going to go through to fruition, it's going to come to some conclusion, be it a guilty or a not guilty finding? Would that, in your opinion, have at least contributed to some sense of closure for the victims and the families? Is that an area we should be focusing on?

    There is also this issue of sentencing, which you talked about in your opening remarks, the need for there to be a conveying of the full weight of consequences to corporate entities, be it through fines or even the possibility of going to jail. You can't sentence a corporation to do jail time, but had there been a finding of guilt, an assigning of responsibility, knowing some of the family members and some of the victims, I think that would have done away with some... You're never going to bring those men back or replace the hole in people's lives, but if that process had worked and there had been a sentence, that would have gone some distance. Do you agree with that?

»  +-(1715)  

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    Dr. Susan Dodd: It certainly would have gone some distance.

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    The Chair: Bill Blaikie.

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    Mr. Bill Blaikie: Again, I take this back to the inquiry. As far as I can tell, the inquiry did not say the failure to hold anybody responsible for the Westray mine disaster was due to a botched prosecution. It doesn't say the law is fine, it's just the system that failed, it says there needs to be a change in the law. So again, are we rehashing something that's already been established?

    I do, nonetheless, think it would be interesting to know why, within the limits of the law that was already there, there was a failure to proceed with the prosecution. I'm wondering, Mr. Chairman, whether it is within the power of this committee to have the crown attorney from Nova Scotia who was responsible for this come before it.

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    The Chair: At the end of the questioning there are a couple of administrative things I wanted to bring to the attention of the committee, and Mr. MacKay may wish to help me on that specific item.

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    Mr. Bill Blaikie: It seems to me that this committee would have the power to call such a witness and that such a witness would not have the power to refuse the committee. Would I be right on that?

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    The Chair: We have the power, by report to the House, to summon a witness to appear, but we may need to have additional information before we take such an action.

    I'm going to go to Dr. Fry.

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    Ms. Hedy Fry: I wanted to ask a question about something Pete McKay just talked about. Obviously, there was a gap in the law in going to the head of the corporation. The result of that is not just to find a pound of flesh, it's not just to find someone you can make responsible and then charge them or imprison them or do whatever you need to do. There needs to be some additional responsibility in that person having been found criminally liable, negligent, or whatever you find them to be, so that at the end of the day they don't get to go back and start a new business, bringing with them the same corporate mentality, the same negligence, and the same attitudes. There needs to be a way of ensuring that person can go back and own a company, that they have learned some lessons, that they are committed now to a new legal sense of duty in running their company.

    Again I go back to the thing I know. If a physician is found criminally negligent, they don't get to go back and practise after they've done their time. They've got to regain their licence and they've got to show that they know their stuff and they're practising in a different manner. I think the fear I've heard voiced, not just by you, but by other people, is that the person who is responsible as the head of the corporation, or the board of directors by extension, will go back, after being whacked on the wrist or having paid off extraordinary amounts of fines, and start another business or another industry without having done anything at all to change the manner in which they operate. I think there must be something within the punishment to add that there needs to be some responsibility, some training, some lag time, or whatever, before they go back out and start up another business.

»  +-(1720)  

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    Dr. Susan Dodd: That sounds fine to me.

    The point, to my mind, is that there is a regulatory regime in place in Nova Scotia, and there is a system in place for prosecuting people for manslaughter, for negligence. All these things are there, and there was an extensive and excellent inquiry report produced. Yet there is still a very strong sense that there was something left undone and that the extension of the Criminal Code to cover the directors and the agents of the corporation could cover that lack. In the sentencing there could be all kinds of ways to try to figure out how to rehabilitate these criminals.

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    The Chair: Thank you very much, Dr. Dodd, Ms. Fry.

    I think there's one last question from Mr. Cadman.

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

    For me, the crux of this is how far up the line it goes, how many people are affected, who's held responsible, and at what level. I worked once in a small shop where I wired high voltage electrical control panels. There was a government inspector who was responsible for coming round and checking those panels to make sure they were safe on a random basis. This government inspector, I found out later, had a little side business going building little ground fault interrupters and had entered into some kind of deal or arrangement with the shop supervisor—not the owner, not the director, but the shop supervisor—that he would buy some of these things if the guy would just look the other way once in a while. If I'm wiring that control panel and somebody gets electrocuted, I have no knowledge of a fault, because I wasn't the inspector. Is the company owner liable at that point? Is the board of directors liable? You had an inspector that was in collusion with a floor supervisor to look the other way. How far up does the liability extend?

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    Dr. Susan Dodd: To my mind, it would again have to be determined what one had a responsibility to know.

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    Mr. Chuck Cadman: I just want to know whether you feel the owner of the company or the board of directors, the CEOs, should have been liable at that point, when something has happened way down the chain, close to the bottom, where there was no way for them to know what was going on. In fact, I wouldn't have known it.

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    Dr. Susan Dodd: I'll make a speculation and say that in that case the board of directors would not be responsible. That's very different from participating in creating a workplace like the Westray coal mine.

    Mr. Chuck Cadman: I'd say it's similar, it's just a matter of scale.

    Dr. Susan Dodd: We would have to know more about the extent to which the collusive activity was actually part of the operation of the organization as a whole.

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    The Chair: I want to thank Dr. Dodd. Not all members of the committee are lawyers, many of them are, and from time to time we find ourselves having to get into things that are legal, and those of us who are not lawyers feel the need to say we're not lawyers. I'm very pleased today that members have all referred to the fact that they're not sociologists. I am, and I don't often get a chance to say that. So for once I felt some authority in the position. In any case, thank you very much for your testimony.

    Now I'm going to ask the committee members to bear with me for a couple of seconds for what's not in camera, and then we're going to go in camera to deal with a subject that's been brought up in the course of today's hearings that we want to discuss.

    The first two items are, I think, quite simple and just matters of notice. On May 29 we will have Justice Richard before us, and that will be in camera. I only state that because while it is unusual for the committee, at the same time, in the particular instance of a sitting judge, it isn't unusual at all. I presume there's no significant objection to our going in camera to hear from Justice Richard.

    On the same day, I believe, we've been asked to have an informal meeting with a delegation headed by the justice minister from Vietnam. They're here, it's a large delegation of nine, they would like to meet with us informally following that. I see no objection, so we will do that. I hope that means there will be more people entertaining the delegation than the chair. Mark it in your schedules, please.

    Those are the two items I wanted to bring to your attention.

    Mr. Maloney.

»  -(1725)  

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    Mr. John Maloney: Could I get the executive summary, a copy of it? Has it been translated yet?

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    The Chair: I think it's been sent, actually.

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    Mr. John Maloney: I'd like to have it before we hear Justice Richard.

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    The Chair: We believe it's been sent.

    Mr. Sorenson.

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    Mr. Kevin Sorenson: The representation from Vietnam, are they here to question us, are we questioning them? What's the deal?

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    The Chair: I don't think they've come to Canada to meet us. They're here on other business and simply wanted to add to the list of things they may do an opportunity to meet with us and perhaps discuss the nature of the process and where we fit in it. I'm guessing. It's very informal, I'm being told.

    Now I'd like to suspend for a moment so we can go in camera.

    [Editor's Note: Proceedings continue in camera]

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