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TCRC
Message
On April 28, 2010, we mark another anniversary of the National
Day of Mourning for workers killed and injured because of their
job. The loss of life is tragic and every year too many people
are killed or injured affecting loved ones and fellow workers.
In 2008, the most recent year for which statistics are
available, 1,036 people lost their lives because of their work.
This points directly to the continuous lack of commitment on
behalf of the governments, at all levels, to enforce or improve
the protections that are presently in place. The Labour
Movement, collectively, has and will continue to demand
enforcement and improvement in the Safety and Health of all
working people.
Most, if not all, rail carriers have embraced the National Day
of Mourning and we encourage all our members to attend any
scheduled ceremonies. We also encourage our members to observe a
minute of silence at 11:00 AM, local time, to remember our many
Sisters and Brothers who have been injured or killed because of
their job.
Please be vigilant with safety, not only for yourself but others
around you. Your life may depend on it!
Sincerely and in Solidarity,
D.J. Shewchuk
TCRC President
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National Day of Mourning
History
On December 28, 1990, the Government of Canada passed the Workers
Mourning Day Act, which established April 28 as the official day
observed every year to commemorate workers injured on the job, killed,
disabled or who suffer from occupational illnesses. This day is also
intended to show Canadians' concern for occupational health and safety.
Since April 1991, the National Day of Mourning has been marked by
various events across the country to remember workers killed or injured
on the job or who suffer from work-related illnesses.
In 2002 more than 900 people died in Canada as a result of work-related
accidents or illnesses. This means that, on average, close to four
workers are killed every working day. Close to 360,000 others were
injured seriously enough to prevent them from reporting to work for at
least one day. It is estimated that over one million work-related
injuries and illnesses are reported each year in Canada.
In 2002 workers in all age groups
under 50 years were equally likely to be injured while on the job. For
the same year, the number of time-loss work-related injuries for men was
also more than twice that for women.
Work-related accidents are very expensive. The total of compensation
paid to work accident victims or their families and of other economic
costs of work-related injuries each year are estimated at more than $12
billion. These figures do not take into account the pain and suffering
of the victims and their families, which are incalculable.
The Government of Canada is committed to promoting a healthy, safe and
productive work environment for all Canadians. The Labour Program of
Human Resources and Skills Development is responsible for developing,
administering and enforcing legislation and regulations including the
Canada Labour Code.
One of the primary goals of the Code is to prevent, in federally
regulated workplaces, accidents and injuries that could adversely affect
employees’ health. The Health and Safety Officers of the Labour Program
conduct work place inspections and safety audits, respond to employee
complaints and investigate hazards. They work with the policy and work
place health and safety committees to help resolve health and safety
issues in the work place.
Background on the National Day of Mourning
The idea of an annual day of remembrance for workers killed on the job
got started, as best we know, in the northern Ontario community of
Sudbury, itself a dangerous place to work. This turned into a national
event and the annual Day of Mourning was fixed as April 28 to
commemorate Third Reading in the Ontario legislature of the first
comprehensive Workers' Compensation Act in Canada in 1914.
In 1984, the Canadian Labour Congress declared a National Day of
Mourning for workers killed and injured on the job. Ever since,
observances of the Day of Mourning have become very widespread in
Canada, led by unions and labour councils, but often with the
participation of municipalities, social action groups, and other
non-government organizations. In 1987 a national monument to workers
killed or injured on the job was placed in Vincent Massey Park, in
Ottawa.
National union organizations in other countries quickly followed suit.
In the United States, a Workers' Memorial Day was established by the
AFL-CIO. Today, working people around the world take time on April 28 to
remember lost co-workers, friends and family while renewing their
commitment to safer workplaces under the slogan "fight for the living,
mourn for the dead."
The figures for the increasing carnage in the world's workplaces are
well-known. The International Confederation of Free Trade Unions (ICFTU)
estimates that about 1.2 million workers a year are killed on the job,
about a third from injury, a third from disease and another third
unaccounted for.
But it is the major disasters that have drawn attention to the need for
a Day of Mourning. On June l, l974, for example, the Nypro Chemical
plant in Flixborough, England, exploded, killing 28 workers. The Westray
mine disaster in Pictou County, Nova Scotia, killed 26 miners on May 9,
l992. The Kader toy factory fire in Thailand killed l89 workers and
injured 469 more, on May l0, l993. The Zhili toy factory fire in Shenzen,
China killed 87 and injured 47 on November 19, l993. The biggest
disaster of them all was a leak of isocyanates from a pesticide plant in
Bhopal, India in l988, which killed at least 2,500 workers and their
families, condemning many thousands more to painful, permanent
disability.
The ICFTU has officially adopted the Day of Mourning and holds a
memorial at the United Nations building in New York City, in conjunction
with the local Labour Council as well as a ceremony at another
designated city, again in conjunction with the local and national labour
movement. The ICFTU has also started a campaign to have the Day of
Mourning recognized by national governments. Beginning with Canada on
February l, l99l, th campaign continues to gain momentum with formal
recognition so far by Spain, Taiwan, Portugal and Thailand, the last due
to the labour movement's campaign over the Kader fire.
The ICFTU has also begun an international campaign to make corporations
and their executives criminally liable for deaths in the workplaces for
which they are responsible. Building on success in the UK and Australia,
Canada has been an important contributor to this campaign, with the
prospects for a Corporate Killing Bill now gaining strength.
The Day of Mourning serves the prime purpose for which it was
instituted: to create safer workplaces so workers can end their working
lives in dignity and health – not premature death, disease and
disfigurement.
Westray-
Here’s what happened
Martin O'Malley, CBC News Online | May 9, 2002
THE WESTRAY
VICTIMS
John Thomas Bates, 56
Larry Arthur Bell, 25
Bennie Joseph Benoit, 42
Wayne Michael Conway, 38
Ferris Todd Dewan, 35
Adonis J. Dollimont ,36
Robert Steven Doyle, 22
Remi Joseph Drolet , 38
Roy Edward Feltmate, 33
Charles Robert Fraser ,29
Myles Danial Gillis, 32
John Philip Halloran, 33
Randolph Brian House,27
Trevor Martian Jahn, 36
Laurence Elwyn James, 34
Eugene W. Johnson, 33
Stephen Paul Lilley, 40
Micheal Frederick MacKay ,38
Angus Joseph MacNeil, 39
Glenn David Martin, 35
Harry Alliston McCallum, 41
Eric Earl McIsaac, 38
George James Munroe, 38
Danny James Poplar, 39
Romeo Andrew Short, 35
Peter Francis Vickers, 38
|
Simon Lilley, the son of one of the
miners killed in Westray, pays tribute
to his father with this poem:
5:27 fast asleep,
Awoken by family,
My memory will keep,
My Father my
guide,
Taken away,
By the deep
underground,
Which brought us this
way.
10 years ago,
A life changed
forever,
Once a child full of hope,
Is now a man full of rage and sadness.
Oh how I miss you Dad,
Tear on the
page.
As a family we don't forget,
Only those that do are full of regret.
You're close at heart,
But still
underground,
I love you Father,
I
miss you Father,
I remember Father,
Do They? |
 “The Westray story is a complex mosaic of actions,
omissions, mistakes, incompetence, apathy, cynicism, stupidity and
neglect,” said Mr. Justice Peter Richard in his report on the explosion
and fire at the coal mine in Pictou County, Nova Scotia, that killed 26
miners on May 9, 1992.
Here’s what happened:
In July 1991, Liberal MLA Bernie Boudreau sent a letter to Nova Scotia
Labour Minister Leroy Legere warning that the new Westray coal mine
scheduled to open in two months near Stellarton in Pictou County “is
potentially one of the most dangerous in the world.”
On Sept. 11, 1991, 500 guests attended the official opening of the
Westray mine. The local member of Parliament, Revenue Minister Elmer
MacKay, arrived from Ottawa to cut the ribbon opening the new coal mine
that promised 300 badly needed jobs that would last at least 15 years.
On March 9, 1992, Mike Piché, an organizer for the United Steelworkers
of America, said in a report on safety in the mine: “I strongly feel
there will be someone killed in the near future.”
 Two months later, on May 9, 1992, at 5:18 a.m., a spark deep in the
southeast section of the mine ignited an invisible cloud of methane gas,
triggering a massive explosion that trapped and killed 26 miners. The
force of the blast shattered windows and shook homes in nearby
Stellarton and New Glasgow.
Coal mining has always been dangerous work. Between 1838 and 1950, the
peak years of coal mining in Pictou County, 246 miners were killed in
similar methane-and-coal-dust explosions, many of them working the rich
Foord seam that became part of the Westray operation. Between 1866 and
1972, another 330 miners were killed in other accidents – mangled in
machinery, buried under stone, squashed in coal-car collisions.
The tragedy of Westray goes far beyond a simple, ghastly accident. It
involved corporate greed, bureaucratic bungling and government
incompetence of the highest order. The title of Mr. Justice Richard’s
report on the tragedy – the inquiry took five years and cost nearly $5
million – says it all: The Westray Story: A Predictable Path to
Disaster.
 Richard’s report zeroed in on Curragh Resources Inc., the private
company that managed the coal mine, and various government inspectors
who ignored glaring safety abuses, among them:
- Inadequate ventilation design and maintenance that failed to keep
methane and coal dust at safe levels;
- Unauthorized mine layout, forcing miners to work risky tunnels to get
the coal out faster;
- Methane detectors were disconnected because frequent alarms, signalling
dangerous concentrations of methane, interrupted coal production;
- Procedures to “stonedust” coal to render it non-explosive were done only
sporadically, usually before inspections;
- An “appalling lack of safety training and indoctrination” of miners.
From the start, the mandate of the Westray operation was clear: get the
mine running, get the coal out, sell it quickly.
Toronto-based Curragh Resources Inc. announced the creation of the
Westray mine in the village of Plymouth in Pictou County on Sept. 1,
1988, five days before the provincial election in Nova Scotia. The coal
mine was described as a $127-million operation, which would create 300
new jobs in the area. The next day the Nova Scotia government promised
to contribute a $12-million loan to the mine.
 A week later, Nova Scotia Power Corp. announced a deal to buy 700,000
tons of coal a year for 15 years at a price of $60 to $74 a ton. The
reserves of coal at the Westray mine were estimated at 45 million tons.
Another week later, the Bank of Nova Scotia kicked in a $100-million
loan to the mine operation, with the federal government guaranteeing 85
per cent of it.
The
facilities at Westray were supposed to be state of the art. The coal was
there in abundance, the buyers were waiting for it, big loans were
guaranteed by governments – everything was in place except some nagging
concerns from workers that it was a dangerous mine and safety
precautions were lax.
Looking back on the tragedy, Judge Richard commented: “A safe workplace
demands a responsible and conscientious commitment from management –
from the Chief Executive Officer down. Such a commitment was sadly
lacking at the Westray mine.
 “Since there was no discernible safety ethic, including a training
program and a management safety mentality, there could be no continuum
of responsible safety practice within that workplace. Complacency seemed
to be the prevailing attitude at Westray – which at times regressed to a
heedless disregard for the most fundamental safety imperatives.
“As I stated in the report, compliance with safety regulations was the
clear duty of Westray management. To insure that this duty was
undertaken and fulfilled by management was the legislated duty of the
inspectorate. Management failed, the inspectorate failed, and the mine
blew up.”
The Westray miners not killed in the blast, 117 of them, were awarded
severance pay for 12 weeks, which came to $1.2 million. Individual
cheques to the miners ranged from $6,626 to $12,367. A $30-million
lawsuit was launched against the province of Nova Scotia by families of
the dead miners, but Nova Scotia’s Supreme Court threw it out, ruling
that the province was protected from lawsuits under the Workers
Compensation Act.
 Curragh Resources Inc. initially was charged with 52 non-criminal counts
of operating an unsafe mine. The company went bankrupt in 1993. The
charges then were dropped after a Nova Scotia judge criticized the way
in which they were laid. The case went back to trial, was dismissed
again, then the Supreme Court of Canada ordered a new trial.
Charges of criminal negligence and manslaughter had been laid against
mine managers Gerald Phillips and Roger Parry, but these came to nothing
when the Crown stayed proceeding, saying there was not enough evidence
to ensure a conviction.
Clifford Frame, founder and chief executive officer of Curragh Resources
Inc., refused to testify at the Richard Inquiry, as did Marvin Pelley,
former president of Westray. The inquiry had no federal powers, which
meant subpoenas could not be enforced outside of Nova Scotia, leaving
company officials safe in their Toronto headquarters.
 Ten years later, the province is selling off what’s left of the Westray
operation, hoping to raise money for the families of the miners. The
remains of Westray have been knocked down, and soon will be covered and
seeded to grass, entombing the 11 miners whose bodies never made it up
from the doomed mine.
BILL C-45: AN ACT TO AMEND THE CRIMINAL CODE
(CRIMINAL LIABILITY OF ORGANIZATIONS)*
BACKGROUND
A. Criminal Liability of Corporations and Corporate Officials: The
Current Law in Canada
The corporate form of business organization is intended to protect
shareholders from personal liability for the civil debts of the
corporation. Executives, directors and other officers and employees of
the corporation enjoy no special immunity from either criminal or
quasi-criminal(1) liability. Such persons are legally accountable for
any misconduct of their own and for any misconduct by others to which
they are a party, whether done on behalf of the corporation or
otherwise.
Corporations themselves can also be criminally liable in their own
right.(2) In the case of offences of absolute or strict liability,(3) a
corporation is subject to penal liability for any unlawful acts or
omissions of the corporation per se or for those of its employees and
agents in the context of their corporate duties.(4) In other words,
corporations are effectively subject to vicarious criminal liability in
the case of regulatory offences. In the case of actual criminal offences
(i.e., those requiring proof of intent or mens rea), corporations are
liable only for the acts and omissions of such persons who by reason of
their relevant position or authority in the corporation may be said to
constitute a “directing mind” of the corporation, including all those to
whom “governing executive authority” has been delegated.(5) This has
been interpreted to encompass all individuals who have explicitly or
implicitly been given authority to “design and supervise the
implementation of corporate policy rather than simply to carry [it]
out.”(6) This model of corporate criminal liability is known as the
“identification theory” model.
B. Problems with the Current Criminal Law
The “identification theory” of corporate criminal liability has been
criticized as inadequate over the years, both in Canada and elsewhere.
Critics of this approach have pointed out that it does not reflect the
reality of the internal dynamics of corporations, particularly in the
case of larger corporations. Rarely do high-level corporate officials
personally engage in the specific conduct or make the specific decisions
that result in occupational health and safety violations or in serious
workplace injury or death. However, they can often, through actual
policy decisions or otherwise, create or contribute to a corporate
environment where subordinate managers, supervisors and employees feel
encouraged or even compelled to cut corners on health and safety
matters, even in the face of legal prohibitions or official corporate
policy.
Given the internal behavioural dynamics of corporations, it is argued
that the criminal law must look beyond the discrete, wrongful conduct of
individuals. Advocates of law reform in this area tend to favour an
approach to corporate criminal liability wherein the corporation is
linked to the aggregated results of the actions of its key officials and
their delegates.(7) Moreover, reform advocates feel that by requiring
the convergence of the requisite criminal act and intent in particular
senior officials, the law currently permits corporations to avoid
potential criminal liability by delegating responsibility for health and
safety to subordinate managers and supervisors.(8)
On the other hand, some commentators have questioned the need for
corporate criminal liability altogether,(9) while others have warned
that moves to facilitate corporate criminal liability could result in a
dilution of legal protections for all criminal accused.(10)
In its submissions to the public inquiry into the Westray Mine disaster
of May 1992, the United Steelworkers of America called for the
facilitation of corporate criminal liability and also advocated enhanced
criminal accountability of corporate directors and officers.(11) The
union’s position was that the existing provisions of the Criminal Code
on parties to offences (sections 21 and 22) – which extend liability to
those who aid, abet (i.e., encourage) or counsel (which includes to
“procure, solicit or incite”) the commission of offences, as well as to
those who directly commit them – are inadequate. The union recommended
creating a new criminal offence aimed specifically at “directors and
responsible corporate agents” who negligently fail to protect the health
and safety of employees. The union conceded that the offence would
likely have to be confined to situations of criminal negligence (i.e.,
conduct amounting to a “marked departure” from the standard of the
reasonable person). However, it was thought that legislating a specific
legal duty on the part of key corporate officials to take reasonable
care to protect employees would facilitate their prosecution by
obviating the need to establish a causal connection between the conduct
of a corporate official and the death or injury of an employee.
C. The Law in Other Countries
While corporate liability for regulatory infractions is widely accepted,
the approach of national legal systems to corporate liability for true
crimes varies considerably.
The traditional principle embodied in the Latin maxim societas
delinquere non potest (companies cannot commit an offence) continues to
be reflected in the laws of some states, such as France, Germany and
Austria, where corporate criminal liability applies in only limited
circumstances,(12) and generally on a more restrictive basis than the
“identification theory” of Anglo-Canadian law.
In the United States, the federal courts and most states apply a
vicarious liability approach to corporations for illegal acts committed
by their officers, agents or employees while exercising corporate powers
within the scope of their employment for the benefit of the
corporation.(13) Dutch law also provides for a form of vicarious
corporate criminal liability for the acts or omissions of an employee
where the act or omission in question belonged to a category of conduct
that the corporation accepted to be part of its normal operations and
that it had the power to determine.
There have been recent legislative reform initiatives in jurisdictions
that, like Canada, retain, or that had retained, the “identification
theory” of corporate criminal liability.
In its May 2000 response to an earlier Law Commission
recommendation,(14) the U.K. Home Office proposed the creation of an
offence of “corporate killing,” where a person’s death was a result, in
whole or in part, of a “management failure” by a corporation.(15)
“Management failure” is defined as a situation where the management or
organization of a company’s activities fails to ensure the health and
safety of its employees or of others affected by its activities.(16) In
May 2003, the U.K. Home Secretary announced that the Government would
proceed with a bill on this matter sometime in the fall of 2003.(17)
In 1995, Australia amended its federal Criminal Code in order to address
the limitations of the identification theory of corporate liability.
Under these amendments, the act or omission of any officer, employee or
agent of the corporation acting within his or her actual or apparent
authority is sufficient to impute the actus reus, or guilty act, of the
offence to the corporation. The criminal intent, or mens rea, necessary
to complete the offence is imputed to the corporation on the basis of:
the actual deliberate or reckless conduct of the Board of Directors or a
high managerial agent;
the express, tacit or implied authorization or permission of the conduct
by the Board of Directors or a high managerial agent;
the existence of a corporate culture within the corporation which
directed, encouraged, tolerated or led to non-compliance with the law;
or
the failure of the corporation to maintain a corporate culture which
required compliance with the law.(18)
Although some other countries have developed looser models of corporate
criminal liability, it should be noted that these countries have
generally not relaxed their rules for individual criminal responsibility
with respect to corporate directors and officers.
D. The Evolution of Law Reform in Canada
In its 1987 report entitled Recodifying Criminal Law, the Law Reform
Commission of Canada offered two models for reforming the law on
corporate criminal liability.(19) The first model would have retained
the identification approach to corporate criminal liability with respect
to offences of intent or recklessness; however, the Commission would
have expanded the category of personnel whose conduct could trigger the
corporation’s liability to include all employees who are “identifiable
as persons with authority over the formulation or implementation of
corporate policy,” provided that they were acting within the scope of
their authority (i.e., acting at least partially on behalf of the
corporation and not in fraud of it). For crimes of negligence, the
relevant actions and states of mind of all such employees with the
requisite authority could be aggregated for the purposes of fixing
liability on the corporation. In other words, it would not be necessary
for any individual to have committed the offence for the corporation to
be guilty. In its alternative model, the Commission proposed applying
this latter “aggregation” approach in the attribution of corporate
criminal liability for all crimes. The Commission also raised the issue
of extending criminal liability to other forms of collective action,
such as partnerships, joint ventures and non-profit organizations.
In 1993, a Government White Paper prepared by the Minister of Justice
recommended attributing criminal liability to corporations for the acts
and omissions of any of its “representatives” while acting under the
corporation’s express, implied or apparent authority.(20) Like the Law
Reform Commission’s report six years earlier, the White Paper
recommended expanding the basis for attribution of crimes to
corporations beyond the common law concept of the corporate “directing
mind”: the White Paper defined a corporation’s “representatives” as
including not only its directors and officers but also its employees and
agents. Also like the first model proposed by the Law Reform Commission,
the White Paper distinguished between crimes of negligence and crimes of
intent or recklessness. For the former, the White Paper, like the Law
Reform Commission’s report, proposed attributing corporate liability on
the basis of the collective, or aggregated, actions and knowledge of all
the corporation’s “representatives.” For crimes of intent or
recklessness, however, the White Paper proposed aggregation of
representatives’ conduct only with respect to the attribution of the
actus reus, or the guilty physical act or omission forming the basis of
the offence. The requisite intent would actually have to be formed by
one or more corporate representatives acting within their area of
corporate authority. The White Paper also sought to address the issue of
criminal liability by other collective entities and proposed extending
the definition of “corporation” in the Criminal Code to include
partnerships, limited partnerships and trade unions.
The White Paper proposals were criticized by the corporate sector for
allowing for corporate criminal liability without actual corporate
knowledge and through the artificial aggregation of the acts and
knowledge of various individuals.(21)
In 1997, the Nova Scotia public inquiry into the Westray Mine disaster
recommended that the federal government study the issue of the
accountability of corporate executives and directors for corporate
wrongdoing, particularly in relation to workplace safety, and introduce
any necessary legislation.(22)
In response to the Westray inquiry’s recommendations, private Members’
bills providing for enhanced criminal accountability of corporations and
senior corporate officials for corporate wrongdoing were introduced in
the House of Commons in 1999 and 2001 by Ms. McDonough and Ms.
Desjarlais, respectively: Bills C-468 and C-259 of the 36th Parliament,
and Bill C-284 of the 1st Session of the 37th Parliament.
These bills would have extended the basis for attributing criminal
liability to corporations by: 1) expanding the category of individuals
whose acts or omissions could supply the physical element of an offence
(the actus reus); and 2) permitting the mental element of the offence (mens
rea) to be attributed to the corporation through various scenarios of
management participation or collective management negligence. The bills
also would have shifted the onus to the corporation to disprove the
various scenarios for attributing fault to the corporation once the
physical element of an offence had been established. The bills also
sought to facilitate the personal criminal liability of corporate
directors and officers in respect of crimes attributable to the
corporation either where these officials were aware of such wrongdoing,
or where it was deemed that they should have been aware of it. Finally,
the bills proposed the creation of a new Criminal Code offence of
failing to provide a safe workplace, aimed specifically at corporations
and their directors and officers.
Bill C-468 died on the Order Paper at the end of the 1st Session of the
36th Parliament in September 1999. Bill C-259 died on the Order Paper at
the dissolution of the 36th Parliament in October 2000. Bill C-284 was
withdrawn at second reading stage when its subject matter was referred
for study by the House of Commons Standing Committee on Justice and
Human Rights in February 2002.
The Justice Committee held hearings on this issue in the spring of 2002
and heard evidence from some 30 witnesses. The Committee tabled a report
in June 2002 recommending that the Government “table in the House
legislation to deal with the criminal liability of corporations,
directors, and officers.”(23) The Committee did not achieve consensus on
a particular model of corporate criminal liability, but its
recommendation for legislative reform expressed its dissatisfaction with
the legal status quo.
In November 2002, the Minister of Justice tabled the Government’s
response to the Justice Committee’s report. In the response, the
Government announced its intention to introduce legislation in 2003 to
amend the Criminal Code with respect to corporate criminal liability.
Bill C-45 constitutes the new legislation promised by the Government at
that time.
E. Bill C-45
Bill C-45 reflects the legislative reforms promised by the Government in
its November 2002 response to the Fifteenth Report of the House of
Commons Standing Committee on Justice and Human Rights, tabled in June
2002. As outlined by the Department of Justice in November 2002, the
highlights of the bill are as follows:
The criminal liability of corporations and other organizations will no
longer depend on a senior member of the organization with policy-making
authority (i.e., a “directing mind” of the organization) having
committed the offence.
The physical and mental elements of criminal offences attributable to
corporations and other organizations will no longer need to be derived
from the same individual.
The class of personnel whose acts or omissions can supply the physical
element of a crime (actus reus) attributable to a corporation or other
organization will be expanded to include all employees, agents and
contractors.
For negligence-based crimes, the mental element of the offence (mens rea)
will be attributable to corporations and other organizations through the
aggregate fault of the organization’s “senior officers” (which will
include those members of management with operational, as well as
policy-making, authority).
For crimes of intent or recklessness, criminal intent will be
attributable to a corporation or other organization where a senior
officer is a party to the offence, or where a senior officer has
knowledge of the commission of the offence by other members of the
organization and fails to take all reasonable steps to prevent or stop
the commission of the offence.
Sentencing principles specifically designed for corporate/organizational
offenders will be adopted.
Special rules of criminal liability for corporate executives will be
rejected.
An explicit legal duty will be established on the part of those with
responsibility for directing the work of others, requiring such
individuals to take reasonable steps to prevent bodily harm arising from
such work.
DESCRIPTION AND ANALYSIS
A. Extending Corporate Criminal Liability to All “Organizations”
Clause 1(1) of the bill amends s. 2 of the Criminal Code by changing the
definition of “everyone” and “person,” etc., to include “an
organization,” instead of the current reference to various public and
private entities with the legal capacity to engage in the relevant
conduct.
Clause 1(2) adds to s. 2 of the Code a two-part definition of
“organization” which would appear to expand the reach of criminal
liability to a wide range of entities that structure and embody the
collective activities and interests of associated individuals.
The first part of the definition provides that “organization” means not
only a public body, body corporate, society, company, or municipality
(which are included in the current definition of “everyone,” etc.), but
also a firm, partnership, or trade union (which are not currently
explicitly mentioned). These additions are probably more of a
clarification of existing law, rather than an extension of it. Certainly
the courts have found that unions can be guilty of crimes.(24)
The second part of the definition, however, does potentially broaden the
reach of corporate criminal liability by extending it to any association
of persons that: 1) is created for a common purpose; 2) has an
operational structure; and 3) holds itself out to the public as an
association of persons. Currently, s. 2 of the Code defines “everyone”
and “person” for the purposes of criminal liability as including only
certain named organizational forms and only to the extent that the
entity per se is capable of engaging in the prohibited conduct. The
proposed definition of “organization,” however, appears to focus more on
the nature and quality of the association, rather than the resulting
entity’s legal personality (i.e., recognition as a distinct subject of
legal rights and obligations with the resulting capacity to sue and be
sued before the courts), or even its capacity to engage in the conduct
forming the basis of an offence.
Nonetheless, there will still be conceptual limits on the types of
offences that may be attributable to organizations. The new provisions
on organizational liability proposed in clause 2 (see below) will
require, among other things, that the impugned conduct of organizational
personnel must either be within the scope of their authority within the
organization, or be intended at least partially to benefit the
organization and not just the individual in question.
Clauses 4, 5, 7–13, 16–18, and 20–22 contain consequential amendments to
the Code to reflect the change in terminology from “corporation” to
“organization.”
B. Attributing Criminal Liability to Organizations
Clause 2 of the bill amends Part I of the Criminal Code to add new
provisions setting out the rules for attributing criminal liability to
organizations for the acts of their representatives. These attribution
rules represent a codification of an aspect of criminal law that has
hitherto been left to the common law. However, the organizational
liability rules proposed in new sections 22.1 through 22.3 also reflect
a modification of the corporate criminal liability rules developed under
the common law. Essentially, the modifications seek to broaden the range
of individuals whose actions and intentions can trigger the criminal
liability of the organizations they represent.
New section 22.1 defines two overlapping groups of individuals whose
conduct could form the basis of a criminal offence attributable to an
organization. A “representative” includes virtually everyone who works
for, or is affiliated with, an organization: directors and partners, but
also any employee or member, or even an agent or contractor. A “senior
officer” would mean any representative who plays an important role in
organizational policy-making or is responsible for managing an important
aspect of the organization’s activities. In the case of a corporation,
it is specified that the “senior officer” category includes, at the very
least, a director, the chief executive officer, and the chief financial
officer.
Under the new rules of organizational liability proposed in clause 2,
new sections 22.2 and 22.3, liability for a crime will be attributed to
an organization, either on the basis that one or more “senior officers”
actually participated in the offence, or on the basis of a combination
of the actions of one or more “representatives” and the intent or
negligence of one or more “senior officers.”
It should be noted that both “representative” and “senior officer” cover
broader categories of personnel than the “directing mind” concept
developed under the common law, which limited corporate liability to the
conduct of senior corporate officials with policy-making authority. The
new rules also modify the common law by permitting the physical and
mental elements of an offence attributable to an organization to be
derived from different individuals.
New section 22.2 deals with criminal offences where the requisite
“intent” is negligence, namely, criminal negligence causing bodily harm
or death. For these offences, an organization will be guilty where:
1. a) a representative, acting within the scope of his or her authority,
is a party to the offence; or
b) the aggregated conduct of two or more representatives would, if done
by one of them, make him or her a party to the offence;
and
2. the senior officer responsible, or all senior officers collectively,
show a marked departure from the reasonably expected standard of care in
failing to prevent a representative from being a party to the offence.
Unlike the current law on corporate criminal liability, section 22.2
will permit the aggregation of the acts and omissions and the state of
mind of the organization’s representatives and senior officers in fixing
organizational liability. In this way, an organization may be guilty of
an offence even if no individual within the organization has committed
an offence.
Criminal offences requiring intent or recklessness (which is most of
those in the Criminal Code), however, will not be attributable to
organizations through an aggregation of the conduct of their personnel.
New section 22.3 will require that a senior officer, acting at least
partially with the intent to benefit the organization:
a) acting within the scope of his or her authority, is a party to the
offence;
b) acting within the scope of his or her authority, and while having the
necessary intent to commit the offence, directs the work of other
representatives so that they do the act or make the omission forming the
basis of the offence;(25) or
c) knowing that a representative is, or is about to be, a party to the
offence, does not take reasonable measures to stop the representative
from being party to the offence.
The foregoing differs from the current common law rules by allowing for
organizational liability (in scenario c), at least) without a senior
officer necessarily being a party to the offence.
Clause 6 of the bill repeals section 391 of the Criminal Code, which
provides that, for offences under sections 388 (misleading receipts),
389 (fraudulent disposal of goods), and 390 (fraudulent bank receipts),
the fact that a person committing such an offence acts in the name of a
corporation, firm, or partnership, does not necessarily extend criminal
liability to that entity. Since new sections 22.1 through 22.3 provide a
complete code for determining the criminal liability of organizations,
section 391 is unnecessary.
C. Workplace Safety
Clause 3 of the bill amends the Criminal Code by adding a new section
217.1 which will provide that those who are responsible for directing
the work of others are under a legal duty to take reasonable steps to
prevent bodily harm to any person arising from such work. This provision
does not create a new criminal offence. However, by clarifying the
existence of such a legal duty, the provision facilitates the
application of the offence of criminal negligence, which is predicated,
in part, on the existence of a legal duty.
D. Sentencing of Organizations
1. Special Sentencing Principles for Organizations
Clauses 14 and 15 of the bill would amend Part XXIII of the Criminal
Code in order to enact specific principles applicable to the sentencing
of organizations convicted of criminal offences. These new principles
would supplement, rather than displace, the general purposes and
principles of sentencing in sections 718 through 718.2, which are
applicable to all offenders.
The new section 718.21 (clause 15) would require a sentencing court to
take into account the following factors when sentencing an organization:
a) any advantage realized by the organization as a result of the
offence;
b) the degree of planning, the duration, and the complexity of the
offence;
c) any attempt by the organization to conceal or convert its assets in
an attempt to avoid a fine or the payment of restitution;
d) the sentence’s impact on the viability of the organization and the
employment of its employees;
e) the cost of the investigation and prosecution of the offence;
f) any regulatory penalty imposed on the organization or one of its
representatives for conduct forming the basis of the offence;
g) whether the organization or any of its representatives have been
previously convicted of a similar offence or sanctioned by a regulatory
body for similar conduct;
h) any penalty imposed by the organization on a representative for
involvement in the offence;
i) any amount of restitution that the organization has paid, or been
ordered to pay, to any victim of the offence; and
j) any measures that the organization has taken to reduce the likelihood
of its committing a subsequent offence.
2. Special Probation Conditions for Organizations
Not all traditional penal sanctions are applicable to or appropriate for
offending organizations. A corporation cannot, of course, be imprisoned.
A fine is the most common sentence imposed on the corporate or
organizational offender. However, a probation order could also be useful
in directly influencing the future conduct of organizations convicted of
offences. Yet most of the standard probation conditions currently
envisioned in the Criminal Code are not really geared to – or even
applicable to – organizations. Clause 19 of the bill addresses this by
amending section 732.1 of the Code to provide for the following
additional optional probation conditions that would be available in
respect of organizational offenders:
a) making restitution;
b) establishing policies, standards, and procedures to reduce the
likelihood of subsequent offences (however, the court must first
consider whether it would be more appropriate for another regulatory
body to supervise the development or implementation of such policies,
standards, and procedures);
c) communicating those policies, standards, and procedures to its
representatives;
d) reporting to the court on the implementation of those policies,
standards, and procedures;
e) identifying the senior officer responsible for compliance with those
policies, standards, and procedures;
f) providing, in the manner specified by the court, the following
information to the public: i) the offence of which the organization was
convicted, ii) the sentence imposed, and iii) any measures taken by the
organization to reduce the likelihood of its committing further
offences; and
g) complying with any other reasonable conditions considered desirable
by the court in preventing subsequent offences by the organization or to
remedy the harm caused by the offence.
COMMENTARY
So far, those critical of Bill C-45 have asserted that the bill does not
go far enough in ensuring the criminal accountability of corporate
directors and officers; and that the sentencing provisions may be of
little use in the case of bankrupt corporations, or against parent or
successor corporations.(26)
* Notice: For clarity of exposition, the legislative proposals set out
in the bill described in this Legislative Summary are stated as if they
had already been adopted or were in force. It is important to note,
however, that bills may be amended during their consideration by the
House of Commons and Senate, and have no force or effect unless and
until they are passed by both Houses of Parliament, receive Royal
Assent, and come into force.
(1) This term refers to federal and provincial offences of a regulatory
nature that are found outside the Criminal Code.
(2) The definition of the terms “every one,” “person” and “owner” in
section 2 of the Criminal Code, R.S.C. 1985, c. C-46, as amended,
includes, among other entities, “bodies corporate” and “companies,” but
only “in relation to the acts and things that they are capable of doing
and owning respectively.”
(3) Absolute liability offences are those where the guilt of the accused
follows automatically from proof that the accused permitted the
proscribed result to occur. Strict liability offences are similar to
absolute liability offences with the exception that the accused can
avoid a finding of guilt by establishing that all reasonable steps were
taken to avoid the proscribed result. See: R. v. City of Sault Ste.
Marie, [1978] S.C.R. 1299, 40 C.C.C. (2d) 353.
(4) See: R. v. Busy Bee Wine and Spirits Importers (1921), 36 C.C.C. 93
(Sask. C.A.); and Canadian Dredge & Dock Co. Ltd. v. The Queen (1985),
19 C.C.C. (3d) 1, [1985] 1 S.C.R. 662.
(5) Canadian Dredge & Dock, supra.
(6) The Rhone v. The Peter A.B. Widener, [1993] 1 S.C.R. 497.
(7) Stewart Field and Nico Jorg, “Corporate Liability and Manslaughter:
Should We Be Going Dutch?” Criminal Law Review, 1991, pp. 156-171 (pp.
161-162); and Jennifer Quaid, “The Assessment of Corporate Criminal
Liability on the Basis of Corporate Identity: An Analysis,” McGill Law
Journal, Vol. 43, 1998 (p. 97).
(8) Field and Jorg (1991), pp. 158-159.
(9) V. S. Khanna, “Corporate Criminal Liability: What Purpose Does it
Serve?” Harvard Law Review, Vol. 109, 1996, pp. 1477-1534.
(10) Victor V. Ramraj, “Disentangling Corporate Criminal Liability and
Individual Rights,” Criminal Law Quarterly, No. 45, August 2001, pp.
29-52.
(11) Letter of 29 August 1997 from David J. Roberts to Justice K. Peter
Richard re “Westray Mine Public Inquiry – Supplementary
Recommendations.”
(12) David A. Frenkel and Yotam Lurie, “Culpability of Corporations –
Legal and Ethical Perspectives,” Criminal Law Quarterly, No. 45, March
2002, pp. 465-487 (pp. 466-467).
(13) Khanna (1996), pp. 1487 and 1489.
(14) Law Commission (U.K.), Legislating the Criminal Code: Involuntary
Manslaughter, Report No. 237, 1996, Part VIII.
(15) Home Office (U.K.), Reforming the Law on Involuntary Manslaughter:
The Government’s Proposals, May 2000.
(16) Ibid., p. 15.
(17) Home Office (U.K.), Government to Tighten Laws on Corporate
Killing, 21 May 2003.
(18) Australia, Criminal Code Act, 1995, No. 12 of 1995, Part 2.5. It
should be noted, however, that criminal law is primarily the
responsibility of Australia’s states, which have thus far generally
retained the identification theory model.
(19) Law Reform Commission of Canada, Recodifying Criminal Law, Report
No. 31, 1987, pp. 26-27.
(20) Minister of Justice, Proposals to Amend the Criminal Code (General
Principles), 28 June 1993, pp. 6-7.
(21) Justice Canada, Government Response to the Fifteenth Report of the
Standing Committee on Justice and Human Rights: Corporate Liability,
November 2002.
(22) Nova Scotia, The Westray Story: A Predictable Path to Disaster –
Report of the Westray Mine Public Inquiry, 1997, recommendation 73.
(23) House of Commons Standing Committee on Justice and Human Rights,
Fifteenth Report, 1st Session, 37th Parliament.
(24) United Nurses of Alberta v. Alberta (Attorney General) (1992),
[1992] 1 S.C.R. 901, 71 C.C.C. (3d) 225, 89 D.L.R. (4th) 609.
(25) It is not clear how scenario b) differs from a). Someone who, with
the requisite intent, directs the actions of others so that they do the
act or make the omission constituting the physical element of the
offence, is a party to the offence.
(26) David J. Roberts, “Westray Response Flawed Legislation,” The
Chronicle-Herald [Halifax], 24 June 2003, p. B2.
Right To Refuse!
Section 128. of the Canada Labour Code Part II gives workers the right
to refuse unsafe work. The following steps outline the procedure to be
followed when invoking your rights under this section of the Code. It
should be noted that the refusal must not put the life, health or safety
of another person directly in danger.
Step 1
If you have reasonable cause to believe that
your health and/or safety, or that of another
employee is in jeopardy, you have the right to
refuse unsafe work. If you refuse, you must
notify the employer.
If the employer agrees that there is a danger,
they must take immediate steps to protect the
employees from danger and must inform the work
place committee or the health and safety
representative of the matter and the action
taken to resolve it.
Step 2
If the matter is not resolved as noted above,
the employee may continue to refuse and the
employee must, without delay, report the
circumstances of the matter to the employer and
the work place committee or the health and
safety representative.
Step 3
The employer must immediately upon being
informed of the continued refusal, investigate
the matter in the presence of the employee who
reported it and of:
(a) at least one member of the work place
committee who does not exercise managerial
functions;
(b) the health and safety representative; or
(c) if no person is available as noted above, at
least one person from the work place who is
selected by the employee.
Step 4
If more than one employee has made a report of a
similar nature, those employees may designate
one employee from among themselves to be present
at the investigation. ("Group" refusal).
Step 5
The employer may proceed with an investigation
in the absence of the employee who reported the
matter if that employee or a person designated
by them chooses not to be present.
Step 6
If an employer disputes a matter reported as
noted above or has taken steps to protect
employees from the danger, and the employee has
reasonable cause to believe that the danger
continues to exist, the employee may continue to
refuse. On being informed of the continued
refusal, the employer shall notify a health and
safety officer.
Step 7
Where an employee makes a report under
subsection (6), the employee, if there is a
collective agreement in place that provides for
a redress mechanism in circumstances described
in this section, shall inform the employer, in
the prescribed manner and time if any is
prescribed, whether the employee intends to
exercise recourse under the agreement or this
section. The selection of recourse is
irrevocable unless the employer and employee
agree otherwise.
Step 8
Upon being notified of a continued refusal, and
without delay, a health and safety officer must
investigate the matter in the presence of the
employer, the employee and one other person who
is
(a) an employee member of the work place
committee;
(b) the health and safety representative; or
(c) if a person who was designated in the case
of a "group" refusal is not available, another
employee from the work place who is designated
by the employee.
Step 9
Upon being notified of a continued refusal, and
without delay, a health and safety officer must
investigate the matter in the presence of the
employer, the employee and one other person who
is
(a) an employee member of the work place
committee;
(b) the health and safety representative; or
(c) if a person who was designated in the case
of a "group" refusal is not available, another
employee from the work place who is designated
by the employee.
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