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TCRC Message | History | Westray | Bill C-45 | Right To Refuse! | Record Your Rights |
TCRC Message
Dear Brother/Sisters,
On April 28th Canada will observe the National day of Mourning which
commemorates workers who have been killed, injured or suffered
illness due to workplace hazards and incidents.
On December 1990, with Parliament passing of the “Workers Mourning
Day”, April 28th was officially recognized as the National Day of
Mourning. April 28th, was picked because on that day in 1914 the
Workers Compensation Act received its third reading.
Since its inception, the observance has spread to over 80 countries
around the world commonly referred to as Workers Memorial Day.
Workers and employees observe this day in various ways including
lighting candles, donning ribbons, wearing black armbands and
observing moments of silence.
The purpose of the National Day of Mourning is twofold; to remember
and honour those lives lost or injured and to renew the commitment
to improve health and safety in the workplace to prevent further
deaths, injuries and diseases from work.
On April 28th, 2011, your National Officers will be observing a
moment of silence at 10:00 a.m. and we encourage and request that
the Membership, where and when possible, join us in our recognition
of the National Day of Mourning and our fellow workers.
Fraternally yours,
Rex Beatty
President – TCRC
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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 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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