The Standing Committee heard from 30 witnesses whose presentations ranged from calling for the immediate passage of C-284 to questioning whether the criminal law was in need of any change whatsoever. The evidence presented at the hearings of the Standing Committee has been of significant assistance to the Government in refining the issues. The Government notes that most witnesses called for reform of the law governing corporate criminal liability but that there was no consensus onas to the appropriate way to proceed.

The Standing Committee’s decision to call for tabling legislation without weighing the presentations made to it and developing a consensus as to the principles that should be reflected in the amendments to the criminal law leaves the Government to draw its own conclusions from its review of the presentations of witnesses and comments by individual Committee members. The Government has carefully considered the debates in the House on C-284, the evidence at the hearings and the proposals for reform that have been put forward in Canada and elsewhere.

The Government accepts the conclusion of the Standing Committee that legislative change is required. The Government intends to present specific legislative proposals in the House of Commons in 2003.

It justified the need for reform in the following way:

The Government does not intend to use the federal criminal law power to supplant or interfere with the provincial regulatory role in workplace health and safety. At the same time, the Government believes that the criminal law can provide an important additional level of deterrence if effectively targeted at -- and enforced against -- companies and individuals that show a reckless disregard for the safety of workers and the public. The Government shares the sentiment expressed by many members of the Committee, and by most of the witnesses during the course of the hearings, that our current approach to corporate criminal liability has deprived the criminal law of much of its deterrent effect in this area.

In relation to whether or not sepecifc offences should be created for companies that cause death etc, it stated:

The Standing Committee questioned several witnesses about the advisability of adopting specific criminal offences regarding workplace health and safety. Witnesses were split on the value of this approach.

Many witnesses expressed support for the broad principles of Bill C-284, which sought to create specific offences related to worker safety as well as reform and clarify the general rules regarding corporate liability.

Louis Erlichman, speaking for the International Association of Machinists and Aerospace Workers in Canada, favoured both specific new offences to deter employers from endangering their workers as well as a broader basis for finding corporate fault in general to "remove the corporate veil which has allowed corporations and those in positions of authority to evade responsibility."

Professor Boisvert cautioned the Standing Committee against establishing specific offences: I think that we should resist establishing a specific offence. I am thinking, namely, of corporate manslaughter, which was mentioned. We risk creating anecdotal legislation that does not cover the entire terrain, and which may lead to confusion. If special offences are planned for corporations, will this mean that it will not be possible to prosecute for other offences? We risk creating confusion and giving the message that it is a serious offence when workers are killed, but that it is not serious when they are injured.

Greg DelBigio of the Canadian Bar Association was somewhat more supportive of creating specific offences than of any wholesale change to the approach used to identify corporate fault. In his testimony he noted that "writing a specific offence rather than rewriting the law of corporate criminal liability… probably invites less legal and constitutional peril."

Other than corporate manslaughter or the duty to maintain a safe workplace, no specific offences were suggested to the Standing Committee. ...

The Government does not support the creation of specific offences targeted at corporations unless there is a clear need for special provisions. In principle, the criminal law should apply to all persons without regard to how they choose to organize their affairs.

Moreover, the Government does not see the need for a separate offence applying to corporations for death and injury in the workplace. Any problems in applying the laws regarding manslaughter and criminal negligence to corporations would best be addressed through changes to the general rules regarding corporate criminal responsibility, particularly in relation to criminal negligence.

On the issue of how best to deal with conduct of directors, officers and employees, it stated:

As stated earlier, under current Canadian law, the directors and officers of a corporation are its directing minds and their actions and mental state can be attributed to the corporation. Moreover, officers and directors of a corporation can be held criminally liable for acts of the corporation . Clearly, if they are directing the corporation to commit crimes, both they and the corporation will be criminally liable, individually and collectively.

A corporate executive or board member could also be liable under the Criminal Code for aiding or abetting the commission an offence (s. 21), counseling a person to be a party to an offence (s. 22), or being an accessory after the fact to an offence (s. 23). Quite often, managers and executives are charged as parties to an offence along with the corporation. However, they are liable on account of their own actions and not simply because of their positions in the corporation. Imposing liability in these circumstances is non-controversial and no witness argued for narrowing the current law.

Bill C-284 would have broadened the current law by imposing liability on directors where they knew or ought to have known the offence was about to be committed and failed to take all reasonable steps to prevent it. Furthermore, C-284 would have established a new offence for corporations of permitting unsafe working conditions to exist. Directors or officers who knew or ought to have known of the unsafe working conditions would also be guilty of an offence. Imposing liability where there may not be subjective mens rea would be a departure from established criminal law principles. Accordingly, the responsibility of officers and directors was a highly contentious part of the hearings.

Professor Patrick Healy expressed grave concern regarding C-284's proposals for the liability of directors: This is a sweeping measure. I understand its purpose; nevertheless, it's sweeping in its scope, and I think there is a very real possibility ...that this measure would be open to constitutional challenge on the basis that the grounds of culpability, certainly so far as directors and officers are concerned, are not of commensurate weight and culpability with the commission of an offence by a natural person.

As I say, certainly if you take the extreme example of the possibility of a corporation or a corporate officer or director being held liable for murder or for theft under a provision like this, it is highly improbable that a measure such as this would satisfy constitutional challenges.

Because C-284 proposed both a new standard for officer and director liability and new specific offences, the two issues were often mixed during the hearings. The Standing Committee heard from a number of witnesses who felt that corporate officers and directors need to take more responsibility for ensuring the safety of their workers and undertakings and that the criminal law is an appropriate vehicle for expressing society's disapproval of officers and high-level managers who do not make even the most basic inquiries to ensure the safety of their workers.

Some concern was expressed during the hearings regarding "director chill" - that is, that good people would be discouraged from being on board of directors for fear of potential criminal liability. This view was forcefully put to the Standing Committee by William Trudell: I dreamt I came here and the bill had already been passed, and I was running to a phone to call all the persons I know who are directors of corporations to tell them to resign immediately before I was reported to the law society.

He also expressed serious concern about the approach taken by Bill C-284, especially its reverse onus provisions, calling them "a shock to the basic principles of criminal law."

Most witnesses who commented on the issue supported criminal liability on directors who are wilfully blind to dangerous conditions or who take no action whatsoever to ensure a culture of safety. This is narrower than the C-284 standard, which would have required taking "all reasonable measures."
Bev Desjarlais, M.P., the sponsor of Bill C-284, told the Standing Committee: So we're not talking about holding directors personally criminally responsible for accidents, mistakes, or bad decisions by their underlings, nor are we disregarding the inherent dangers of some jobs, as working in a mine carries some inherent risk with it, but there are minimum safety standards mines and all workplaces ought to comply with. If managers or directors are warned about unsafe practices and turn a blind eye, if they cover up, if they encourage or pressure their employees to work in such conditions, there should be a crime under our Criminal Code.

In his testimony before the committee, Assistant Commissioner Lenton stressed the importance of clarity and precision in the law both for investigators and for those persons who may incur liability under the Code. The police would like to have tools that are more straightforward. And not only the police, I think more importantly, if the legislation is clear to the directors of the company, they know what accountability they're going to have and they will act accordingly. [26]
The Government recognizes that the complicated corporate structures common today mean that directors and officers cannot have hands-on control of a corporation's many activities and must of necessity delegate authority. The persons who receive this authority assume added responsibilities for which they are compensated. The criminal law must neither allow them to turn a blind eye to potentially criminal activity nor impose upon them an impossibly high standard of care.

The Government believes that similarly placed individuals should be treated in the same way by the criminal law. Moreover, ensuring the safety of workers and the public should be a prime concern not only of officers and directors but also of everyone who is in a position to direct work. Accordingly, officers and directors should not be singled out and have liability imposed on them either generally or with respect to safety simply because of the way the business is structured. They should be held criminally responsible for the way they carry out their responsibilities and not be subject to criminal liability in the absence of personal fault simply because of their position in the corporation.

In relation to sentencing it stated:

"There appeared to be a great deal of interest among members of the Standing Committee in creative approaches to sentencing, including imposing remedial measures, requiring a corporation to publicize its conviction and adjusting the punishment to reflect efforts by the corporation to avoid future offences.
Sentencing principles are set out in s. 718.2 of the Criminal Code but they are focused on the individual offender and there is no specific provision aimed at corporations or providing guidance to the courts on how to apply the principles to corporations. Sentencing is clearly an area where special provisions for corporations should be considered.

The Government favours innovative approaches to sentencing both to repair the harm done and to deter criminal activity, but it is concerned about the interrelationship of the criminal law and regulation. Where a corporation is convicted of criminal negligence as a result of unsafe working conditions, a form of probation requiring the corporation to change its processes would require the court or probation services to make determinations regarding occupational health and safety, a task better carried out by federal and provincial government departments which have the necessary expertise.

Furthermore, while fines should generally be set at a level to eliminate any profit, detailed sentencing guidelines such as those in the United States may inappropriately interfere with the discretion of the sentencing judge. Similarly, a community service order against a corporation could result in employees who had nothing to do with the offence being required to perform the actual work by their corporate superiors who were more culpable."