OCCUPATIONAL HEALTH & SAFETY AND THE CRIMINAL CODE

Issues of health and safety are becoming top concerns for businesses, and are concerns that cannot, and should not, be ignored. While workplace safety has traditionally been a matter for occupational health and safety regulatory enforcement, on March 31, 2004, as a result of Bill C-45, safety at the workplace became a matter for criminal enforcement as well.

Bill C-45 amended the Criminal Code to impose a new duty on organizations and corporations to ensure workplace health and safety. This new duty, which is contained in the criminal negligence provisions of the Criminal Code under s. 217.1, requires that “everyone who undertakes, or has the authority, to direct how another person does work or performs a task is under a legal duty to take reasonable steps to prevent bodily harm to that person, or any other person, arising from that work or task”. What is important to note is that the word “everyone” includes individuals, organizations, and corporations. Should a workplace accident occur, the amendments made by Bill C-45 have made it possible for a corporation (or its supervisors or representatives) to be charged with criminal negligence.

There are a few important things you should keep in mind regarding the new Criminal Code duty. The new duty applies to any individual in the organization who has the authority to direct another person to perform work. This means that the provision encompasses and applies to a broad range of people, including employers, supervisors, owners, and directors, just to name a few.

Furthermore, the new duty requires reasonable steps to be taken to prevent bodily harm to any person. This means that the duty is not only owed to employees and workers at the workplace, but also to members of the public who enter the workplace and may be affected by a workplace activity.

Finally, under the Occupational Health and Safety Act (OH&SA), in order for a corporation to be found guilty, the Crown only has to prove guilt on a balance of probabilities. In order for a corporation/organization to be found guilty of negligence causing bodily harm or negligence causing death under the new provisions of the Criminal Code, the Crown must prove guilt beyond a reasonable doubt. This is a much higher onus of proof than that placed on the Crown under the OH&SA and it will make proving such crimes more difficult; however, if found guilty under the Criminal Code, a corporation faces incredibly severe penalties.

A Crown Attorney, in prosecuting an organization under the Criminal Code, can choose to proceed by summary conviction (less serious) or to proceed by indictment (more serious). If the Crown proceeds by summary conviction, the maximum fine an organization will face is $100,000.00. However, where the Crown proceeds by indictment, there is no limit on the amount of the fine that may be imposed on the organization or corporation.

So, how does a Crown Attorney prove an organization’s guilt under this new provision? Bill C-45 created a two-step test the Crown must meet before an organization will be found guilty of criminal negligence causing bodily harm or criminal negligence causing death. The Crown must prove, beyond a reasonable doubt, that:

1. One or more of the organization’s representatives acted in a criminally negligent manner; and
2. Senior officers responsible for that aspect of the organization’s activities did not take the reasonable steps necessary to prevent the situation from occurring or to correct the situation.

If the Crown Attorney proves both of these elements, an organization/corporation will automatically be found guilty. In the criminal context, defences such as “due diligence”, cannot be used to avoid liability. While this has traditionally only been a defence under regulatory offences, the amendments to Bill C-45 will necessitate a juristic look at this defence for criminal purposes. What defines due diligence however will fluctuate depending on the individual case and the circumstances of the case. Employers who already have in place preventative steps for Occupational Health and Safety reasons can implement a similar system to use as a defence under Bill C-45. As a caveat, all of the elements of a “due diligence program” must be in effect before any accident or injury occurs. Due diligence is demonstrated by your actions before an event occurs, not after.¹

An employer can facilitate its own defence by establishing a preventative framework with their company:

• Have in place written OH&S policies, practices, and procedures. These policies, etc. would demonstrate and document that the employer carried out workplace safety audits, identified hazardous practices and hazardous conditions and made necessary changes to correct these conditions, and provided employees with information to enable them to work safely.
• Provide the appropriate training and education to the employees so that they understand and carry out their work according to the established policies, practices, and procedures.
• Train the supervisors to ensure they are competent persons, as defined in legislation.
• Monitor the workplace and ensure that employees are following the policies, practices and procedures. Written documentation of progressive disciplining for breaches of safety rules is considered due diligence.
• Workers also have responsibilities. They have a duty to take reasonable care to ensure the safety of themselves and their coworkers – this includes following safe work practices and complying with regulations.
• Institute an accident investigation and reporting system in place. Employees should be encouraged to report “near misses” and these should be investigated also. Incorporating information from these investigations into revised, improved policies, practices and procedures will also establish the employer is practicing due diligence.
• Document, in writing, all of the above steps: this will give the employer a history of how the company’s occupational health and safety program has progressed over time. Second, it will provide up-to-date documentation that can be used as a defence to charges in case an accident occurs despite an employer’s due diligence efforts.²

While this new law has not been used a great deal since its introduction, it has seen one prosecution. On December 7, 2007, Transpave, Inc., a concrete block manufacturer northwest of Montreal, pled guilty in Saint Jerome, Quebec to charges of “criminal negligence causing death” under the Criminal Code. These charges arose from a 2005 workplace death taking place at the company. A 23-year-old worker, Steve L’Écuyer, was killed while trying to clear a jam in a machine. Investigations by Quebec’s Health and Safety Board and provincial police found the company was negligent when it allowed L’Écuyer to operate the machine while its motion detector safety mechanism deactivated.

In the Transpave case, the Crown and the Defence attorney made a joint submission to the Court and agreed that a fine of $100,000 would be an appropriate punishment. In sentencing Transpave Inc., the Court noted that the severity of the offence was high given that a death of a person ensued. However, the Court also noted that Transpave is a family corporation and it had derived no advantage from the perpetration of the offence. Furthermore, there had been no planning of any sort to commit the offence in question. The Court also commented that safety regulations had been in place prior to the accident, noting that there was an existing Health and Safety Committee at Transpave, as well as a Code of Conduct for the employees to follow.

In addition to the above noted factors, the Court, in deciding what an appropriate penalty would be, took note of the amount of money Transpave had invested in its safety systems subsequent to the accident. For instance, in 2006, Transpave spent more than half a million dollars to put its two plants at the safety level of Europe, which is higher than the one in force in North America. Following the accident, Transpave undertook many measures to help ensure that such an accident did not reoccur.

What this decision demonstrates is that, while there are no hard-and-fast rules to play by to ensure an organization remains insulated from liability, it would be prudent for a corporation to incorporate all the best practices and industry standards into an occupational health and safety management system. As discussed above, in rendering its decision, the Court appeared to be particularly influenced by the measures implemented after the employee’s death to prevent a recurrence. Implementing health and safety measures will help demonstrate to a court that all reasonable steps are being taken by the organization to ensure the workplace is safe.

More importantly, however, is that although it took four years for this first conviction and fine to be imposed under the amendments, employers, senior management and members of Boards of Directors should not allow themselves to suppose that the Criminal Code will not be used in the future to prosecute where there is a statutory breach. Bill C-45 has made it easier to convict a corporation criminally based on the conduct of its employees, and it will likely be increasingly used in the future.

A final comment may be made about the rule against duplicity under the Criminal Code which ensures that an accused cannot be convicted of the same offence more than once. If charges were brought both under the Criminal Code and Occupational Health and Safety legislation, this defence may be tried out in the courts to see if judicial treatment upholds its validity when tried for the same charge under two different pieces of legislation.

¹ http://www.ccohs.ca/oshanswers/legisl/diligence.html
² Ibid