Canadian corporate criminal liability
Prior to 2004, although corporations had been charged with criminal negligence, none had resulted in a conviction in Canada because the law required the Crown to prove beyond a reasonable doubt that a “directing mind” of the corporation had behaved in a criminally negligent manner. This proved a difficult burden for Crown prosecutors. 

In addition to the failed prosecution of Curragh Resources following the Westray Mine disaster, criminal charges against corporations have been stayed or withdrawn against Syncrude Canada Ltd. following a double fatality of contract workers in a confined space, and Ontario Power Generation following the drowning of two sun-bathers who were caught unaware by a controlled release of water from a dam.

The principles underlying corporate criminal liability in Canada changed in 2004 when the federal government enacted Bill C-45, An Act To Amend The Criminal Code.  Bill C-45  amended the Criminal Code to permit organizations, which includes corporations, to be more readily charged and convicted of criminal negligence causing either death or bodily harm. It also created a new duty requiring everyone, including corporations, who directs how a person works or performs a task, to take reasonable steps to prevent bodily harm to that person or any other person, arising from that work or task. 

In order to be prosecuted, there must be a failure to discharge the legal duty to prevent bodily harm to a person, and the failure must occur in a way that shows “wanton or reckless disregard” for the safety of others. 

Since a corporation can only act through its representatives, the Crown prosecutor must prove beyond a reasonable doubt that one or more representatives of the corporation behaved in a criminally negligent manner where the potential result was serious injury or death. The Crown prosecutor must also prove that “senior officers” — management with operational or executive authority responsible for the aspect of the activities relevant to the offence — departed markedly from the standard of care reasonably expected in the circumstances.

In short, it must be proven that extraordinarily reckless behaviour has resulted in serious injury or death, and the most senior management in the company have failed to exercise reasonable care to prevent this, either through systems or specific action.

Although workplace safety is (and technically in the past has been) enforceable under both the Criminal Code and provincial occupational health and safety legislation, criminal enforcement has remained relatively rare in Canada. 

To date there have been only two post-Bill C-45 criminal prosecutions arising from workplace accidents in Canada. In 2006, Transpavé Inc. was charged with criminal negligence causing death after an employee was fatally crushed by the “grab” of a machine used to package cement blocks on pallets when he entered a moving area of the machine to clear jammed material in the machine. Members of senior management had been informed that the light curtain system used to guard the machine was deactivated, but they had not acted to correct the situation. Transpavé Inc. pleaded guilty and was fined $100,000 in March 2008. No OHS charges were commenced against that corporation, although such charges were available under the Quebec Act Respecting Occupational Health and Safety. 

Prior to that, police in Ontario laid criminal negligence charges  against the owner of a small construction company after a trench collapsed, fatally injuring a worker. Those charges were dropped after the owner pleaded guilty to three charges under the Ontario OHSA and was fined $50,000.  

It is worth remembering that police as well as OHS enforcers attend at virtually all scenes of workplace accidents. Where an inquest is planned or required, a detailed police investigation into the behaviour of the organization and individuals will occur. Criminal investigations do proceed regularly. 

However, currently it is usual for the police and Crown prosecutor to defer criminal enforcement in favour of OHS regulatory enforcement, where OHS enforcers are investigating or have determined they will proceed with OHS charges. This is always a matter for police discretion, however, and is dependent on all of the facts of the incident or accident being investigated.