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Issues of health and safety are becoming top concerns for businesses. 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”. 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.
Beyond reasonable doubt
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.
Furthermore, the new duty requires reasonable steps to be
taken to prevent bodily harm to any person. 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
(OHSA), 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 or organization to be found
guilty of negligence causing bodily harm or causing death under the new
provisions of the Criminal Code, however, 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 OHSA, and it will make proving such crimes more difficult;
however, if found guilty under the Criminal Code, a corporation faces
incredibly severe penalties.
In prosecuting an organization under the Criminal Code, a
Crown attorney can choose to proceed by summary conviction or to proceed by
indictment. If the Crown proceeds by summary conviction, the maximum fine an
organization will face is $100,000. However, where the Crown proceeds by
indictment, there is no limit on the amount of fine that may be imposed on the
organization or corporation.
Bill C-45 created a two-step test the Crown must meet to
prove guilt of criminal negligence causing bodily harm or causing death. The
Crown must prove, beyond a reasonable doubt, that: one or more of the organization’s
representatives acted in a criminally negligent manner; and that 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 or corporation will automatically be found guilty. In the criminal
context, defences such as “due diligence” cannot be used to avoid
liability.
One prosecution
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, following the death of an
employee in 2005.
Twenty-three-year-old Transpave 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 was disabled.
Sentencing arguments were heard in St-Jerome in February. In
their arguments, both the Crown attorney and defence lawyers argued that the
company should pay a maximum fine of $100,000, saying Transpave is a small
company and has improved its safety procedures since the death of L'Écuyer.
On March 17, Transpave was fined $110,000 by Quebec court
Judge Paul Chevalier.
While there are no hard-and-fast rules to play by to ensure
your organization remains insulated from liability under the new Criminal Code,
it would be prudent to incorporate all the best practices and industry
standards into your occupational health and safety management system. This will
help demonstrate, should you need to, that all reasonable steps are being taken
by your organization to ensure that the workplace is safe.
Pradeep Chand is a former federal prosecutor who
currently practices occupational health and safety law at Lang Michener LLP in
Ottawa. You can reach him at
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or 613-232-7171.
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