On the other hand, environmental prosecutors, and their instructing inspectors, have often focused on fixing the underlying cause of the environmental discharge or pollution that resulted in environmental charges. Perhaps that is why the federal government developed an alternative dispute resolution approach to dealing with environmental offences.
One means that environmental regulators have used – rather than simply “criminalizing” the process – is the Environmental Protection Alternative Measures agreement (EPAM). I believe it is time for occupational health and safety regulators across Canada to learn from environmental regulators and focus more on remedying the underlying OHS problem, rather than merely treating workplace stakeholders, including supervisors and workers, as criminals and prosecute them for the purpose of obtaining a conviction fine and, in some cases, a jail term.
An EPAM is mandated by the federal government’s Canadian Environmental Protection Act 1999 (CEPA). The EPAM agreement recognizes the need for an enforcement mechanism for environmental contraventions and potential offences where a “criminalized” prosecution process may not be as effective in protecting the environment and ensuring future compliance with the environment law. In effect, an EPAM is an alternative dispute resolution process to a regulatory prosecution.
Environmental and OHS prosecutions, which take place in criminal court, are legally classified as quasi-criminal, not criminal, charges since they do not require a mental element — or mens rea — to require proof of the offence. In other words, “bad intentions” are not required to be proven by the prosecution.
The mere violation of the legislation, regardless of intentions by an accused, whether they’re corporate or individual, results in proof of the offence. However, as many readers are aware, persons charged with strict liability offences have available to them the defence of due diligence that must be proved by the accused.
An EPAM is an agreement negotiated by the accused, through their lawyer, with the prosecutor, in consultation with the federal Ministry of the Environment. The EPAM will contain terms and conditions that the accused must take responsibility for, generally in order to restore legal compliance, and all such terms are documented in the EPAM.
The federal government reserves its right to offer EPAMs to those accused who meet the selection criteria set out in s. 296 of the CEPA. EPAMs are only available with certain federal environmental offences. They also must be subject to a recommendation from the federal attorney general’s prosecutor, after consultation with the federal minister of the environment.
The process of an EPAM is that the accused will attend court, the EPAM will be filed with the court, and the prosecutor will be held in abeyance until the terms and conditions of the EPAM are complied with. If the accused complies with the terms and conditions of the EPAM, then the federal prosecutor withdraws the charges, there is no trial, and there is no conviction of the defendant. If the accused fails to comply with the EPAM, the prosecutor will proceed with a trial.
Critics of EPAM argue that the failure to punish an offender by way of a fine or even jail may undermine respect for compliance with environmental laws. Critics also argue that the EPAM approach encourages non-compliance until the offender is caught, and only then will they become repentant and compliant.
Supporters of EPAM argue that this approach to setting requirements to move an offender towards compliance with environmental legal standards is a much more progressive and remedial approach to the enforcement of environmental law. Supporters also argue that significant fines against offenders may impair their financial ability to invest in environmental technology.
Applying EPAM to OHS laws and prosecutions would have, in my view, several significant benefits. First, the primary purpose of OHS statutes and regulations is to ensure a health and safe workplace, not to punish offenders and take their money.
Therefore, an EPAM applied to an OHS incident, accident or injury – one may call it an OHSPAM – would be more progressive than merely prosecuting to achieve a conviction and a punitive fine or the threat of jail.
Second, the role of the OHS regulator, in both enforcing laws and cooperating with potential offenders, would change the stigma of the “criminalization” of OHS laws that has occurred over the past decade across Canada, into a more collaborative and even cooperative role. This would move both the OHS regulator and the accused towards recognition of the values of workplace health and safety and use constructive means to achieve that goal.
Third, the availability of OHSPAMs to the accused gives them a real, alternative choice between either a plea of guilty and a payment of a substantial fine on the one hand, or incurring significant legal costs to defend the charges and with the risk associated with the uncertainty of the trial on the other hand. In other words, the stigma, costs and risks associated with defending a strict liability offence in a public trial is eliminated.
OHSPAMs will not be appropriate for all OHS prosecutions. There may be extreme fact situations, involving serious injury or death, or extreme offenders who are callous and repeatedly have failed to follow health and safety laws, to which an OHSPAM should not be available.
However, for the majority of first time offenders, respect for the values of OHS legislation and movement towards its objectives can surely be more effectively achieved by a collaborative and cooperative approach, rather than the blunt, adversarial process of OHS prosecutions in strict liability offences.
As we move further into the 21st century, where accidents, injuries and fatalities are all too frequent in Canadian workplaces, new, alternative dispute resolution concepts, such as OHSPAMs, ought to be considered by governments, OHS regulators and regulatory prosecutors.
In the writer’s view, the concept of an OHSPAM, is one whose time has come.
Norm Keith leads the national OHS practice at Gowling Lafleur Henderson LLP. You can reach him at (866)862-5787 ext.85699 or by email at Norm.Keith@gowlings.com
Mari-Len De Guzman is the former editor of Canadian Occupational Safety magazine and www.cos-mag.com.