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Workplace safety’s criminal twist

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 onorganizations and corporations to ensure workplace health and safety. This newduty, which is contained in the criminal negligence provisions of the CriminalCode under s. 217.1, requires that “everyone who undertakes, or has theauthority, to direct how another person does work or performs a task is under alegal duty to take reasonable steps to prevent bodily harm to that person, orany other person, arising from that work or task”. The word “everyone” includesindividuals, organizations, and corporations. Should a workplace accidentoccur, 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 mindregarding the new Criminal Code duty. The new duty applies to any individual inthe organization who has the authority to direct another person to performwork. This means that the provision encompasses and applies to a broad range ofpeople, including employers, supervisors, owners and directors.

Furthermore, the new duty requires reasonable steps to betaken to prevent bodily harm to any person. The duty is not only owed toemployees and workers at the workplace, but also to members of the public whoenter 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 toprove guilt on a balance of probabilities.

In order for a corporation or organization to be foundguilty of negligence causing bodily harm or causing death under the newprovisions of the Criminal Code, however, the Crown must prove guilt beyond areasonable doubt. This is a much higher onus of proof than that placed on theCrown under the OHSA, and it will make proving such crimes more difficult;however, if found guilty under the Criminal Code, a corporation facesincredibly severe penalties.

In prosecuting an organization under the Criminal Code, aCrown attorney can choose to proceed by summary conviction or to proceed byindictment. If the Crown proceeds by summary conviction, the maximum fine anorganization will face is $100,000. However, where the Crown proceeds byindictment, there is no limit on the amount of fine that may be imposed on theorganization or corporation.

 

Bill C-45 created a two-step test the Crown must meet toprove guilt of criminal negligence causing bodily harm or causing death. TheCrown must prove, beyond a reasonable doubt, that: one or more of the organization’srepresentatives acted in a criminally negligent manner; and that seniorofficers responsible for that aspect of the organization’s activities did nottake the reasonable steps necessary to prevent the situation from occurring orto correct the situation.

If the Crown attorney proves both of these elements, anorganization or corporation will automatically be found guilty. In the criminalcontext, defences such as “due diligence” cannot be used to avoidliability.

 

One prosecution

While this new law has not been used a great deal since itsintroduction, it has seen one prosecution. On December 7, 2007, Transpave,Inc., a concrete block manufacturer northwest of Montreal, pled guilty in SaintJerome, Quebec to charges of criminal negligence causing death under theCriminal Code, following the death of an

employee in 2005.

Twenty-three-year-old Transpave worker, Steve L'Écuyer, waskilled while trying to clear a jam in a machine. Investigations by Quebec'sHealth and Safety Board and provincial police found the company was negligentwhen it allowed L'Écuyer to operate the machine while its motion detectorsafety mechanism was disabled.

Sentencing arguments were heard in St-Jerome in February. Intheir arguments, both the Crown attorney and defence lawyers argued that thecompany should pay a maximum fine of $100,000, saying Transpave is a smallcompany and has improved its safety procedures since the death of L'Écuyer.

On March 17, Transpave was fined $110,000 by Quebec courtJudge Paul Chevalier.

While there are no hard-and-fast rules to play by to ensureyour organization remains insulated from liability under the new Criminal Code,it would be prudent to incorporate all the best practices and industrystandards into your occupational health and safety management system. This willhelp demonstrate, should you need to, that all reasonable steps are being takenby your organization to ensure that the workplace is safe.

  

Pradeep Chand is a former federal prosecutor whocurrently practices occupational health and safety law at Lang Michener LLP inOttawa. You can reach him at pchand@langmichener.caor 613-232-7171. 

Mari-Len De Guzman

Mari-Len De Guzman is the former editor of Canadian Occupational Safety magazine and www.cos-mag.com.
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