By Norm Keith
On March 31, 2014, Bill C-45 celebrated its 10th anniversary. This decade old law established, for the first time in Canadian history, a crime of occupational health and safety criminal negligence. Upon conviction, an individual may receive life imprisonment and a corporate defendant may receive an unlimited fine.
For the last 10 years, Canada has had one of the most strict criminal laws relating to workplace health and safety in the Western world. However, in these first 10 years, this law has not been strictly enforced nor has it been effective in reducing workplace accidents.
Bill C-45 was the Criminal Code amendment reaction to the Westray Mine disaster that occurred in May, 1992, causing the death of 26 miners in Plymouth, N.S.
According to Greg Jost, one of the drafters of Bill C-45, the bill was a “made in Canada” solution to three perceived problems:
• the need for a new OHS crime to deal with a Westray Mine-scale workplace disaster
• a new approach to holding corporations accountable in criminal law
• new powers for courts to impose penalties and probation on organizations.
In the 10 years since Bill C-45 has been passed into law, there have only been 10 prosecutions. This is particularly concerning because the number of fatalities has not changed over that decade — the average number of fatalities has remained constant at about 990 every year for the last 10 years, according to the Association of Workers’ Compensation Boards of Canada.
In my view, there are at least three reasons why there have been so few prosecutions.
First, there has been very little education for both police and Crown attorneys on the existence of Bill C-45. The Bill C-45 amendments, especially for corporations, require an assessment of a company’s management structure to determine who is a “senior officer” and also its decision-making process. This is not the normal area of training, knowledge and expertise of the police and Crown attorneys who investigate and prosecute criminal charges under Bill C-45.
Second, some police officers who have recommended Bill C-45 charges have been told by Crown attorneys that they should “leave it to the occupational health and safety regulator” and not lay criminal charges. The police have been told by Crown attorneys that this is really not an area of concern for the police. This is completely contrary to the purpose of Bill C-45 and the intention of the federal government in passing it. However, Crown attorneys are provincially not federally appointed.
Third, Bill C-45 has not been aggressively enforced because Canada is “soft” on enforcing white-collar crime. Canada has been criticized internationally for not enforcing legislation such as the Corruption of Foreign Public Officials Act, with only four prosecutions since the law was passed in 1999. Canada has been publicly criticized at the G20, and at the Organisation for Economic Co-operation and Development for being soft on white-collar crime.
There have been several high profile cases prosecuted under the Bill C-45 amendments.
The first corporation to be prosecuted was Transpavé. It actually pleaded guilty to a criminal charge under the amendments, but only faced a fine of $100,000. The fine, since it was a joint submission, was not challenged on appeal by the Crown. This was a remarkably low fine for a company convicted of a criminal offence that caused the death of a worker.
The most important — and still ongoing — case is the Christmas Eve fatality involving the death of four workers employed by Metron Construction in Toronto. It involved the prosecution of four individuals, including the president of Metron, and Metron the corporation itself.
On the day of the accident, five workers plus one supervisor, Fayzullo Fazilov, boarded a swing stage to travel from the 14th floor to the ground level. At the time, there were only two lifelines for six workers. The combined weight of the workers and the equipment caused the swing stage to collapse, opening like a drawbridge, where four workers fell to their deaths.
As part of the legal resolution, the charges relating to violations of Ontario’s Occupational Health and Safety Act (OHSA), and the regulation for construction projects were withdrawn. Metron agreed to plead guilty to one count of contravening Bill C-45. One of the critical admissions by Metron, as part of the plea bargain agreement, is that Fazilov was a “senior officer” of Metron Construction. This was an essential admission for the corporation to ensure its plea bargain be accepted by the trial court.
In other words, without the admission that Fazilov was a “senior officer,” even though he was only a first-line supervisor, the Crown could not have secured a conviction under the Bill C-45 amendments to the Criminal Code. A fine of $200,000 was imposed by the trial judge.
But the Court of Appeal held that the sentence was “manifestly unfit” and it increased the fine from $200,000 to $750,000, because of the nature and gravity of the events, the victims, the principle set forth in section 718 and the specific factors described in 718.2(1) of the Criminal Code. The appeal decision may be understood in light of the court’s concern to emphasize general deterrence for other construction companies and employers more so than just for Metron.
The greater risk under Bill C-45 is really for individuals rather than organizations.
For example, the first prosecution under Bill C-45 in 2004 was against Domenic Fantini of Vista Construction in King Township, Ont. He was charged under OHSA and Bill C-45 after a trench collapsed on employees under his supervision. He plead guilty to a lesser, regulatory offence under OHSA in exchange for a withdrawal of the criminal charges.
Another interesting and controversial prosecution arising in part from the Bill C-45 amendments to the Criminal Code was the trial and conviction of Karl-Heinz Lilgert. The pilot of the Queen of the North ferry was convicted of criminal negligence causing the death of two passengers, when the ferry struck an island off the coast of British Columbia and sank. The bodies of the two passengers were never recovered. Lilgert was convicted after a trial and given a substantial term in prison, which is currently under appeal. This case emphasizes the importance of Bill C-45 when workers fail to take reasonable steps to protect the public for which they have a responsibility.
One thing is very clear from the court decisions to date, and in particular the Court of Appeal’s decision in Metron: If employers are convicted of offences of OHS criminal negligence under Bill C-45 amendments, their punishment may be severe. One can only imagine the type of fine, in similar circumstances, that a much larger corporate employer may have faced. The other sobering fact is there is no upper limit to fines that may be imposed on a corporation when they are prosecuted under a Bill C-45 offence. The $750,000 fine and the bankruptcy of Metron may just be the beginning.
Bill C-45, 10 years later, has meant greater risk of criminal liability for companies and senior executives who fail to take every reasonable precaution to prevent bodily harm at the workplace. However, the simple truth is that police and Crown attorneys have not been aggressively enforcing this legislation. With about one case, on average, per year in the first 10 years, there is a statistical risk of 0.1 per cent that a Bill C-45 prosecution will be initiated when there is a workplace fatality.
If that same statistic was applied to homicide, sexual assault, robbery and commercial fraud, there would undoubtedly be public outcry.
However, the failed objectives of Bill C-45 have attracted little attention. Further, since workplace fatalities have remained at the same level for the last 10 years, Bill C-45 has had no meaningful deterrent effect on reducing workplace fatalities. Therefore, it remains to be seen whether the police, Crown attorneys and employers are taking the intention of Bill C-45 seriously.
Norm Keith is a partner at Toronto-based law firm Fasken Martineau DuMoulin LLP. He specializes in occupational health and safety, environmental, workers' compensation, and workplace risk management litigation. He advises and represents clients in regulatory and corporate criminal investigations and charges. Norm received his Canadian Registered Safety Professional (CRSP) designation in 1998, making him the first practising lawyer in Canada to achieve the CRSP designation.
Norm Keith, an OHS lawyer and consultant, is a partner at Fasken in Toronto. He can be reached at (416) 868-7824 or firstname.lastname@example.org
, or visit www.ehslaw.ca
for more information.