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Jail, steep fines not advancing OHS

Few successful prosecutions 15 years after Westray Bill

By Cheryl A. Edwards

Over several decades, both before and since the enactment of the Westray Bill, or Bill C-45 amendments to the Criminal Code, certain academics, organizations and safety advocates have called for criminal prosecution of corporations and individuals whenever tragic workplace incidents occur. The Criminal Code amendments that passed in 2004 did expand duties for persons and organizations to protect workers. They added means to more easily prosecute organizations and corporations under the Criminal Code for criminal negligence and added new sentencing provisions. In short, amendments sufficient to criminalize occupational health and safety in Canada were made. 

Has this made a meaningful difference? Sadly, I think not. In the ensuing years, all of us (I include in this group health and safety advocates, consultants, trade unions strenuously advocating for worker safety, OHS prosecutors and those of us who advise and defend corporations and individuals) continue to see the same parade of largely similar tragic cases in which workers’ lives are cut short or irretrievably altered in horrific circumstances. The same offences re-occur. Companies and supervisors are fined greater amounts under OHS legislation and an unrelenting push for Criminal Code prosecution of offenders continues. 

My question in this article, controversial or not, is whether the pressure for more prosecutions — particularly Criminal Code prosecution — and higher fines has caused us to lose sight of the purpose of OHS legislation and safety-related endeavours. While fines and prosecution may satisfy the visceral desire for retribution — and meet court-established goals of denunciation and deterrence — if the goal is protecting and promoting the health and safety of workers and the public, do either OHS or criminal prosecutions meaningfully achieve this?

OHS has been enforced in Canada since I entered the OHS field in the 1980s. Overlapping duties under the occupational health and safety act, the internal responsibility system and government OHS enforcement by compliance orders and prosecution have continued for decades. Fines have climbed from corporate maximums of a few thousand dollars to recent per-offence maximums exceeding $1 million. Administrative monetary penalties (AMPs), imposed without prosecution, have also evolved; B.C. has the highest available AMP in the country at $646,000. Jail terms are available and are imposed. Penalties are also now published by many OHS enforcement bodies and picked up by the media. So, fines are high, maximum penalties are getting higher and they are well advertised. But is this encouraging safer corporate, management and individual worker behaviour? 

Some admitted rationale exists for availability of prosecutions and penalties, whether OHS or Criminal Code, in appropriate circumstances. Laws and standards guide behaviour, and enforcement is part of the fabric of our legal system. Indeed, the mechanism for OHS prosecutions rationally encourages ongoing, specific corporate and individual behaviour directed to  incident prevention. Here’s how. 

In an OHS prosecution, the alleged offence must be proven beyond a reasonable doubt. OHS contraventions are often readily proven at this stage of the case. Standing in the way of conviction is the ability of the alleged offender to establish to the court that they exercised “all reasonable care” or “due diligence.” The fact that OHS offence prosecution mechanisms permit the ability to show reasonable care to prevent the offence encourages taking measures to ensure compliance and worker safety — if not, an OHS conviction will occur. AMPs similarly generally encourage due diligence and measures to protect worker safety. AMPs are imposed upon a finding of violation, but an appeal to overturn or reduce the AMP can generally be made and results will depend upon the ability of the party appealing to show specific due diligence or reasonable care to prevent the contravention and protect workers.

The Criminal Code amendments of 2004, on the other hand, exclusively focus on whether it can be established, beyond a reasonable doubt, that a crime of criminal negligence has occurred. Criminal negligence is not about violation of an OHS standard or a failure to exercise reasonable care. It’s about the circumstances — whether the tragic workplace incident in question occurred due to recklessness or complete lack of regard for safety. 

The detailed provisions of the Criminal Code create a high bar for successful prosecution. Simply put, it is still extraordinarily difficult to convict an organization of criminal negligence. This is often not appreciated by those pushing for corporate criminal charges and penalties. For organizations or corporations, complex requirements need the Crown to prove beyond a reasonable doubt that the business failed to meet the standard of care expected. 

For individual supervisors, managers and even workers, it must be shown that breach of a duty occurred that is such a marked and substantial departure from the conduct of reasonably prudent persons that the crime of criminal negligence occurred. Prosecutions for criminal negligence face the highest level of judicial scrutiny as to whether an organization or individual committed a crime. 

Due to the seriousness of Criminal Code allegations and the intrinsic difficulties in proving the standard of negligence — or wanton and reckless disregard beyond a reasonable doubt — organizations, corporations and individuals facing criminal charges often proceed to trial. Criminal trials might generally explore OHS legislation and standards prudent in the circumstances as a backdrop. But the issue is not whether an organization has exercised reasonable care in the circumstances, how to improve workplace safety or how the workplace can improve worker safety in the future. They are all about whether a criminal prosecutor can prove an offence to the high standard required under the Criminal Code of Canada. 

There has still, despite all the interest and effort in pressing for Criminal Code prosecutions against corporations, not been a single Canadian case where the Crown has succeeded in proving criminal offences at trial. Three corporations have pleaded guilty. While some might view the lack of convictions as reinforcing the need for more prosecution, it’s my view that these criminal cases demonstrate the focus on procedural proof and not, sadly, on means to improve safety.

As radical as this may sound, it may be time to ask safety professionals, worker representatives and legislators whether more effective mechanisms could exist, rather than penalizing organizations and individuals, and assuming others will be deterred. Some initiatives may include: 

• New business OHS requirements, such as legislating requirements that new businesses obtain minimum, required standard OHS expert-assistance prior to start-up to establish policies, procedures and training specific to the business, based upon a meaningful risk assessment. Could the requirement to show the government an OHS business plan assist as a proactive measure to raise the safety bar? Businesses could theoretically also be required to self-audit against standards of due diligence before and after start-up.

• OHS legislation and guides on reasonable care and due diligence could allow businesses to understand and comply with complexities of hazard assessments, proper training, competent supervision, need for monitoring, communication and ongoing reminders and safety enforcement. Little government guidance exists on specific court-required measures of reasonable care and due diligence. Prescribed steps or guidelines could make these best practices clearer. Self-auditing could be part of potential OHS compliance orders. Could this improve safety more than the blunt tools of current compliance orders and prosecution?

• Corporate or organizational probation requiring meaningful OHS change after conviction of an offence. In some jurisdictions, OHS prosecutors refuse to seek creative sentences that could include corporate probation. Probation could require court-monitored direction to make specific, meaningful change to OHS relating to an infraction, with or without assistance of external OHS professionals. Would this help achieve more meaningful and long-lasting change to corporate safety systems, especially where they are found lacking by a court?

• Use of monetary penalties for OHS purposes in an attempt to prevent incidents before they occur, instead of government general revenue funds. If prosecution is to continue, should proceeds go toward useful, preventative safety measures (even supporting some of the above potential measures) rather than penalizing businesses after a tragedy? Currently, OHS penalties imposed in some provinces go to the municipality in which the contravention occurred to fund court systems. Criminal Code penalties go to general revenue funds.

If safety goals include raising the overall level of safety awareness, compliance with standards and laws, attitudes, proactive correction and prevention, I suggest we ask, “Are trials with resulting fines and penalties or administrative fines achieving this? Do lengthy Criminal Code proceedings raise the level of safety in our workplaces?” Or is there a better way? 


SIDEBAR
Criminal negligence prosecutions 

Below are select cases where both OHS proceedings (prosecution or administrative monetary penalties) and Criminal Code criminal negligence were pursued. 

R. v. Weyerhauser
A worker at this company’s mill was engulfed by wood waste and asphyxiated in November 2004.
OHS: WorkSafeBC imposed an administrative monetary penalty of $250,000 
Criminal Code: Criminal negligence causing death charges commenced directly by the United Steelworkers’ Union. The Crown prosecutor concluded in 2011 that deficiencies existed, but there was no evidence that management knew of the risk that lead to the fatality and failed to address it, as required for corporate criminal prosecution. The criminal negligence charges were stayed and there was no criminal conviction or penalty.


R. v. Hritchuk 
Three workers were burned while transferring gas at a car dealership where Mark Hritchuk was the service manager. The specialized device they were using had not been working for some time. 
OHS: The company was charged and pleaded guilty under Quebec Loi sur la santé et la sécurité de travail. An OHS penalty of $10,500 was implemented.
Criminal Code: In May 2007, Hritchuk was charged with criminal negligence causing bodily harm. He pleaded guilty to the charge of unlawfully causing bodily harm contrary to section 269(a) of the Criminal Code and the criminal negligence charges were withdrawn. In imposing the discharge, the Crown considered the fact that Hritchuk has no intention to injure workers and he was suffering from difficult personal circumstances at the time.


R. v. Dunford
Keith Dunford was a professional truck driver. Speeding and distracted, he struck and killed a flag person in a construction zone.
OHS: No OHS charges or penalty.
Criminal Code: Dunford was charged with criminal negligence causing death and dangerous operation of a motor vehicle causing death. At trial, the criminal negligence charges were dismissed because the Crown did not prove wanton and reckless disregard for lives and safety of others. Conviction of dangerous operation of a motor vehicle causing death under the Criminal Code occurred. Dunford was sentenced to two years less a day in jail, plus a three-year driving suspension. The sentence was upheld on appeal on Jan. 9, 2017.


R. v. Hoyeck 
A mechanic was killed in September 2013 while removing a gas tank from a van with an acetylene torch.  
OHS: Twelve charges under the Nova Scotia OHS act commenced and are apparently still pending, but there is some doubt as to whether they will proceed due to a lengthy delay and the Charter right to a “trial within reasonable time.” OHS charges related to maintenance of equipment, instruction, training and supervision and compliance with CSA standards were imposed.
Criminal Code: Elie Hoyeck, the owner of the garage, was charged under the Criminal Code with criminal negligence causing death. He was not present at the time of the events and specifically did not direct the use of the torch. Despite numerous health and safety shortcomings, there was no finding of criminal negligence causing death.

R. v. Wood 
The roof of the Algo Centre Mall in Elliot Lake, Ont., collapsed in June 2012, resulting in deaths of two civilians. Robert Wood was one of several engineers involved in inspecting the mall.
OHS: Ontario OHS charges commenced against the engineer for endangering a worker as a result of providing negligent advice and working in a manner that may endanger a worker. The charges may still be pending, but it’s unlikely to proceed due to a delay and the Charter right to “trial within reasonable time.”
Criminal Code: Wood was charged with criminal negligence causing death under the Criminal Code. But the mere departure from an expected standard for prudent engineering or an error in judgment was not sufficient to establish criminal negligence. The Crown did not prove wanton and reckless or unrestrained disregard for the lives or safety of others. The criminal negligence charges were dismissed.

R. v. Detour Gold and three supervisors
In June 2015, a worker was fatally injured due to acute cyanide intoxication, via skin absorption, while he was fixing a leak in the mine’s refinement facility. 
OHS: Ontario OHS charges were withdrawn upon a plea by Detour Gold to the Criminal Code criminal negligence charge. Ontario OHS charges against three individuals relating to PPE, instruction and supervision were stayed due to delay and the violation of the Charter right to “trial within reasonable time.” This decision is under appeal.
Criminal Code: Detour Gold was charged with and pleaded guilty to criminal negligence causing death. A penalty of $1.4 million plus surcharge was imposed under the Criminal Code. The Criminal Code charges against the three supervisors were withdrawn upon the guilty plea by the corporation.

R.v. Rainbow Concrete
A Rainbow worker was driving a dump truck and was killed in February 2017 when an archway collapsed on top of the cab of the truck.
OHS: Twelve OHS charges against Rainbow Concrete were withdrawn on the plea to criminal negligence
Criminal Code: Rainbow and company owner Boris Naneff were charged. Rainbow pleaded guilty to criminal negligence causing death in February, 2019. The charge against Naneff was withdrawn. Rainbow was fined $1,000 by the court and was given 18 months to pay the worker’s family a total of $200,000 ($150,000 in addition to the $50,000 the company had already provided to them).

This article originally appeared in the June/July 2019 issue of COS. 

Cheryl A. Edwards

Cheryl Edwards is a former occupational health and safety prosecutor with almost 30 years of experience. She can be reached at (647) 777-8283 or cedwards@mathewsdinsdale.com, or visit www.mathewsdinsdale.com for more information.
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