The author of the following post, Cheryl A. Edwards is a former Ontario Ministry of Labour OH&S prosecutor and now leads Heenan Blaikie’s national OHS and WSIB practice group. Cheryl is recognized as one of Canada’s leading lawyers in workplace safety and insurance and occupational health and safety law. Contact her at firstname.lastname@example.org.
Bill C-45 Westray Act: Questions answered
Bill C-45 amended the Criminal Code to create new duties and possible criminal liability for individuals and organizations, which include corporations. Because of the complexity of these Criminal Code requirements, and the amount of time that has been passed since they became law in March 2004, we’ve provided some answers to key questions about the Bill C-45 amendments:
Is the new Criminal Code duty different from OH&S duties to take all reasonable precautions or all reasonable care? How?
The new duty found in section 217.1 of the Criminal Code 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”. “Everyone” includes individuals, organizations as broadly defined, and corporations.
This duty parallels traditional OH&S standards, but also expands on the matters contained in most OH&S statutes. The duty applies to any individual with authority to direct another person in the performance of work, while OH&S legislation generally imposes duties on employers, supervisors, constructors, owners, directors and officers. The Criminal Code may apply more widely to anyone who “undertakes” to direct work, including lead hands and working forepersons.
The Criminal Code duty also requires that reasonable steps be taken to prevent bodily harm to any person, which would include the public or volunteers who may enter the workplace or be affected by workplace activities.
Does violation of the Criminal Code duty mean we are guilty of criminal negligence?
Breach of the Criminal Code duty does not necessarily mean that an organization or individual is guilty of criminal negligence. In order for a breach of the duty of care to amount to criminal negligence, the Crown must prove beyond a reasonable doubt in court that the breach of the duty occurred in a “wanton or reckless” manner.
Section 219 of the Criminal Code states that, “Everyone is criminally negligent who (a) in doing anything, or (b) in omitting to do anything that it is his duty to do, shows wanton or reckless disregard for the lives or safety of other persons.” The provisions of Section 219 broadly state that for the purposes of the criminal negligence section, Section 219 of the Criminal Code, “duty” means a duty imposed by law.
Criminal cases have found that for criminal negligence to occur, a breach of a duty must represent a “marked” and significant departure from the standard of a reasonably prudent person in the circumstances. There must be more than mere failure to meet an OH&S or Criminal Code standard through inadvertence. There must be evidence of behaviour which shows complete disregard for, or indifference to the duty. As one court put it, there must be a finding of a “devil-may-care” attitude that shows a criminal standard has been met.
Wasn’t Bill C-45 all about creating criminal liability for directors and officers?
Not exactly. While the Westray inquiry which concluded in 1997 recommended that Canada “amend or introduce legislation to ensure that corporate executives and directors are held properly accountable for workplace safety and the wrongful and negligent acts of their corporations,” ultimately Bill C-45 created a mechanism which allowed corporations to be more readily convicted of criminal negligence. The Criminal Code continues to allow individual charges of criminal negligence, which could include charges against a supervisor, or director or officer, for breach of a duty in a wanton or reckless manner, but that was not the primary focus of the Bill C-45 amendments when they were passed and came into force in 2004.
Does Bill C-45 create both corporate and individual criminal liability?
Yes, it does both. The provisions create new criminal duties and liabilities for both individuals and organizations (which are defined to include corporations). Both individuals and organizations can now be convicted of criminal negligence for failure to perform the duty, when it occurs in a manner that shows wanton or reckless disregard for the lives or safety of others.
What is necessary for an organization (including a corporation) to be convicted under the Criminal Code of criminal negligence?
The process for convicting an organization of criminal negligence in the workplace safety context involves two steps. First, the Crown must prove beyond a reasonable doubt that the actions of a single representative (employee, partner, contractor, agent of the organization) breached the Criminal Code duty in a wanton or reckless way. This could involve reckless ignoring of safety rules or physical protective devices where the potential result is serious harm or death.
Second, after the breach of duty is established, the Crown must then show that a senior officer with operational or executive authority, or as drafters put it, someone with “real clout” who is responsible for the part of the organization involved in the breach, either failed to act or insulated themselves from obtaining the knowledge to act. The Crown has to prove a marked departure from what would reasonably be expected of a senior officer with obligations to protect workers and the public.
What are the potential liabilities under the Criminal Code provisions as amended by Bill C-45?
For individuals, the maximum penalty for criminal negligence causing death is life imprisonment, and the maximum penalty for criminal negligence causing bodily harm is ten years’ imprisonment. However, individuals are subject to a range of Criminal Code sentencing options from absolute discharge, to probation, to life in prison, depending on the specific circumstances of the contravention.
Organizations, including corporations, are subject to different penalties depending on how the Crown proceeds. Where the Crown proceeds by summary conviction (the least serious manner of proceeding), the maximum fine is $100,000 for an organization.
Where the Crown proceeds by indictment (the most serious manner of proceeding), there is no limit on the amount of the fine for the corporation or organization.
Organizations may also be placed on probation and the terms of a probationary order can include such matters as: requiring the organization to make restitution, financial or otherwise, relating to the offence; requiring the organization to report to the court or the public on implementation of remedial steps; requiring the appointment of a senior officer to be responsible for implementing remedial procedures; requiring the organization to disclose its conviction to the public.
Probation orders including these types of terms are available in addition to monetary penalties.
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Ref: Canadian Occupational Safety
Article Link: http://www.cos-mag.com