OHS Canada 25th Anniversary Best Editorial

There Oughta Be A Law

March 2003

Ottawa has promised to table legislation that would help ensure corporations are held criminally accountable for poor safety practices on the job.

By: Nicolette Beharie & Angela Stelmakowich

The federal government is considering adding health and safety obligations to the Criminal Code. What would it look like? And what would it mean?

Westray. That single word is still enough to start many people talking, their heads shaking and their blood boiling.

That single word — and the deaths of 26 workers at a mine of that name in a small Nova Scotia town in 1992 — also has a lot to do with Ottawa's recent promise to table legislative amendments to ensure corporations and individuals can be held criminally accountable for poor workplace safety.

The legal aftermath of the Westray mine explosion was doubly galling to many, who feel that justice was not served. First, the charges under the occupational health and safety legislation were stayed in favour of pursuing manslaughter and criminal negligence charges against Curragh Inc., owner of the mine, and two Westray managers. Then, in mid-1998, Nova Scotia's Crown prosecutors entered a stay on the criminal charges as well, saying there appeared to be no reasonable chance of conviction.

As a result, no company or individual was ever held to account for the appalling conditions that Justice K. Peter Richard, commissioner of the Westray Mine Public Inquiry later called "a complex mosaic of actions, omission, mistakes, incompetence, apathy, cynicism, stupidity and neglect."

Now the federal government appears poised to answer lingering doubts about a criminal justice system that seemed powerless to act. "Employers need to be held fully accountable for safe work environments," federal justice minister Martin Cauchon said in the House of Commons last November as he announced plans that the government will modernize corporate criminal liability in a way that is consistent with our current criminal law and its traditions.

The specific amendments will not be introduced until the spring session of Parliament. Ottawa's approach will revolve around massaging the Criminal Code of Canada, building on criminal negligence provisions rather than making special offences applicable only to corporations.

Ottawa's commitment comes 10 years after the Westray mine explosion and five years after the release of Justice Richard's report. "The Westray story concerns an event that, in all good common sense, ought not to have occurred. It did occur — and that is our unfortunate legacy," the report says.

Among his 74 recommendations, Justice Richard called on the Government of Canada to institute a study of the accountability of corporate executives and directors for the wrongful or negligent acts of the corporation. Following that, Ottawa should table legislative amendments as are necessary to ensure corporate executives and directors are held properly accountable for workplace safety, he wrote.

Ottawa's proposals are outlined in its response to the 15th Report by the House of Commons Standing Committee on Justice and Human Rights on workplace safety and corporate liability. The standing committee's lone recommendation was that the government table legislation to address the criminal liability of corporations, directors and officers.

Criminal negligence

What the government is proposing focuses on corporate accountability, but appears to take a more expansive approach than that contemplated by Justice Richard. In a letter to the United Steelworkers of America (USWA), justice minister Cauchon provided assurances that "the proposals respond directly to the Westray tragedy by, for example, placing in the Criminal Code an explicit duty for all persons employing workers or directing their work to take reasonable measures to avoid foreseeable harm to the person or the public. Wanton or reckless disregard of this duty leading to death or bodily harm would form the basis of a charge of criminal negligence."

Ottawa proposes enshrining that duty in a new section 217.1 of the Criminal Code, which currently states: "Everyone who undertakes to do an act is under a legal duty to do it if an omission to do the act is or may be dangerous to life."

A close reading of that section makes it clear that employers, directors and supervisors, who are already under a legal duty — in the various oh&s acts — to do "everything reasonable in the circumstances" can be found guilty of criminal negligence if their failure to do so leads to a workplace fatality.

Under the proposed changes, a corporation could also face charges under the Criminal Code in the following circumstances:
• as a result of the actions taken by those who oversee day-to-day operations but who may not be directors or executives;
• if employees with executive or operational authority personally commit the offence — for the benefit of the corporation and when done intentionally — or become aware of offences being committed by other employees and do not take action to stop them; and
• when the acts of persons with authority and other employees, taken as a whole, demonstrate a lack of care that constitutes criminal negligence.
The long-awaited proposals have gained favour with union members who view them as a step in the right direction. Other stakeholders, however, are more cautious in their praise. "We strongly believe that it will bring to the corporate board meetings the issue of health and safety and the environment in the workplace," says Lawrence McBrearty, the USWA's national director for Canada.

But Ian Howcroft, vice-president of the Ontario division of the Canadian Manufacturers and Exporters, a business association, warns the proposed legislation could do more harm than good. Noting that the possibility of significant fines and jail times already exist under provincial oh&s legislation, Howcroft says further sanctions under the Criminal Code could cause corporate leaders to rethink their decisions to sit on boards as directors. Whatever the specific wording of the legislative changes, the government response emphasizes that oh&s acts and regulations will continue to serve as the first line of defence against death and injury in the workplace. "The government does not intend to use the federal criminal law power to supplant or interfere with the provincial regulatory role in workplace health and safety. At the same time, the government believes that [the Criminal Code] can provide an important additional level of deterrence if effectively targeted at — and enforced against — companies and individuals that show a reckless disregard for the safety of workers and the public."

Directing mind

Canada now employs an "identification" theory as its basis for corporate liability, which assigns liability to a company when a crime is committed by certain senior employees, namely the "directing minds" of the corporation. The criminal law insists that the person who commits the physical act, actus reus, must also have mens rea, a guilty mind, before that person can be found guilty of a criminal offence.

The proposed changes are a departure of sorts, a shift deemed necessary because today's corporations may have only a passing resemblance to the simpler models considered by the courts in developing the common law.

"The 'directing mind' model does not reflect the reality of corporate decision making and delegation of operational responsibility in complex organizations," the government says. "The class of persons capable of engaging the liability of the corporation should be expanded to include individuals who exercise delegated operational authority."

Where the crime is negligence, the government response notes, corporate criminal liability should be based on the actions and moral fault of the corporation as a whole. The change would mean that, in a Westray situation, it may not be possible to show that any single person had acted in a criminally negligent manner. But "it would still be possible to obtain a conviction of the corporation on the basis that, cumulatively, there was criminal negligence."

The response notes there is no need seen for any change in the criminal law dealing with the responsibility of directors and officers. As individuals, they are already liable for their personal actions.

The question remains: Will the proposed changes actually enhance workplace safety? Lamenting that the Westray case could have benefited from the legislation now being considered, McBrearty says the stringent penalties will serve as a tool to promote accident prevention.

"We don't want senior managers to be criminally charged," adds Roger Falconer, department head of organizing and strategic campaigns for the USWA. "We want the workplace to be safe and healthy."

Cheryl Edwards, a partner with the law firm Stringer Brisbin Humphrey in Toronto, says, generally speaking, she does not believe criminal sanctions for unsafe corporate practices will necessarily have that effect. Edwards points to a few reasons, including that criminal charges have been unsuccessful in the oh&s context because they require proof that an individual had the intent to cause harm.

"That basically requires outrageous behaviour, extremely serious behaviour. And so it is very rarely, if ever, going to be, in my view, the subject of a charge, let alone a conviction. And that's been our history in Canada," she explains.

Regulatory laws, on the other hand, are focused on the measures identified as being able to help prevent accidents, says Edwards. Employers must take steps — such as training, hazard assessment and policies — or punishment could result.

The Aussie experience

Australia is among a handful of jurisdictions where the issue of criminal liability in the area of oh&s has been hotly debated at various levels of government across its states and territories.

As it stands, there is currently no industrial manslaughter legislation in any state or territory of Australia. And only the Western Australia and the Australian Capital Territory (ACT) governments still have this type of legislation on their agenda. On December 12, 2002, the Crimes (Industrial Manslaughter) Amendment Bill 2002 was tabled in the ACT legislative assembly. The proposed legislation provides for stringent penalties including a maximum fine of 250,000 $Aus and imprisonment for up to 25 years for individuals, and fines of up to 1.25 million $Aus for corporations. The bill has been referred to the standing committee on legal affairs, which must report back to the assembly this spring.

In Victoria, the Crimes (Workplace Deaths & Serious Injuries) Bill was tabled in Parliament in November of 2001 by the Australian Labour Party government, headed by Steve Bracks. Last spring, the controversial bill was defeated in the Upper House when the opposition voted against it.

Gina Capasso, a lawyer with Blake Dawson Waldron in Australia, says many supporters believed the legislation would send a message to rogue employers that gross negligence is not acceptable. "It was thought that tougher penalties and greater responsibility on individuals and corporations would heighten the responsibility of employers to maintain a safe and healthy workplace and reduce injury and deaths at the workplace."

But critics of the bill thought just the opposite, says Capasso. Employers at the time expressed concerns that "the legislation would impose a focus on fines and jail times rather than a mutual responsibility and balanced approach to prevention and deterrence of injury and death in the workplace."

Last November, it looked like the proposed legislation would be revived with the re-election of Bracks as premier. But those hopes were dashed when Bracks announced the government will not reintroduce industrial manslaughter reforms. Instead, the government plans to tighten and strengthen the current oh&s regime.

No floodgates

So what happens in this country if the proposed changes come to pass? If a company is a good corporate citizen, says Ray Wagner of Wagner & Associates in Halifax, it will be business as usual. "It's really going to affect rogue companies that are going to attempt to come in and exploit and then leave without any ramifications," says Wagner, a lawyer who represented family members of some miners killed at Westray in their negligence lawsuit against the Nova Scotia government.

Wagner says no floodgates will be opened with the new changes. Crown prosecutors "are not going to be pursuing every error, mistake or judgement that somebody has made, only the very special circumstances where people engage in criminal activity."

David Myrol, a Crown prosecutor in Alberta who handles many of that province's oh&s cases, suggests that approach may be entirely appropriate. The federal government has acknowledged the primary mechanism for enforcing a safe workplace will be through the regulatory provisions, such as the provincial oh&s acts, and that the Criminal Code will only be invoked as an instrument of last resort, says Myrol. The benefit will be that "we'll see an increased ability of the criminal law to respond to cases involving complex corporate structures."

There have been only a handful of prosecutions involving criminal negligence in an oh&s context, none of which have both proceeded to trial and ended in a conviction.

One case currently before the courts revolves around a deadly explosion and fire at Hub Oil Company Ltd.'s oil recycling facility in Calgary. The August, 1999 event claimed the lives of two workers and injured several others. Ryan Eckhard and Ryan Silver died in the blaze that raged for several hours and forced the evacuation of nearby residents. The eight criminal charges against Hub Oil include two counts of criminal negligence causing the deaths of Eckhard and Silver; five counts of criminal negligence causing bodily harm for the injuries of employees, a customer, and passers-by; and one count of committing an illegal act, which endangered public health and safety.

Jason Chance, spokesperson for Alberta Justice, says no criminal charges have been laid against any of the Hub Oil executives.

Thus far, the Hub Oil case serves as an example of how drawn out the criminal process can be. The long-awaited trial is set to begin August 25 — more than four years after the explosion.

While criminal negligence charges are rare, Crown prosecutors and the courts appear similarly reluctant to pursue jail terms and probation for oh&s offences, even though most related legislation allows for such remedies. The exceptions include the following:
• the owner of an Ontario construction company was fined $70,000 and sentenced to six months in jail in February, 1993 following a fatal accident;
• a supervisor with Vantastic Holdings Ltd. in British Columbia was ordered to serve 45 days imprisonment for two violations of the provincial Occupational Health and Safety Regulation. He was operating an airbrake-equipped vehicle that lost its brakes, causing an accident that killed one passenger in June, 1996;
• the co-owner of Jetter's Roofing and Wall Cladding Inc. was fined $10,000, placed on probation for 18 months and ordered to enroll in an oh&s course. He was found guilty of two breaches of Ontario's oh&s act after a young worker was electrocuted in September, 1998; and,
• a former supervisor with New Sun Cookies in Ontario received a 20-day jail sentence, to be served on weekends, in 2000 for his failure to ensure exposed moving parts of a horizontal ribbon mixer were guarded. David Ellis, 18, suffered fatal injuries.

Lawyer Cheryl Edwards notes that the Criminal Code provides for probationary terms and suspended sentences, and can require that people take certain actions, or face penalties. "So the barrier isn't so much the unavailability of the legal provisions," she says. "It's the hesitancy of prosecutors because they have completely bought into the idea that sentencing is all about deterring, about wielding the big stick, about hitting companies in the pocket book, so that they're not availing themselves even of the kind of options that are available."

Rather than making "a lot of noise about publishing the high fine that they got" and providing the basic, gruesome details of an accident, it would be more beneficial to disseminate information about the root cause of an accident and preventive measures, she says.

Edwards cites the Ontario case of R. v. Van-Rob Stampings Inc., saying the whole goal should be to change behaviour. The company received an "outrageously low" fine of $5,000 in connection with an amputation injury, she says. But it was placed on probation and, during that period, had to write to every member of the Automotive Parts Manufacturers' Association to tell them about the accident and the hazards discovered, she says.

Sherri Helmka, executive director of the Employers' Advocacy Council, believes most employers are duly diligent. "I'm not so sure there's a lot of criminal activity going on anyway in the employer community right now, as far as workplace health and safety." The oh&s acts, Helmka adds, already impose a legal duty on employers.

But federal NDP justice critic Bill Blaikie says provincial legislation on its own is not sufficient. "They want these kinds of things to be dealt with strictly within the realm of laws having to do with occupational health and safety and we're saying some things go beyond that," says Blaikie. "Some things are criminal and that there should be provisions in the Criminal Code that deal with this."

Ray Wagner notes that "whenever there is initial changes in legislation, there's always a hoopla about the darker side of what that legislation could mean."

Use of the new provisions in only selective cases, however, will bring "people back to understand that it is only in special circumstances and it really does not have a great impact upon the majority of the good corporate citizens that exist in this country."

Myrol expects that the proposed changes will hardly be noticeable in terms of the number of cases that are pursued under the Criminal Code. But he views the proposals as fundamentally important when you have cases like the Westray mining disaster. "Those types of rare, high-profile cases, they attract a certain amount of community interest, community attention, and a lot of damage can be done to the public confidence and the administration of justice if the criminal law cannot respond to those types of situations."

Angela Stelmakowich is associate editor of ohs canada. Nicolette Beharie is assistant editor.

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The little cases that couldn't

Canada has witnessed a handful of prosecutions in which criminal negligence causing death charges were laid following a workplace accident. To date, there appears to have been no convictions.

In R. v. Kuhle, a miner at the Levack Mine near Sudbury, Ontario was found not guilty of four counts of criminal negligence causing death.

Joseph Kuhle was in the mine shaft above where four workers were doing an inspection on April 14, 1987. Kuhle opened a gate above him to lubricate the pressure system that kept the gate closed, says a 1988 ruling by the Ontario Provincial Court. He did not consider that the opened gate would pose any risk and "unknown to the accused, the ore behind the gate was wet."

The wet muck slid down to and over the guillotine gate, eventually through the holes in the brattice and screening and onto the men below.

Upon beginning work, Kuhle found no sign of any dangerous wet ore. The evidence suggested wet ore occurred only occasionally and large-scale spills were rare.

Kuhle broke two basic rules of mine shaft work — beware of wet ore, and never work above anybody else — but the court found that his actions were not inherently criminal. "Although the accused's actions were much less than that expected of the prudent man, they did not evidence a wanton and reckless disregard for the safety of others."

In R. v. Syncrude Canada Ltd., the company was acquitted in the early 1980s of two charges of criminal negligence causing death laid in the asphyxiation deaths of two young contract workers.

The employees of Western Stress Relieving Servicing Inc. were doing repair work during a shutdown of Syncrude's plant near Mildred Lake, Alberta. The two men died on January 31, 1981 as a result of asphyxiation due to a nitrogen atmosphere in a closed space, says the Alberta Court of Queen's Bench decision released on May 4, 1983. While servicing a reactor vessel, one worker dropped a wrench inside. He entered the reactor to retrieve the tool, but collapsed. His co-worker attempted a rescue and was also overcome.

Syncrude had extensive safety policies in place, the ruling says, although deficiencies were identified in, among other areas, training, signage and a safe work permit that did not disclose the nitrogen atmosphere. Western Stress had held previous contracts with Syncrude.

The Crown argued the alter ego or directing mind of Syncrude was the individuals entrusted with issuing safe work permits. The defence countered "the Crown has erred in confusing the arms and legs of the company with its mind and will, and one must look to the policy-makers in the area of safety to determine the directing mind of the company."

After considering the evidence, the justice noted: "Can it be said beyond a reasonable doubt that the actions of Syncrude or its employees constituted such a reckless or heedless devil-may-care disregard for the lives and safety of others. I think not."