Criminal prosecutions appear to be rising for health and safety crimes: Norm Keith

Close-up Of Businessman Hand Holding Metal Bars In Jail with dark environments

The enduring legal legacy of the Westray Mine disaster in Nova Scotia is the Bill C-45 amendment to the Criminal Code that established the new crime of occupational health and safety (OHS) criminal negligence for individuals and organizations.

Often referred to as the Westray Bill, it introduced a legal duty and accountability for corporate and individual persons to take “reasonable steps to prevent bodily harm” in the Criminal Code. Recent charges in Ontario, and elsewhere in Canada, have seen an increase in the use of the Westray Bill as an enforcement mechanism.

Background

On May 9, 1992, twenty-six miners died at the Westray Mine in Pictou County, Nova Scotia, when an explosion and fire ripped through the underground coal mine. A failed criminal prosecution of two mine managers and the corporate mine owner, together with the withdrawal of 52 health and safety charges by the Nova Scotia regulator, were not the only legal consequences from that tragedy. There was a highly publicized public inquiry that made a number of recommendations including amendments to the Criminal Code.

However, the Westray Bill took a long time to be passed into law. On March 31, 2004, almost twelve years after the mining disaster, the Westray Bill became law.

Now a corporate employer may be found guilty of OHS criminal negligence if one or more of its representatives (i.e., employees) are criminally negligent, its senior officer failed to take reasonable safety measures, and there are a significant causal connection between the conduct and the death or bodily harm of an individual and the corporate failures. In other words, an employer may now be charged and convicted for OHS criminal negligence causing injury or death from a workplace accident if it violates the legal duty in the Criminal Code.

That legal duty reads as follows: “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 the work or task.”

The offence is further complicated for an organization by the legal test for whether a corporate defendant is party to a negligence-based offence.

In the Criminal Code that provision is section 22.1. Section 22.1 has two elements that must be proven by the prosecutor, both of which must be proven beyond a reasonable doubt to convict a corporation of a negligence-based offence.

First, a representative (and two or more representatives will be treated as a single representative for the purposes of this section) of the corporation must be party to the offence.
Second, a senior officer must have failed to prevent the representative from being party to the offence and in failing to do so, the senior officer must have departed markedly from a standard of conduct that is reasonable in the circumstances to prevent the representative from being party to the offence.

Senior officer is defined in s. 2 of the Code as a representative, meaning any director, partner, employee, member, agent, or contractor of a corporation, who either creates corporate policy or is responsible for managing its implementation. The Westray Bill expanded corporate liability by eliminating the prosecution’s duty to prove that a person is a directing mind of the corporation responsible for creating policy.

To prove an accused corporation is guilty of OHS criminal negligence under s. 219 of the Code, the prosecution must prove beyond a reasonable doubt i) the identity of representative who was criminally negligent, ii) that the accused had a legal duty to take reasonable steps to prevent bodily harm, and iii) the accused showed a “wanton or reckless disregard for the lives or safety of others.”

Through the enactment of s. 217.1, the new legal duty to take reasonable steps to prevent harm to workers and any other person that is applicable to persons directing work. It also imposes a duty on those who either undertake or have authority to direct work. Directors, managers, and supervisors, as well as lower-level employees, including foremen and lead-hands could all have to duty to take reasonable steps to prevent harm to others.

The prosecution also must prove beyond a reasonable doubt that there is a marked and substantial departure for a finding of criminal negligence. The requisite mental element in criminal negligence is the minimal intent of awareness of advertence to, or wilful blindness to the threat to the lives or safety of others.

In addition to proving acts, or a failure to perform duties arising to the level of material and substantial departure, the prosecution must prove, pursuant to ss. 220 and 221 of the Code, that there was a significant causal connection between the conduct and the death or bodily harm.

Infrequent use of law

Some of the reasons the Westray Bill has been used infrequently may include the following. First, there has been limited training and awareness by police of the legislation and its importance. Since Canada has a hybrid policing model of a national police force, the RCMP, provincial police forces like the OPP, and local municipal police forces, it is difficult to enforce coordination and consistency in training on new laws. Second, there has been a growing role of OHS regulators in taking on a policing enforcement function in OHS regulatory enforcement.

Many provinces, including Alberta, Ontario, and Nova Scotia have increased the number of OHS inspectors and prosecutors (Ontario currently has 29 prosecutors).

Third, there continues to be no clear standard on what amounts to “reasonable steps to prevent bodily harm” in section 217.1 of the Criminal Code. In other words, police and Crown prosecutors have no standard or benchmark by which assess the acts or omissions of workplace parties when a serious incident has occurred.

In several Westray Bill cases I have been involved with, for example, the Crown prosecutors have pointed to provincial OHS regulations as the applicable standard. The problem with this approach is that either there is a parallel OHS prosecution — in which case the waters have been muddied on which prosecution takes precedence; or, if there is not a parallel OHS prosecution the regulator with greater experience than the police have decided there is not prima facie violation of the standard.

Police investigations

We are now seeing police often conduct a parallel investigation and a Crown prosecutor lay criminal charges, especially in workplace fatalities. This trend appears to have three main explanations.

First, they have received more training and have had more experience with the purpose and nature of the amendments to the Criminal Code. This has occurred not because the Westray Bill has established a legal duty regarding workplace safety alone, but because it deals with the legal test for the prosecution, sentencing and probationary orders for organizations, including corporate employers, for all criminal offences.

Therefore, when a corporation is investigated for fraud, money laundering, or tax fraud, those other provisions of the Westray Bill apply. Therefore, with more exposure through training and experience, the s. 217.1 legal duty has also been brought to the attention of law enforcement officials.

Therefore, when a serious or fatal workplace injury occurs, the police now know they need to look at the cause and circumstances more closely to rule out OHS criminal negligence.

Second, there is increased pressure from several sources to act when a worker is seriously injured or killed to seek criminal charges. This started in the early years after the passage of the bill with public advertisements by union leaders to charge companies and senior executives when a worker was fatally injured.

Then various mainstream media started assigning reporters to closely cover these events. And the proliferation of cellphone cameras turned everyone into a videographer of workplace tragedies. Family and friends of loved ones who were injured at work also found a stronger and louder voice to call for police investigations and criminal charges.

Third, the social intolerance of workplace injuries and fatalities has grown over the last decade. Partially due to the first and second factors, in the writer’s opinion, employers who do not take “reasonable steps to prevent bodily harm” to their workers are more open to serious criticism and demands for OHS criminal negligence charges than ever before.

There is a low social awareness of the high commitment that many companies and executives have to their workers safety, but there is a high social awareness and outrage when a worker is injured at work.

The follow-up question from the thesis of this article is: “What can we do to reduce corporate and criminal legal risk of being investigated and charged with OHS criminal negligence?” I’ll tackle that in my next column. In the meantime, give some thought to these three questions: What value does your organizations place on the health and safety of its employees? When is the last time senior officers and directors received meaningful OHS training? Has your organization ever actively ‘stress tested’ is OHS management system through scenario planning and analysis?

Think about those questions and stay tuned for my next article.

Norm Keith is partner, employment and labour law, at KPMG Law LLP in Toronto.