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Companies and individuals charged under the Ontario
Occupational Health and Safety Act may ask the prosecutor to
provide the Ministry of Labour inspector's criminal record, an
Ontario court has ruled.
And the prosecutor, when faced with such a request, must
carefully consider it.
The case arose out of a grievance filed by the Ontario Public
Service Employees' Union after a Ministry of Labour prosecutor
provided an inspector's criminal record to a defendant facing
Occupational Health and Safety Act charges. (The
Supreme Court of Canada held in 2009 that criminal prosecutors were
required to disclose criminal records of police investigators if
the record could reasonably impact on the criminal
proceedings). The Ministry of Labour inspector had previously
been convicted of assault. The union filed a policy grievance
against the practice of providing inspectors' criminal records
to defence counsel, and argued that defence counsel should be
required to bring a special motion to the court for an order
requiring the police to produce the criminal record.
The Ontario Divisional Court, on appeal from the Grievance
Settlement Board, disagreed with the union. The court stated
that a Ministry of Labour inspector, like a police officer, has the
role of "investigator, accuser and witness" and that
"there is no reason to think an inspector's criminal
record will have less bearing on the right to make full answer and
defence in a regulatory proceeding [such as OHSA charges] than a
police officer's record in a criminal prosecution".
As such, defence counsel was entitled to request the
inspector's criminal record, and the prosecutor was required to
consider the request. However, the court ordered prosecutors
to follow a process including notice to the inspector whose
criminal record has been requested.
Ontario v. O.P.S.E.U., 2012 CarswellOnt 6293 (Div.
Ct.)
About Fraser Milner Casgrain LLP (FMC)
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