Changes To Criminal Code Significantly Impact Workplace Health And Safety Landscape

This article was originally published in Blakes Bulletin on Labour & Employment-November 2004

The passage of Bill C-45 on March 31, 2004 expands the criminal liability of organizations, and also broadens the range of individuals who are subject to charges under the Criminal Code. Bill C-45 provides for amendments to the Criminal Code of Canada which are intended to promote workplace safety and greater corporate responsibility. The Bill arose out of recommendations in a report of the House Standing Committee on Justice and Human Rights, which addressed workplace safety and corporate liability issues in the wake of the 1992 Westray mine disaster, in which 26 Nova Scotia miners were killed.

The most significant amendments to the Criminal Code are:

• company representatives acting in any supervisory capacity whatsoever are now subject to a strict duty of care, and

• corporations and other organizations are exposed to broader liability, not only for the actions or omissions of their "directing minds" (i.e., typically senior executives and other highly-placed decision-makers), but also for the actions or omissions of lower level employees, as well as agents and contractors.

These amendments are of great significance to employers and to individual supervisors who are, for the first time, subject to meaningful criminal sanctions in the sphere of occupational health and safety.

Traditionally, occupational health and safety matters have been dealt with almost entirely by provincial statutes and enforcement mechanisms.

In Ontario, for example, the Occupational Health and Safety Act (OHSA) prescribes the various duties of employers and supervisors, one of which is the blanket requirement to "take every precaution reasonable in the circumstances for the protection of a worker". The OHSA empowers Ministry of Labour inspectors to ensure that these duties are met, and sets out consequences for non-compliance. Although most compliance issues are dealt with simply by way of inspectors’ orders, the OHSA also provides a mechanism for initiating quasi-criminal prosecutions in more serious cases. Such prosecutions generally do not proceed unless an apparent contravention of the OHSA has been recurrent, or has resulted in a fatality or serious injury.

OHSA prosecutions proceed in provincial court, and can be brought against supervisors, officers, and corporations. If a supervisor or officer is found liable for a contravention of the OHSA, he or she may be punished by a fine of up to $25,000 and up to 12 months in jail. If a corporation is found liable, its maximum penalty is a fine of $500,000 for each count on which it is convicted. These potential consequences undoubtedly provide some deterrent to unsafe work practices; however, as a provincial statute, the OHSA does not go so far as to permit the assignment of actual criminal liability, which typically carries more serious penalties and greater social stigma.

As a supplement to provincial health and safety legislation, the Criminal Code has traditionally been an unwieldy tool. Historically, the most relevant offences prescribed by the Criminal Code, namely criminal negligence causing death or bodily harm, have been very difficult to establish in the workplace context.

Although both individuals and corporations could be subject to charges of criminal negligence, a corporation could not be convicted unless one or more of its "guiding minds" had exhibited the requisite "wanton or reckless disregard". Furthermore, because only senior executives and supervisors have been traditionally regarded as accountable for health and safety compliance, the range of individuals who have realistically been subject to direct criminal liability in connection with workplace matters has been quite narrow. Not surprisingly, therefore, the criminal negligence provisions of the Criminal Code have been very rarely invoked in the occupational health and safety sphere.

Overview. Bill C-45 represents the federal government’s effort to ensure that the weight of criminal sanctions can be more readily brought to bear in cases of serious health and safety violations. In that regard, the amendments expand the personal liability of supervisors at all levels, by establishing a broad duty of care applicable to "every one who undertakes, or has the authority, to direct how another person does work or performs a task".

The amendments also expand corporate liability for the acts and omissions of both executives and lower level employees. In fact, the very notion of "corporate" liability is broadened into one of "organizational" liability, that is, virtually all organizations (including, for example, corporations and trade unions) are now accountable for the conduct of their representatives. To facilitate this, Bill C-45 sets out wide definitions for the terms "organization" and "representative". In that regard, "organization" is defined to mean: (a) a public body, body corporate, society, company, firm, partnership, trade union or municipality, or (b) an association of persons that: (i) is created for a common purpose; (ii) has an operational structure; and (iii) holds itself out to the public as an association of persons. A "representative", in respect of an organization, includes "a director, partner, employee, member, agent or contractor of the organization".

In addition, the amendments outline specific criteria that courts are required to consider when sentencing organizations, and also include suggested terms of probation that courts may impose on organizations as alternatives to, or in addition to, monetary fines.

Broadened Personal Liability. Bill C-45 expands the direct application of criminal punishment to individuals within organizations. In that regard, it expressly prescribes the following duty of care:

This duty is broad enough to include officers, managers, and any other employee who functions in a supervisory capacity. Failure to meet the duty can form the basis of criminal negligence charges which can attract lengthy prison sentences, i.e., criminal negligence causing bodily harm is punishable by up to 10 years in prison, and the maximum penalty for criminal negligence causing death is life imprisonment.

There is no doubt that the potential for such severe consequences will motivate a proactive approach to occupational health and safety by supervisors at all levels. That is, one would expect the new duty of care to discourage any attitudes among lower-level supervisors that responsibility for ensuring worker safety lies higher up in the organization’s hierarchy; and to discourage any attitudes among upper-level management that that responsibility lies solely with supervisors who direct employees at the operational level. Essentially, every supervisor in an organization has been given a vested interest in maintaining a safe work environment.

Broadened Organizational Liability. Bill C-45 introduces the concept of holding organizations liable for the collective actions of their representatives. Essentially, it appears that an organization can now be found criminally negligent for the aggregate conduct of its representatives, despite the absence of "wanton and reckless disregard" on the part of any particular individual. On a practical level, this means that criminal negligence could exist where a workplace injury or death arises from a combination of actions or omissions on the part of multiple employees acting independently of one another. In such circumstances, the employer would be found liable if its senior officers (or "guiding minds"), while not necessarily criminally negligent themselves, could nonetheless have taken reasonable steps (presumably by way of either direct intervention or pre-emptively ensuring that appropriate policies and/or safeguards were in place) to prevent the injury or death.

Obviously, this concept of liability permits charges to be brought against employers much more easily than under the previous criminal negligence scheme. By eliminating the strict requirement to establish criminal negligence on the part of an organization’s "guiding mind(s)", Bill C-45 now allows prosecutors to aggressively pursue cases where it appears that an employer, as an organization, has created or permitted an unsafe situation in which a worker has been injured or killed. To ensure compliance with the new law, employers will no doubt wish to review their approaches to health and safety matters, to ensure that the collective responsibility concept is mirrored by a collective "due diligence" mentality throughout the organization.

Sentencing Criteria and Terms of Probation. In the event that an organization is convicted of a criminal offence, it is subject to a monetary fine. In the case of serious offences, such as criminal negligence causing death or bodily harm, there is no limit on the amount of the fine that a court may assess.

Apparently with a view to balancing the expansion of organizational liability against the mitigating factors that could exist in particular cases, Bill C-45 sets out 10 criteria that courts are required to consider in determining appropriate sentences. These include:

• the impact that the sentence would have on the economic viability of the organization and the continued employment of its employees;

• whether the organization was, or any of its representatives who were involved in the commission of the offence were, convicted of a similar offence or sanctioned by a regulatory body for similar conduct;

• any penalty imposed by the organization on a representative for their role in the commission of the offence;

• any restitution that the organization is ordered to make or any amount that the organization has paid to a victim of the offence; and

• any measures that the organization has taken to reduce the likelihood of it committing a subsequent offence.

In addition to prescribing these factors, Bill C-45 also contemplates the possibility of an organization being placed on probation as an alternative to, or perhaps in addition to, being criminally sentenced. In that regard, the Bill lists several possible terms of probation, such as requiring organizations to pay restitution to victims, requiring the implementation of new health and safety policies going-forward, etc.

Having regard to both the sentencing guidelines and the possible terms of probation prescribed by Bill C-45, there seems to be a clear intention to ensure that organizations will face consequences that fit their crimes. In that respect, organizations are subject both to corrective action and to criminal fines that take into account the extent to which they have already paid penalties (such as fines under the OHSA, for example) and/or have taken positive steps to address their health and safety issues.

In August 2004, police laid the first charges pursuant to Bill C-45. A construction supervisor in Ontario was arrested and charged with criminal negligence causing death after a worker under his supervision was killed. While it is obvious that there are many more workplace accidents that have not attracted criminal charges since the passage of Bill C-45, it seems clear that police will not hesitate to apply the new law in appropriate circumstances, and that it will not necessarily be reserved exclusively for tragedies on the scale of the Westray disaster.

Of course, the amendments prescribed by Bill C-45 are not intended to replace the provincial regulation of occupational health and safety. In that regard, it should be remembered that neither fines nor imprisonment are new to the health and safety sphere. Indeed, both types of penalty can flow from violations of the OHSA. Moreover, Bill C-45 does not depart from the foundational principle of provincial health and safety regulation: that is, that employers (as organizations) and supervisors (as individuals) are obligated to take every precaution reasonable in the circumstances for the protection of a worker.

Ultimately, Bill C-45 does not restructure health and safety obligations as much as it imposes more serious culpability for the failure to meet them. Under the amended Criminal Code, employers and supervisors will naturally feel more exposed to the consequences of failing to provide safe workplaces, and will also be more concerned by the severity of those consequences. With a view to ensuring compliance with the new law, employers should be proactive in:

• reviewing their health and safety policies, and making certain that accountabilities are clearly set out across levels of management/supervision;

• making supervisors at all levels aware of their obligations and potential liabilities under Bill C-45, and building health and safety compliance into their job descriptions; and

• designating an individual (or individuals) within the company as being responsible for monitoring (and enforcing) internal compliance with applicable health and safety policies.

Indeed, notwithstanding the new obligations and consequences that are created by Bill C-45, the most effective approach to safeguarding worker safety remains essentially unchanged, i.e., employers must approach occupational health and safety from a "team" perspective, and strive to ensure due diligence and accountability throughout their organizations.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.