In May 1992, twenty-six miners died in an explosion at the Westray Mine in Nova Scotia. A public inquiry into the explosion concluded that the criminal prosecution of the owners of the mine had failed because the criminal law was ill equipped to address workplace health and safety issues. The inquiry recommended, in part, as follows,
The Government of Canada, through the Department of Justice, should institute a study of the accountability of corporate executives and directors for the wrongful or negligent acts of the corporation and should introduce in the Parliament of Canada such amendments to legislation as are necessary to ensure that corporate executives and directors are held properly accountable for workplace safety.
On March 31, 2004, four bills, one motion, and seven years later, Bill C-45 became law and amended the Criminal Code of Canada.
These amendments extend the bases on which individuals and organizations (companies, municipalities and other associations) can be prosecuted for the offence of criminal negligence in relation to workplace accidents. The amendments also extended and clarified the routes through which such charges can be proven.
The Extended Bases
Traditionally, individuals and organizations were criminally negligent if they showed a wanton or reckless disregard for the lives or safety of others when they did something, or when they failed to do something that they were under a duty to do.
The 2004 amendments did not change that traditional interpretation of the law. They did, however, impose a new criminal law duty on all those who undertake work or have the authority to direct how work is done. The duty requires such parties to take reasonable precautions for the protection of workers and the public. A breach can be prosecuted as criminal negligence in the event of an injury or death.
The Extended Routes
Historically, organizations could be convicted of criminal negligence only if the "directing mind" of the organization committed the criminal act.
However, under the 2004 amendments, organizations can be convicted of criminal negligence, even when no one individual within the organization has, on his or her own, committed an offence. A court can convict an organization as a party to the offence if the aggregated acts or omissions of its representatives1 and senior representatives2, constitute an offence. Parties to an offence are as liable under the criminal law as those who commit the offence directly.
Sentencing
In addition to changing the bases and routes for criminal negligence prosecutions, the 2004 amendments also expanded the rules for sentencing. Some aspects of the prior sentencing regime, such as the availability of fines and probation, have been carried over. Others, however, are entirely new and unique.
For example, under the amendments, a court can order an organization to implement specific corrective measures that touch on any aspect of an organization's operations. As well, the court can order the organization to submit the implementation of those measures to court monitoring, and to report on the implementation of those measures to both the court and the public.
Going Forward
On December 7, 2007, Transpavé Inc., a Québec paving-stone manufacturer, pleaded guilty to one count of criminal negligence causing the death of one of its workers. On March 17, 2008, a conviction was entered and sentence imposed.
This was the first criminal conviction of an organization under the 2004 amendments for a workplace accident. It is not likely to be the last. Police Services now routinely attend to investigate at job sites where workplace accidents have resulted in injuries or fatalities. The amendments to the criminal law have moved from theory to practice.
Cynthia R. C. Sefton represents a variety of industries in the investigation and defence of claims related to large disasters, including fires and explosions. Over the past 30 years she has assisted clients, including municipalities and public utilities, with risk assessment and management issues, and with issues related to product liability, construction projects, due diligence, environmental liability, occupational health and safety, employment law and contract issues.
David S. Reiter practice builds upon his eight years of experience as a criminal defence trial lawyer and focuses on the defence of individuals and companies charged with quasi-criminal and regulatory offences. He has acted as lead counsel in over 50 trials, and regularly assists a variety of industry based clients including public utilities and municipalities with riskassessment and risk-management issues.
Footnotes
1 Defined to include directors, partners, employees, members, agents, or contractors.
2 Defined to include representatives who play an important role in the establishment of the corporation's policies or who are responsible for managing an important aspect of the corporation's activities. The term includes directors, chief executive officers and chief financial officers.
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