For the third time, police have laid Bill C-45 Criminal
Code charges arising from a workplace fatality. Millennium
Crane Rentals of Sault Ste. Marie, Ontario, along with two
individuals, have been charged with criminal negligence causing
In April, 2009, a City of Sault Ste. Marie employee, James
Vecchio, was crushed when a crane collapsed into the excavated hole
in which he was working. The City was undertaking sewer work at the
city landfill when the accident occurred.
The Criminal Code workplace duty of care was enacted in
2004 by Bill C-45. It requires every employer who undertakes or
directs work to take reasonable steps to prevent bodily harm to any
employee or any other person arising from that work. The criminally
negligent breach of the duty of care causing death is an indictable
offence punishable by a maximum sentence of life imprisonment
and/or unlimited fines.
When a criminally negligent breach causes bodily harm, the
maximum penalty is 10 years imprisonment and/or unlimited fines.
Thus far, the Bill C-45 provision has been used on only two
occasions. In 2004, a supervisor with a small Newmarket, Ontario,
construction company was charged when a trench collapsed causing
fatal injuries to a worker. However, the C-45 charge was withdrawn
when the supervisor pleaded guilty to parallel provincial
Occupational Health and Safety Act ("OHSA")
charges. In 2008, Transpavé, a Quebec paving stone
manufacturer, pleaded guilty to criminal negligence causing the
death of one of its employees and was fined $100,000.
Millennium Crane is also charged with five offences contrary to
the OHSA. The crane operator is charged with one OHSA count. Each
charge laid under the OHSA against the company is subject to a
$500,000 fine, in addition to an automatic 25 per cent victim
impact surcharge. The maximum fine for the individual is $25,000
per charge, plus the surcharge.
In comparison to the OHSA and other provincial workplace safety
statutes, C-45 criminal prosecutions require the Crown to prove
fault on behalf of each accused. For criminal negligence, the fault
requirement is a marked and substantial departure from the
standard of care which, in the circumstances, could reasonably be
expected to prevent the commission of the offence. In law,
this is a more serious fault requirement than that for OHSA
offences, wherein the fault level is negligence – a
mere departure from the standard of care reasonably expected
in the circumstances. Moreover, in OHSA prosecutions fault is a
presumed element of the offence, but a presumed element rebuttable
by the defendant if it can establish that it met the standard of
care by taking all reasonable care to prevent the commission of the
offence (the so-called reverse onus inherent in strict liability
In the case of organizations or corporate defendants charged
with a C-45 offence, the fault must be that the senior officer or
officers responsible for the part of the organization's
activities relevant to the offence. This is also true of OHSA
prosecutions, the two primary differences between them again being
the more serious level of fault required for C-45 offences and the
rebuttable presumption of fault for OHSA offences.
What is often forgotten about the C-45 duty of care is that it
applies to protect any person from death or bodily harm
originating from a workplace mishap. In this case the fatality was
a City, and not a Millennium employee. Non-workers are also
protected. If a company's criminal negligence causes the spill
of a dangerous chemical into the natural environment, it is still
exposed to a prosecution under the C-45 provision if the spill
seriously harms or causes the death of civilians or non-workers,
but not employees.
This new prosecution drives home yet again the importance of
corporate leaders embracing and fostering a culture of regulatory
compliance within their organizations.
The Millennium charges are returnable in the Sault Ste. Marie
courts shortly. We will keep you updated as the matter
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