Last April 19, Ameth Garrido was crushed to death when a trench he was working in collapsed. This week, the supervisor on the worksite that day is scheduled to appear in court to face charges of criminal negligence causing death.
It’s believed to be the first time someone has faced charges under federal Bill C-45, also known as the corporate killing law, which came into force on March 31. The bill amended the Criminal Code to make it easier for criminal charges to be brought against co-workers, supervisors, executives and employers when a worker is killed or injured on the job. The legislation stemmed from the public inquiry into the Westray mine disaster in Nova Scotia that killed 26 workers on May 9, 1992.
Garrido was one of two men repairing a drainage problem with the foundation of a house in York Region, north of Toronto. According to the police report the men had been using a mini-excavator to dig a 12-foot trench when Garrido entered the trench. It’s alleged the required supports to secure the walls of the trench (a trench box) were not in place, a clear violation of health and safety regulations.
Domenico Fantini, of Vista Construction, was the supervisor for the two workers at the time. Though 23 workers have been killed on the job in Ontario alone since the law was enacted, the charge against Fantini is thought to be the first in the country.
Cheryl Edwards, a partner at Stringer Brisbin Humphrey, said she expected charges under the new law before this.
Serious workplace injuries are often the result of supervisor or corporate behaviour which could be seen as reckless flouting of the most basic health and safety protocols, she said. The expectation is that more criminal charges will be laid in those cases.
“This may be because there will be more of an attitude on the part of police, ministry of labour, and the courts that criminal negligence charges are now appropriate for these situations,” she said.
Even before the law was enacted, the possibility of criminal charges existed but it was difficult to get a conviction against a corporation. Executives at Westray were charged but not convicted. Though it still won’t be easy to get a conviction against a corporation, C-45 should make it easier, said Edwards.
Historically workplace injuries and fatalities have been seen as health and safety matters. “I think the prevailing attitude has been, ‘Why would police or courts consider criminal charges when this should be dealt with under occupational health and safety legislation?’”
In that regard, C-45 is as much about changing mindsets as laws, she said. Investigators of workplace accidents should consider criminal charges more often when they investigate serious accidents, but there’s little evidence that they do, she said.
It is ultimately up to police and local Crown attorneys to determine how the new provisions will be wielded. “They could take Bill C-45 and use it to prosecute numerous cases where there are gross violations of health and safety laws, where almost nothing has been done to protect workers, or it can be a law that is used only on occasion.”
Joanne Klineberg, counsel in the federal justice department’s criminal law policy section, said the Fantini charges were the first she’s heard of, though she is not surprised it has taken five months.
While the law was created by Ottawa, the federal government is still mostly dependent on the provinces for enforcement. “Most of the time that is a process that works fine, because provinces are consulted in development stages. We try not to enact laws they think are not a good idea,” she said. It just takes a while for the provinces to adjust to new laws like this.
She also pointed out that Fantini likely would have been subject to criminal charges before C-45. But this law makes it easier to bring a corporation to trial. “The goal is to make employers more diligent about health and safety and to remind corporations that they are subject to criminal law,” she said. And in those cases where corporations are not diligent, this law should make it easier for crowns to prosecute, she said.
Andy King, head of health and environment for the United Steelworkers, the union that led the charge for tougher workplace safety laws after Westray, said he is not surprised it has taken five months to see the law applied for the first time. He blames provincial attorneys general for not doing more to encourage prosecutors to pursue charges under C-45.
“The feds are saying what happened at Westray was wrong and we want worst-case scenarios punished. But what has happened in all of the provinces, to my knowledge, is the attorneys general haven’t addressed it. They’ve ignored it.”
The law enforcement attitude toward workplace accidents is similar to attitudes toward domestic violence or drunk driving in the early ’80s, said King. Offenders in most cases got off with a slap on the wrist, if anything, until strong directives came from then Ontario Attorney General Roy McMurtry to prosecute offenders to the full extent of the law. The same thing has to happen with workplace health and safety violations, he said.
“Failure to put in a box to protect a trench is about as close to criminal as you can get, but it happens a lot,” he said. “Nobody can say they didn’t know.”
Brendan Crawley, a spokesperson from the Ministry of the Attorney General in Ontario, said all Crown attorneys are aware of the changes to the law. However, the Ministry of the Attorney General has no role in educating police about changes, he said.
It shouldn’t come as a surprise that it took five months to see a charge, said Bob McCreary, a Crown attorney in the office handling the Fantini case. The enactment of legislation does not necessarily mean charges will soon follow, he said.
“We know what the law is. That certainly is communicated to us,” he said. But it can take a while for the police to investigate to the point where they feel they can lay charges. He would not comment on the specifics of the Fantini case nor say whether or not the owners of the company were being considered for charges.
Norm Keith, a partner at the Toronto firm of Gowling Lafleur Henderson and author of Workplace Health and Safety Crimes, said the charges prove the amendments ushered in by C-45 are going to be enforced
“It’s definitely a wake-up call for employers of all kinds, not just construction, that (the law) is going to be aggressively enforced by the police, probably with the encouragement or assistance of health and safety regulators,” said Keith.
“It’s also a big wake-up call for supervisors and managers to say, ‘Look. Bill C-45 puts you personally at risk, not just the president of the company.’ And I think they’re at greater risk than a senior executive or a director, because the police on the ground are going to say, ‘Okay, something awful has happened. Who is in charge here?’ And the most proximate, closely related person in charge is going to get the most scrutiny.”
The fact that supervisors and foremen seem to be at the greatest risk of prosecution is contrary to what the federal government intended as the purpose of the amendments, he said.
But the bill that was passed was much broader, and allows criminal charges to be laid against anyone who was directing how work was done or had authority to direct how work was done, said Keith.
With files from Todd Humber.
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