The calls are getting louder for police and prosecutors across the country to enforce a much-hailed law that makes it possible to criminally prosecute corporations and individuals for health and safety violations.
It has been more than two years since Bill C-45, known as the “corporate killing” law or the Westray bill, named for the 1992 mine explosion in Nova Scotia that killed 26 miners, came into force.
However, the only known charge laid under this law was eventually withdrawn. And union activists, particularly those who lobbied for the creation of the law, are growing impatient.
Among them is Steve Hunt, director of the western district of the United Steelworkers, who wants to see criminal prosecutions in the forestry sector. Referring to the 43 deaths in British Columbia alone last year, Hunt said forestry workers desperately need C-45 to act as a deterrent.
“You’ve got a guy working alone and when he was hurt, the helicopter that was on standby for rescue was grounded. You’ve got a guy logging and the person spotting him was his wife. You’ve got a welder working on the wheel of a stacker and the tire exploded on him. Who gave him instruction to do that? What is going on here?” said Hunt.
And last month, the Quebec Federation of Labour and the Teamsters Quebec called for criminal prosecution in the death of Steve L’Ecuyer, a 23-year-old worker who died at Transpavé, a paving products manufacturer in the Montreal-area town of Saint-Eustache.
But union urgings aside, it would seem police and prosecutors are reserving criminal prosecution for the most egregious cases. In instances where charges can be laid either under the provincial occupational health and safety law or the Criminal Code — and the Criminal Code provision is written so broadly that the result is a lot of overlap between the two sets of laws — it seems that the former would prevail.
Such was the case with the charges against Domenico Fantini, a construction supervisor from Newmarket, Ont. He was supervising two workers who were repairing a drainage problem with the foundation of a house. On April 19, 2004, the trench the pair were working in collapsed, killing 38-year-old worker Ameth Garrido.
Criminal charges were initially laid but withdrawn nearly a year after the incident. The consideration at the time was whether public interest was being served, said Rob Scott, assistant crown attorney at the Newmarket Office of the Attorney General. One factor he considered was Fantini’s willingness to plead guilty to charges laid by the Ministry of Labour under the Occupational Health and Safety Act and pay a $50,000 fine.
“So it was a situation where, although the criminal prosecution was withdrawn, it was not like the investigation stopped and nothing happened,” said Scott. “And the penalty he was likely to receive was very similar to what he would get in a criminal court. So we looked at the ultimate result, the punishment, and the fact that he was held accountable.”
One of the factors Scott also considered was the prospect of conviction. He felt the case had a reasonable prospect, but “it’s pretty rare that we have a criminal negligence case and we say, yeah, we’re crystal-clear, 100-per-cent sure whether this is criminal negligence or not.”
At Weyerhaeuser’s New Westminster, B.C., sawmill, where 55-year-old Lyle Hewer was killed on the job, the question of modifying a 20-foot hog chute to make it safer had come up a couple of times.
That’s according to Les Veale, safety director of the Fraser Valley local of the United Steelworkers of Canada. The chute in question leads from the hog, which grinds up bark into hog fuel, and one modification that had been suggested was to install a door in the upper part of chute, said Veale. This was never done, he added.
On Nov. 17, 2004, the chute was plugged up, which meant the bark had to be cleared out. Hewer, whose job was to clean up the by-products in the boom area of the mill, decided he would enter the chute to remove the bark, which his two co-workers would shovel away. It’s not clear whether any supervisor directed him to do so, said Veale, but a supervisor did come in at one point to check on the progress of the work.
That was when the two people outside the chute tried to get Hewer’s attention and realized he wasn’t responding. They found him dead, apparently having suffocated when a pile of bark fell on top of him.
In Veale’s mind the death could have been prevented if the company had followed up on earlier recommendations, both for a chute door and for a policy to be spelled out in terms of how to clear the plugged-up chute.
“It was, ‘Do what you can with what you’ve got,’” he said.
Veale is encouraged by the fact police have been investigating and interviewing mill workers. He hopes a criminal prosecution will come out of the investigation, which he expects will wrap up in the next two or three months.
But Cheryl Edwards, a health and safety law expert with Stringer Brisbin Humphrey in Toronto, doubts that merely having ignored a directive, a rule or a warning would automatically result in an employer being criminally charged.
She referred to
R. v. Kuhle
, a 1988 criminal negligence case arising out of a health and safety violation.
(Though rare, criminal charges were sometimes laid before bill C-45. A case involving Ontario Power Generation, currently before the court, is one such instance. The company, as well as two employees, have been charged with criminal negligence causing death and bodily harm. The case arises out of the 2002 drowning deaths of Calabogie, Ont., resident Cyndy Cadieux and her seven-year-old son, Aaron, moments after the gate at the Barrett Chute hydroelectric dam was opened.)
case, the defendant was a skip tender who went to perform work above employees conducting an inspection in a mine shaft at Inco’s Levack Mine near Sudbury, Ont. The skip tender pressed a valve and opened a gate, not knowing there was wet ore behind it. The wet ore poured out and fell on four workers below, killing all of them.
Despite the fact the worker violated two principal rules for mine shaft work — never work above others and always beware of wet ore — the Ontario Provincial Court dismissed the criminal charges. The actions of the defendant were “much less than that of a prudent man… (but) did not amount to a wanton and reckless disregard for the lives and safety of others,” the court said.
Bill C-45 did not change this standard, said Edwards.
“The behaviour has to be so outrageous that it meets criminal standard. It has to be beyond negligence,” she said. “Lots of people say that occupational health and safety cases involve negligent behaviour. It has to be so negligent that the courts find it’s deliberate. There has to be a sense that someone deliberately, or totally outrageously, ignored the normal standards of behaviour.”
Another stumbling block in prosecuting corporations is proving that senior management weren’t already dealing with the problem, she said.
At a conference she chaired on Bill C-45 about two years ago, Edwards heard a senior official at the attorney general’s office say police were not allocating any more resources to investigating workplace matters arising out of these amendments.
“He stated very clearly that he felt that it’s most appropriate that these matters be investigated and dealt with by occupational health and safety legislation, absent unusual circumstances,” she said.
Scott echoed this view. Though he said there has been no black-and-white directive from the Ontario attorney general on the application of this law, “the bottom line is, it’s going to be an unusual case” that will be criminally dealt with.
“It’s obviously not going to be every workplace death where regulations haven’t been followed that’s going to lead to a criminal prosecution,” he said.
© Copyright Canadian HR Reporter, Thomson Reuters Canada Limited. All rights reserved.