Does an accident have to happen for an employer to be criminally charged?
Question: In order for a person to be charged and convicted under section 217.1 of the Canadian Criminal Code (C-45 law), is bodily harm required? For example, if equipment being used by employees is known to be in unsafe condition that could result in serious injury or death, can charges be laid before something happens if nothing is done to address the situation?
Answer: Section 217.1 of the Criminal Code places a legal duty on everyone who undertakes or has authority to direct how others work or perform a task, to take reasonable steps to prevent bodily harm to the person performing the work or task, and to any other person. However it does not in and of itself establish a new criminal offence. Rather, it establishes a legal duty, which, if breached, may result in charges under another criminal code provision, for example criminal negligence (s. 219), causing death by criminal negligence (s. 220), or criminal negligence causing bodily harm (s. 221). While the latter two sections clearly require actual harm to result, criminal negligence does not specifically require actual harm for a conviction.
Section 219 (Criminal negligence) reads as follows:
“ (1) Every one is criminally negligent who
(a) in doing anything, or
(b) in omitting to do anything that it is his duty to do, shows wanton or reckless disregard for the lives or safety of other persons.
(2) For the purposes of this section, “duty” means a duty imposed by law.”
Either acts or omissions can result in a conviction for criminal negligence, provided the act or omission shows a wanton or reckless disregard for the lives or safety of other persons – (however, the offence need only result in potential harm to one other person).
The elements of criminal negligence, in conjunction with s. 217.1, therefore do not require actual harm to have resulted, provided the following can be established beyond a reasonable doubt:
• The accused undertakes or has the authority to direct how another person does work or performs a task, and therefore is under a legal duty to take reasonable steps to prevent bodily harm to that person, or any other person, arising from that work or task (there is a legal duty under s. 217.1)
• The accused failed to fulfill that duty by act or omission
• That act or omission by the accused showed a reckless or wanton disregard for the lives or safety of other persons
Criminal negligence “requires a marked and substantial departure from the conduct of a reasonably prudent person in circumstances in which the accused either recognized and ran an obvious and serious risk or, alternatively, gave no thought to that risk” but it does not require intention or actual foresight of the prohibited consequence (R. v. H. (A.D.). While bodily harm need not actually occur, it must be the likely result of the act or omission, and objectively foreseeable.
Failure of a supervisor, or someone with the authority to direct workers, to draft and enforce safety plans, properly train workers regarding safety issues, or properly ensure adequate experience for performing a task may result in the commission of an offence under this provision regardless of resulting harm having actually occurred. However, the likelihood of establishing such criminal negligence may be significantly reduced by the fact that no injury has occurred — it will have to be specifically proven that a situation where bodily harm was likely to result was actually created. To address your example: if equipment being used by employees is known to be in unsafe condition that could result in serious injury or death, it is possible that charges could be laid before something happened, where nothing was done to address the situation from which bodily harm was likely to result. It would however depend on the ability to prove the elements of the offence as discussed above.
For more information see:
· R. v. H. (A.D.), 2013 CarswellSask 304 (S.C.C.).
