‘Corporate killing’ law scrutinized

In wake of first C-45 conviction, has law made a difference?

Paul Kells felt “a sense of relief” late last year when he heard a Quebec company had pled guilty to criminal negligence in the death of a worker.

It was the first criminal conviction under what’s known as the “corporate killing” law — an amendment to the Criminal Code brought in by Bill C-45 in 2004.

Kells has been an advocate of the law for years. His 19-year-old son, Sean, died from injuries in a workplace explosion in 1994.

“I am really delighted that there’s been the first conviction,” he said. “But it’s not surprising to me that it’s taken this long. My only hope is that in the future it’s applied more directly and more often than this.”

Last month, the convicted company, Transpavé, was ordered to pay $110,000 in the death of 23-year-old Steve L’Écuyer. He was crushed by a machine that stacks concrete blocks after pallets with concrete had backed up on the conveyer belt. Inspectors found the machine’s safety guard had been disabled for nearly two years.

The fact it took so long to see a conviction under the Criminal Code demonstrates workplace safety still doesn’t have the priority it should, said Kells.

“It’s a hard pill for me to swallow,” he said. “It takes time for the attitude to change. Things are a lot better than they were but does it all get done in one fell swoop? No.”

The difficulty with the law is the standard required to use it, according to Kells and many others. Prosecutors must prove intent on the part of the employer.

Proving criminal negligence often requires a paper trail that leads directly to senior management, said Cheryl Edwards, a lawyer with Heenan Blaikie in Toronto who has written several papers on Bill C-45.

“It’s got to hit at a place where they can prove, for example, that there were complaints on the site, that management knew there was a problem, that management failed to deal with the problem,” she said. “They have to be satisfied that there’s been some really outrageous, really reckless conduct. It may just be that it’s an extremely stringent standard that has to be met.”

The law stems from the Westray Mine disaster of 1992, when 26 Nova Scotia miners were killed in a methane gas explosion underground. Criminal charges against two on-site managers were withdrawn. At the time, there was no law on the books holding senior company executives responsible for safety warnings that were ignored.

“You have to wonder about the mindset of the legislators,” said Jim Armstrong, executive director of field operations with the Industrial Accident Prevention Association in Ontario. “Was the intent of the legislators to only apply it when there’s a huge catastrophe, like Westray? Or, is the intent to apply it in all cases where a level of negligence was in place?”

If it was the latter, then the amendment hasn’t lived up to its promise, said Armstrong.

“When C-45 first came out there was a very high level of interest. We were running around the province trying to keep up with demands for sessions on it,” he said. “Then it was starting to get the ‘out of sight, out of mind’ thinking — ‘Oh, it’s just another piece of legislation.’”

Since news of the Quebec conviction, there’s been another spike in demand for information and training, said Armstrong. He expects it, too, will wane if there’s not another conviction in the near future.

Many people, from lawyers to trade unions and safety advocates, question whether there’s a political will for more convictions.

Edwards said police haven’t been given additional money to take on criminal negligence prosecutions against corporations. At the same time, she said many Crown prosecutors are being told to consider charges under provincial occupational health and safety regulations before turning to Bill C-45.

In the early years of the law, police weren’t even trained on the amendment, said Norm Keith, another Toronto lawyer who specializes in workplace health and safety. That has changed, somewhat, over the past few years. He knows from his own work that police are more actively pursuing criminal charges. But without more convictions, the “deterrent value” of the bill will be lost, he said.

“The lack of a conviction in the first couple of years and now the lack of an outrageous fine — because $110,000 is not a lot for a death — will lull some employers into a sense of complacency where they will not be too worried about a criminal charge,” he said.

There has been progress on workplace safety, he said, but not one of his clients has ever passed a legislative audit — an examination of whether current health and safety practices are exhaustive enough to protect them from a criminal prosecution.

“There are a number of problems in even the most responsible organizations we have, because it seems that safety managers are not well trained or do not understand the health and safety legislation (requiring) that they should be there to make sure it is in place,” he said.

Many corporations simply don’t make safety a priority, said Andy King, national health and safety co-ordinator with the United Steelworkers union.

“It’s a real reflection of how we think,” he said. “Workers’ lives don’t matter.”

The Transpavé case is a “step forward” but a guilty plea and fine, rather than jail time, don’t send a strong message, said King. It will take more convictions and political force to shake up boardrooms, he said.

“We need to see from the attorney general’s office, ‘Here’s the policy. We’re going to do this regularly. In the future, when people get killed at work, these are the factors we’ll take into account. When we see a company hasn’t put in a proper safety program, we’re going to go after them and we’re even going to hold their CEO responsible,’” he said.

Paul Kells agrees. He suspects attitudes will change the first time a manager or CEO is directly indicted.

“The day will come when somebody in a boardroom, somewhere — who had a direct line of responsibility, who hasn’t done due diligence in terms of the paperwork — will become a candidate for prosecution.”

Danielle Harder is a Whitby, Ont.-based freelance writer.

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