Criminal Code amendments a long-awaited response to Westray disaster
Executives and managers who show reckless disregard for the safety and well-being of workers may end up in jail if a bill currently before Parliament goes through.
Bill C-45, introduced last month, would allow for the criminal prosecution of employers whose actions or inaction result in death or injuries at the workplace.
Known as the corporate killing bill, Bill C-45 is a response to recommendations made by the inquiry into the Westray mine disaster in 1992, where a series of safety contraventions resulted in the death of 26 Nova Scotia miners.
Currently an individual can be held criminally negligent for actions, or inactions, that cause a workplace mishap. The proposed amendment to the Criminal Code would allow courts to consider the combined effects of actions by several employees, and hold the company responsible. For example, if two people each turns off a safety system, thinking that the other would still be in place, the organization can be held liable for the collective failure of the safety systems.
Further, the bill would extend responsibility for workers’ safety to lower management ranks. Under the current law, liability is assigned to a company when senior employees, called the “directing minds” of an organization, commit a crime. These senior employees are defined as executives empowered to exercise decision-making authority over matters of corporate policy.
“What we have done is we have put a duty on everybody who’s directing work to take reasonable steps to ensure the safety of the workers and the public. In the Westray case you had to look at what the head office in the Toronto knew. We now bring it down to the managerial operational level,” said Greg Yost, the justice department lawyer who drafted the bill.
“What did the person who was responsible for that aspect of the business know? It might be the mine safety manager or the manager, what did he know? It still has to be someone with some seniority within the corporation, but it doesn’t have to be as high up as it used to be,” said Yost.
This legal duty under the Criminal Code, added Yost, can be extended to “you or me, if we’re directing a kid who’s clearing snow off the ground. It goes that far.”
The bill also increases the maximum fine for a summary conviction — a less serious offence — from $25,000 to $100,000. There is currently no maximum on an indictable conviction, and this remains unchanged in the bill.
The proposed law would also open the possibility for a court to order a convicted organization to take measures to avert similar accidents.
The proposed law would make it easier for prosecutors to collect evidence, said Cheryl Edwards, occupational health and safety specialist and partner at the Toronto law firm Stringer Brisbin and Humphrey. Instead of having to prove that the “head” knew of the offence, it’s now enough just to prove that “the arms and legs” knew of safety breaches, said Edwards, who formerly prosecuted OH&S offences for Ontario’s labour ministry.
“Right now, because you have to prove that the head of a company knew something in order to convict, the only organizations being charged with criminal negligence are the mom-and-pop organizations, the ones where the president is out on the shop floor directing day-to-day activities, the small bakery or the construction firm where the president is on site.”
Edwards added, however, that the kinds of measures that organizations would have to take to avoid criminal liability would be similar to the steps they’ve had to take under provincial occupational health and safety statutes.
Ian Howcroft, Canadian Manufacturers and Exporters’ vice-president for Ontario, said the industry association is “not convinced that increasing criminal liability is the way to go.” Provincial statutes in many jurisdictions have already made possible jail term as well as fines up to $500,000 for safety violations, he said. “In fact, from the comments we’ve heard, this bill might even act as a disincentive in terms of attracting people to help companies maintain good environment. You would find people very reluctant to take on directorships for fear of more liability, particularly on the criminal side.”
But Bruce Collins, CEO of the Nova Scotia Construction Safety Association, said employers who adhere to provincial safety rules have nothing to fear from the proposed change. Since 1992, said Collins, there has indeed been a culture change regarding workers’ safety, but he still hears of lapses and oversight.
“Just a few days ago, this young man at a construction site was told to walk across a six-inch beam that’s 36 feet above the ground. He refused. He thought to himself, ‘I have a wife and kids at home. I’m still young. Why would I put my life on the line like that?’ The next day, he was laid-off.”
Bill C-45, introduced last month, would allow for the criminal prosecution of employers whose actions or inaction result in death or injuries at the workplace.
Known as the corporate killing bill, Bill C-45 is a response to recommendations made by the inquiry into the Westray mine disaster in 1992, where a series of safety contraventions resulted in the death of 26 Nova Scotia miners.
Currently an individual can be held criminally negligent for actions, or inactions, that cause a workplace mishap. The proposed amendment to the Criminal Code would allow courts to consider the combined effects of actions by several employees, and hold the company responsible. For example, if two people each turns off a safety system, thinking that the other would still be in place, the organization can be held liable for the collective failure of the safety systems.
Further, the bill would extend responsibility for workers’ safety to lower management ranks. Under the current law, liability is assigned to a company when senior employees, called the “directing minds” of an organization, commit a crime. These senior employees are defined as executives empowered to exercise decision-making authority over matters of corporate policy.
“What we have done is we have put a duty on everybody who’s directing work to take reasonable steps to ensure the safety of the workers and the public. In the Westray case you had to look at what the head office in the Toronto knew. We now bring it down to the managerial operational level,” said Greg Yost, the justice department lawyer who drafted the bill.
“What did the person who was responsible for that aspect of the business know? It might be the mine safety manager or the manager, what did he know? It still has to be someone with some seniority within the corporation, but it doesn’t have to be as high up as it used to be,” said Yost.
This legal duty under the Criminal Code, added Yost, can be extended to “you or me, if we’re directing a kid who’s clearing snow off the ground. It goes that far.”
The bill also increases the maximum fine for a summary conviction — a less serious offence — from $25,000 to $100,000. There is currently no maximum on an indictable conviction, and this remains unchanged in the bill.
The proposed law would also open the possibility for a court to order a convicted organization to take measures to avert similar accidents.
The proposed law would make it easier for prosecutors to collect evidence, said Cheryl Edwards, occupational health and safety specialist and partner at the Toronto law firm Stringer Brisbin and Humphrey. Instead of having to prove that the “head” knew of the offence, it’s now enough just to prove that “the arms and legs” knew of safety breaches, said Edwards, who formerly prosecuted OH&S offences for Ontario’s labour ministry.
“Right now, because you have to prove that the head of a company knew something in order to convict, the only organizations being charged with criminal negligence are the mom-and-pop organizations, the ones where the president is out on the shop floor directing day-to-day activities, the small bakery or the construction firm where the president is on site.”
Edwards added, however, that the kinds of measures that organizations would have to take to avoid criminal liability would be similar to the steps they’ve had to take under provincial occupational health and safety statutes.
Ian Howcroft, Canadian Manufacturers and Exporters’ vice-president for Ontario, said the industry association is “not convinced that increasing criminal liability is the way to go.” Provincial statutes in many jurisdictions have already made possible jail term as well as fines up to $500,000 for safety violations, he said. “In fact, from the comments we’ve heard, this bill might even act as a disincentive in terms of attracting people to help companies maintain good environment. You would find people very reluctant to take on directorships for fear of more liability, particularly on the criminal side.”
But Bruce Collins, CEO of the Nova Scotia Construction Safety Association, said employers who adhere to provincial safety rules have nothing to fear from the proposed change. Since 1992, said Collins, there has indeed been a culture change regarding workers’ safety, but he still hears of lapses and oversight.
“Just a few days ago, this young man at a construction site was told to walk across a six-inch beam that’s 36 feet above the ground. He refused. He thought to himself, ‘I have a wife and kids at home. I’m still young. Why would I put my life on the line like that?’ The next day, he was laid-off.”
