New Westray Law enforcement means workplace deaths could lead to criminal charges, lawyer says
A new training program for Crown prosecutors and police to investigate workplace deaths as criminal negligence is officially rolling out across Canada on Dec.1.
The program is a new step to close the enforcement gap left by the Westray Law — part of Bill C-45 — which amended the Criminal Code in 2004. The amendment was made after a 2009 incident where a three-year-old, Michel Krewski, was killed in Calgary after a bundle of mesh fell off an 18-storey construction site. Police officers investigated the incident and did not criminally charge the companies responsible — however, they were fined under the provincial code of $15,000.
The goal of these new changes and the training program is to shift from handling workplace death scenes through occupational health and safety (OHS) regulations and recognize when they become criminal.
Ryan Collins, a partner at Stringer in Toronto, says the new enforcement will put the whole health and safety system and senior management under greater scrutiny in the criminal context.
“Ordinarily, the police don’t do a significant investigation of workplace accidents,” he says. “It’s the ministry investigators that pursue it and decide whether to lay charges. I think in this new environment we’re in, potentially, you might see frontline police officers taking more of an active role in these investigations.”
How the new enforcement will change investigations
Collins says the most significant shift is not just how investigations happen — it is who they reach.
“There’s not a lot of investigative scrutiny from the Ministry of Labour, or even charges for that matter, dealing with senior management — because the nature of the offence doesn’t require it, in all fairness,” he says.
Under the Criminal Code, criminal negligence requires proof of fault on the part of senior officers — which is not always limited to senior executives, Collins says.
Normally, when incidents of death or even safety issues happen, employers are required to prove they took all reasonable steps to prevent it and prove that at trial. In a criminal case, Collins says, the burden shifts.
“It’s the responsibility of the Crown to prove wanton and reckless disregard — and in the context of criminal negligence, errors or omissions on the part of senior management,” he says.
Police officers, in cases of workplace death, were normally not involved beyond securing the scene and taking eyewitness statements to understand what happened. The Ministry of Labour would then decide whether to press charges. However, with this new enforcement, police will have a much more involved process, Collins says
“You might even call it a parallel investigation where there’s evidence of criminal negligence — which is a higher standard to prove than a provincial offence.”
The legal strategy of an employer also changes significantly, Collins says, because of the constitutional protections that differ between a regulatory offence and a criminal one.
One of the significant differences is the rights of the accused. In a regulatory investigation, there is generally a requirement to cooperate — providing statements, documents, and access without a warrant. In a criminal case, that changes entirely, he says.
Safety programs need to match culture
So, how should employers prepare for this tighter enforcement?
Collins says the safety program of workplaces on paper needs to match the culture.
“If the workers actually haven’t seen the policies — or, equally bad, they’re not enforced, and there’s sort of a laissez-faire culture when it comes to health and safety — that’s going to be a problem,” he says.
A criminal prosecution will look at red flags that workplaces should be aware of — including whether they ordered equipment not suitable for the task, pushed production ahead of safety, failed to properly respond to safety complaints, did not properly deal with joint health and safety committees, or engaged in reprisals against workers who raised safety concerns.
“Those are the kind of things that might take a case out of a normal, regulatory prosecution to something where it’s wanton and reckless disregard,” he says.
An example Collins points to that is common in the construction space — and one he says could become a criminal case — is workers backing up without clearing the area or following the rules around reversing vehicles.
“That becomes the kind of thing where a criminal investigator might say, ‘That’s wanton and reckless — the law made it very clear that there’s an obligation to do this and you weren’t doing it,’” he says.
Hold on to those records
With these tighter restrictions, Collins says it is important for organizations to hold on to their records.
Under the Criminal Code, normally there is a restriction on jurisdiction of a case — in Ontario, the limitation period for regulatory offences is two years and varies across provinces. But for criminal cases under the Criminal Code, there is no limitation period.
“We’ve seen one example of that already in British Columbia, dealing with a trench collapse — it was a pretty dated prosecution that went forward as a criminal case,” he says.
There is no limit on the amount of a fine in a criminal case for a corporation — and imprisonment is a far more likely outcome for an individual accused than under regulatory law.
Collins points to the R v. King case as an example where a supervisor on a public works project was charged after a worker died when confined space rules were completely ignored.
“The worker’s defence was that no one trained him on any of this — and the courts had no time for it,” Collins says. “They said you can’t have a ‘blame the boss’ defence. You’re a senior manager on a construction site. You have obligations yourself to familiarize yourself with the Act, regulations, the site plan, and those sorts of things.”
What this means going forward
Collins is clear that Dec. 1 represents a change in enforcement — not a change to the law itself.
“This is not a change to the law. It’s an apparent change to how police — who, in general, have not taken a significant role in these types of investigations — are being educated as to what the law is and what tools they have to bring cases,” he says. “Not just police, but Crown prosecutors as well.”
It remains to be seen what’s ultimately going to happen, says Collins, “but I think it’s very likely that we’ll see more of these cases across the country."
