B.C. government, cops sign MOU to enforce OHS criminal charges

Agreement maps out steps to take post-incident at mine sites

By Melissa Campeau

This past April, the British Columbia’s Ministry of Energy and Mines and the B.C. police agencies signed a memorandum of understanding (MOU), locking in a protocol to ensure investigation by police in the case of fatalities and bodily harm at mine sites. While new, the MOU has a history that dates back at least a quarter of a century. 

On May 9, 1992, inside the Westray coal mine in Plymouth, N.S., a methane gas explosion killed 26 men trapped inside. No one was ever prosecuted for the disaster, although Justice Peter Richard, who investigated the event, noted in his report, “The Westray story is a complex mosaic of actions, omissions, mistakes, incompetence, apathy, cynicism, stupidity and neglect.”

Following the disaster, the United Steelworkers Union (USW) lobbied for an amendment to the Criminal Code, allowing employers to be held criminally responsible if they failed to provide a safe work environment. It took 12 years but in 2004, Bill C-45, also known as the “Westray Bill,” came into effect. 

This did not, however, open a floodgate of criminal prosecutions. During the 10 years following the introduction of Bill C-45, there were only nine prosecutions and only five of those cases resulted in convictions or guilty pleas under the Criminal Code. 

The memorandum is the cumulative effect of the union being vocal about Bill C-45 not being enforced, said Adrian Ishak, a partner at Rubin Thomlinson in Toronto. 

“The MOU is largely procedural,” he said. “It’s really intended to create a context or environment where police are prompted to investigate these matters.”

With the new agreement, steps to take when there is bodily harm or a fatality at a mining site are clearly mapped out. 

“This MOU deals with the bridging issue of jurisdictions,” said Jason Beeho, a partner at Levitt in Toronto. 

“When an incident happens, the first responder is the Ministry of Energy and Mines. Now, with the MOU, there needs to be a collaboration, a protocol in terms of determining how and when the police are brought into matters.

“The MOU says clearly, ‘This is how the collaboration is going to work.’ There is a structure and a protocol for how and when the police are going to interact with the provincial health and safety authorities.”  

Impact on police involvement
From a big picture, pragmatic point of view, there’s a reason Bill C-45 has been invoked as infrequently as it has been over the past several years, said Beeho. 

“The ministry inspectors know what they’re doing; that is what they do. And you’ve got police departments who’ve got broad responsibility for enforcing all kinds of criminal law, and who don’t always have the resources to pursue these things.”

In the end, the police have not historically been involved unless it’s “the most serious, the most egregious health and safety issue.”

Until now, provincial health and safety authorities have had the discretion to determine when something is a police matter, said Beeho. The new MOU clearly spells out when police will step in.

“It’s not going to mean that every time someone has a fall or breaks an arm, the police are necessarily going to be on the scene,” he said. 

“The ministry is still very much involved, still at the forefront, but the MOU formalizes and proceduralizes when and how the police become involved.”

If police are on-site more frequently, there’s not universal agreement about what impact this would have on safety. 

“From a mining safety perspective, I don’t know that this makes anyone safer,” said David Law, partner at Gowling in Ottawa. 

“Mining safety is the product of very specialized expertise, which the police will never have. It’s hard to see what they bring to the table.” 

From a public interest perspective, if this agreement actually pulls police into these matters more often, “the question arises whether that’s the best use of police time and money, when so many other things demand police attention,” he said. 

“There is always a tradeoff of public resources.”

Changes ahead?
This agreement is intended to be a signal to B.C.’s mining industry that this is going to be taken more seriously on a go-forward basis, said Ishak.

“It’s one more signal to the mining industry that to the extent that they are taking health and safety casually, that they may want to sit up and take notice and start taking the steps they need to take.”

Day-to-day operations aren’t likely to undergo significant changes, though. 

“This isn’t the 1940s or 1950s,” said Beeho. “Mining operations now are generally very sophisticated operations, and they are generally staffed by people who are knowledgeable about health and safety compliance and who take those obligations very seriously.” 
Instead, the MOU is more likely to inspire operations to give their policies and procedures a fresh look, he said.

To be deemed criminally negligent, the law has to demonstrate that an employer didn’t meet the standards of due diligence of a reasonable person, said Ishak.

“This will definitely be an opportunity for employers to review what due diligence they’ve undertaken in order to address risks in the workplace and determine whether they are satisfied with the steps that they’ve taken in order to defend against any potential prosecutions under the Westray Bill.”

To some degree, the MOU’s chief impact may be to raise awareness for all involved parties, said Beeho. 

“A lot of police departments and crowns are not familiar enough with Bill C-45 and what they can do with the legislation,” he said.

“What I don’t see happening, though, is that prosecution under criminal law becomes the first tool out of the toolbox in terms of occupational health and safety. There’s a reason why the provincial authorities are so well-trained at what they do. The ministry is going to remain at the forefront of this, but to the extent that there’s been a real paucity of prosecutions up to now, maybe this will start to change things.”

While this agreement looks like the criminal law may be applied more frequently, the agreement won’t necessarily result in that, said Law. 

“It simply allows for police to take over the scene first which, frankly, they could do in any event, and they are often the first people at an accident site, anyhow.”

But it could be the first memorandum of its kind in Canada, said Beeho.  

“It will be interesting to watch the extent to which the Steelworkers and other unions are now able to push for and introduce similar MOUs in other contexts.”

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