THE ONTARIO CASE
On April 16, 2009, the City of Sault Ste. Marie’s Public Works Department was performing sewer work in an approximately three-metre deep excavation at the city landfill. The city had contracted with Millennium Crane Rentals to provide an 80-tonne mobile crane and crane operator to assist in placing concrete structures into the excavation. Although all the facts aren’t publicly known, it appears that the crane fell into the excavation while it was being repositioned. Two city workers were in the excavation at the time. One worker, James Vecchio, was pinned across the stomach and pelvis by the crane. He was rushed to a nearby hospital but later died from his injuries. The other worker wasn’t hurt. In Feb. 2010, the police charged Millennium Crane Rentals, David Brian Selvers (the crane owner) and Anthony Vanderloo (the crane operator) with criminal negligence. In addition, the Ontario Ministry of Labour laid charges under the OHS Act against Millennium Crane Rentals and the crane operator, including charges for failing to ensure the crane operator was properly licensed, the crane was maintained in a condition that didn’t endanger a worker and the crane wasn’t defective and/or hazardous.THE BC CASE
On March 22, 2006, the ferry Queen of the North, operated by BC Ferries, struck bottom near Gil Island and sunk 80 minutes after impact. Two of the 103 crew members and passengers were never found and have been declared dead. Karl Lilgert, the ferry’s navigating officer, was supposed to be steering the ferry. But at the time of the incident, he was allegedly talking to quartermaster—and ex-girlfriend—Karen Bricker. The Transportation Safety Board investigated the incident, concluding that the pair failed to make a crucial course correction. Ligert, Bricker and a third officer were fired. And on March 16, 2010, authorities in BC charged Lilgert with criminal negligence as to the two passengers’ deaths. This case is the first criminal negligence charge stemming from an incident in which the victim was someone other than a worker.ANALYSIS
Criminal negligence charges are a rare occurrence. Why were they laid in these two cases? Unfortunately, until we learn more about the details of the cases, we can’t determine what evidence persuaded the police that laying criminal negligence charges was warranted. The timing of the cases is purely a coincidence. Police investigations are a local matter and dictated by the facts of the particular case. And in both the Ontario and BC cases, the charges were the product of investigations that lasted for months. So nobody should conclude that two criminal negligence cases in such a short period of time signals some kind of new national trend to lay more criminal negligence charges. However, the BC and Ontario cases do fit the pattern that has emerged in the post-C-45 world. In both cases, the defendants charged weren’t in corporate leadership positions. In BC, the only defendant charged was an individual, the ferry’s navigation officer. In Ontario, the defendants include the crane operator, crane owner and crane rental company. The fact remains that not a single corporate official has been charged with criminal negligence since C-45 took effect six years ago. What makes this noteworthy—and somewhat troublesome—is that the primary reason for adopting C-45 was to hold corporate officials personally accountable for serious safety violations committed by their companies. Remember that the political impetus behind C-45 was public outrage that officials of the Westray mining company were able to avoid personal liability for the company’s gross neglect of miners’ safety because of a technicality in the criminal negligence law. C-45 was supposed to ensure that such a miscarriage of justice never happened again. But so far, prosecutors haven’t used the law to go after the corporate bigwigs; instead, they’ve been targeting the little guys. Because the law is written broadly to cover any person who has “control” over the work, the supervisors, navigation officers and crane operators of the world are fair game for prosecution. But targeting these people represents a deviation from the principle of corporate accountability underlying C-45. Unfortunately, it may take another tragedy like Westray for prosecutors to use C-45 in the way its authors intended.
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