How Much Detail Must Prosecutors Provide About OHS Charges?

When a company (or individual) is charged with an OHS violation, it needs to know exactly what the prosecution is claiming it did—or didn’t do—to violate the law. Without this information, the company can’t defend itself. Unfortunately, prosecutors don’t always provide enough information about charges. For example, many OHS prosecutions lay the “generic” charge of failing to ensure the health and safety of a worker. You can’t get much vaguer than that. When faced with such charges, companies may demand more detailed information about the prosecution’s case so they can prepare their defence. Does the prosecutor have to comply with such a demand? Here’s how one court recently answered this question. Although the case comes from Alberta, similar principles apply across Canada. THE CASE What Happened: Two workers were working in a trench. A third worker was operating the excavator machine. He removed a bucket from the end of the excavator boom and attached a larger bucket to it. But the larger bucket wasn’t properly attached. It fell into the trench, pinning one worker who was seriously injured. This incident was the second time in just a few weeks that a bucket had fallen off an excavator boom at the site. The company was charged with nine OHS violations. The foreman was charged with two, including giving false information to inspectors regarding pre-job safety instruction meetings. The charges simply described the incident, the date it occurred and a citation to the sections of the law the defendants were accused of violating. The company and foreman wanted to know exactly what acts and/or omissions they had allegedly committed that violated the law. When the prosecution refused to provide this information, they asked the court to order the Crown to disclose it. What the Court Decided: The Alberta Provincial Court ordered the prosecution to give the defendants the requested details on most of the charges. How the Court Justified the Decision: The court explained that in a prosecution, the accused is entitled to know what specific acts or omissions the prosecution is relying on to prove the charges against it. Without this information, the accused is forced to engage in a guessing game. In this case, the prosecution’s case was clear for some of the charges but not for others. So the court ordered the prosecution to provide additional information on:

• How the company and the foreman failed to protect the worker’s health and safety;
• Which manufacturer’s specifications the company didn’t give to workers;
• Which worker was allegedly incompetent;
• Which workers weren’t properly trained; and
• Which equipment wasn’t properly started, operated and handled

[R. v. IGL Canada (Western) Ltd., [2007] ABPC 268 (CanLII), Sept. 14, 2007]. ANALYSIS In a criminal trial, companies and individuals are guaranteed the right to a fair trial. Part of this protection is the defendant’s right to know what it’s accused of doing. The Crown doesn’t have to reveal all of its evidence before trial. But under Sec. 581(3) of the Criminal Code, the charge must “contain sufficient detail of the alleged offence to give to the accused reasonable information with respect to the act or omission to be proved against him.” Although OHS charges aren’t criminal, the same Sec. 581(3) right applies to defendants in OHS prosecutions. After all, OHS convictions carry serious consequences. So defendants need to know not only what law or section of the law they’re accused of violating but also what acts or omissions the prosecution claims constituted a violation of those laws. Without this information, OHS prosecutions would become “star chamber” proceedings in which companies and individuals are railroaded without ever knowing what they allegedly did wrong.