C-45 is not dead. On March 17, 2008, a court sentenced Transpavé, a Québec manufacturer, to pay a $100,000 fine in connection with a worker’s death. It was the first time that a corporation has been convicted of a criminal offence under C-45. The Transpavé case has some safety professionals on edge. Some are now predicting a wave of C-45 prosecutions. Others are dismissing the significance of the Transpavé case as just an aberration. Who’s right? This article will attempt to provide some answers.

From Anxiety to Complacency to Anxiety
When C-45 took effect on March 31, 2004, it was expected to usher in a new era of criminal prosecutions. In this brave new world, each time a corporation committed an OHS violation and somebody got hurt, it would face the risk of criminal fines—and its corporate officers and directors would face the risk of jail. “From pinstripes to prison stripes” was the mantra. But the fears proved to be greatly exaggerated. Today, more than four years after the law took effect, not a single corporate official has been charged—let alone convicted—of a criminal offence under C-45. And, as fear has receded, a sense of complacency may have started to set in, at least among some corporate officials and safety coordinators.

But the Transpavé case has reintroduced some of the old anxiety about C-45. Now that a corporation has actually been convicted under C-45, will other prosecutions follow? What, if anything, can companies learn from what happened in Transpavé to insulate themselves against liability? And what does the $100,000 fine handed down in the case say about sentencing of those who are convicted of the criminal negligence under C-45?

Defining Our Terms
The term “C-45” refers to the number the bill was assigned when it was considered and ultimately adopted. When the bill became a law, it lost its official C-45 tag and became simply a series of amendments to the Canadian Criminal Code. In subsequent years, other federal bills have been labeled C-45. The 2007 version of C-45, for example, is a proposed amendment to the Fisheries Act. However, even though it’s a misnomer, “C-45” is still the term people in the safety industry use to describe the law that turns certain health and safety offences into potential crimes. Consequently, the Insider will continue to refer to the law as C-45.

ELEMENTS OF A C-45 CASE
It’s been a while since we’ve written a feature article about C-45. So let’s go back over the law and explain what it requires. C-45 added Sec. 217.1 to the Canadian Criminal Code (Code), which says that every person “who undertakes, or has the authority, to direct how another person does work or performs a task” must “take reasonable steps” to protect that other person from bodily harm arising out of the work. “Criminal negligence”—that is, the act of doing something forbidden by the law or omitting to do something one has a legal duty to do when the act or omission shows “wanton or reckless disregard for the lives or safety” of others—was already a crime under the Code when C-45 was enacted. But by adding the new Section 217.1 duty, C-45 made it possible to hold a company or individual guilty of criminal negligence for failing to meet the duty to protect a person doing work if the failure to protect was the result of wanton or reckless disregard for life or safety and caused death or serious bodily harm to the worker or a person affected by the work.

The elements that the prosecution must prove to secure a criminal negligence conviction under C-45 differ depending on whether the defendant is a company or an individual. Because the defendant in Transpavé was the company itself, let’s review the elements of a C-45 offence by a company and see how they factored into the Transpavé case:

1. The Defendant Directed or Had Authority to Direct Work
Element: C-45 only applies to individuals and organizations that direct—or have the authority to direct—how work is done, such as supervisors, managers and the company itself.

Transpavé: Clearly, the company had the authority to direct how workers performed their work.

2. The Defendant Didn’t Take Reasonable Steps to Protect
Element: The prosecution must show that the defendant failed to take reasonable steps to protect a worker or other person affected by the work from bodily harm. At a minimum, reasonable steps include complying with all applicable OHS requirements. For example, the OHS laws typically require employers to guard machinery to prevent workers from coming in contact and becoming entangled with the machine’s moving parts.

Transpavé: In this case, the worker was operating a machine that stacks concrete blocks. The machine got jammed. So the worker entered a moving area of the machine to clear the jam. The machine was equipped with a light curtain guarding system that should have cut the power to the machine when the worker approached that area. But the guarding system had been disabled. In fact, investigators concluded that this system had been disabled for almost two years.

3. The Failure to Protect Was Wanton or Reckless
Element: Simple carelessness or an honest mistake isn’t enough for a conviction under C-45. To prove criminal negligence, the prosecution must show that the defendant’s failure to protect was wanton or reckless—that is, that it acted with a complete disregard for safety.

Transpavé: Workplace Safety 101: If a company is aware of a hazard, it must take steps to address that hazard. So disregarding a known hazard could certainly be considered wanton or reckless. Here, investigators concluded that senior management knew that the guarding system on the stacking machine had been disabled. Yet the company failed to do anything about this dangerous situation.

4. The Failure to Protect Resulted in Bodily Harm
Element: The defendant’s failure to protect a worker or person affected by the work must result in bodily harm to the worker or other person.

Transpavé: The worker in the Transpavé case died as a result of his injuries.

The four elements discussed above establish that an individual committed criminal negligence. But if the defendant is a company, another question arises: Is the company to blame for the individual’s offence? To attribute the individual’s offence to the company and secure a conviction against the company, the prosecution must prove five more elements:

5. The Company Was an “Organization”
Element: The company must be considered an “organization” as defined by Sec. 1(2) of the code. The definition includes corporations, partnerships and even non-commercial entities, such as charitable and religious organizations.

Transpavé: Transpavé was a corporation and thus was an “organization” under the law.

6. The Individual Who Committed the Offence Was a Company “Representative”
Element: The prosecution must prove that the individual who violated the duty to protect was a “representative” of the company, such as a worker, supervisor, manager, officer or director. It can also include non-employees, such as contractors and partners.

Transpavé: According to investigators, a member of senior management was aware that the guarding system on the stacking machine had been disabled.

7. The Representative Acted Within His Authority
Element: The prosecutor must prove that the individual who committed the offence was acting within the scope of his authority when he did so.

Transpavé: In this case, the criminal act was actually an omission—that is, the member of senior management who knew about the disablement of the guarding system failed to take steps to address this dangerous situation. Presumably, as a member of senior management, the individual had the authority to remedy the problem, such as by ordering someone to reactivate the guarding system.

8. A Senior Officer Didn’t Do Enough to Prevent the Violation
Element: The prosecution must also prove that a “senior officer” of the company was somehow involved in the offence. A “senior officer” is defined as a “representative who plays an important role” in setting policy or who is responsible for managing a key part of the company’s activities.

Transpavé: As noted above, we know that a member of senior management was involved in the offence. We also know that the prosecutor alleged that this individual did nothing to prevent the violation. What we don’t know are the details about the individual’s exact position and responsibilities. If the case had gone to trial, these crucial details would likely have emerged and offered more insight about what a senior officer is expected to do to prevent an offence.

9. The Failure to Prevent the Offence Was a “Marked Departure” from Standard of Care
Element: Finally, the prosecutor must show that the senior officer didn’t take reasonable steps to prevent the representative from committing the offence. The senior officer doesn’t actually have to know about the offence. Ignorance can lead to liability to the extent that it represents a “marked departure” from the kind of care to be expected from senior officers in that position.

Transpavé: As a general matter, disregarding a known hazard, such as a disabled guarding system, is the kind of omission that courts are apt to consider wanton and reckless. But again, because the case didn’t go to trial, we don’t have all the facts about the senior manager’s conduct and whether it would have fallen short of the standard of care expected of a person in that position..

C-45 SENTENCING FACTORS
The prosecution and conviction of the company is just one of the sources of insight on C-45 from the Transpavé case. There may also be lessons to be drawn from the company’s sentence.

Explanation: C-45 isn’t just about liability. It also added Sec. 718.21 to the Code, which sets out 10 factors that a court must consider when sentencing an “organization,” such as a company, that was convicted of criminal negligence. (Click here for a complete list of these factors.) The company in the Transpavé case pleaded guilty. The prosecution and defence then presented a joint sentencing recommendation to the court. The proposed sentence: a $100,000 fine.

The court wasn’t obligated to accept the company’s and prosecution’s “joint submission.” But, as a practical matter, when prosecutors and defendants agree to jointly recommend penalties, courts rarely reject the recommendation, notes Ryan J. Conlin, a Toronto OHS lawyer. And the court was legally bound to consider the sentencing factors before it accepted the recommended sentence, he adds.

Let’s focus on the factors that were probably key to the court’s sentencing decision:

The impact of the sentence on the economic viability of the organization and the continued employment of its employees. A company’s size and income is a factor courts consider in sentencing. The court wants the sentence to punish the company and deter it from committing similar offences in the future. But it doesn’t want to cripple the company and put it out of business because doing so would unnecessarily punish the company’s workers.

Transpavé is a relatively small company with fewer than 100 workers. It’s likely that a bigger company with more employees would have been hit with a larger fine, says Conlin.

Whether the organization was—or any of its representatives who were involved in the commission of the offence were—convicted of a similar offence or sanctioned by a regulatory body for similar conduct. Companies with poor workplace safety records and previous convictions for OHS violations will be sentenced more harshly than those with clean records and no priors. Transpavé didn’t have a prior criminal record or a record of prior OHS violations.

Any measures that the organization has taken to reduce the likelihood of its committing a subsequent offence. Part of the goal of sentencing is deterrence. So if a company has already taken steps on its own initiative to ensure that similar incidents don’t happen again in the workplace, those proactive steps are mitigating factors that can help reduce the size of a fine. After the incident, Transpavé did take extensive steps to improve workplace safety and to prevent similar incidents. In fact, it spent $500,000 on these steps.

Geography
Geography isn’t one of the 10 sentencing factors. But it may still have influenced the Transpavé sentence. The case came out of Québec. In deciding the appropriate sentence, the prosecution, defence and court likely looked at the fines imposed in regulatory OHS prosecutions in the province for similar offences, says Conlin. A $100,000 fine is substantial for Quebec, he explains. If the same events had occurred and been prosecuted in Ontario, you can bet that the fine would have been “considerably higher,” he says. Why? Fines imposed in Ontario in regulatory OHS prosecutions for workplace fatalities are generally much higher and routinely exceed $100,000. In fact, it’s not uncommon for $100,000 fines to be imposed in cases that don’t involve fatalities.

Conclusion
Does the Transpavé case signal the beginning of a flurry of C-45 prosecutions? Probably not, says Conlin. One case doesn’t make a trend, he notes. Moreover, Transpavé doesn’t eliminate the barriers that have made prosecutors reluctant to bring C-45 cases, such as the higher burden of proof [See, Insider, Vol. 3, Issue 12, page 12, for a more complete discussion of why there have been so few C-45 prosecutions].

However, Transpavé might be seen as the crossing of an important psychological barrier. Convicting a corporation under C-45 is bound to puncture complacency. So the case demonstrates that C-45 isn’t a “paper tiger” or a political ploy to assuage the public after Westray, says Conlin.

The case also highlights the importance of a wild card that may factor into future decisions to bring C-45 charges: public pressure. There was a great deal of public pressure, particularly from the union, to charge Transpavé with criminal negligence. Part of the reason for this pressure may be the fact that the investigation report on the incident was made public, providing plenty of ammunition to be used against the company. In addition, unions have a great deal of influence in Québec, adds Conlin. Whether public pressure actually influenced the prosecution is speculation, but it’s likely that such pressure played some sort of role in the decision to lay criminal negligence charges.

In the aftermath of the Transpavé case, we may see more pressure now from the public, unions, victims’ families and workplace safety advocates for C-45 charges to be brought after certain incidents. In some cases, public pressure may, in fact, be the driving force behind whether C-45 charges are brought. If an incident gets a lot of attention in the media or the victim’s family is particularly vocal, the incident may take on a life of its own, warns Conlin. But such pressure is an X factor—companies can’t control it, he notes.

Bottom line: Conlin says the basic message hasn’t changed: Companies that comply with the OHS laws will avoid liability under C-45. Even if a company makes a mistake and does violate an OHS requirement, unless it acted wantonly or recklessly, it’s unlikely that the company will face criminal prosecution.

INSIDER SOURCES
Ryan J. Conlin: Stringer Brisbin Humphrey, 110 Yonge St., Ste. 1100, Toronto, ON M5C 1T4; (416) 862-1616; RConlin@sbhlawyers.com.