C-45’ing Company Officials: What’s Taken So Long?

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Well hello, C-45. We’ve been expecting you.

The notorious law that made corporate neglect of workplace safety a crime finally made its debutant appearance on Wednesday when 3 company officials from Ontario were charged with criminal negligence for the death of 3 workers in the Christmas Eve scaffolding tragedy.

No, this is not the first C-45 prosecution. But it’s the first time since the law took effect on March 31, 2004 that individual company officials have been charged.

Why Haven’t There Been More C-45 Prosecutions?

Holding corporate officials accountable for workplace safety was the very reason C-45 was adopted. So why has it taken more than 6 years for C-45 charges to be laid against a company official? There are at least 2 explanations:

Crimes Are Harder to Prove than OHS Violations: Company officials that disregard safety can be prosecuted under either OHS laws or the Criminal Code (or both). In each case, the accused is presumed innocent unless and until the Crown proves its case beyond a reasonable doubt. But securing a criminal conviction is much harder than proving an OHS violation.

To prove an OHS violation, the Crown need show only that the defendant committed an act the law forbids or omitted to take an action the law requires. To win a criminal conviction, the Crown must prove not only that the defendant committed the act or omission (in C-45, the so called actus reus is failing to take “reasonable steps” to protect persons doing work) but also that he did so with a guilty state of mind (in C-45, the so called mens rea is wanton and reckless disregard for safety).

Thus, prosecuting under the OHS law enables the Crown to avoid the burden of establishing mens rea.

The Investigation Bottleneck: As with any other crime, C-45 charges require a criminal investigation. Historically, though, serious workplace accidents have been investigated by OHS officials. Although they possess the training and experience to investigate workplace accidents that criminal investigators generally lack, OHS officials can’t lay criminal charges. So in relying on the OHS investigatory infrastructure, criminal enforcement effectively punts the ball and allows the OHS regulatory scheme to handle the accident.

Toronto Scaffolding Case Breaks the C-45 Seal

While the reluctance to prosecute under C-45 is explainable, it’s also been counterbalanced to some extent by political pressure. Almost from the day the law took effect, organized labour has been calling on the government to use C-45 aggressively to go after corporations that neglect safety.

But prosecutors have been biding their time, waiting for the right case to lay C-45 charges against individual company officials. Unfortunately for the company officials charged on Wednesday, the Toronto scaffolding case has apparently proven to be the one the prosecutors were looking for.